“We deplore that the unprecedented interference with important prosecution witnesses played a significant role in the lack of sufficient evidence presented to support the charges against the accused. The persisting impunity in Kenya prevails over accountability and continuously fails the victims of the atrocities committed during the post-election violence,”  stated Karim Lahidji, FIDH President.

Mr Ruto and Mr Sang were accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence which resulted in at least 1133 deaths, 900 cases of sexual and gender based violence, 663,921 displaced persons, numerous victims of grievous harm and destruction of property.

The decision follows the judgment of the Appeals Chamber which reversed the previous ruling of the Trial Chamber that had allowed as evidence, the use of initial testimonies of witnesses, who later either changed their statements or refused to cooperate. This was on the basis of the amended Rule 68 of the Rules on Evidence and Procedure. The Appeals Chamber held that given that the Rule was amended only after the case began, it was applied retroactively and to the detriment of the accused since it would admit incriminatory evidence against the accused. The reason why the Prosecutor sought to admit the testimonies was that a number of witnesses, after giving their initial testimony, stopped cooperating due to threats, intimidation, bribery or fear of reprisals. Social media and blogs have also been used to expose the identities of the prosecution witnesses.

“The systematic witness tampering and intimidation experienced in the Kenya cases has denied thousands of victims of the post-election violence the justice they rightfully deserve. This is even more deplorable in light of the fact that victims of these atrocities have not obtained any adequate redress at the national level but have instead been subjected to a series of broken promises,” stated Andrew Songa, Programme Manager at the KHRC.

The ICC issued two arrest warrants, in 2013 and 2015, against three Kenyans, on charges of witness tampering in the case against Ruto and Sang. The Trial Chamber has identified an “element of systematicity” in the interference of several witnesses, suggesting that they were methodically targeted in order to hamper the proceedings. In addition, a person whom the Ruto defence claimed to be a defence witness was murdered in early 2015. The outcome of investigations into his death have not yet been made public.

Systematic witness tampering led to the Prosecution's decision to withdraw charges against two other accused charged with crimes against humanity in the context of the post-election violence in Kenya- Kenyan President Uhuru Kenyatta and Secretary to the Cabinet Francis Muthaura. The Prosecutor stated that the concerted and wide-ranging efforts to harass, intimidate and threaten witnesses caused key witnesses to withdraw or change their testimonies, and several people who may have provided important evidence were too terrified to testify.

Background

For more information on the situation in Kenya and evolution of the cases, see the FIDH-KHRC timeline: Kenya Cases at the ICC: Understanding Rule 68 Controversy through 15 Dates.

For more information on Rule 68 of the Rules on Evidence and Procedures see: FIDH-KHRC Q&A on ’Rule 68’ and Witness Tampering

On the 'no case to answer' motion:

There is no explicit provision setting out the applicable legal standard for a 'no case to answer’ motion before the Court. A 'no case to answer' motion pleads that there has been insufficient evidence, or 'no case', presented which could reasonably support a conviction.

The primary rationale underpinning the hearing of a 'no case to answer' motion - or, in effect, a motion for a judgment of (partial) acquittal - is the principle that an accused should not be called upon to answer a charge when the evidence presented by the Prosecution is substantively insufficient to engage the need for the defence to mount a defence case.

The ICC Trial Chamber made a distinction between the determination to be made at the halfway point of a trial, such as a “no case to answer” motion, and a decision on the guilt or innocence of the accused at the end of the case. “Whereas the latter test is whether there is evidence which satisfies the Chamber beyond a reasonable doubt of the guilt of the accused, the Chamber recalls that the objective of the ‘no case to answer’ assessment is to ascertain whether the prosecution has lead sufficient evidence to necessitate a defense case, failing which the accused is to be acquitted on one or more of the counts before commencing that stage of the trial.

- END -

Press contacts:
Arthur Manet (French, English, Spanish), Tel: +33 6 72 28 42 94 (Paris) - press@fidh.org
Audrey Couprie (French, English, German), Tel: +33 6 48 05 91 57 (Paris) - press@fidh.org

Andrew Songa (English), Tel: +254-20 2044545 (Kenya) -Asonga@khrc.or.ke

The report was launched at the United Nations in Geneva on the occasion of the presentation of a joint report on the proper management of assemblies, prepared by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns. The Special Rapporteurs’ report was presented to the 31^st session of the Human Rights Council.

Lethal in Disguise underscores the very real dangers of CCWs, documenting cases of death, disability, and serious injury that occur when weapons are used inappropriately and, in the case of protests, often indiscriminately. In addition to summarizing a critical mass of medical literature on the effects of these weapons, it includes case studies from Argentina, Canada, Egypt, England, Hungary, Israel, Kenya, South Africa, and the United States.

INCLO is a network of independent, national human rights organizations working to promote fundamental rights and freedoms. The INCLO member organizations that participated in the report are: the American Civil Liberties Union (ACLU), the Association for Civil Rights in Israel (ACRI), the Canadian Civil Liberties Association (CCLA), Centro de Estudios Legales y Sociales (CELS) in Argentina, the Egyptian Initiative for Personal Rights (EIPR), the Hungarian Civil Liberties Union (HCLU), the Human Rights Law Network (HRLN) in India, the Irish Council for Civil Liberties (ICCL), the Kenya Human Rights Commission (KHRC), and the Legal Resources Centre (LRC) in South Africa.

Lethal In Disguise is currently available here: https://khrc.or.ke/wp-content/uploads/2023/11/Lethal-in-Disguise-Health-Consequences-of-Crowd-Control-Weapons.pdf

For more information, contact:

Andrew Songa

Programme Manager- Transformative Justice

ASonga@khrc.or.ke

A key champion in this struggle is a human rights defender and legislator, Hon Neto Agostinho Oyugi who represents Ndhiwa Constituency. He also chairs the Kenya Parliamentary Human Rights Association.

“Though some clauses were deleted we brought most of them back during the Committee stage. The change of attitude of the men as we came to the end of the process of enacting the bill was a great achievement as they became cognizant that domestic violence is not a women’s issue but a gender issue…a family issue thus the turnaround and eventual support,” says a determined Neto.

Passionate about equality, Hon. Neto supports human rights and the special protection of women’s rights. KHRC (Kenya Human Rights Commission), approached Kenya Parliamentary Human Right’s caucus to galvanize support of Members of Parliament to enact the Protection Against Domestic Violence bill. This was after the initial Bill was stripped down through various revisions. Enactment of this stripped down version would only have been a tick box exercise, where no real gains would be made for equality.

It is surely a milestone that a revised, comprehensive law was enacted. This law is a new dawn in how family relations and wrangles are managed and viewed in Kenya, signifying that Kenyans now recognize the negative impact of domestic violence and that the state is willing to do something about it.

Neto was involved in the drafting of amendments and he reintroduced them to the national assembly. He assisted in convening several meetings, including one that brought together almost 70 Members of Parliament to support the bill. KHRC reinforced this process through advocacy and lobbying to ensure quorum for the debate and enactment of the bill. This was only the beginning.

The representation of women in parliament remains low. Kenya has one of the lowest numbers of women in parliament in the region, despite gains made in industrialization, innovation and economic growth. Neto, with support from KHRC and others partnered to devise a formula to improve gender representation in parliament by realization of the ‘not more than two-thirds’ gender principle stipulated by the Constitution.

As a member of the Justice and Legal Affairs Committee of parliament, Neto consults with KHRC and other CSOs on the progress made by Parliament, relaying feedback on the legal, economic, social and political perspectives as well as the attitudes within Parliament. Neto took part in consultative meetings organized by KHRC to discuss possible strategies for a proper formula. These meetings resulted in Neto drafting an alternative bill with a formula on realizing the two-thirds gender principle after interactions with advocates of human rights and gender justice.

Recently there has been intensified discussion around the two thirds gender rule. Neto cites lack of political support for the realization and implementation of the two-thirds gender principle. A comprehensive strategy is required to ensure that those opposing gender equity do not quash this endeavour. The Chairperson of the Justice and Legal Affairs Committee has just introduced a bill to postpone the implementation of the two third gender rule, shunning all proposals presented by the technical working group and the Kenya parliamentary human rights caucus to which Neto says,“This has awakened the people of Kenya to the reality…we need a multifaceted approach and an… unusual way of protecting the provision on gender equality in the Constitution.”

The discussions and research to innovate on how to realize the two-thirds gender principle have invigorated all stakeholders to keenly ponder over various mechanisms of ensuring implementation. These deliberations should also lead to the creation of a consensus on the amendment of the constitution to entrench further realization of the two third gender rule in political participation. Such changes in legislation could set the pace for further gains in equality on other sectors across the society.

We wish to remind the nation, why the drafters established the Judicial Service Commission under Article 176. During previous regimes, the judiciary was at the beck and call of the executive as judges were appointed directly by the President. The Judicial Service Commission was established to entrench judicial independence by removing the power of judicial appointments from the executive hands of the President. The Judicial Service Commission is distinct from other Constitutional commissions as it oversees an independent branch of the government.

Article 166 provides that the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly. The role of appointment therefore vests exclusively within the Judicial Service Commission. The president is only meant to play a ceremonial role of receiving the name from the JSC and forwarding it to parliament. The president is not meant to exercise any discretion, choice, or active role in the appointment process.

We strongly reiterate that the Constitution of Kenya under Article 1 (3) recognizes the doctrine of separation of powers as a sacrosanct principle of governance. There must be a clear separation of powers between the judicial, executive and legislative arms of the government for purposes of checks and balances. The head of one branch of government cannot exercise direct control in the selection of the head of another branch of government.

Many Kenyans may wonder, “What is the big fuss? Is there a difference between forwarding one name to the President and forwarding three names?” When one name is forwarded to the President he does not participate in the appointment process. When three names are forwarded to the President and he selects the name to forward to parliament, he becomes the appointing authority. Requiring the JSC to forward three names fundamentally violates the doctrine of separation of powers. It is tantamount to requiring the national assembly to vote for three candidates for the position of speaker so that the president can select the candidate of his choice amongst the three to head the legislature.

The wounds of the 2007 Post Election Violence are still fresh in our souls and minds. We avoided violence in 2013 because the country had confidence in the Supreme Court. We know that the offices of the Chief Justice and Deputy Chief Justice are about to become vacant. We know that the current President has indicated interest in vying for the 2017 elections. The amended section 30 (3) of the JSC Act gives him powers to actively participate in the appointment of the next Chief Justice and Deputy Chief Justice. In case there is a presidential electoral dispute, it will be difficult to have confidence in a Court whose head will be perceived to be a sympathizer to the incumbent President. Our country may burn again.

We would like to point out that the amendments raise eyebrows as they were passed when the Chief Justice and Deputy Chief Justice are about to vacate office. This is evidence of mischief as the amendments do not affect the appointments of the other judges of the Supreme Court, Court of Appeal, and the High Court. Moreover the amendments were only introduced on the floor of the House. They were not contained in the Bill that was published on 18^th September 2015. This deprived the citizenry of the right to public participation and debate.

Finally, we firmly denounce the rogue usage of the Statute Law (Miscellaneous) Amendment Act to water down the Constitution. We underscore that the purpose of the Statute Law (Miscellaneous) Amendment Act is to make minor amendments to various statutes. Unfortunately, the current national assembly has converted it into a tool of legislative cheating. The Statute Law (Miscellaneous) Amendment Act is nowadays being used to make legislative changes that amount to a constitutional amendment.

We therefore demand:

1. That Parliament ceases the usage of the Statute Law (Miscellaneous) Amendment Act to water down the Constitution and make substantive amendments to existing laws.
2. That the Executive respects the doctrine of separation of powers and desists from tampering with judicial independence.
3. Respect and properly implement Public Participation as envisioned in the Constitution of Kenya 2010 on ALL legislation.

We further request the court:

1. To declare the amended Section 30 (3) of the Judicial Service Act void.

Signed by:

George Kegoro

Kenya Human Rights Commission - Executive Director

On behalf of:

1. Centre for Enhancing Democracy and Good Governance (CEDGG)
2. Constitution and Reform Education Consortium (CRECO)
3. Katiba Institute
4. Kenya Human Rights Commission (KHRC)
5. Kenyan Section of the International Commission of Jurists (ICJ-Kenya)
6. Kenyans for Peace with Truth and Justice (KPTJ)
7. National Civil Society Congress, and others

It was repeatedly explained to the LSK that clients’ names and personal details were confidential and could not be disclosed without their consent.Leigh Day obtained written advice from the Solicitor’s Regulatory Authority in the United Kingdom on the point and disclosed that to the LSK, however, the LSK persisted with the case in Nairobi and applied to the Court to force disclosure.

In her judgment 26 October 2015 at the Kenya High Court Mrs Justice Aburili ruled that: “I therefore … strike out the plaintiff’s suit against all the defendants for scandalous, misconceived, frivolous, vexatious, and bad in law and an abuse of the court process.”

Martyn Day, Senior Partner of Leigh Day said “We are pleased that the Kenyan High Court has now dismissed the claim brought by the Law Society of Kenya. We respect the LSK and were always prepared to sit around the table to try and resolve matters amicably with them. However, we were never going to be able to compromise the confidentiality our clients are entitled to. We hope we can now return to a more fruitful and cooperative relationship in the future.”

Davis Malombe, Deputy Executive Director of the KHRC said “We are delighted that Justice Aburili has dismissed this case at the earliest possible opportunity. Had the Law Society of Kenya met with us to allow us to clarify the position they would not have wasted precious time and resources on this case.”

Background

In 2013 Leigh Day, the Kenya Human Rights Commission and Maumau War Veterans Association settled a landmark case on behalf of 5,228 Kenyans who were victims of grave acts of torture at the hands of British officials during the Kenya Emergency in the 1950s and 1960s.

The claimants each suffered unspeakable acts of brutality, including castrations and severe sexual assaults.

The legal battle in the United Kingdom against the British Government took four years to resolve and involved two lengthy court hearings, both of which the claimants won against the Government lawyers.

In 2015 the British Government unveiled a memorial in Uhuru Park Nairobi to the victims of colonial era torture, as part of the historic settlement.

HIGH COURT REJECTS LSK MAU MAU CLAIM AGAINST KHRC, LEIGH DAY & MMWVA.

A statement by the Civil Society Organizations (CSO) Reference Group on welcoming the policy decision by Devolution Secretary Anne Waiguru to overrule the NGO Coordination Board.

Suspended de-registration of 970 Public Benefits Organisations (409.43 kB)

The Kenya Human Rights Commission (KHRC) and the Kenyan Section of International Commission of Jurists (ICJ Kenya) has asked the African Commission on Human and Peoples’ Rights to urge the Kenyan Government to, “Cease arbitrary deregistration, barriers to registration and operation of non-governmental organizations and all organized civic groups in a free and democratic society”.

The organizations said it was important for the Kenyan government to appreciate the interrelatedness of civil and political rights and economic, social and cultural rights.

They made the statement endorsed by the Independent Medico Legal Unit and the Refugee Consortium of Kenya in the ongoing   57th Ordinary session of the African Commission on Human and People’s Rights in Gambia.

57TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS

The two giant unions called the ongoing national teachers’ strike based on the Government’s refusal to effect the Industrial Relations Court order that the Teachers’ Service Commission (TSC) awards a 50-60 percent salary increment to teachers, a decision which the Court of Appeal and Supreme Court upheld. Unless the order is reversed by a higher court, the rule of law demands that the government complies with the current decision. For the refusal by the Government and any actor to implement court decisions sets a bad precedent of abetting anarchy and impunity.

KHRC is concerned that the disruption of learning due to the ongoing teachers’ strike comes at a time when learners should be preparing for the national exams. The strike, now in its third week, has paralyzed learning in public primary and secondary schools; putting the fate of about 12 million learners in limbo, with children in public schools hurting the most. This perpetuates inequality because learning in private schools continues uninterrupted.

The right to basic education for children in Article 53 of the Constitution is an unqualified right, realizable immediately and is not pegged on availability of resources. Further, Kenya being a signatory of the International Covenant on Economic, Social and Cultural Rights (ICESCR), has undertaken under Article 2 (1) of the covenant to deploy maximum available resources for the achievement of Economic, Social and Cultural Rights, education being one of them.

However, a look at the gross misappropriation of tax payers’ money, unnecessary government expenditure, misplaced priorities such as the laptop project, over funding of some ministries such as the security ministry currently supported to the tune of Kshs. 200 billion, grand corruption both at the national and county governments and hefty salaries for and extravagance by State officials is evidence of the government’s unwillingness to deploy maximum available resources for the realization of access to education. Granted, the billions of money lost in tax evasion estimated at KSh.639 billion annually is more than enough to pay the KSh.17 billion that teachers are asking for.

Davis Malombe, Ag. Executive Director at KHRC says: “By delaying to obey the Court order, the Government is condoning a continuing violation of children’s rights under the Constitution.” It is also a blatant contravention of Article 21 of the Constitution that obligates the State and State organs to observe, respect, protect, promote and fulfill rights and freedoms. The excuse of lack of funds by the Government to pay teachers adequately is unjustifiable and unacceptable. Teachers have had to put up with a never ending circus on their salaries for years now. The billions lost in imprudent and irresponsible financial expeditions is more than enough to pay the 17 billion that teachers are asking for.

In view of the foregoing, KHRC demands that:

1. The TSC immediately pays the increment ordered by the Courts without any further delay;
2. A return-to work formula is negotiated and agreed on to allow normalcy to return to public schools. The strike MUST END NOW!
3. The TSC and teachers’ unions engage in open and constructive dialogue towards finding a lasting solution to the never ending teachers’ strikes;
4. The government MUST zealously guard, respect, promote and protect the right to education. This right is a fundamental right that MUST NOT be compromised for whatever reason.
5. The Government must pursuant to Article 201 of the Constitution ensure equity, accountability and prudence in the allocation and utilization of public resources.

Kenya is a State governed by the Constitution. The Government, just like any other stakeholder, has an unqualified and uncompromising obligation to uphold the rule of law and respect Court Orders.

____________________________________________________________________________________________

Media Inquiries: Audrey Kawire Wabwire | Communications Manager | Kenya Human Rights Commission | awabwire@khrc.or.ke

OUR MISSION NO 1 today, is to congratulate the Mau Mau mass movement freedom fighters, who heroically through tears, sweat and blood, recovered freedom, justice and land from British colonial regime of dictatorship.

OUR MISSION NO 2 is, to thank Kenya national government, for revoking in 2003, the colonial subsidiary legislation no 913 of 12-8-1950, which without justification, proscribed Mau Mau freedom mass movement, terming it, a dangerous organization.

The revocation of that bad law enabled Mau Mau victims of torture and ill-treatment, to file a case in the royal court of justice in London, against British government in 2009.

The case resulted in an out of court agreement, under which the British government agreed to pay the case torture and ill-treatment victims, to issue a public sincere statement of regret on torture and ill-treatment of Mau Mau freedom fighters by British colonial government during the emergency draconian laws, in 1950-1960, and to build a torture and ill-treatment victims memorial monument, which we have come to inaugurate here today.

                                 WEENDANI URIA NDONIRE, WA CIANA NA ATUMIA, MBOCO YAGWA THI MAKENYURANA.

HOYAI MA THAITHAI MA NIAMU NGAI NO URIA WA TENE !!

OUR MISSION NO 3 is, to convey our gratitude to the board members of Kenya Human Rights Commission, the staff including tea makers, who never let us go thirsty when we visit KHRC offices. it is fair to say, that KHRC in our considered opinion, fits the bill of human rights redeemer.

OUR MISSION NO 4 is, to thank our local and London court lawyers, in recognition of their better legal arguments they advanced on our behalf in the court of law.

OUR MISSION NO 5 is, to thank all persons local or foreign, who sympathized and prayed for the success of our case in London.

It is just and fair to say, that our observation in and outside the court in London, British young generation, morally supported our case. it is a good gesture for reconciliation construction.

Mau Maus were never terrorists, they were freedom fighters. They drew authority to fight, from the entire population of Kenya, who were aggrieved by the dictatorial colonial regime.

TWATHIAGA TUKENETE TUGACOKA TUKENETE !! 

“RUGENDO RWITU RWARI RWEGA TUGITHII NA TUGICOKA”

“RUGENDO RWITU RWARI RWEGA TUGITHII NA TUGICOKA”

We the Mau Maus believe, that negotiations and dialogues start from an individual homestead to international forums, are the mothers of all mutual agreements, the world over. we have examples to quote, to support that school of thought. 1. The United Nations, East Africa Community, ECOWAS etc.

Although we have no ability to forget, atrocities committed by colonial administrators and the settlers, against freedom fighters, we sincerely believe, that our out of court negotiated agreement, that bore this monument, will cultivate and nurse a healthy reconciliation process, between the Mau Mau , the British people and their government.

It is our dear conviction, that human beings, wherever they live, at home, or overseas, are interdependent. Each one of them is a condition to the others existence.

As we inaugurate an out of court agreement, torture and ill-treatment memorial monument, our fellow brothers and sisters at arms, who missed the 1^st case have a case pending in the court in London.

We appeal to you the British commissioner, to make recommendation that they also be paid, since they suffered torture and ill-treatment in the same way we did.

Considering the sacrifices made by the freedom fighters and the movement adherents, in recovering freedom and justice and bearing in mind and souls the historical importance this memorial carries, we the freedom fighters, patriotically urge Kenya national government, through the cabinet secretary in charge of museums, to gazette this monument, to be part of national museums.

Let the Mau Mau spirit, of patriotism live, for ever and ever.

HON.DR. GITU WA KEHENGERI (OGW)

SECRETARY GENERAL

To Members of the World Trade Organization (WTO):

As 34 organizations of civil society from over 100 countries of the global North and South, as consumer groups, environmentalists, trade unions, farmers, and other development advocates, we are writing regarding the wrong direction of the current WTO talks, and to urge you to substantially turnaround the negotiations in advance of the December Ministerial in Nairobi. Global trade policy must be evaluated by whether it contributes to global goals such as food security and food sovereignty, sustainable development, environmental conservation, financial stability, expanded access to quality public services, the creation of good jobs, and the reduction of poverty and inequality. Now after 20 years of experience with the WTO and its corporate-led model of globalization, it is clear that this particular model of trade has failed workers, farmers, the poor, and the environment, while facilitating the vast enrichment of a privileged few. Since its mandate is to further liberalization and increase trade, rather than ensuring that trade can be an engine of development and the other goals stated above, it is the wrong institution for governing the global trade system. Unfortunately, some members are seeking to further the failed model and even expand it; thus it is urgent to reverse this direction. The transformation of the system, starting with the amelioration of the worst rules, must be prioritized.

It is well known that most developing countries realized that the conclusions of the Uruguay Round created a set of agreements in the WTO that left them at a disadvantage in the global trade system. Since that time, they have circulated proposals to ameliorate the worst of those imbalances through what came to be known as the “Implementation Agenda.” Developing countries did not want a new round of “market access” negotiations launched, which is a position with which civil society concurs. When developing countries agreed to launch a new round in 2001, it was with the specific promise – and mandate – that the round would focus on development issues, which included correcting the existing problems and imbalances in the WTO, with a particular focus on improving the extremely unbalanced agriculture rules. Unfortunately, since then, some developed countries have insisted again and again on relegating the development agenda to the background, while insisting that their “market access” issues rise to the top priority in the negotiations. Thus, nearly 14 years after the launch of the Doha Round, the development issues which members agreed to prioritize still remain unresolved within the WTO. At this time, this imbalance in the negotiations can no longer remain status quo.

Wrong Agenda: Further Liberalization of Services and Goods and New Corporate Wish Lists

Negotiations to further liberalize “trade in services” through the expansion of the General Agreement on Trade in Services (GATS) must be immediately halted. Strong public oversight over both public and private services is crucial for democracy, the public interest and development, as well as for the orderly functioning of the services market. The deregulation of the financial sector which was encouraged in part through 1990s–era rules of GATS led to the recent global financial crisis and the ensuing worldwide wave of recessions. In addition, we particularly oppose the inclusion of any public services such as health care and insurance, water and energy provision, postal distribution, education, public transportation, sanitation, and others that must be operated as accessible, quality public services in the public interest. Before any further services negotiations are discussed, proper assessments of the potential implications for consumers, workers, and the public interest must be undertaken, particularly as they relate to the future development of services for developing countries. For these and other reasons, detailed in a September 16, 2013 letter endorsed by 345 global civil society organizations, we oppose the proposed Trade in Services Agreement (TISA) pluri-lateral and also the potential expansion of GATS within the WTO.

For similar reasons we oppose the continuation of negotiations to further liberalize trade in goods through the Non-Agricultural Market Access (NAMA) pillar. In the negotiations, sectors are being targeted which are of particular interest to developed country corporations, rather than with a focus on export opportunities for developing countries. This would jeopardize job growth and the fomenting of industrial development, particularly in developing countries. The structural transformation that is required for many African countries and LDCs to create jobs and alleviate poverty – key aspects of the proposed Sustainable Development Goals – requires the protection of infant industries, the promotion of added-value exports, technology transfer, and other tools that were used by every developed country on their path to development. In addition, the global jobs crisis in which tens of millions of people remain unemployed cannot be resolved with more liberalization of trade in goods.

Any future negotiations on trade in goods – including those in the NAMA negotiations but also in the proposed pluri-laterals including the expansion of the Information Technology Agreement (ITA-II) and the negotiations on Environmental Goods – must focus on job creation and the Decent Work agenda developed by the International Labor Organization working in conjunction with the global labor movement, rather than on the narrow agenda of reducing corporate taxes. Expansion of the ITA, and the ITA itself, through setting zero tariff targets for industrial products is contradictory to the nature of policy space required to use tariff policy as a tool to advance industrial development and structural transformation of poor economies. Any discussions in regard to non-agricultural market access should focus on enabling the process of industrial development including through reviewing and enhancing flexibilities available to developing countries and through fulfilling the Special and Differential Treatment principle, such as providing essential flexibilities under the Agreement on Trade-Related Investment Measures (TRIMs) that would allow developing countries to use policy tools important for industrial development.

We also alert members that we are strenuously opposed to the inclusion of these “new issues” in a fundamentally flawed WTO that has yet to deal with the foundational flaws of the existing rules. We also understand that there is a pernicious desire on behalf of some developed members of the WTO, to set aside permanently the entire development mandate of the Doha Round, and to replace it with another agenda of issues that would further the profit interests of their corporations. These issues that have been strongly rejected by developing countries in the past, including investment, government procurement, and transparency (the so-called “Singapore issues.”) They also include negotiations on e-commerce (which would expand corporate dominance of Internet governance and erode digital privacy and other digital rights); disciplining state-owned industries; and negotiations on environmental goods and services (which simply appropriate the positive connotations of the “environmental” moniker to further liberalization). While there are many aspects of the Doha Round to which we are opposed, failing to fulfill the development aspects while replacing that mandate with a new mandate that focuses solely on the wrong issues is the opposite agenda of what needs to be prioritized in global trade.

And as we have previously argued, development must come before binding commitments on Trade Facilitation. We also understand that WTO members are being pressured to file their ratifications of the Protocol of Implementation for the entry into force of the Trade Facilitation Agreement (TFA). We reiterate our general opposition to the TFA, as we detailed in a letter from global civil society on June 6, 2013, particularly because the TFA carries significant implications at each of the regulatory, institutional, and legislative fronts, would require short-term and recurring long-term costs, and is likely to increase imports in some sectors while not contributing to building the productive and trade capacities of our country. Thus we continue to urge developing countries to delay ratification, and to file only minimal Category A (binding) commitments.

The Right Agenda: Agricultural Transformation and Special and Differential Treatment

Instead, developing countries and Least Developed Countries (LDCs) have made concrete proposals regarding the development mandate, including implementation issues, strengthening and operationalizing Special and Differential Treatment (SDT), agricultural reform, and LDCs issues, and it is these issues which must be re-prioritized as the agenda rather than discussing more “market access” for developed country corporations.

Along with the SDT agenda, members must urgently begin negotiations to change the current rules on trade in agriculture, and in particular to address long-standing concerns about the existing trade-distorting subsidies that developed countries agreed years ago to curtail or eliminate. It is outrageous that developed, but not developing, countries are allowed extensive levels of export subsidies as well as trade-distorting domestic support, and these damaging subsidies on exported agricultural exports must be urgently terminated; countries should not be permitted in the WTO to damage each other’s markets. Likewise, if there are any future negotiations on market access in agriculture, developing countries must be allowed to protect their domestic production; they must have recourse to a full range of self-designated Special Products and an effective and workable Special Safeguard Mechanism, in the event that their markets experience damaging import surges.

On a parallel track, we urge members to immediately agree to a permanent solution on food security, by allowing public stockholding programs for resource-poor farmers to be allowed in the “Green Box.” WTO members must move beyond the outrageous blockage by the United States of the proposal to allow the developing countries to engage in public stockholding programs to support impoverished agricultural producers as well as ensure food security for their hungry populations. Members must urgently agree to remove this WTO obstacle to the Right to Food.

In conclusion, any future trade negotiations must focus on the urgent development needs of countries for global trade rules that facilitate rather than hinder development, including the transformation of existing rules on agriculture (including a permanent solution on food security), and the prioritization of Special and Differential Treatment, implementation proposals, and the LDC proposals; and must put aside the “market access” agenda of GATS and NAMA expansion – as well as other developed country corporate agendas. Many of the specific changes that are urgently required of the global trade system are detailed in the WTO Turnaround statement of the global Our World Is Not for Sale (OWINFS) network endorsed by civil society around the world. The first WTO Ministerial in Africa will not be a “success” if it furthers policies that are against the interests of African, LDC, and other developing country development. For Nairobi to be a “success” it must deliver on development and turn around the WTO.

Sincerely,

Signatories as of July 14, 2015: