Through this report, This monitoring exercise between April and July 2020 so far, including media reports later in August to October, indicate that both the COVID-19 pandemic and response measures have created social and economic disruptions that threaten the livelihoods and human rights of thousands of vulnerable populations and the general public.  This report is, therefore, a compilation of the KHRC grassroots partners’ findings, which are on the human rights impact of COVID-19 and the respective responses, from 27 of the 47 Counties in Kenya.

Our monitoring was based on the national and international human rights obligations of the government and other actors as enshrined in the Constitution of Kenya and other international legal instruments. The comprehensive statement issued by the African Commission on Human and Peoples’ Rights (ACPHR, or the Banjul Charter) on a human rights-centred approach to the COVID-19 and those by the different UN mechanisms remain instrumental.

Within the monitoring frame, the KHRC had four (4) of topical issues for human rights investigation. These were:

1. Levels of Preparedness and Nature of Responses to the Pandemic at all levels;
2. Excesses or responses by the State Security and Administrative Agencies;
3. Inclusion and Accountability in the Key Decisions and Facilities related to COVID-19;
4. Any other emerging human rights and governance issues.

MAIN FINDINGS

On the levels of preparedness and nature of responses to the pandemic at all levels, the KHRC found out that it remains wanting to owe to the lack of political and technical capacities by both the national and County governments to make the requisite decisions towards the management, suppression and containment of the virus and its impacts to the vulnerable populations.

Moreover, different State and non-State actors (including the citizenry, civic and corporate actors) did not have the necessary protection and support systems against the novel, contagious virus. Thus infections continued unabated while responses led to many violations and exposures to the public, and more so the most vulnerable groups, as documented below.

The response could be summarized as ‘muddling through’. For example, the measures were taken around contact tracing, isolation and quarantine which were initially punitive have shifted with the government now embracing home-based care.

With regard to the response of State security and administration agencies, there is a need for an independent audit of the conduct of state agencies, particularly the security apparatus and how they enforced COVID-19 related regulations. Those found to have taken advantage of their positions to violate rights must be held accountable.

In this case, the Independent Policing Oversight Authority (IPOA), the Directorate of Criminal Investigations (DCI) and the Ethics and Anti-Corruption Commission (EACC) should commence investigations into the alleged acts of killings and violence; laxity in the provision of security, bribery and extortion. Finally, there is a dire need for thorough training and exposure of our security agencies on accountable and human- rights-centred policing, crowd control and emergency response mechanisms and strict enforcement of that code of conduct.

On the matter of inclusion and accountability in making key decisions, the KHRC found out that most of the counties have established a COVID-19 coordination team. However, most of these teams have no representation from civil society and the public. What this means is that both the civil society and the public are not involved in the government’s decision making process on issues related to COVID-19. As a result of non-inclusion, the civil society and the public has been unable to access relevant information related to the pandemic and thus unable to effectively hold the respective County government to account.

In most Counties, members of the public have not been involved in decision making by both the national and county governments. Actually, until now, the people are not aware of the total amount of funds received by their County governments towards the fight against COVID-19, neither do they know how the received funds have been utilized.

With special mention, under the prevention, control and suppression of COVID-19, we notice the use of any person without any distinction to nationality or lack of it. Whereas other laws on health also don’t make such distinction, administrative practice does as most people are required to identify themselves before accessing health services. The stateless and the indigent persons suffered enormously.

The COVID-19 pandemic has, therefore, exacerbated the inequalities the poor and marginalised face in accessing justice. From KHRC’s violations portal, 70% of the claimants who reported incidences of police brutality, evictions and sexual and gender-based violence to state agencies indicated that their matters had not been attended to and/or resolved thus the reason they approached KHRC.

Finally, on the matter of other emerging issues, this report documents how the COVID-19 pandemic has forced most businesses and companies to shut down. Major organizations and businesses have had to adjust to working remotely with a majority of others cutting down their expenses through retrenchment of workers. The hospitality industry has been one of the most affected with most businesses forced to close down completely. Another sector that has been hugely affected is the informal sector which includes casual labourers.

Further, the excessive and persistent worry about the pandemic has caused stress which results in uncertainties such as fear of contagion, job security and health. This has led to depression and in some cases suicide.

Moreover, COVID-19 pandemic forced governments and individuals to take different measures to reduce the spread of the virus. One such measure was closing down schools and other institutions of learning. However, this has introduced another unique pandemic. According to some public, media and government sources, during the months of lockdown, over 100, 000 Kenyan teenage girls became pregnant.

MAIN RECOMMENDATIONS

Beginning latter matter of emerging issues, on teen pregnancies, the government should prioritize alternative options such as part-time classes to encourage young parents to continue with their education. There should be more social and economic support to the young parents and awareness on sex education and the necessary protection measures. It's also a time to reconsider the existing sexual and reproductive health policies and program for their responsiveness.

Further, the government should prioritize the most affected sectors such as tourism and casual sectors by introducing a stimulus programme. Innovation should be nurtured and the government should prioritize engaging local vendors and labor for all projects before importing it, this helps create employment by tapping the local talent.

Also, the government should implement recommendations by the Mental Health Taskforce by declaring mental health a National Emergency. There should be measures to address the impacts of COVID-19 and the mental health concerns of the different populations at all levels in society. State and non-state actors need to provide adequate psycho-social supports to the different categories of populations impacted by the virus and responses across the board.

On the matter of inclusion and accountability in making key decisions, NCAJ should put in place mechanisms to ensure affordable and effective access to justice for the poor and the general public and continuous protection of the staff involved in the criminal justice chain at this time of the pandemic. The National Criminal Justice Reforms Committee of NCAJ needs to expedite the formulation, adoption and implementation of the expected legal, policy and administration changes with the criminal justice system in Kenya.

Further, still the government should immediately cease all evictions aimed at different communities during the COVID-19 period. Also, develop mechanisms for supporting and compensating the communities impacted by all displacements and evictions (from the historical to the currents ones). Moreover, there is a need to urgently initiate public and policy conversations to create more understanding of the phenomenon of displacements, the impacts of COVID-19 and the necessary governance frameworks. This should be accompanied by ensuring all the policies and resources dedicated to COVID-19 responses address the pertinent needs and protects the rights of IDPs among other vulnerable communities.

Further, on accountability, there is a need to create a more effective and representative COVID-19 Emergency Response Fund/ Agency, operating both at the national and county levels.  Further, there is an urgent necessity to also foster human rights-based response frameworks. Such would ensure that all actions by the state and non-state actors will protect and promote the rights of the people involved and negatively impacted.

There is the necessity to continuously enforce and provide adequate hygiene and safety essentials such as masks and hand sanitizers to all vulnerable populations at no cost, especially now that billions of Ksh have been granted to the GoK, in the wake of the phased opening of schools at all levels.

In the work front, the government and other actors should ensure companies adhere to the existing laws and that COVID-19 response mechanisms do not push workers further into further destitution. Further, businesses must ensure the health and safety of workers, especially those with significant workplace intervention such as those in the spray department. Finally, employers must ensure access to healthcare and protective equipment for their employees in line with Section 101 (1) of the Occupational Safety and Health Act.

Finally, the government and other actors should put measures in place to measures to offer the requisite support and protection to the old people, persons with disabilities, the poor, children and women whose exposure to violence among other injustices has been increased in the context of COVID-19. Moreover, there should be additional measures to ensure their inclusion.

Nairobi,

10^th December 2020.

Press contact

Moses Gowi: +254782 352527, mgowi@khrc.or.ke

Main Findings

First, court actions were instituted in the protection of the Civil Society Organizations (CSOs) registered as Non-Governmental Organizations (NGOs) where the National NGOs Coordination Board felt like has unfettered powers to make arbitrary and capricious decisions.

While the two and four incidents of respective attacks on the Evans Kidero Foundation(EKF) and Kenya Human Rights Commission(KHRC) represents very systematic targeting, the cases of Muslim for Human Rights(MUHURI)  and HAKI Africa presents the most punitive and callous attacks, ending with the deregistration of the organizations, freezing of their bank accounts and suspension of their insurances.

Moreover, the cases of the EKF, Key Empowerment Foundation Kenya and Kalonzo Musyoka Foundation (KMF) presents a politically motivated attack targeting the initiatives of families associated with the opposition between 2003 and 2007.

Further, court actions were instituted in the protection of the civil society organizations registered as companies limited by guarantees to which the NGOs, Coordination Board zealously wanted to extend its irregular jurisdiction under the wrong assumptions that it has a sweeping mandate over every civic organization irrespective of the diverse regimes governing them. The cases of the African Centre for Open Governance (AfriCOG), International Federation of Electoral Systems (IFES) and Katiba Institute (KI) presents this situation.

In addition, KHRC also went to court to protect various Human Rights Defenders (HRDs) who are arbitrarily arrested for allegedly being involved in illegal assemblies or violently targeted or killed for being steadfast in their struggles for justice and accountability in the country. The arrest of Happy Olal and colleagues (in 2016) and the killing of Willie Kimani and two others (in 2016) are the unfortunate cases in point.

Further still, we petitioned courts in furtherance of creating an enabling environment for CSOs, media houses, bloggers and journalists. It is on that basis that the cases advancing the commencement of the Public Organizations (PBO Act) and challenging such repressive policies like the Kenya Information and Communication Act (KICA) and surveillance gadgets proposed by the  Communication  Authority of Kenya(CCK) against the telecommunication companies in Kenya was instituted.  This also entails the protection of the freedoms of association by the sexual minorities in Kenya. Thus the case seeking the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC- between 2013 to date) is historical.

In most of these above cases, the NGOs Coordination Board was the key duty bearer targeted for its unfair administrative actions. Other agencies targeted for directed by the Board or directly culpability includes the Kenya Revenue Authority (KRA), Central Bank of Kenya (CBK), The National Police Service (NPS), Inspector General of Police (IG), Attorney General (AG), and CAK among others.

Courtesy of our progressive Constitution and judicial activism enshrined within both the Constitution and the Judiciary, the court have made very progressive decisions which shaped the existence of the affected organization or reversed repugnant legal and administrative actions.

Evidently, since 2013, the clawing back the gains of the Constitution and attendant laws of Kenya has been the hallmark of Jubilee government. The cases demonstrated above have particularly shown that the government, especially the executive arm through the NGOs Coordination Board and other agencies, has deliberately, blatantly and with impunity, disregarded the very tenets of democracy as enshrined in the Bill of Rights of the Constitution.

Nairobi,

10^th December 2020.

Press contact

Moses Gowi: +254782 352527, mgowi@khrc.or.ke

We demand full remedy for the harm caused to workers, host communities and other groups

The oppressive economic models in the world have over time given unfettered influence to companies leading to business operations which have no regards for human rights and public interests, enshrined in many national, regional and international governance and human rights frameworks. Kakuzi Limited, a subsidiary of Camellia PLC based in the UK, and which has been doing business in Kenya for more 70 years remains part of these unabated corporate-related violations. Atrocities and malpractices allegedly committed by the company include among others: bad corporate governance; abominable labour injustices; wanton violence, including causing grievous bodily harm and killings; sexual and gender-based violence committed by its guards and gross, historical land injustices which have dispossessed more than 13 neighboring communities[1] within Murang’a and the adjacent counties.

These form the core issues against which the Kenya Human Rights Commission (KHRC); Ndula Resource Centre (NRC) and the impacted communities have been advocating for since 2003 with very limited action by the company.  Rather than accept liability and provide the requisite remedies for the indigent and poor communities affected, the company has consistently abused its economic, political and legal muscle to either frustrate or overwhelm the advocacy initiatives within the different justice and accountability mechanisms at all levels in the society. In a nutshell, Kakuzi has done everything possible to thwart efforts by the affected groups to get justice. While this has been the case over time, the developments and engagements below during the last 6 or so years attest to this conduct.

To begin with and in 2014, when residents of Kangangu-Gikono went on a peaceful protest to demand that Kakuzi opens up the blocked public roads, they were met with terror and unmatched force. As if beating and maiming them was not bad enough, Kakuzi dragged the poor community to court on grounds of trespass. The matter would later be quashed in 2016 with the court observing that the right to assembly does not in itself constitute a criminal offence. To date, the effects of the injuries sustained by the protestors are still felt and yet Kakuzi has refused to compensate the victims for the grievous bodily harm they suffered.

Moreover and in September 2016, Kakuzi guards (armed with clubs or rungus) and armed police officers from the area descended on unarmed students from Kitito Primary and Secondary schools and community members who had staged a protest over land belonging to the two institutions. Kakuzi was irregularly claiming land belonging to the local schools and Catholic church.  Many students and two journalists who were reporting the incident were caught up and badly injured by the guards.  To date, their issues remain unresolved. 

In June 2018, the company’s security guards were accused of killing a 28 year old man, allegedly for stealing avocadoes. Early this year, a 31 year old man suffered grievous bodily harm after Kakuzi guards severed his left arm. Around June this year, a 14 year old girl is reported to have been raped by a guard and infected with HIV.  Justice has remained elusive for the 3 survivors of Kakuzi related injustices.

Kakuzi’s approach to all these claims levelled against it has been deny, deny deny! It is this defeatist attitude and continued violations by the company and its security guards that has pushed us to explore the following actions.

First and in 2017, the KHRC in partnership with NRC and SOMO supported the affected communities to petition the National Land Commission (NLC) for the opening up of blocked public roads and a laying claim on their ancestral land. The NLC ordered a non-renewal of Kakuzi leases until all historical land injustices are resolved. Additionally, the NLC declared a reversal of Kakuzi land leases from the current 999 land tenure to 99 years. Still, Kakuzi has refused to open up the blocked public roads and easements and to surrender the public facilities that include schools, water points, hospitals, markets and police stations.

Moreover and in its characteristic nature, the company quickly moved to court challenging the mandate of the NLC to hear the matter.  Indeed, Kakuzi and its parent company-Camellia PLC- have so many unresolved cases and claims with many stakeholders in and out of court.  It no wonder Camellia, the company which owns a 50.7 per cent stake in Kakuzi, is reported to have spent more than Sh500 million (USD million) in legal expenses by mid-2020. 

Moreover, KHRC and NRC invited the UN Working Group on Business and Human Rights to visit Kakuzi in 2018. In its report submitted to the UN Human Rights Council in June 2019, the Working Group called upon Kakuzi to supplement police investigations of alleged wrongdoing with its own credible investigations and to strengthen oversight mechanisms for security guards. Regrettably, fresh violations have been reported even after the visit by the UN Working Group.

In 2018, KHRC in partnership with NRC and SOMO brought to the attention of the Rainforest Alliance-a voluntary market certification body-the labour rights violations reported in Kakuzi. Unsurprisingly, Kakuzi attempted to influence the outcome of the process but our claims were validated, leading to a revocation of Rainforest’s certification for Kakuzi for one year. We are yet to understand the basis on which the renewal was granted as the violations that caused the cancellation remain unabated.

Further, in April 2019, the KHRC filed a complaint with the Ethical Trade Initiative-a UK multi-stakeholder initiative that promotes ethical markets. The ETI commissioned an independent investigation that found Kakuzi culpable of the claims raised by the KHRC. We are yet to establish whether ETI proposed or initiated any actions for Kakuzi to offer remedies to the impacted workers and host community.

Last but not the least, in August 2020; the deepened corporate impunity and capture of key institutions by Kakuzi and Camellia PLC pushed Leigh Day in partnership with KHRC, NRC and communities to seek redress with the UK Courts.  The case relates to 79 Kenyans, who include former employees of the company, claiming serious abuse by security guards employed including killings, rape, attacks, false imprisonment and other forms of serious mistreatment, between 2009 and 2020. Again, our claims have been vindicated by the fact that Camellia is proposing an out of court settlement. While such is clearly “too little too late” an offer, we may make some considerations within the transitional justice parameters of securing effective compensation, rehabilitation and guarantee of non-repetition. 

Based on the foregoing, Kakuzi cannot now claim it did not know of the violations reported recently by the UK Sunday Times and those raised by KHRC and NRC over the years. Instead of Kakuzi desperately attempting to sanitize itself by name-dropping the likes of the Kenya National Commission on Human Rights and the ETI, it should focus on remedying the above injustices which have been validated by the relevant land justice and corporate accountability mechanisms.

Principles of human rights due diligence require that a business proactively manages the potential and actual adverse human rights impacts of its actions or omissions. From the behavior of this multinational, it is clear that Kakuzi does not care about its human rights obligations in the management of its affairs. The fact that Kakuzi has had a steady market in Europe over the years further confirms that the European retailers failed to undertake due diligence on their part to ascertain the status of the Kakuzi supply chain from which they source produce. The government of Kenya has also failed the affected citizens and the nation at large for not holding the company to account over its vicious, oppressive and criminal conduct.

We are aware that Kakuzi now claims to be addressing the human rights situation. The appointment of a new chairman to its board, the establishment of the Independent Human Rights Advisory Committee and an operational-level grievance mechanism are all desperate attempts to appease the UK market. Kakuzi started by denying ALL claims levelled against it and embarked on massive interference with claimants including threatening and intimidating them.

Additionally, Kakuzi has been luring unsuspecting claimants to withdraw from the UK suit as well as engaging in unscrupulous compensation of the victims. It is therefore difficult to imagine the proposed ‘reforms’ are not mere gimmicks to re-attract the lost market. We remain disturbed by the fact that the current ‘reforms’ at Kakuzi fail to address past human rights abuses. Further, we are concerned that neither workers nor the host community have been involved in any of the measures that the company now purports to institute.

We therefore urge the UK retailers, consumers and all stakeholders to remain vigilant of the actions of Kakuzi. We warn all of Kakuzi market that we are watching to see what happens at the start of the peak season for avocado harvest in Kenya in May 2021.

In view of the foregoing, the KHRC, SOMO and Ndula Resource Centre join Kakuzi workers, communities and other impacted groups in demanding that:

1. Regarding the suspended markets and previous investigations:

1. The status quo for Kakuzi’s suspended UK markets remains until the human rights situation in the company and the host community is fully and unconditionally remedied.
2. The UK-based Ethical Trading Initiative to make public the report of the investigations that were conducted in Kakuzi in 2019 and which confirmed that KHRC’s claims were valid. This report is about the experiences of the people who work and live around Kakuzi, the findings of which must therefore be made known to them.
3. Rainforest Alliance (RA) publishes the findings which justified the renewal of Kakuzi’s RA certification after its cancellation in 2018.

2. To prove its commitment in resolving the many violations and guarantee of non-repetition:

4. Kakuzi makes an unconditional public apology to its workers and host community for the adverse human rights impacts visited upon them over the period the company has been in operation.
5. In line with the gesture displayed by Camellia PLC, in 7 days, Kakuzi withdraws all the preposterous and insidious cases it instituted against the workers, community members among others actors.
6. The said withdrawal should pave way for an out of court settlement with the differently aggrieved parties where different components of remedies will be considered.

3. To show commitment in resolving historical land injustices within the next 7 days:

7. Kakuzi opens with immediate effect, ALL public roads in line with the directives issued by the National Land Commission on 7^th February 2019.
8. ALL communities displaced by Kakuzi through systemic evictions be resettled with immediate effect.
9. The community living in Ithanga Phase V be issued with individual title deeds with immediate effect.
10. Further, ALL public facilities including hospitals, schools, markets, police stations that sit on land that was obtained by Kakuzi from the natives be issued with title deeds.
11. The land on which Kakuzi sits be surveyed and its acreage publicly declared. ALL the surplus land to be immediately surrendered to the host community.
12. Failure to do this, we shall initiate policy actions with the NLC  and  Parliament, as well as civic actions with the affected groups to ensure that social, economic, and political justice for the aggrieved victims is realized.

Statement issued by:

1. Kenya Human Rights Commission.
2. Ndula Resource Centre.

Nairobi.

Wednesday, November 4, 2020.

I write with a mixture of pride and disappointment.

Pride because five years ago, the Kenya Human Rights Commission was fortunate enough to attract George Kegoro, an iconic figure in the Kenyan and global human rights movements, to become its Executive Director.  Rarely has a human rights organization been led by a person so well prepared for leadership, and so insightful about the struggles that pit the citizen against the state.  Mr. Kegoro is one of a kind.  Before the KHRC, he had honed his leadership skills at the pinnacle of the legal and human rights sectors in Kenya.  He was a homegrown original -- brilliant, skeptical, diplomatic, and calculating.  He is a tenacious fighter in the best tradition of the Kenyan human rights street.  I speak for the Board of the KHRC when I say we at the KHRC consider ourselves lucky to have had Mr. Kegoro at the helm.

I know I slept like a baby with his hands on the steering wheel.  Over the next five years, Mr. Kegoro would lead the KHRC and its staff to new heights of efficacy and international prominence.  He made the organization a pivotal player in every branch of government and in every national issue and crisis -- from elections to policing, workers' rights, women's rights, and lawmaking.  As far as I know, no one -- no matter how famous or powerful -- refused to return his calls.  He gave civil society -- societas civilis -- its voice in matters big and small.  Mr. Kegoro’s leadership has left the KHRC’s imprimatur on the consciousness of Kenyans.  One of his signature achievements was the acquisition of permanent premises on Amboseli Road in Nairobi.  A permanent and self-owned abode is the dream of many a human rights organization.  Thanks to our generous partners, Mr. Kegoro led us to achieve this long-elusive goal.  We are now free of landlords.

Disappointment because Mr. Kegoro is leaving the KHRC.  Starting this week, Mr. Kegoro will become the Executive Director of the Open Society Initiative for East Africa (OSIEA).  The disappointment is not that he is leaving us for OSIEA.  Rather, it is that all good things must somehow come to an end.  But we are comforted that while Mr. Kegoro will not be at the KHRC, he will still be in the civil society sector, and we will continue to work with him in that capacity.  I would like to think that Mr. Kegoro is moving up -- and mean it.  While that is true, I know he will always be one of us.  The bonds that have bound us together will continue to yoke us.  We know that he leaves behind a stronger organization, a committed staff, and resilient partnerships.  We owe him our unreserved gratitude for which we can never repay him.

No one can replace Mr. Kegoro.  However, new leadership must now emerge.  In this context, I wish to announce that the KHRC Board has appointed Davis Malombe, our current Deputy Executive Director, to the position of Interim Executive Director.  Mr. Malombe, a well-known expert in transitional justice and workers' rights, has been a vital human rights leader in Kenya and within the KHRC.  We wish him well and are delighted to welcome him to his new role.

Professor Makau Mutua

Chair, Board of Directors

Kenya Human Rights Commission

01/11/2020.

Companies (both state corporations and private, local and international) have since time immemorial either conspired with or compromised governments(both local and international) in pursuit of profits without due regard to peoples rights, national interests and rule of law. This has deeply entrenched the cultures of corporate capture and impunity and occasioned untold injustices and violations in the society. It is on this basis we are issuing this statement to expose the systemic failures of the Government of Kenya's to hold to account Delmonte Kenya Limited over the many land injustices and human rights violations committed against the Kandara residents in Kiambu and Murangá Counties, among other groups in Kenya. These have remained unresolved despite the many constitutional, legal and policy safeguards.

To begin with, Article 67 of the Constitution of Kenya 2010 provides for a comprehensive resolution of historical land injustices in Kenya. Pursuant to this, Kandara Resident Association filed a historical injustice claim against Delmonte Kenya Limited. The case filed before the Commission’s Historical Land Injustices Committee in 2015, presented overwhelming evidence on the gross human rights violations that the colonial government and its imperial beneficiary(Kenya Canners then, now Delmonte) visited upon indigenous Africans living on their ancestral land in the form of ( a) Violent evictions and displacements, arson and enforced disappearances (b) Torture, Maiming and Killings (c)Mass Rape and Gender-Based Violence(d) Forced Labour, Slavery and Servitude (e) Inhuman and Degrading punishment. Such atrocities as defined in the Land Act and the National Land Commission Act provide a linkage between land injustices and human rights violations.

On 1st March 2019, the NLC gave an award to the community which recommended a participatory resurvey of all the land Delmonte owns in the two counties to determine whether the company occupies more land than what is on official records. The award further pronounced that in the event no such excess land exists, then, sufficient land to redress the historical land injustices of Kandara in both counties should be availed before renewal and extension of Delmonte Land leases.

In our follow up and separate engagements, on 19th November 2019, the National Assembly Committee on Land Administration issued a decree to the Cabinet Secretary(CS) for Lands and the Director of Survey to finalize an inclusive resurvey of the Delmonte land by February 27th 2020.

Today none of the above decrees by both executive and legislative arms of the government have been honoured by the same government that is supposed to protect and defend the constitution. Instead, the CS for Lands, the NLC, Muranga and Kiambu county governments have joined forces with Delmonte to defeat the constitutional rights of families of victims and survivors of historical land injustices.

Specifically, we call out Dr Nicholas Muraguri in his capacity as the Principal Secretary in the Ministry of Lands for his inexplicable and blatant refusal to recognize and involve the Kandara residents and other stakeholders in the just concluded resurvey of Delmonte land. For his disregard for accountability and the rule of law, he epitomizes impunity in this country.

We also call out the Members of Parliament and County Governments (the Governors and Members of the County Assembly) in the two counties for conniving with Delmonte, Dr Muraguri and the Director of Survey of Kenya to undermine the resurvey process which ought to be inclusive and protective of the interests of the affected community and the country at large.

Last but not least, while we take note of the actions by the American Ambassador in Kenya which entailed a visit and donation of foodstuff to the affected community where he called for dialogue and a win-win framework of engagement, such expose a diplomatic tactic to cover the company (which is American by ownership) over its human rights obligations in this matter.

In view of the foregoing, it is clearly evident that if left unchecked, the actions by the afore-mentioned actors shall impact negatively on the quest for inclusive resolution of historical land claims not only for Kandara people but for millions of other Kenyans. Therefore, it is imperative that the National Assembly quickly moves in to demand accountability from the above agencies for their complacency.

We also call upon the U.S Ambassador to Kenya to advance the agenda for business and human rights in all economic and social programmes.

Meanwhile, we do not recognize the illegitimate resurvey exercise recently concluded and we shall use all available legal and political instruments to resist and reverse it.

Signed by:

Kenya Human Rights Commission (KHRC).

Ndula Resource Centre

Kandara Resident Association

Victims and Survivors of Historical Land Injustices and Human Rights Abuses

10th September 2020.

Nairobi.

1. INTRODUCTION

The frequent and endless conflicts in the Mau region and along the borders of Narok and Nakuru counties have had multiple causes, triggers and actors that date back to the colonial  and post-independence regimes. Perhaps it is the intricate interests and political nature of this issue which have posited policy and practical challenges to the successive regimes from the 1930s to date. For the root cause of this conflict is attributable to the vested and contested ownerships of land which at one level manifests itself in the inter-communal animosities among the Maasai, Kipsigis, Ogiek and now Kikuyu communities occupying the expansive Mau ecosystem and its environs and between the said communities and the Government of Kenya (both at the national and county levels), as the latter tries to conserve the forest and resolve the land ownership questions. The most affected areas are Nasuet, Mariashoni, Ndoshua, Mauche among others.

Additional politics and conflicts are played in as the allocations in question somehow benefit connected leaders at different levels while others, want to either harvest political capital out of the situation or see threats and opportunities, as in reduction or increase in votes when evictions are being effected or boundaries are moved within the forest. Moreover, there has been lack of political goodwill especially when some political leaders’ distance themselves from the conflict while others are embroiled deeper into fueling the violence and conflicts in the area. Finally, there has been a failure to publish and implement the reports of government initiatives over related issues. It is on that basis that the search for the truth and possible solutions to this intricate problem has remained elusive.

For while it is believed that the Ogiek community were the original settlers in the eastern periphery of Mau Forest, there existed members of the Kikuyu community who were settled by the colonial government in the 1950s and were evicted from the forest, together with other workers from other communities, by the Moi government in 1988. However, the Ogieks were not affected by the eviction. In 1996, the government initiated a plan to provide land and titles to the Ogiek community, which paved way for other communities such as the Kipsigis, Turgen among others to acquire land through state-led allocations or purchases from the existing Ogiek owners.

In the process, there was illegal, irregular and entrenched occupation of the expansive forest which has become the basis for conflicts among the different communities, pushing for their land claims; as the government through the Kenya Forest Service, state security and administration apparatus advances evictions which have impacted on the said communities differently. There have been court actions by the different communities, striving to safeguard their land rights. For instance, there are matters initiated and canvassed by the Ogiek and Kipsigis communities.

The contention now is over the 2012 cut line that was created after the original one in 1997. This has affected the local communities in different ways both economically and politically. That means communities’ land and electoral rights have been shifted over time and space.

It has emerged that many people from the affected areas do not have any documentation of ownership of land.  All these have escalated endless tensions, threats and conflicts with the latest happening between July and August 2020. Such have occasioned many human rights violations as evidenced by injuries, deaths, wanton destruction of property; enforced disappearances, disruption of livelihoods and basic services. Moreover, communities have been blocked from accessing their farms and produce. There are also complaints of excessive use of force and trumped-up charges as the state apparatus affects the evictions targeting select persons and communities.   These coming in the midst of the novel coronavirus disease (COVID-19) and heavy rains in the country have created more exposures and injustices to the communities whose lives have remained fragile over time.

2. CALL FOR ACTION

While we appreciate the continued interventions by the government and other stakeholders in addressing the emerging and long term issues, however, critical gaps and unresolved issues remain. It is on the basis of these considerations and our commitments to foster truth, peace and justice and uphold human rights and public interest in the conservation of the forest that we propose the following actions. THAT:

1. The affected communities present an unconditional apology to the country and commit to peaceful, mutual co-existence and cessation of violence. The Government (through the provincial administration and the National Cohesion and Integration Commission) and civil society should immediately establish joint peace and justice committees and forums to foster honest conversations and durable solutions among the affected communities. We also propose the enactment of the Nakuru County Peace Bill and implementation of Nakuru County Violence Prevention Policy, especially on land issues.
2. The Task Force on the Mau Forest established in October 2018to investigate and address the land rights for the minorities should present its findings and recommendations with immediate effect. There is also a need to publish and implement the report of the Task Force established by the government under the leadership of Hassan Noor in 2009 to look into the land and water catchment issues within the Mau forest.
3. The government should set cut lines to isolate the land for settlement and forest through a consultative process and in consideration of all the legitimate claims of the affected communities. To that effect, the government and civil society should create an inventory of all the deserving communities within the region and provide the relevant land ownership documents.
4. The Government should provide the relevant services and facilities impacted by the ongoing conflicts and evictions. Such include affordable access to health, water, education, housing and food as espoused in Article 43 of the Constitution.  Communities should be allowed to access and harvest produce in their farms.
5. The government should cease operations which are likely to victimize communities for this aggravates the grievances. The Office of the Public Prosecutor (ODPP) should consider dropping charges perceived to be politically motivated and preferred against the affected communities.
6.  The Independent Policing Oversight Authority (IPOA) and Kenya National Commission on Human Rights (KNCHR) should consider investigations into the atrocities allegedly committed by the state security, administration and forest apparatus during the evictions and other operations.
7. The government in consultation with the civil society should develop and implement people and human rights centred guidelines for managing development induced evictions and displacements.  Moreover, there should be mechanisms to trace those who have disappeared and compensate the loss of bodily integrity, lives and properties.
8.  The Director of Criminal Investigations (DCI) should investigate and prosecute the political elite allegedly inciting and dividing communities involved in this and other delicate situations.
9. To end the culture of grabbing land earmarked for communities or public utilities, the National Land Commission should repossess the land that was illegally and irregularly acquired by the undeserving elite. Other complimentary justice mechanisms should be initiated.
10. The communities and state and non-state actors involved should consider conversations towards resolving the matters before courts and dealing with policy gaps which have perpetuated the conflicts and violations at hand.

FINALLY AND IN THE WORDS OF OUR NATIONAL ANTHEM: “MAY WE DWELL IN UNITY, PEACE AND LIBERTY; JUSTICE BE OUR SHIELD AND DEFENDER”.

Signed by:

Kenya Human Rights Commission (KHRC).

Mid Rift HURINET

Centre for Enhancing Democracy and Good Governance (CEDGG)

Freedom of Information Network (FOI)

Representatives from the Kipsigis, Ogiek and Kikuyu communities

Dated:  Thursday, September 3, 2020

We, the undersigned, organisations and associations, are representatives of various civil society and non-governmental organisations, the private sector, professional bodies and trade unions in Kenya. We have noted with great concern, gaps in transparency and accountability by government agencies charged with managing COVID-19 resources. These loopholes have led to the overpricing of commodities, purchase of substandard Personal Protective Equipment (PPEs), embezzlement of commodities including donated PPEs, failure of the PPE’s to reach those who need it the most including healthcare workers on the frontline of fighting COVID-19, and misappropriation of public funds meant to procure protective gear, and support vulnerable Kenyans against the impacts of the pandemic, for instance, the ‘Kazi Mtaani’ programme.

An effective emergency response must espouse good governance, integrity, transparency and accountability as enshrined in Article 10 on the National Values and Principles of Governance. Principles of public finance, under Article 201 of the Constitution of Kenya, which require openness and accountability, including public participation in financial matters should also be adhered to.

Citizens have a right to participate in the making of decisions that affect their lives. Being open and transparent, and involving those affected in decision-making is key to ensuring people participate in measures designed to protect their own health and that of the wider population. We, therefore, call for following actions to ensure effective response efforts:

Human Resource and Infrastructure for Health:

1. The Cabinet Secretary, Ministry of Health, to provide a full report on County preparedness to respond to the COVID-19 Pandemic in terms of availability of ‘Functional‘ bed capacity, availability of Oxygen supplies, PPEs and medical professionals available to provide health services to the public.
2. The Cabinet Secretary, Ministry of Health, to provide a report on the number of medical practitioners who have been recruited and deployed to the workstations as advertised using the funds provided by the World Bank.
3. The Cabinet Secretary, Ministry of Health, to provide a report on what the government has done to assess and address the occupational health and safety of medical practitioners, as a guarantee to their protection and put in place a life assurance cover and compensation package for their dependents in case of demise in the line of duty.

Transparency in Public Procurement:

1. All government agencies must, as a matter of right to information, proactively publish the names of companies and their beneficial owners, and individuals awarded any contracts for COVID-19 related commodities or services and the contract amounts, at national and county levels on the Public Procurement Information Portal.
2. The Public Procurement Regulatory Authority must publish a market price index of all essential drugs and commodities required for the management and response to COVID-19 to guide procuring entities on price ceilings and provide safeguards against the inflation of commodity prices.

Immediate Accountability for all COVID-19 Resources and Full Public Disclosure:

3. The Cabinet Secretary, National Treasury, must publish detailed expenditure information on all funds advanced for the COVID-19 response efforts through donations, donor grants, loans, salary cuts for civil servants, reallocation of budgets and other sources by all recipient entities including the national and county governments, and the COVID-19 Emergency Response Fund Board.
4. The Cabinet Secretary, Ministry of Health, must provide full disclosure on the distribution of PPEs acquired by the Government of Kenya, whether purchased or donated giving full details on the sources and recipients.
5. All County Governments must publish detailed expenditure information on all resources received for the COVID-19 response efforts.
6. Development partners and international financial institutions must demand that the government publishes full information on the disbursement, allocation and utilisation of all funds advanced as grants or loans.
7. Development partners and international financial institutions must make public the grant agreements they have signed with the Government of Kenya and other players.
8. The UN agencies must make public on their websites and other platforms the nature of technical support if any, that they are providing and can further provide to the national and county governments to ensure transparency and accountability in the current pandemic.

Planning, Coordination and Implementation of Response Efforts:

9. The functions of the National Co-ordination Committee on the Response to the Coronavirus Pandemic must be de-linked from the Ministry of Health, particularly in regard to financial management to enhance professionalism and integrity in the management of COVID-19 resources.

Social Protection:

10. The Ministry of Labour and Social Protection must publish all information on the criteria for allocation and distribution of social protection funds aimed at mitigating the socio-economic impact of the COVID-19 pandemic, including the list of all beneficiaries and amounts disbursed.

Oversight and Enforcement:

11. The Auditor-General must conduct an independent audit of all funds advanced for the COVID-19 response efforts to all recipient entities including the national and county governments, and the COVID-19 Emergency Response Fund Board. This audit should include the accounts for the different Government institutions using public resources to respond to the COVID-19 Pandemic.
12. The Ethics and Anti-Corruption Commission and the Directorate of Criminal Investigations must fast-track independent investigations on the already suspected cases of corruption at national and county levels. The Office of the Director of Public Prosecutions (ODPP) should ensure timely prosecution while the Judiciary should facilitate the speedy hearing and determination of these cases so that those found culpable are brought to book.
13. The investigative authorities and the ODDP should set up a live dashboard on the status of all cases relating to COVID-19 corruption so that all Kenyans are able to monitor the progress of these cases.
14. The Asset Recovery Agency should act within its mandate to freeze accounts of individuals who have irregularly allocated or received COVID-19 tenders and recover all COVID-19 resources that have been stolen.
15. The National Assembly, Senate and County Assemblies must provide oversight on the allocation and utilisation of funds by the Executive.
16. The President must involve anti-corruption and other oversight agencies and, civil society organisations, in the National Co-ordination Committee on the Response to the Coronavirus Pandemic (NCCRCP) to steer comprehensive anti-corruption measures that will insulate COVID-19 resources against further pilferage.
17. The Commission on Administrative Justice must fully perform its mandate in providing oversight and enforcing the right of citizens to access information held by the State.

Ethical Business Practices:

18. The Private Sector must advance responsible and ethical business practices, with businesses holding each other to the highest standards of ethical conduct and work with the government and other stakeholders to identify effective strategies to particularly address corruption in the award of contracts for COVID-19 related works, goods and services.

Non-State Actors including the Religious Sector and Civil Society:

19. Non-State Actors must enhance efforts to advocate for transparency and accountability, and protection of human rights in all COVID-19 response efforts.

Reporting on Corruption:

20. The media should not relent in its efforts to uncover and expose corruption through in-depth coverage and investigative reporting on the management of COVID-19 resources. The media should also use all opportunities to seek information on the use of these resources to enable the public to hold duty-bearers to account.

In conclusion, we ask President Uhuru Kenyatta to urgently address the nation on the allegations of corruption and announce transparency and accountability measures to be undertaken to safeguard public resources and bring those implicated to account. We urge all citizens to unite in surmounting the crisis, by adhering to all measures and directives and exercising vigilance to ensure that there is accountability of all COVID-19 resources at all levels.

This statement is supported by:

1. Amnesty International Kenya
2. Association of Professional Societies in East Africa (APSEA)
3. Civil Society Reference Group (CSRG)
4. Constitution and Reform Education Consortium (CRECO)
5. County Governance Watch
6. Global Compact Network Kenya
7. Institute of Economic Affairs (IEA Kenya)
8. Inuka Kenya Trust
9. Katiba Institute
10. Kenya Human Rights Commission (KHRC)
11. Kenya Medical Association (KMA)
12. Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU)
13. Kenya Union of Clinical Officers
14. Kenyan Section of the International Commission of Jurists (ICJ Kenya)
15. Mzalendo Trust
16. National Association of Clinical Officer Anaesthetists- Kenya (NACOA-K)
17. National Nurses Association of Kenya
18. National Taxpayers Association (NTA)
19. NEPOTEHC
20. Pamoja TB group
21. Stop TB Partnership-Kenya
22. The Institute for Social Accountability (TISA)
23. The Kenya Legal & Ethical Issues Network On HIV & AIDS (KELIN)
24. Transparency International Kenya
25. White Ribbon Alliance
26. Wote Youth Development Projects

Nairobi, Kenya – 25^th August 2020

Like the Saba Saba day that precedes it, Nane Nane is a day that marks the continuation and escalation of the struggle for a just and democratic Kenya, a day when we remember how the people’s call for political pluralism was met with brute force and scores of innocent Kenyans were tortured, maimed and killed.

In commemoration of this day, we the citizens of Kenya,

Recognizing that Kenyans have long been involved in the struggle to demolish the colonial architecture of the state that was inherited, and has been unturned and preserved,  by our post-independence leaders;

Appreciating that we have endured and sustained the struggle for a transformed Kenya;

Aware that the constitution we promulgated in August 2010 is the text on which we shall found our future and the tool with which we shall re-imagine and reengineer our nationhood;

Noting that since August 2010 the ruling elite has consistently undermined our endeavours to fully implement the constitution;

Further noting that the Jubilee regime, which has been in power since April 2013, has caused the gradual collapse of the state through runaway corruption;

Angered by the reversal of our democratic gains as characterized by disrespect for the constitution, the rule of law, human rights and lack of transparency and accountability;

Concerned by the blatant attempts at a re-centralization of power;

Aware that there is a concerted effort to introduce a constitutional amendment to benefit the ruling elite through the Building Bridges Initiative (BBI);

And fully determined to protect the constitution and to continue fighting for its complete implementation;

Hereby reiterate and demand,

that the Building Bridges Initiative—which has revealed itself to be a scam, a waste of public resources and an attempt at mutilating the constitution—be abandoned to give way to the full implementation of the letter and the spirit of the constitution;

that revenue-sharing must be equitable across the country. The hallmark of devolution is equitable access to resources for equitable development across the country. Attempts by certain members of the Senate to perpetuate unequal development for political self-interest are an unacceptable negation of the spirit of the constitution and must be strongly resisted;

that Parliament must immediately comply with the two-thirds gender rule enshrined in the constitution, failing which the Chief Justice must immediately require the president to dissolve parliament as provided for in Art 261(7) of the constitution. Indeed, seven years ago, the Supreme Court set a deadline for Parliament to pass a law on women’s representation in elected positions. Twice thereafter, in 2015 and 2019, the High Court has directed Parliament to enact such a law or face dissolution but on every occasion, Parliament has mocked the people by disrespecting the constitution and has emboldened the Executive to disregard the two-thirds gender rule in naming the cabinet;

that the moratorium on evictions issued by the President on the 11^th of May 2020 be respected. We strongly condemn the continued evictions and dispossession of vulnerable Kenyans, in particular:

–   the forced evictions in Kariobangi North and Ruai that took place between the 4^th and the 16^th of May 2020 and left more than 7,000 families homeless;

–   the demolitions of 300 Ogiek homes in the Mau Forest by the Kenya Forest Service on the 23^rd of July 2020 which have rendered this vulnerable community homeless and led to interethnic violence that has seen another 100 homes burnt down in the last week;

–   the burning down of 28 homes belonging to the impoverished Sengwer community in Embobut Forest in the Cherangany Hills by the Kenya Forest Service;

that, as a matter of urgency, the government develops a more inclusive and human rights-centered response to the COVID-19 crisis. In effect, the lack of preparedness and effectiveness in preventing and suppressing the spread of the coronavirus, coupled with the brutality with which the state security and administrative apparatus have enforced the government directives, have traumatized vulnerable groups in the society who are battling unemployment, loss of livelihoods and myriad other hardships brought about by the pandemic. Moreover, the theft of COVID-19 funds amid a national health crisis is an abhorrent manifestation of the ingrained culture of plunder of public resources that continues unabated under the indifferent watch of the government. Of particular concern is the evidence suggesting the involvement of members of the president’s family in the plunder of COVID-19 resources.  We demand that in this instance, the government sheds its complacency and moves with haste to bring to justice those who have dared to turn to personal use resources destined to fund a national health emergency of unprecedented proportions. If the government fails to do so, we will commence a citizen prosecution of those involved in the plunder of COVID-19 resources.

that the government put an immediate stop to the escalating cases of extrajudicial killings and police brutality that have been experienced in recent times. The unwarranted use of force by the police during peaceful demonstrations—on Saba Saba Day and more recently at the Nairobi County Assembly—is a clear indication that attempts at police reform are failing and that the government has declared war on citizens.

And finally, we pledge to honour those who have endured great hardship or even paid the ultimate price in the quest for a just and democratic Kenya by vigorously resisting all attempts to bring unconstitutional and retrogressive amendments to our hard-won constitution and by continuing the struggle to see it fully implemented.

We also honour members of the medical fraternity who, under great odds, including insufficient official support have continued to lead in the fight against the COVID-19 pandemic. Your struggles are not in vain and your sacrifices remain in the grateful hearts of the people of this country.

Signed By:

Inuka Trust Kenya.

Kenya Human Rights Commission

ICJ-Kenya

08\08/2020.

The Kenya Human Rights Commission is concerned about the attacks meted on a woman Member of the County Assembly (MCA) WITHIN precincts of the County Assembly in the course of executing their duties as Members of the County Assembly.

Photos and videos of police officers beating up Mlango Kubwa MCA Patriciah Mutheu, who was not armed leave the country with much anxiety and worries of the future of women leaders. Ms Mutheu was seen to be dragged on the floor by a male police officer while two others joined him and inappropriately handled the legislature.

We note that the takeover or handover of the executive powers of the Nairobi City County is un-procedural and what we are now seeing is extensive and horrific interference with the business of the Nairobi County Assembly by the national government through wanton violence and military rule on the people. The interference with the Nairobi County Assembly should worry all county assemblies because the same effect could spill to any other county.

We call for the immediate arrest of the police officers captured on video causing grievous harm to Patriciah Mutheu.  We take note of public reports that one of the police officers has been declared unfit to serve by several processes and institutions. Seeing him still in service and behaving callously and violently is a mockery of the rule of law and the police reforms voted for by the Kenyan people.

We further note that women’s lives matter just as the lives of all people. The level of public violence meted on Patricia and publicly displayed, erodes the numerous calls for an end to all forms of violence including gender-based violence. Coming at a time when the country is yet to fully implement gender inclusion in political processes as required through the not more than two-third gender rule, the attacks on Ms. Mutheu are a pointer to a bigger problem.

It is for this reason that the Kenya Human Rights Commission calls on the government to investigate the claims and oversee justice. We also call for unequivocal respect for the rule of law for all cadres of public leadership and non-interference with the oversight, representation and legislative role of the county assemblies and indeed of Parliament as witnessed in recent days.

The Kenya National Union of Teachers (KNUT), Kenya Human Rights Commission (KHRC) and Universities Academic Staff Union (UASU) are opposed to the partial opening of schools in the month of June for national examination candidates.

It is insensitive, pre-emptive, foolhardy and extremely wrong for anybody outside the medical profession or without medical expertise to propose the rushed reopening of schools in the wake of Coronavirus pandemic, especially at this period when the infernal virus is on the spiral, threatening the survival of humanity.

In the current context of escalating of the virus spread, where the number of affected is going up, the safety of teachers and children is paramount in the checklist of UNESCO-UNICEF recommendations as regards containment measures of the scourge.

A decision on reopening of the schools should be informed by an evidence-based analysis on critical information gathered on how schools, teachers, students and communities are coping with closures and the pandemic. Preliminary results from a rapid response survey rolled out by the signatory agencies indicate that the situation on the ground is different and might require more effective measures to be put in place before such action of reopening is undertaken. There is no evidence thus far put forth to inform how the risk factors related to reopening of schools will be mitigated, noting the inconclusive evidence around the infection risks related to school attendance.

Provision of Personal Protective Equipments [PPEs] among other containment measures are some of the conditionalities that the Ministry of Education Science and Technology must meet before education institutions are re-opened.

More importantly, medical experts must give the green light that the spread of the virus has been contained before we can think of reopening of schools for the resumption of learning.

It is worth noting that countries like France that have attempted to reopen schools have witnessed resurgence of the virus, in the process affecting many teachers and learners. British teachers’ unions have demonstrated clearly that it is difficult to enforce social distancing in schools.

Our team of medical experts which we have commissioned to give advice on the scourge have indicated clearly that if schools reopen in June with the low testing capacity in the country against the population of 15 million learners, the likelihood of having a surge in infections and a faster spread of Covid-19 would occur, with a possibility of Kenya witnessing additional 30,000 plus deaths by August 2020.

Logically and scientifically speaking, only doctors and other health experts could advice when schools should reopen, and how the process of resuming teaching and learning should be conducted.

Further, we would like to inform all-and-sundry that KNUT, KHRC, and UASU among other like-minded organizations and citizen agencies have teamed up to prepare a comprehensive, evidence-based, fact-driven parallel report with appropriate recommendations on the way forward on resuming learning and teaching in the wake of Coronavirus pandemic.

Consequently, we would like to state that we shall not make any submission to the exclusivist Prof George Magoha appointed team – COVID-19 National Education Response Committee led by Dr Sarah Ruto as it is a mere rubber stamp committee considering the manner in which it was constituted – it is bound to mislead Kenyans.

We have established a panel of eminent doctors led by Prof Florentius Koech of Moi Teaching and Referral Hospital – Eldoret to work with us to develop a report on reopening of schools, and how educational institutions can be made Covid - 19 Free Zones at all times.

We shall release the report at the appropriate time, and accordingly advise our members, parents and the general public on the way forward.

HON. WILSON SOSSION         GEORGE KEGORO                  DR. CONSTANTINE WASONGA

SECRETARY GENERAL           EXECUTIVE DIRECTOR         SECRETARY GENERAL

KNUT                                         KHRC                                       UASU

May 21, 2020.