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

Women, men and children in Nairobi who support women’s rights, human rights and social justice will stand up and be counted on 21 January at the Women’s March on Nairobi, a “Sister March” to the historic Women’s March taking place in Washington, D.C., on the same day. The march, in Nairobi’s Karura Forest, will highlight women’s resistance to sexism and gender inequality and their call for more progressive and inclusive governance, in Kenya, in the United States and around the world.

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The Kenya Human Rights Commission (KHRC) is gravely concerned about an internal report generated by the NGO Coordination Board, and which the Board has shared with the media, containing adverse allegations about the financial affairs of the KHRC. For reasons explained below, the KHRC will immediately move the High Court to commence contempt of court proceedings against the CEO of the NGO Board, Mr. Fazul Mohammed, whose conduct contravenes a final judgement issued by the High Court in favour of the KHRC.

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Through a document that was widely distributed in the media, the NGO Coordination Board accuses the Kenya Human Rights Commission, (KHRC) of serious financial and management impropriety, and also alleges that the KHRC’s current auditors PWC, and its previous, PKF, have assisted the KHRC in covering the financial impropriety.

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The meeting is for all PBOs working in all 47 Counties, nationally and regionally to discuss the latest developments on the commencement of the PBO Act and to agree on the way forward. Under the Public Benefits Organisations Act (2013), PBOs are defined as “organisations that provide public benefits or act in the public interest”. Public Benefits Organisations can be represented at this meeting.

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Of particular concern to us is the theft of colossal amounts of money from the exchequer most of which initially allocated for the delivery of basic services to citizens. This undoubtedly directly impacts on economic and social rights of citizens as well as their right to lead a life of dignity.

Mr. President, in addition to flawed and opaque procurement processes, recent scandals have been characterised by gross imprudence in expenditure as well as the failure by government ministries and departments to provide the necessary supporting documents for monies spent.

The reported procurement of 100 container clinics by the Ministry of Health at a cost of 10 million shillings each is a perfect case of lack of financial prudence and deliberate waste of public resources by those we have been bestowed the power to manage these resources on our behalf.  Worryingly, in his report of the financial year ending 2015, the Auditor General revealed that only 1% of public expenditure was accounted for. Further to this, and more upsetting, is the revelation that Kenya loses at least 600 billion annually in corrupt dealings.

Mr. President, it is extremely foolhardy for your office to continue to publicly declare its intention to decisively deal with graft while at the same time show dismal results from this commitment. Further, the recent declaration during the anti-corruption summit that your office has so far done all it could and that the failure to stem graft was occasioned by inaction by independent offices responsible for fighting grant, was indeed an admission of failure on the part of your esteemed office.

Additionally, your admission in the same forum of your office’s helplessness in addressing corruption has to a large extent eroded the confidence of the public in the goodwill of the presidency to evoke section 10, 131 and 132 of the constitution for the protection of rule of law, accountability, transparency, good governance, human rights and fundamental freedoms of citizens. Critical also is Article 129(b)  which provides that the Executive Authority shall be exercised in a manner compatible with the principle of service to the people, and for their well-being and benefit.

Mr. President, it is known to you (or ought to be known to you) that most of those implicated in corruption are senior officials within your government, a significant number of whom you have powers to fire without reference to any other authority. It is extremely hypocritical of you to seem to blame other organs of the State of promoting corruption when you have failed to take decisive action against publicly well known senior officers, for whom you hired and have power to hire.

This is a failure by you to honour the edict of Article 131 to safeguard the constitution and the sovereignty of Kenya, it is also a failure to discharge the promise you made to the Kenyan people through the Oath of office you took when you were sworn to be president. Mr. President by superintending a government that abets runaway corruption, you too, are in violation of the Constitution and the law!

Based on the foregoing, we hereby demand from you and your government:

1. immediate sacking of state and public officers within the executive (for whom you have powers to dismiss) adversely mentioned in corruption scandals;
2. Immediately leading the process of making public, all the wealth declaration forms among the state and public officers.
3. Initiating legal process of freezing of bank accounts of all those implicated in grand corruption scandals pending investigations;
4. Immediately initiate a process of recovering all stolen public funds and property. This should go as far back as is judicially possible to cover all past corruption activities since independence;
5. Instantaneously stop and recover salaries paid illegally to officers who have been suspended or removed from public service on graft allegations.
6. Expeditiously implement recommendations of Auditor General’s reports;
7. Ensure protection and adequate resourcing of the Auditor General’s office and other independent offices  to enable them to effectively discharge its mandate;
8. Ensure that public money is spent in a prudent and responsible way by cutting down on the aggravating extravagance and recklessness witnessed during  the last four years.
9. Ensure protection of all whistle blowers for the corruption scandals that have already been reported. We also demand reward of whistle blowers to a  tune of at least 20% of stolen funds recovered;
10.  Fully operationalize the Campaign Financing Act. All political aspirants must publicly declare all sources of their campaign funds;
11. Ensure that the annual state of the nation reports include a report on corruption and how much of state resources lost through past corruption scandals have been recovered;
12. Ensure open advertising and recruitment of Board members and staff of government departments and parastatals as well as chairpersons of parastatal boards;
13. Ensure that tax returns for companies and individuals implicated in grand corruption scandals be released for public scrutiny by the Kenya Revenue Authority; and
14.  Deepen openness and accountability, including genuine public participation in governance, especially, in financial ,matters[1].

Finally, if  you are not in a position to implement these demands which are well  within your legal, constitutional and political obligations, we therefore demand that you REGIGN. “Act Against Corruption Now or Resign”/ “Komesha Ufisadi  Sasa au Jiuzulu”.

END

Contacts:

Davis Malombe, Deputy Executive  Director; Kenya Human Rights Commission, dmalombe@khrc.or.ke; +254-020-2044545; +254-020-2106709

Catherine Kamatu, Communications Advisor, Kenya Human Rights Commission, ckamatu@khrc.or.ke; 0728 815 266

SIGNED BY:

1. Kenya Human Rights Commission
2. Pawa 254
3. Inter-Religious Council of Kenya
4. Transparency International
5. Katiba Institute
6. Sauti Ya Wanjiku
7. Civil Society Reference Group
8. Transparency International-Kenya

The protest, which had been organised to express public indignation on the unsettling escalation of grand corruption under the current regime, was viciously scuttled by the police immediately it began. Information reaching us from human rights monitors shows that at least 24 people were arrested in the melee and scores of others brutally beaten up by the police. A colleague in the civil society was hit by a teargas canister on the head forcing her to be quickly rushed to hospital. Additionally, journalists covering the protest were attacked in the process and their equipment damaged. Of great concern is that no charges were preferred against those arrested, a clear indication that the arrests were mere acts of intimidation aimed at ensuring that further protests do not take place.

We regretfully note that Uhuru Park, which was the convening point for the protest, was fully occupied by a large contingent of heavily armed police, both uniformed and plain clothed, with the intention of stopping the commencement of the protest. The heavy infiltration of the protest by the police, some of whom wore protest gear to disguise themselves for purposes of attacking the protesters and journalists, remains unacceptable and unfathomable. Some of those that had disguised themselves have since been clearly captured in media footage liaising with uniformed police and throwing teargas canisters at the protesters.

The excessive violence meted out on civilians taking part in the peaceful protest was completely uncalled for. The brutality witnessed grossly contravenes section 37 of the constitution which provides for the right, peaceably and unarmed, to assemble, demonstrate, picket and present petitions to public authorities. Additionally, the police actions amounted to violation of section 238 of the constitution which spells out the principles of national security.

Even more concerning is the fact that this incident joins a long list of peaceful protests violently dispersed by the police. We still vividly recall the tragic occurrences of the Occupy Playground Protests in Langata which saw protesting children repelled with teargas and the appalling physical assault of a protester by an officer in the full glare of television cameras at the height of the IEBC protests. A common thread in these examples is a lack of accountability that has fostered a culture of impunity in the police service for the flagrant disregard of the constitution in policing of assemblies.

We strongly condemn the indiscriminate and reckless use of tear gas, water cannons and rubber and live bullets on the protesters and journalists. The excessive use of crowd control weapons is completely unacceptable and contravenes internationally accepted standards of crowd control.

It is disappointing and telling that no official statement has been made by the executive publicly condemning the violence and brutal acts by the police. We hereby call upon the Independent Policing Oversight Authority (IPOA) to investigate the police officers involved in these heinous acts and to take grave action on those found culpable. Additionally, we call on the Commission on Administrative Justice (CAJ) to issue an advisory on this matter and call upon the state to act on the recommendations in the CAJ report on the Langata playground protests. We further demand a review of the police standing orders to reflect international standards on the use of force and policing of assemblies.

It is a pity that this arbitrary power being applied by the executive against harmless Kenyans seeking accountability over crimes that the president has confessed inability to address cannot be utilised against the merchants of corruption in the country. We reiterate our commitment to defend the constitution and insist that the president utilize his powers as provided for under the constitution to expediently act on corruption failure to which he ought to resign.

END

Contact Person: Catherine Kamatu, communications Officer, Kenya Human Rights Commission, ckamatu@khrc.or.ke

Signed on Behalf of civil society Organisations

Davis Malombe

Deputy Executive Director

Kenya Human Rights Commission

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