We the undersigned organizations call for the immediate release of Willie Kimani, a human rights defender/lawyer, and his two associates, Josphat Mwenda and Joseph Muiruri, who were abducted by the Administration Police (AP) on 23^rd June 2016. The three were abducted as they left the Mavoko Law Courts in Machakos County shortly before 12:00 pm. Willie, who works for the International Justice Mission (IJM), was in court together with IJM client Josephat Mwenda, a 24 year old father of one who before the 10^th April 2015, plied his trade as a Boda boda (motor cycle) rider. This is the culmination of numerous blatant attempts to intimidate Josphat to withdraw a complaint lodged with the Independent Police Oversight Authority (IPOA) against a senior Administration Police (AP) officer stationed at Syokimau AP Camp.

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The High Court delivered judgment in a petition by the Kenya Human Rights Commission (KHRC) challenging the decision of the Non-GovernmentaOrganizations Coordination Board (NGO Board) which threatened to cancel the registration certificate and freeze the accounts for the organization.

Justice Louis Onguto found that the failure by the NGO board to give the KHRC a hearing before arriving at a decision to cancel its registration was a violation of the constitutional right Justice Onguto further stated that this was compounded by the fact that the NGO board failed to furnish written reasons to the Kenya Human Rights Commission when the organization repeatedly wrote asking for such reasons.

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A coalition of  like-minded civil society organizations, who have come together to proactively support Kenya’s preparations for the 2017 elections with a view to ensuring that the country minimizes the risks related to dysfunctional electoral competition which the country has experienced in the recent elections, launched a citizen initiative dubbed Kura Yangu Sauti Yangu.

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Members of the Police Reforms Working Group strongly condemn the unlawful and excessive use of force and brutality exhibited against students by the GSU wing of the National Police Service of Kenya on Monday the 4^th of April 2016 at the precincts of University of Nairobi.

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“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.