BACKGROUND

The Kenya Human Rights Commission (KHRC) and Ndula Resource Centre (NRC) have been in a campaign, advocating for justice for communities and workers that have suffered adverse human rights impacts occasioned by Kakuzi Limited since 2003. Kakuzi, a subsidiary of Camellia PLC based in the UK, has been alleged over the years to have committed atrocities and malpractices ranging from: killings, rape, and other forms of sexual and gender-based violence committed by its guards causing grievous bodily harm, abominable labour injustices, wanton violence, bad corporate governance and gross, historical land injustices which have dispossessed more than 13 neighbouring communities[1] within Murang’a and the adjacent counties.

Despite protracted advocacy by the KHRC, NRC and Centre for Research on Multinational Corporations (SOMO), employing practically every strategy in the book, Kakuzi would not budge. KHRC’s last straw on the camel’s back was the involvement of Leigh Day, a leading UK law firm, to bring a suit in the English courts against Camellia for the egregious human rights violations.

It is this 17 year-campaign that has resulted in a huge reparative win for the victims of Kakuzi’s abuses. Camellia has finally bowed out and offered a settlement that will see the company part with more than 1 billion Kenya shillings. This is towards compensation for 85 claimants as well as legal fees since the case was filed in London. The company publicly announced on 11^th February 2021 that it has reached an innovative and mutually beneficial resolution with regard to the claims against Kakuzi at settlements costing up to 4.6 million British Pounds (Kshs 694 million). These expenses are in addition to legal expenses that were earlier announced in October 2020 totalling Kshs 500 million. The claims ranging from rape, killings, sexual violence and assault by Kakuzi security guards were brought to the English courts in June 2020 by 85 Kenyan victims through the Leigh Day, with support of the Kenya Human Rights Commission and Ndula Resource Centre.

TOO LITTLE TOO LATE

In addition to the individual compensation, Kakuzi, working closely with Camellia has instituted other measures that the aggrieved communities consider too little too late and incapable of resolving the outstanding issues.

Firstly, Kakuzi will develop an Operational Grievance Mechanism (OGM) as a way of resolving grievances internally. However, the proposed OGM has many gaps, 1) it is limited to the discretion of the company, 2) there is no urgency by Kakuzi to implement it, 3) it is not premised on the Constitution of Kenya and other governance and human rights frameworks, 4) it is purely an internal framework and therefore fails to meet the required thresholds to hold the company accountable for gross violations.

Secondly, the company will establish a Technical Working Group (TWG) to survey and demarcate land which has previously been donated by itself to the communities. Led by a licensed surveyor, the TWG will benefit from the involvement of a county surveyor, the National Land Commission and representatives from the national government. Not surprising, the affected communities have been left out of this proposed mechanism. This offends Article 10 of the Constitution of Kenya that provides for public participation as one of the national values and principles of governance.

Thirdly, Kakuzi has proposed a raft of social development initiatives ranging from the construction of two community social centres, the building of charcoal kilns for the production of charcoal and engagement of safety marshals to patrol private roads and footpaths. We welcome these as innovative corporate social responsibility (CSR) initiatives. However, they do not constitute a comprehensive development framework for reparative settlement.

We further welcome the decision by Kakuzi to implement a Human Rights Defenders (HRDs) Policy. We, however, demand that the process of developing the HRDs policy be open to wider stakeholder consultations. The policy must also be in compliance with frameworks for the protection of HRDs such as the UN Declaration for Human Rights Defenders.

Relatedly, the proposed human rights impact assessment is a welcome move but is hugely insufficient in the absence of a fundamental paradigm shift in the attitude, behaviour and culture of Kakuzi. What Kakuzi needs is not a plethora of human rights tools but a deliberate shift in the manner it views and relates with its workers and host communities.

UNRESOLVED CLAIMS

1. PUBLIC APOLOGY

It is preposterous that Camellia (and Kakuzi by extension) has failed to offer a public apology for the egregious violations suffered by the communities and workers living in and around Kakuzi. An apology and guarantee for non-repetition are the bedrock of a compensation framework such as the one that Camellia has invoked. It is therefore defeatist for the company to decline to offer a public apology. It is, however, not surprising that Kakuzi is unwilling to offer the apology going by its behaviour in October 2020 where the company denied all claims levelled against it, claiming that victims had been incited and coached by human rights organisations. In its statement issued on 11^th February, Kakuzi is publicly unapologetic when it says that it is not a party to the litigation or the settlement and that it does not know the identities of the claimants making it very difficult to hold any individual accountable. Kakuzi must stop playing mind games with Kenyans. The company is fully aware that the UK Court upheld an Anonymity Order with a view to protecting victims from possible reprisal from Kakuzi.

2. SURRENDER OF ROADS

Kakuzi has begrudgingly surrendered three roads for motorable vehicle access by the communities against the six roads that communities had demanded. The surrender comes with inconceivable conditions to the extent that Kakuzi retains the arbitrary self-imposed power to withhold access for maintenance of the roads and fielding of safety marshals to improve safety and security.

The roads that Kakuzi proposes to open are Miltons Ridge to D424, Kakuzi Hills Road and Kakuzi Primary School to Ithanga-Kakuzi Hills.

The community had demanded the opening of the following roads: 1) Kitito-Munyu-Kakuzi Hills Rural road (2315), 2) Kinyangi-Kaguru-Mathimbiriri/Gaichanjiru-Kakuzi Hills road, 3) Murram/Matungulu-Kihato-Kakuzi Hills road, 4) B67 Kilimambogo-Makuyu-Kakuzi Primary School-Sunset-Kakuzi Hills road, 5) E1577 Gathungururu-Gatoromera-Thangira road, and 6) Masitima-Mangamate-Money road.

Noting that Kakuzi has no mandate to maintain roads nor has its capacity to offer security and safety on such roads, we demand the immediate withdrawal of the ludicrous conditions.  We also note with concern that communities, such as Kinyangi and Gikono-Kangangu, that have been at the forefront in calling out Kakuzi have been deliberately left out of the road settlement. Kakuzi must cease and desist from incubating further acrimony by victimizing and relegating communities that have rebutted the company’s high-handedness in the past.

3. WITHDRAWAL OF INSIDIOUS COURT CASES

The affected communities have previously demanded, as a pre-condition to an out-of-court settlement, that Kakuzi withdraws all the insidious cases instigated against aggrieved workers, host communities and other affected groups. Specifically, the communities demanded that a case (JR 94/2019) challenging the implementation of an award granted by the National Land Commission (NLC) on 7^th February 2019, be withdrawn with immediate effect. The orders granted by the NLC required Kakuzi to surrender ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate. The second matter is a constitutional petition (CPET 255/2018) that challenges the constitutional mandate of the NLC to determine historical land injustices. Instead of immediately withdrawing these cases, Camellia indicates in its Settlement of Claims in Kenya that a Technical Working Group being instituted at Kakuzi will not have any involvement in the consideration or determination of any issues the subject of proceedings before the NLC, the Kenyan courts or any other decision-making tribunal of competent jurisdiction.

4. OUTSTANDING LAND CLAIMS

Kakuzi has declined to address the unsettled land claims. It cannot be gainsaid that the cause of human rights violations experienced by communities living in and around the company is the unresolved land claims.  And as if in complete mockery of a community that Kakuzi pushed to the rocky hills known as Milimani, the company now plans to re-resurvey the Ithanga-Kakuzi hills to complete its past donation of that land. The Milimani area was condemned by a Ministry of Lands and Resettlement Taskforce Report of 29^th June 2004 on the Status of Kakuzi Squatters as being un-arable, harsh, hilly, rocky and of low agricultural potential and hence difficult for settlement operations. It is on these very hills that Kakuzi now wants the government to complete the settlement for the Milimani community.

We call the state and non-state actors below whose laxity over time has entrenched the culture of impunity in Kakuzi and other corporate entities in Kenya.

Our relentless demands and actions moving forward:

1. WE CALL UPON the Murang’a County Assembly to ensure that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
2. WE DEMAND THAT the UK market sustains the current boycott of Kakuzi produce until all pending claims are addressed. We will further initiate an engagement with other Kakuzi markets to boycott any produce coming from Kakuzi until there is a demonstrable change in attitude and behaviour on the part of Kakuzi.
3. WE SHALL ENGAGE the national Parliament and the Senate for investigation of all pending claims and institution of appropriate accountability measures against Kakuzi.
4. WE DEMAND THAT the National Land Commission implements its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.
5. WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations, non-discrimination of workers and communities especially those that have been involved in calling out the company.
6. WE CALL UPON the certification bodies that work around Kakuzi to be more vigilant and inclusive in assessing the company’s compliance with the set standards

-END-

Signed by:

The Kenya Human Rights Commission

Ndula Resource Centre

14^th February 2021.

Prof. Makau Mutua, Chair, KHRC Board of Directors.

Davis Malombe, Ag  Executive Director.

Prof. Makau Mutua, Chair, KHRC Board of Directors.

Davis Malombe, Ag  Executive Director.

March 03, 2021.

BACKGROUND

The Kenya Human Rights Commission (KHRC) and Ndula Resource Centre (NRC) have been in a campaign, advocating for justice for communities and workers that have suffered adverse human rights impacts occasioned by Kakuzi Limited since 2003. Kakuzi, a subsidiary of Camellia PLC based in the UK, has been alleged over the years to have committed atrocities and malpractices ranging from: killings, rape, and other forms of sexual and gender-based violence committed by its guards causing grievous bodily harm, abominable labour injustices, wanton violence, bad corporate governance and gross, historical land injustices which have dispossessed more than 13 neighbouring communities[1] within Murang’a and the adjacent counties.

Despite protracted advocacy by the KHRC, NRC and Centre for Research on Multinational Corporations (SOMO), employing practically every strategy in the book, Kakuzi would not budge. KHRC’s last straw on the camel’s back was the involvement of Leigh Day, a leading UK law firm, to bring a suit in the English courts against Camellia for the egregious human rights violations.

It is this 17 year-campaign that has resulted in a huge reparative win for the victims of Kakuzi’s abuses. Camellia has finally bowed out and offered a settlement that will see the company part with more than 1 billion Kenya shillings. This is towards compensation for 85 claimants as well as legal fees since the case was filed in London. The company publicly announced on 11^th February 2021 that it has reached an innovative and mutually beneficial resolution with regard to the claims against Kakuzi at settlements costing up to 4.6 million British Pounds (Kshs 694 million). These expenses are in addition to legal expenses that were earlier announced in October 2020 totalling Kshs 500 million. The claims ranging from rape, killings, sexual violence and assault by Kakuzi security guards were brought to the English courts in June 2020 by 85 Kenyan victims through the Leigh Day, with support of the Kenya Human Rights Commission and Ndula Resource Centre.

TOO LITTLE TOO LATE

In addition to the individual compensation, Kakuzi, working closely with Camellia has instituted other measures that the aggrieved communities consider too little too late and incapable of resolving the outstanding issues.

Firstly, Kakuzi will develop an Operational Grievance Mechanism (OGM) as a way of resolving grievances internally. However, the proposed OGM has many gaps, 1) it is limited to the discretion of the company, 2) there is no urgency by Kakuzi to implement it, 3) it is not premised on the Constitution of Kenya and other governance and human rights frameworks, 4) it is purely an internal framework and therefore fails to meet the required thresholds to hold the company accountable for gross violations.

Secondly, the company will establish a Technical Working Group (TWG) to survey and demarcate land which has previously been donated by itself to the communities. Led by a licensed surveyor, the TWG will benefit from the involvement of a county surveyor, the National Land Commission and representatives from the national government. Not surprising, the affected communities have been left out of this proposed mechanism. This offends Article 10 of the Constitution of Kenya that provides for public participation as one of the national values and principles of governance.

Thirdly, Kakuzi has proposed a raft of social development initiatives ranging from the construction of two community social centres, the building of charcoal kilns for the production of charcoal and engagement of safety marshals to patrol private roads and footpaths. We welcome these as innovative corporate social responsibility (CSR) initiatives. However, they do not constitute a comprehensive development framework for reparative settlement.

We further welcome the decision by Kakuzi to implement a Human Rights Defenders (HRDs) Policy. We, however, demand that the process of developing the HRDs policy be open to wider stakeholder consultations. The policy must also be in compliance with frameworks for the protection of HRDs such as the UN Declaration for Human Rights Defenders.

Relatedly, the proposed human rights impact assessment is a welcome move but is hugely insufficient in the absence of a fundamental paradigm shift in the attitude, behaviour and culture of Kakuzi. What Kakuzi needs is not a plethora of human rights tools but a deliberate shift in the manner it views and relates with its workers and host communities.

UNRESOLVED CLAIMS

1. PUBLIC APOLOGY

It is preposterous that Camellia (and Kakuzi by extension) has failed to offer a public apology for the egregious violations suffered by the communities and workers living in and around Kakuzi. An apology and guarantee for non-repetition are the bedrock of a compensation framework such as the one that Camellia has invoked. It is therefore defeatist for the company to decline to offer a public apology. It is, however, not surprising that Kakuzi is unwilling to offer the apology going by its behaviour in October 2020 where the company denied all claims levelled against it, claiming that victims had been incited and coached by human rights organisations. In its statement issued on 11^th February, Kakuzi is publicly unapologetic when it says that it is not a party to the litigation or the settlement and that it does not know the identities of the claimants making it very difficult to hold any individual accountable. Kakuzi must stop playing mind games with Kenyans. The company is fully aware that the UK Court upheld an Anonymity Order with a view to protecting victims from possible reprisal from Kakuzi.

2. SURRENDER OF ROADS

Kakuzi has begrudgingly surrendered three roads for motorable vehicle access by the communities against the six roads that communities had demanded. The surrender comes with inconceivable conditions to the extent that Kakuzi retains the arbitrary self-imposed power to withhold access for maintenance of the roads and fielding of safety marshals to improve safety and security.

The roads that Kakuzi proposes to open are Miltons Ridge to D424, Kakuzi Hills Road and Kakuzi Primary School to Ithanga-Kakuzi Hills.

The community had demanded the opening of the following roads: 1) Kitito-Munyu-Kakuzi Hills Rural road (2315), 2) Kinyangi-Kaguru-Mathimbiriri/Gaichanjiru-Kakuzi Hills road, 3) Murram/Matungulu-Kihato-Kakuzi Hills road, 4) B67 Kilimambogo-Makuyu-Kakuzi Primary School-Sunset-Kakuzi Hills road, 5) E1577 Gathungururu-Gatoromera-Thangira road, and 6) Masitima-Mangamate-Money road.

Noting that Kakuzi has no mandate to maintain roads nor has its capacity to offer security and safety on such roads, we demand the immediate withdrawal of the ludicrous conditions.  We also note with concern that communities, such as Kinyangi and Gikono-Kangangu, that have been at the forefront in calling out Kakuzi have been deliberately left out of the road settlement. Kakuzi must cease and desist from incubating further acrimony by victimizing and relegating communities that have rebutted the company’s high-handedness in the past.

3. WITHDRAWAL OF INSIDIOUS COURT CASES

The affected communities have previously demanded, as a pre-condition to an out-of-court settlement, that Kakuzi withdraws all the insidious cases instigated against aggrieved workers, host communities and other affected groups. Specifically, the communities demanded that a case (JR 94/2019) challenging the implementation of an award granted by the National Land Commission (NLC) on 7^th February 2019, be withdrawn with immediate effect. The orders granted by the NLC required Kakuzi to surrender ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate. The second matter is a constitutional petition (CPET 255/2018) that challenges the constitutional mandate of the NLC to determine historical land injustices. Instead of immediately withdrawing these cases, Camellia indicates in its Settlement of Claims in Kenya that a Technical Working Group being instituted at Kakuzi will not have any involvement in the consideration or determination of any issues the subject of proceedings before the NLC, the Kenyan courts or any other decision-making tribunal of competent jurisdiction.

4. OUTSTANDING LAND CLAIMS

Kakuzi has declined to address the unsettled land claims. It cannot be gainsaid that the cause of human rights violations experienced by communities living in and around the company is the unresolved land claims.  And as if in complete mockery of a community that Kakuzi pushed to the rocky hills known as Milimani, the company now plans to re-resurvey the Ithanga-Kakuzi hills to complete its past donation of that land. The Milimani area was condemned by a Ministry of Lands and Resettlement Taskforce Report of 29^th June 2004 on the Status of Kakuzi Squatters as being un-arable, harsh, hilly, rocky and of low agricultural potential and hence difficult for settlement operations. It is on these very hills that Kakuzi now wants the government to complete the settlement for the Milimani community.

We call the state and non-state actors below whose laxity over time has entrenched the culture of impunity in Kakuzi and other corporate entities in Kenya.

Our relentless demands and actions moving forward:

1. WE CALL UPON the Murang’a County Assembly to ensure that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
2. WE DEMAND THAT the UK market sustains the current boycott of Kakuzi produce until all pending claims are addressed. We will further initiate an engagement with other Kakuzi markets to boycott any produce coming from Kakuzi until there is a demonstrable change in attitude and behaviour on the part of Kakuzi.
3. WE SHALL ENGAGE the national Parliament and the Senate for investigation of all pending claims and institution of appropriate accountability measures against Kakuzi.
4. WE DEMAND THAT the National Land Commission implements its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.
5. WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations, non-discrimination of workers and communities especially those that have been involved in calling out the company.
6. WE CALL UPON the certification bodies that work around Kakuzi to be more vigilant and inclusive in assessing the company’s compliance with the set standards

-END-

Signed by:

The Kenya Human Rights Commission

Ndula Resource Centre

14^th February 2021.

The policy briefs seek to also prioritize reform measures that can assist the criminal justice system to attain focus on its core mandate – which should be tackling the more serious criminal offences of concern to citizens and that have the most deleterious effect on the nation.

Through this policy brief, KHRC has identified that the most urgent attention is drawn to violations that touch on basic guarantees of rights to citizens as per the Bill of Rights. These are the right to life, equality and freedom from discrimination and unequal treatment, the right to dignity of the person, freedom and security of the person, access to information, right of an arrested person, right to a fair hearing, rights of persons detained or held in custody. Given the length, breadth and complexity of the criminal justice system, it is important to consider reform measures that prioritize the rights and freedoms of the most vulnerable in society.

The Kenya Human Rights Commission is therefore focused on putting forward these range of legislative and policy proposals within the criminal justice system with these objectives in mind. The range of proposals seeks to decongest the criminal justice system, secure fundamental rights and freedoms of the most vulnerable and indigent and acknowledge rights of intersex persons who live among us and have suffered historical discrimination and push for attention to the most serious crime of highest concern.

Nairobi,

10^th December 2020.

Press contact

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

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.