KHRC initiated court proceedings challenging the detention and incarceration of the four Kenyans namely Ravi Ramesh Ghaghda, Anthony Mwadime Wazome, Anthony Keya Munialo and Boniface Chuma Muriuki in Juba-South Sudan on ground that the rights of the arrested persons under the Kenyan Constitution, African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights has been grossly violated by the Government of South Sudan and more specifically:

1. The arrest and incarceration in military installation of the four Kenyans was oppressive and a transgression of fundamental right of equality before the law.
2. The arrest and incarceration of the four Kenyans was arbitrarily done without any justification.
3. The hearing and determination of the case by the High Court of South Sudan contravened the basic principles of natural justice.
4. The four Kenyan’s were denied their right to communicate with an advocate, family and other persons whose assistance was needed contrary to the principles of fair trial.

KHRC seeks to demonstrate to the court the failure of the Kenyan Government to take measures to protect her national’s interest. KHRC’s position is that the Government through the Ministry of Foreign Affairs is mandated to pursue Kenya’s foreign policy in accordance with the Constitution of Kenya, with the overarching objective of protecting and promoting her nation’s interests abroad. KHRC contends that to this extent, Kenyan Government has failed in its fundamental duty to observe, protect, promote and fulfil the fundamental rights of her nationals. KHRC call upon the Cabinet Secretary Ministry of Foreign Affairs to provide information to the families of the arrested persons with respect to progress in relation to their arrest, detention and release. KHRC calls upon the judiciary to put the executive to task on the diplomatic efforts made to negotiate the release of the four Kenyans imprisoned in Juba-South Sudan.

The matter has been mention today, 27th February 2017 for directions with respect to the hearing of the matter. The courts have directed there be a further mention on th 21st of March,2017 for directions, the respondents having failed to file their respective responses.

The most significant inquiry into the truth concerning gross human rights violations committed in Kenya was carried out by the Truth Justice and Reconciliation Commission (TJRC) between August 2008 and May 2013. The TJRC was established with the objective to “promote peace, justice, national unity, healing and reconciliation among the people of Kenya, by establishing an accurate, complete and historical record” of gross human rights violations and abuses inflicted on persons by the State, public institutions and public officers between 12^th December, 1963 and 28^th February, 2008, including the nature, causes and extent of such violations; and determining ways to redress victims of gross human rights violations and restore their dignity. (TJRC Act, 2008)

Over 40,000 victims from across the country recorded statements with the TJRC on varied forms of gross human rights violations committed from pre and post-independence to 2008, including political assassinations, massacres, enforced disappearances, unlawful detention, torture, sexual violence, economic marginalization, discrimination of minority groups, violations of economic and social rights, economic crimes and grand corruption. The TJRC established that these violations were majorly perpetuated in the context of state security operations, and political, land and resource-related conflicts, mainly involving state and security agencies, and causing ongoing, long-lasting and devastating physical, psychological, political and socio-economic effects on individuals, their families and communities.

The TJRC called on the State to put in place a number of measures aimed at providing redress for victims and to prevent recurrence of gross human rights violations. It called on the President, the Chief Justice and Inspector General of Police to acknowledge and offer apologies for violations committed by state agencies, for the establishment of public memorials in honor of victims and affected communities, for further investigations and prosecution of individuals alleged to have been involved in the perpetuation of human rights abuses, and for provision of reparations to affected individuals and communities including compensation, medical and psychological rehabilitation, land restitution, resettlement of displaced persons, expunging of criminal records of individuals who were wrongfully convicted, and provision of citizenship documents denied as a result of discriminatory policies. (TJRC Final Report)

The TJRC in its concluding recommendations for redress and reparations for victims of gross human rights violations underscored an important fact: that the right to the truth, while inalienable and independent, is not an end in itself. It is a right that is intended to be empowering to victims, their families and communities who seek redress, recognition, acknowledgment and closure to their often silenced, suppressed and contested experiences of gross human rights violations.

The TJRC report was submitted to the President in May 2013 and tabled in the National Assembly in July 2013. The National Assembly subsequently amended Section 48 of the TJRC Act in December 2013, requiring that the TJRC report be tabled in Parliament “for consideration” and that implementation of the report commence immediately after such consideration. However, the National Assembly has, to date, neither considered nor acted on the report of the TJRC, despite calls by President Uhuru Kenyatta in March 2015 and a petition by the National Victims and Survivors Network (NVSN) in November 2015 and in urging the National Assembly to prioritize debate on the TJRC report. In its review before the UN Human Rights Council in 2015, Kenya was recommended and pledged to implement the TJRC report recommendations and provide reparations to victims and survivors.

Thus, as we observe this important Day, the State’s delay to adopt and implement the TJRC’s findings and recommendations remains a cause for anxiety and concern among victims of gross human rights violations, their families, communities and our nation at large. As underscored by the TJRC, the prolonged history of gross human rights violations and the State’s failure to provide redress and reparations for victims has resulted in persisting divisions among Kenyans on ethnic, regional, political and economic lines, and led to a lack of nationhood and public trust in political and governance institutions. The State’s continued delay to implement the TJRC report denies the country the opportunity to understand and address root causes of historical injustices and gross human rights violations, a situation that makes the Kenyan society susceptible to continued cycles of violence and gross human rights violations, as we continue to see in the context of general elections, resource-based conflict and tensions arising from grievances of marginalization and exclusion.

Nonetheless, victims and survivors of gross human rights violations are encouraged by the State’s initiation of a KShs. 10 billion Fund, which was unveiled by President Uhuru Kenyatta during his State of the Nation Address in March 2015, to provide restorative justice to victims of historical injustices. During the same address, President Uhuru Kenyatta apologized to victims of gross violations committed by the past three regimes, including the massacres of the post-poll violence of 2007.

Victims and survivors, civil society and development partners applaud the measures taken so far, specifically the move to put in place reparations Regulations, to make the Fund operational. The Office of the President, Office of the Attorney General, Kenya Law Reform Commission and Kenya National Commission on Human Rights have been working in consultation with the NVSN and Kenya Transitional Justice Network, with support from the Office of the High Commissioner for Human Rights and other development partners, to develop draft Regulations for the Reparations for Historical Injustices Fund. The draft Regulations propose the establishment of a governing structure to provide overall administration of the Fund, including a Board, Secretariat led by an administrator, and advisory reference group with representation from victims’ groups, state offices, independent commissions, civil society and key sectors of society such as women, children, youth, elderly persons, persons with disabilities, religious groups, private sector, and minorities and marginalized groups. The Regulations propose the provision of various reparation measures from the Fund including compensation and health rehabilitation services for victims of gross human rights violations resulting in loss of life and bodily integrity. These Regulations and proposed reparations framework once adopted will provide guidance for fair, transparent and non-discriminatory support to victims of injustices taking into account their vulnerabilities.

Victims and survivors today urge the State to hasten its steps and urgently finalize, gazette and implement the Regulations for operationalization of the Fund, which promises to demonstrate the State’s acknowledgment of the truth regarding gross human rights violations, and to provide victims with a considerable measure of redress, thereby restoring their dignity.

Background:

The right to the truth signifies the right of victims of gross human rights violations and their relatives to “know the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them”. The right to the truth is recognized as every victim of gross human rights violations’ undeniable and autonomous right, which must neither be limited nor denied by the State. It is a right that is directly linked to the duty and obligation of the State to protect and guarantee human rights, which consists of the State’s responsibility to conduct effective investigations and provide effective remedy and reparations for human rights violations. (Office of the High Commissioner for Human Rights)

The United Nations (UN) General Assembly proclaimed 24^th March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims on 21^st December, 2010. The day was introduced by the UN General Assembly, to honor the memory of victims of gross and systematic human rights violations and promote the importance of the right to truth and justice. The General Assembly invites Member States, international organizations and civil society to observe the day. The UN’s observance resonates with Kenya’s protection of human rights in its Constitution and long held recognition of the right to the truth concerning human rights violations as primarily demonstrated through numerous Commissions of Inquiry the government has set up to investigate causes, patterns and individuals involved in the commission, of gross human rights violations, and affected individuals and communities.

About KTJN:  KTJN was established in 2009 with the mission of collaborating towards the realization of transitional justice programmes (components) in Kenya comprising of: Truth-telling; criminal Justice; constitutional changes; administrative changes; addressing the plunder of public capital and  public land; gender justice; and addressing historical injustices which would include support for victims’ coalitions or groups. To ensure its inclusiveness, KTJN is open to membership by both individuals and groups with the criterion for general membership pegged on subscription to the mission and vision of the KTJN.

About NVSN: NVSN was formed following a resolution of the first National Victims Convention in October 2009. Its main objective is to enhance the capacities and facilitate sustained participation of victims and survivors of varied forms of historical injustices and gross human rights violations to effectively engage with truth-seeking, justice and reconciliation processes in Kenya. The Network’s membership consists of individuals and groups of victims and survivors of various historical injustices and gross human rights violations including the National Internally Displaced Persons Network, the Mau Mau War Veterans Association, Truth Be Told Network, Wagalla Resource and Advocacy Centre, victims of sexual and gender-based violence, torture survivors including victims of the Nyayo House torture chambers, February Eighteenth Revolutionary Army (FERA), 1982 Coup attempt and Sabaot Land Defence Force (SLDF) in Mt Elgon, ex- political prisoners and detainees, victims of historical marginalization, minorities groups, relatives and families of victims of unlawful killings and political assassinations, among many others.

Our attention has been drawn to the recent incidents of insecurity within North Rift where armed groups, bandits, and cattle rustlers have continued to viciously conduct raids on neighboring communities and as such have destroyed property, looted cattle and caused massive displacement of over 6000 people. These latest incidents are part of a long history of violence instigated by Politicians who have on numerous occasions incited the different communities against each other. These communities have been adversely affected as children are no longer able to access quality education as over 40 schools have been closed. These communities that require access to water and pasture to sustain their way of life have been left to wallow in poverty and have since sought temporary refuge in abandoned schools. The ease with which fire arms are accessed is equally a worrying trend. In the recent past, various media houses have reported that there are about 5000 to 6000 illegal firearms within the North Rift, a fact that was confirmed by Baringo County Commissioner Samuel Okwanyo during his brief to the Star Newspaper on the 1^st of March 2017.

These sporadic incidents of insecurity by armed groups, bandits, and cattle rustlers within the region have led to the death two politicians; Loyamorok member of County Assembly Fredrick Cheretei and Tiaty Parliamentary aspirant Simon Pepee Kitambaa, a teacher at Kapendusum Primary School Philemon Chetalam Kemei, two National Police Reservists, Ngororo Chief Thomas Rutop Chebor and Sosian Ranch Director Tristan Voospuy amongst others.

We note the Government’s recent declaration of 19 administrative locations as disturbed and dangerous as well as the current security operation that has seen the Government deploy 381 security personnel, recruited 230 National Police Reservists and employ the use of surveillance and air support to track down armed groups, bandits, and cattle rustlers with the stated aim of restoring peace within the region. We also acknowledge the Government’s undertaking to create a compensation scheme to address victims of these systemic gross human rights violations.

However, we the undersigned organization strongly urge and recommend the following to the Government of Kenya and all relevant state agencies:

1. That the current security operation should have a clear and comprehensive mechanism for disarmament.
2. That the National Government presides over  the transfers of the County Commissioners, Deputy County Commissioners, Officers Commanding Police Divisions and the Administration Police Commandants within the North Rift region for failing to comprehensively address this critical insecurity situation.
3.  That the Government gazettes more Police facilities within the North Rift region and deploy more Police officers to ensure that peace and stability prevail.
4. That ongoing investigations by the police to establish those responsible be concluded as a matter of urgency and lead to prosecution of those culpable in court regardless of the office or titles they may hold.
5. We demand the immediate recovery of all the 10,705 livestock stolen (Cows 2740, goats & sheep 7933, Donkeys 42) by armed groups, bandits, and cattle rustlers as soon as possible to enable the affected communities sustain their  livelihood.
6. We further demand that the compensation scheme to be undertaken by the government be transparent, consultative and comprehensive to cover all forms losses suffered and provide durable solutions to victims.
7. We demand that the National and County Governments, Parliament and the County Assemblies concerned investigate and initiate disciplinary action against any of their members linked with these sporadic incidents of insecurity. This should include suspension from responsibilities that could hamper investigations.

Lastly, we urge the Government, Civil Society Organizations, the Private Sector and members of the Public to put in place measures for assistance and protection of persons displaced and also to assist victims in creating a conducive environment for children to access quality education and better health services within the North Rift region.

Signed by
George Kegoro
Kenya Human Rights Commission

and

Kimosop Kipruto
Baringo Human Rights Consortium
On behalf of the PRWG-K consisting of: Kenya Human Rights Commission (KHRC) International Centre for Transitional Justice (ICTJ-K) International Commission of Jurists –Kenya (ICJ-K) Legal Resources Foundation (LRF) Kenya National Commission on Human Rights (KNCHR) Rights Promotion and Protection Centre (RPP) Federation of Women Lawyers in Kenya (FIDA-K) Coalition on Violence Against Women (COVAW) Centre for Minority Rights (CEMIRIDE) National Coalition of Human Rights Defenders (NCHRD) Kenyans For Peace, Truth and Justice (KPTJ), International Justice Mission (IJM), Amnesty International- Kenya (AI-K), Usalama Reforms Forum, Catholic Justice and Peace Commission (CJPC), Transparent International – Kenya (TI-K), Katiba Institute (K.I), Chemichemi Ya Ukweli and Independent Legal Medical Unit (IMLU).

The first-ever regional instrument on the right to redress for victims of torture and other prohibited ill-treatment has been adopted by the African Commission on Human and Peoples’ Rights (the African Commission), the institution responsible for the promotion and protection of human rights in Africa.

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The proposed amendment however, seeks to amend this section by inserting: "...provided that where the document, thing or information is privileged, the procedure for producing privileged document, thing or information shall be complied with."

We, the undersigned governance and human rights organizations working under the auspices of the Police Reforms Working Group -Kenya (PRWG-K) strongly protest this amendment that is being proposed on the following grounds:

1.  Under the literal rule of statutory interpretation, these words of the proposed amendment seek to limit the documents, things or information that can be shared with IPOA by officers or persons summoned to appear before the authority, and which will hinder IPOA's mandate, and also go against Article 35 of the Constitution of Kenya by denying the public its' right to information.
2. We would like to remind members of the National Assembly that the Evidence Act, Cap 80 of the Laws of Kenya (section 131, 132 and 139) clearly provides for the procedure of submitting privileged documents, thing or information. There is no justification for the proposed amendment in the Bill, nor any indications of the mischief that it intends to cure. This goes against one of the cardinal principles in law making which requires legislation to address a mischief or seal the existing gaps in the law. It has not been shown how the current framework that is sought to be amended impedes policing or the work of IPOA.
3. IPOA's mandate is important and forms a critical part of the police reforms geared towards attaining the objects of Article 144 of the Constitution. The proposed amendment contravenes the constitution, and also violates Section 4 of the Act which states that IPOA is not subject to any person, office or authority in the performance of its functions. In addition to that, Section 6 of the Act provides that the only way the authority can commence investigation is through receipt of information from the members of the public and members of the service. If such information is not forthcoming, the work of the authority is effectively curtailed.

   IPOA is a civilian movement, created by public interest and public views collected by the Police Reform Implementation Committee (PRIC). It is therefore self-defeating to declare information shared with them as being protected by public interest. In this regard, the proposed amendment is unmerited, irreconcilable with public interest, lacks the necessary threshold and in effect immobilizing to the authority.

4. The Authority MUST have ample authority to provide a credible service to the people it serves. It MUST have the ability to interview all witnesses, including officers, and it MUST have access to all relevant documents needed to complete its investigations in order to be effective, and maintain the support of the people it serves.
5. Finally, it is noteworthy that independence is at the heart of effectiveness of any oversight body such as IPOA. Without the political will to support independent oversight, the authority will flounder in its efforts to make the necessary changes to correct problems in the law enforcement agency that it oversees. In order for the authority to succeed, we BESEECH legislators at all levels to come out and jealously guard and uphold the constitution, resist attempts to introduce amendments aimed at satisfying individual egos rather than the greater public good and reject the proposed amendment in totality.

For more information pertaining to the subject matter, please contact Steve Biko via 0712876573 or email; sbiko@imlu.org

According to their lawyer, they are being detained by Kenyan authorities in Nairobi Area Police Headquarters and are subject to a deportation order.

We have tried, without success, to obtain comment from the Kenyan authorities regarding the whereabouts of the two, the conditions on which they are held, the process that was involved in any decision that may have been made regarding their deportation.

Dong Samuel:

Dong Samuel, a prominent lawyer and human rights advocate, was last seen in Nairobi city centre at approximately 9:00pm on 23 January, when he was on his way to board a bus and return to his residence. He never arrived at home.

Dong Samuel left South Sudan in August 2013 due to security threats. He has been registered as a refugee in Kenya since November 2016.

From 2002 to 2013, Dong Samuel was Secretary General of the South Sudan Law Society, a South Sudanese civil society organization focused on promotion of justice, human rights and the rule of law.

Following the outbreak of South Sudan’s ongoing armed conflict in December 2013, he joined the SPLM-IO and is a member of its Human Rights and Justice Committee.

Dong Samuel is a vocal critic of the South Sudanese government and is active on Facebook and Twitter.

Aggrey Idri:

Aggrey Idri, chairman of the SPLM-IO Humanitarian Affairs Committee was last seen in Kilimani at approximately 8:00am on the morning of 24 January.Aggrey Idri is a vocal critic of the South Sudanese government and active on Facebook.

International law:

As Dong Samuel is a refugee, his deportation from Kenya would violate the international law principle of non-refoulement.

Given the serious risk of torture both would face in South Sudan, their deportation would also violate Kenya’s obligations under the UN Convention Against Torture

James Gatdet:

In November 2016, Kenyan authorities deported South Sudanese opposition spokesperson James Gatdet back to South Sudan in spite of his refugee status. Since his arrival in Juba, he has been held without charge at the South Sudan’s National Security Service headquarters in Juba.

James Gatdet is being held at the NSS headquarters prison since his arrival in Juba, in solitary confinement in a room approximately 3 meters by 1.5 meters large. He is not taken outside and is only provided access to sanitary facilities twice a day.

We are calling on the Kenya government:

1. To disclose without delay, the place where Dong Samuel and Aggrey Idri are being held so that their families and lawyers can meet with them and arrange initial assistance.
2. To make public the reasons why the two are being held and unless it can demonstrate a lawful basis for their continued detention, to release them without delay;
3. To recognise and give effect to the fact that both Dong Samuel and Aggrey Idri  run the risk of being subjected to torture if they are deported to South Sudan, and , therefore, to ensure that the two are not deported to that country;
4. To recognise the fact that Dong Samuel enjoys refugee status in Kenya and that his deportation from Kenya would violate the international law principle of non-refoulement.

NAIROBI 25^th JANUARY 2017

Signed by the Kenya Human Rights Commission