We civil society organisations and National Human Rights Institutions working on all aspects of human and peoples’rights in Africa having met in Banjul, The Gambia under the theme “Defend the ACHPR” on the 23rd of October 2018 to dialogue on our response to the attacks on the independence of the ACHPR do adopt the following declaration:

Aware that the ACHPR has been subject to gradual and escalating threats and attempts to undermine its credibility and independence by individual State parties. These threats have culminated into full blown attacks which are led by autocratic and populist governments African Union member states who do not want to be held accountable for human rights violations that they commit at national level and seek to create a culture of impunity by weakening our accountability mechanisms.

Taking note of Para. 5 of Decision EX.CL/Dec.1008-1030(XXXIII) of the AU Executive Council (Decision 1015) which is a distortion of core principles of international human rights law and an attempt to rewrite the African Charter on Human and Peoples’ Rights (African Charter). The paragraph misstates the independence enjoyed by the ACHPR as “functional in nature and not independent from the organs that created it. It purports to limit the independence enjoyed by the ACHPR to ‘functional” independence and to remove its institutional and the commissioners’ personal independence, which are key to an all effective quasi-judicial bodies.

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63^rd Ordinary Session; 24^th October-13^th November 2018

Madam Chairperson, Honourable Commissioners, State Party representatives and distinguished guests;

Since the last session of the ACHPR, a number of significant events have taken place in Kenya and Africa. We would like to bring to your attention human rights and governance issues that are of concern to us, and require the attention of the Commission.

1. Independence of the African Commission on Human and People’s Rights (ACHPR)

The ACHPR has seen steady and swelling threats and attempts to undermine its credibility and independence by individual State parties. Executive council decision 1015 is an attempt to shove the primacy of the African charter as the establishing authority of the ACHPR through distortions.

Cognisant that interference with the mandate of the ACHPR represents a push against human rights and constitutes a violation of the African Charter, and the Constitutive Act of the AU; the Kenya Human Rights Commission urges all the Africa Union Member states to boldly reframe the narrative of the ACHPR and recognise and affirm its role as a monitoring mechanism of the member's states rather than a seemingly rogue organ of the African Union;

We call on the ACHPR to continue steadily to promote and protect the rights of all living on the African continent without discrimination, fear or favour and affirm itself a truly independent institution breathing life to the charter and a hub of accountability for human rights in Africa

1. Independence of judicial mechanisms in Kenya

In Kenya, threats and attacks have been meted on the judiciary through I) a total disregard of court rulings, particularly those that have to do with state and state officers; of importance are a myriad of decisions for the commencement of the Public benefit organisations act of no 18 of 2013 which have been continually ignored ii) unfounded onslaught on judges and iii) heavy and arbitrary budget cuts.  All these measures risk undermining the effectiveness and independence of the judiciary.

We implore the commission to urge  Kenya to cease and desist from interfering with judicial independence and instead ensure thororugh implementation of judicial decisions and provide  adequate funding for the judiciary to allow enhanced access to justice and furtherance of the rule of law in Kenya.

1. Corruption in Kenya

The spate of corruption scandals in Kenya in the recent past has seen unprecedented plunder of public resources leading to a clawing back by the state on service delivery and the realisation of human rights. Large infrastructural projects, popularly touted as “flagship projects”, have been the main conduits through which Kenya has lost colossal amounts of money via corrupt dealings and procurement processes. In an attempt to deliver on his political promises, the president recently ordered the arrest and investigation of persons alleged to be involved in graft. While we applaud the political will on this matter, we continue to reiterate the fact that such actions do not only show an outlier of his delivery but also present the need for Kenya to reflect on implementing the existing policies and legislation to win the fight against corruption.

Given the African Union theme 2018 and the fact that corruption has been a major handicap in the efforts to realise human rights, we call upon the Commission to:

• strongly pronounce itself on the issue of corruption and the duty of member states to deliberately address corruption alongside other key governance issues, pursuant to their obligations to fulfil human rights;
• encourage the Government of Kenya to fully implement and domesticate the AU Convention on Preventing & Combating Corruption for the benefit of Kenya’s development;
• encourage the government to translate the President’s pledge on fighting corruption into a comprehensive and objective process based on citizen participation, the rule of law and our Constitution’s standards on leadership and integrity. The fight against corruption must be shielded against any possible accusations of political bias.

1. Electoral Justice

Electoral  process in Kenya,  has often times been marred by massive irregularities and illegalities. celebrates its victor elites .The process oftentimes fails to respond adequately to the victims of electoral violence thus resulting in an accumulated human rights situation. This has deepened impunity and access to justice in Kenya . Following the setting up of a Truth Justice and Reconciliation Commission (TJRC), victims shared their experiences upon which succinct recommendations were set out. The violations of 2007/8 elections violence are well captured in the post-election report famously known as the Waki report. Disappointingly, Kenya is yet to implement the recommendations laid out by the TJRC and the Waki report. Additionally, the 2013, and most recently 2017 general elections, are a testament that recommendations and reports to the government are often ignored. Instead what we see are reconciliation of  the elites thereby achieving calm without justice.   We reiterate that electoral justice must prevail for the people of Kenya to have meaningful enjoyment of human rights and democracy for all.

We encourage the commission to follow up on the promises made by the Kenyan government for justice for victims of election violence. We continue to call on Kenya to create mechanisms for access to justice for victims of sexual violence perpetrated by state actors in times of conflict whose struggle for justice has been long, daunting and their right to justice ignored for decades.  We further beseech the ACHPR to call on Kenya to initiate an accountability process for the 2017 elections.

1. Constitutional Reforms

The Constitution of Kenya (2010) continues to be widely celebrated. However, most of the provisions that provide for the protection and participation of marginalised groups as well as structure of government have been subject of debate and contestation including recent calls for their striking off through a referendum. This selective implementation of the constitution continues to set a bad trend and ultimately reflects poorly on our government. The current push for amendments is in bad faith for a constitution that has been in force for barely 10 years.

We encourage the ACHPR to:

• urge Kenya to focus on constitutional implementation and strongly caution it against unwarranted and self-serving amendments that compromise enjoyment of human rights for political expediency.  We further call on Kenya to learn from progressive milestones in terms of inclusion, respect for the rule of law and protection of marginalised groups in other African states; and
• impress upon Kenya to fully ratify the Maputo Protocol without any reservations by the year 2020 so that Women and girls can fully enjoy their rights.

In Conclusion, the KHRC notes that the statements made during the ordinary sessions such as this one, will be mere acts to practice one’s oratory prowess before a congregation unless the commission and its commissioners stand up to defend the institutional and functional independence. We join our colleagues in declaring that this ACHPR of ours shall be totally independent.

Thank you.

We wish to predicate our submission on three key critical facts that seem to not have been deeply considered in the development of the zero draft vis-à-vis the responsibility of companies and obligations of states in situations of conflict. Firstly, increasingly, states have relinquished their monopoly on the legitimate use of force and as such, private military and security firms have gradually taken on functions that used to be the exclusive resort of state bodies. The involvement of such firms in some contemporary conflicts cannot be overlooked.

Secondly, business enterprises not involved in the security field but operating in difficult conflict environments, also exert influence on conflicts to the extent that the wealth they create or extract may attract interest from warring parties and turn a business operation into a military objective. Thirdly, and more apparent, the use of public security personnel to do the heavy lifting for corporations operating in conflict areas in terms of providing security to corporations, quelling civil unrests and intimidating and maiming human rights defenders and communities, has become the norm rather than the exception.

Based on the foregoing, we find Article 15.4 quite deficient in dealing with these realities as the call by this article for “special attention” is seemingly quite removed from the complexity of this issue as it does not denote mandatory pro-activeness on this highly sensitive matter. Additionally, the onus to undertake the so called “special attention” is not explicitly assigned to any party.

We propose the following thus:

1. Explicit recognition of increased risks of negative impact of business activities for communities in conflict-affected areas;
2. Express provisions that pay due regard to provisions of international humanitarian law and particularly, obligations of states in situations of armed conflict under international humanitarian law and international criminal law;
3. Introducing provisions that address the complicity of states in situations of armed conflict, for example, deployment of public security for use by corporations that in turn fuels violence in conflict areas; and
4. Succinctly addressing the risk of gender based and sexual violence in conflict-affected areas, which, as accurately captured in the commentary under UNGP 7, is particularly prevalent in situations of conflict.

Thank you.

Oral Statement on Conflict Affected Areas Made on 18^th October, 2018

With due respects, we introduce to you, our multi-sectoral assembly composed of human rights groups, artists, the Law Society of Kenya and other East African citizens of good will who are deeply concerned about the deteriorating human rights situation in Uganda.

Our attention has been drawn to the egregious acts of human rights violations in various parts of Uganda since 13 August events in the Arua municipality region of northern Uganda following a bitter altercation between the ruling party and opposition supporters, during the Arua Municipality election.

The Ugandan security authorities on 14 August arrested five opposition lawmakers (who are critics of President Yoweri Museveni), two journalists and 28 other people. Of the five lawmakers and of importance is Hon. Robert Kyagulanyi (Bobi Wine). Hon. Kyagulayi was arrested. Allegedly tortured and later charged in a military court in Gulu with the offence of unlawful possession of firearms and ammunition. The other legislators arrested and charged are; Hon. Kassiano Wadri, an independent candidate who won the by-election in Arua, Hon. Gerald Karuhanga, Hon. Paul Mwiru and Hon. Francis Zaake. Lawmakers Hon. Karuhanga, Hon. Mwiru and Hon. Wadri were charged with treason and other offences alongside the 30-other co-accused in a magistrate’s court in the northern Ugandan town of Gulu on 16 August 2018.

“Every time I come to court my children always ask me whether I have gone to pick their father,” Rebeccah said after the court found the OCS in contempt of court in July.

One prominent case that marked a turning point in the fight against enforced disappearances and extra-judicial executions was that of International Justice Mission (IJM) lawyer Willie Kimani, his client Josephat Mwenda and their driver Joseph Muiruri who were abducted by police officers and subsequently found executed in June 2016.

Baru, Willie, Joseph and Josephat are just a few of the 153 cases of Kenyans who have disappeared in police custody according to verified data published in the Missing Voices website. The website has also verified 438 killings by police officers, whereas 1,006 missing or killed Kenyans are yet to be verified.

Missing Voices is an effort by lobby groups under the Police Reform Working Group to track and document all extrajudicial killings and disappearances and follow cases that are in court. The website will be a one-stop database of all extrajudicial killings and enforced disappearances that happen in Kenya, it will explain the circumstances under which the victim was killed and/or disappeared. Through its incident reporting page, witnesses and whistle blowers will be able to report live incidents to the website for investigation and documentation, and reporting.

Missing Voices features high-quality podcasts and videos that give victims of extrajudicial killings a voice.

During the launch, Baru’s wife Rebeccah and two other victims of enforced disappearances will share their stories followed by a panel discussion focusing on effects of enforced disappearances and extrajudicial killings.

As we mark the 2018 International Day of Victims of Enforced Disappearances we demand that;

The president acknowledges that enforced disappearances (EDs) and extrajudicial executions (EJEs) are a systemic problem, apologize to victims, and commit to ensuring accountability; Appoint a Judicial Commission of Inquiry into EDs and EJEs.

The Director of Public Prosecutions to investigate individual and command responsibility for EDs and EJEs and prosecute those found culpable without resorting to the death penalty.

The Attorney General will present legislation that explicitly criminalize EJE and ED in line with international human rights standards.

Website: www.missingvoices.co.ke

Signed by Police Reforms Working Group

The convening of this press conference requires some context. Across time, the land question has become an enduring and festering problem in Kenya. Land has been at the centre of various facets of democratic deficit in this country. The 2007/2008 post-election violence is a stark and sordid reminder of how far it can go. C, we have seen eruption of land-based clashes in the Rift Valley, particularly in Njoro and Narok. This is a clear demonstration of the fact that we are not yet there. These re-flaring of what is often called ‘Land Clashes’, also point to a void in our land governance system.

It is for the reasons above that we seek to reiterate that our entire democratic project as  a country lies in the way we deal with the land question.  Success of the Big 4 Agenda and all intended reforms rest on the crest of land. But this land reforms must be accountable, equitable, transparent, sustainable and cost effective. Success of these is not measured by the number of titles issued to individuals and public schools. Nay. The first port of call in evaluating these would be the nature and extent to which the principles of land policy at Article 60 (1) have been infused in the respective interventions.

This is why Kenyans yearned for and established within the constitutional framework a commission known as the National Land Commission. The commission was given a currency with which to operate: trust and confidence. Like any other Chapter Fifteen Commission, they were enjoined at Article 249(1) of the Constitution in protecting the sovereignty of the people; securing observance of democratic values and principles; and promoting constitutionalism.

Today, we are here to report that from our conversations with members of the public, it is patently clear that the National Land Commission has failed us. As one of the Commissioners, Abdulkadir Adan Khalif noted in 2016:

“….I believe that lack of progress in implementing land reforms in Kenya, besides embarrassing the current administration also threatens our social order, economic stability, national security and reverses recent gains in devolution. …Land sector is the only sector that has ground to halt as vested interest conspire to change laws to suite their selfish needs”

That failure is directly attributable to the following commissioners who must therefore carry their own crosses to the Golgotha of public opinion. These commissioners whom Kenyans entrusted with spearheading the land reform agenda must now be held accountable for they are gamekeepers who have turned poachers. Here they are:

1. Commissioner Muhammad Swazuri
2. Commissioner Abigael Mbagaya Mukolwe
3. Commissioner Abdulkadir Adan Khalif
4. Commissioner Clement Isaiah Lenachuru
5. Commissioner Emma Muthoni Njogu
6. Commissioner Samuel Kipng’etich Tororei
7. Commissioner Tomiik Konyimbih Mboya

We have dispatched letters to each and all of them, detailing their complicity in subjugation of the law in:

1. Serious violation of the Constitution and other laws, including multiple contravention of chapter six;
2. Gross misconduct in the performance of their functions ; and
3. Incompetence.

We remain hopeful that the widespread and credible allegations against them will trigger their conscience and opt for the honourable: an immediate exit from the commission. On our part, the next stop is animating Article 261(2) of the Constitution, the National Assembly.

We have now presented the charge sheets against the Seven (7) and urge the public to animate Article 1(2) of the Constitution and effect citizen arrest of any of the Commissioners above and present them to the nearest police station. We act because we must, for the gamekeepers have turned poachers.

Singed by

• Kenya Human Rights Commission.
• Hakijamii
• Pamoja Trust.
• Kenya Land Alliance.

The reflective observer must be wondering what became of the NLC. Allegations of corruption, toxic internal factions and outright incompetence amongst commissioners have become commonplace words variously mentioned in the same sentence as the Commission. Without due regard for plausibility, probability and believability, the Commission has energetically taken the slipshod road towards ignominy and opprobrium. As it does this, the shambolic internal dysfunction within the Commission and struggles with the Ministry of Lands has projected itself to the public glare.

The LAND SECTOR NON STATE ACTORS (LSNSA), a coalition of civil society organisations working in the land sector is concerned at the continued breach of mandate and constitutional abuse by the National Land Commission due to dubious corruption deals, which is a departure from it’s core mandate. The Commissions’ performance despite the unwavering support and belief from the general public has continued to fall short by all standards. These public officers and a section of staff members have continued to breach their mandate and caused a mockery of the very constitution that breathes life to their existence as an institution.

At this point in time, hard questions must be asked. As the term of the first set of Commissioners is drawing to a close, we must ask ourselves whether the Commission has delivered. Whether the Commission has satisfied the objects and ideals for which it was established in the Constitution. Whether the Commission has contributed to the land reform agenda in the way it was expected at its inception.

Reflecting on its short history, there have been several instances of unconscionable integrity lapses and rudderless forays into hideous enterprises. These instances demand a concerted collective response.

The most active stakeholders in the reformist path somehow withdrew somewhere along the way, for one reason or another.

We are ably reminded that all land belongs to the people of Kenya collectively as a nation, as communities and as individuals. Even more importantly, owing to our sordid history with the management of public land, it was thought important that the functions be entrusted in the hands of a constitutionally anchored independent commission.

The people of Kenya wanted a break with the past in relation to how public land was managed and administered. It was hoped that in the new dispensation and with a disciplined institution as the mantelpiece for reform, notions of fairness, impartiality and independence would henceforth constitute the mantelpiece for undoing the mess that management and administration of public land had become. As well, it was hoped that the NLC would set the highest standards in securing the observance of democratic values and principles.

This was a new order. An order in which the public’s desire of, and the need to foster, the  realization of the national value and principles enshrined in Article 10 of the Constitution of Kenya, and more particularly good governance, accountability and equity would  rule.

As is now clear, the Commission has fallen prey to their high-mindedness and idealism, with the result that the public now is extremely disillusioned.

Despite the assurance of normalcy by the members of the Commission, we know that all is not well. The Commission is sinking, and with it, the hopes of Kenyans. The feel-good moment is over. The current turn of events is likely to be very problematic for the Commission. The public is likely to have difficulty seeing sincerity in the members there. Its positive image and confidence it had with the public has since been grossly undermined.

So where does this bring us?  The crisis is unfolding like a Greek tragedy, but there seems to be no denouement. There is therefore no better time for the need, desire, hunger and will for the civil society to take back the leadership of the land reform efforts. We must recalibrate. We must look back as a nation, retrace our steps and find out where we went wrong and got us here. We must find our True North, of the land reform agenda.

This journey must start with the reconstitution of the National Land Constitution. Owing to the enormity of the responsibilities that the Commission has had in its inaugural term, and given the fact that so much is still expected of it, an immediate exit is certainly the best way out of the current morass.

Further, the sensitivity of matters falling within the docket of the Commission provides a rational basis for an early-dignified exit of the Commissioners. The Commission must be immediately reconstituted. We have undertaken to do the following:

1. WE shall institute a public inquiry into the integrity of each commissioner who does not resign voluntarily in 30 days
2. WE have recently received request from community groups and individuals who have details against several commissioners and with intention to petition parliament for the removal of these commissioners of NLC. We shall support this petition when it gets to be instituted.
3. We DEMAND the immediate release and disclosure of all public inquiry reports done by NLC from 2013 and for the public to be apprised on action taken this far

Further, we call upon the EACC and DCI to:

1. Audit all undertakings of the NLC since it’s inception in 2013
2. Investigate land dealings and all lease renewals including those of Mombasa Cement, Kakuzi Limited, the National Housing Corporation allocation in Embakasi and Mwamdudu primary school on Dongo Kundu Bypass
3. Undertake a lifestyle and performance audit on all the other NLC Commissioners and departmental heads.
4. We call upon increased transparency and accountability especially within constitutional commissions and especially the National Land Commission.

We ask Kenyans not to lose faith in our institutions just because a few unpatriotic individuals want to plunge and distort the spirit behind the establishment of certain Commissions’.

Finally, it is important that in the current debate about the nature of democracy and the constitutional order, democratization of control over natural resources and land has certainly been very central. The failure and lack of integrity of the commissioners at the National Land Commission must not be seen to take this right away from the citizenry given the centrality and sensitivity of land issues in this country.

Signed by:

• Kenya Land Alliance
• Kenya Human Rights Commission
• Pamoja Trust
• HAKIJAMII
• RECONCILE
• Kituo Cha Sheria
• Coast Land Non State Actors

This is a multi-sectoral media statement where we the undersigned human rights groups, artists, members of The Law Society of Kenya and other citizens of good will, while deeply concerned about the deteriorating human rights situation in Uganda wish to address you as follows.

In the past weeks, the world has been treated to egregious acts of Human rights violations in the Arua region of northern Uganda following a clash between the ruling party and opposition supporters, during Arua Municipality by-election campaigns. In the clashes one of the presidential vehicles was also reported to have been damaged as crowds pelted stones on the motorcade. H.E Yoweri Museveni President of Uganda was also in Arua to campaign for a candidate for the ruling party.

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Dear President Buhari,

We the undersigned commend the African Union for declaring 2018 as the year of “Winning the Fight Against Corruption” and recognizing that this is indeed “A Sustainable Path to Africa’s Transformation.” We believe that this is a clear indication of the commitment towards realization of the Africa We Want - An Africa whose development is people-driven and an Africa where good governance, democracy, respect for human rights, justice and the rule of law thrives.

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