A case in point is the recent inflammatory speech by Gatundu South Member of Parliament, Hon. Moses Kuria who, reckless and irresponsible in his utterances, has been recorded encouraging youth in his constituency to slash with machetes critics of the national youth service (NYS) project in the constituency. It is more disconcerting that the MP, who is a state officer and who has previously been bonded by a court to keep the peace has remained unapologetic.

Such a hateful conduct is extremely dishorable, untenable and inimical to the provisions of the Constitution of Kenya among other laws and policies. Article 10 on National Values and Principles recognizes and defines what Kenya stands for as a Nation. Though Article 33 of the Constitution of Kenya provides that every person has the right to freedom of expression, this right is however not absolute and cannot be used violate the rights of other persons. More so when its used by elected representatives to incite people violence and advocate for hatred .

Moreover, Section 13 and Section 65 of the National Cohesion and Integration Act 2008 define and prohibit hate speech expressly. The Act defines hate speech as the use of threatening, abusive or insulting words or behavior, the publishing or distribution of any written material, the presenting or directing of a performance and the providing, producing or directing a programme which stirs up ethnic hatred. Section 62 provides that any person who is guilty of hate speech shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both.”

The Penal Code prohibits incitement to violence. Section 77(1) provides;
“Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years” subversion is defined under Section 77(3) as; supporting, propagating or advocating for any act that is prejudicial to public order and incitement to violence.

It is against this backdrop that KHRC condemns the said utterances of Hon Moses Kuria in Gatundu. The KHRC would like to remind Hon Moses Kuria and all leaders that the freedom of expression, though guaranteed under the Constitution, should not be used to incite for violence and infringe on the rights of others. Chapter 6 of the Constitution which addresses leadership and integrity provides that, authority assigned to a state officer is a public trust which should be exercised in a manner that demonstrates respect for the people and brings honour to the Nation and dignity and integrity to the office.

We would like to applaud the National Cohesion and Integration Commission (NCIC) for condemning this abominable behavior and calling for concerted efforts to have the culprit brought to book. We thank the Office of the Director of Public Prosecution (DPP) for launching an investigation on these unfortunate utterances. We call upon the DPP to undertake due diligence-expedite these investigations and take all necessary measures to ensure that Hon. Moses Kuria faces the full force of law in regards to his gross misconduct.

KHRC would also like to commend the public for their positive outrage which has generated responses from relevant government bodies including action by political parties and Legislators. We would like to encourage the people of Kenya to remain cohesive, vigilant and fearless in demanding for accountability in the use of state resources among other governance process. This will embolden safeguards

to national integration and respect for the rule of law.

Finally, it is our hope that the law shall take its full cause and that this unfortunate incident will no only be a lesson to Hon. Moses Kuria but it will also act as deterrence to other leaders against hate speech and incitement to political violence. For such mediocre conduct and leadership is what almost plunged the country into the blink of precipice during the 2007/2008 political violence.

We are optimistic that Kenyans will continue to question ethnic patronage which is aimed at furthering ethnocentrism. Ethnocentrism and ethnic political mobilizations remains a great barrier to cohesion and integration of the nation. All energies and efforts must be exerted

towards creating a Kenya that is of sound democracy founded on due respect of the law and political consensus to build and promote pluralism .

Signed by Davis Malombe,

Ag. Executive Director

Media bookings contact:

Audrey Kawire Wabwire | Communications Manager | E: awabwire@khrc.or.ke

HIV continues to be a major national problem in Kenya. We cannot ignore the fact that a third of all new HIV infections are attributed to Key Populations namely sex workers (SW), men who have sex with men (MSM) and people who inject drugs (PWID). It is in our public health interest for this country to continue to reach out to these groups because they are they are part of our society.

The Kenyan Constitution guarantees access to the highest attainable quality of health services to all without discrimination as part of the Rights and Fundamental freedoms under the Bill of Rights. The Ministry of Health has consistently endeavoured to fulfil this obligation in providing the Key Populations with a national health programme and services; its Kenya AIDS Strategic Framework (KASF) Strategic Direction 3 is clear on the need to use a human rights approach to facilitate said access. State endorsement of the same is evidenced by the Deputy President’s remarks on 3rd July 2013 where he said that; “Although Kenya has diverse religious and cultural positions, the Government has an obligation to provide inclusive and effective services to all including sex workers, people who use drugs, men who have sex with men and people in prisons”. This is in alignment with the KASF, which states, “The success of the HIV response is dependent on protecting and promoting the rights of those who are socially excluded, marginalized and vulnerable”. We reiterate our appreciation to the Government and its agencies for always trying to deliver qualified and targeted health services to our sub-populations.

Programming has been fairly successful in controlling HIV transmission among our Key Populations and by extension Kenyans in general. However, criminalized Key Population activities make access to health services difficult due to discrimination and violence from surrounding communities.

In order to achieve the national health outcomes as clearly highlighted in government policy documents such as Vision 2030, Kenya Health Policy, The HIV and AIDS Strategic Framework, The Key Populations Policy etc., all Kenyans must be able to access health services without the fear of risking their lives.

The current inflammatory rhetoric stemming from the anti-homosexuality debates presents a significant barrier to Kenya achieving these goals. From past experience whenever our political leaders stoke these debates, many Key Population members stop accessing services due to fear of discrimination or attacks at health centres and their homes across the country.

As fellow Kenyans, the CSO community is committed to addressing both systemic and emerging injustices and inequalities in the society. In so doing, we recommend the following:

1. An immediate cessation of State-sanctioned homophobia witnessed in the inflammatory statements associated with high-ranking government officials.
2. The immediate reassurance of security and protection for Key Populations including sex workers, men who have sex with men and injecting drug users that are currently unable to access health programmes and services, including adherence programs to HIV treatment due to concerns around their personal security and welfare.
3. That the Ministry of Health through its relevant lead agencies comes out and educates the Kenyan public on the impact of the current homophobic environment on its ability to reach out to Key Populations, jeopardising the goodwill that has been developed over many years – and threatening the realization of superior health outcomes for ALL Kenyans.
4. A sustained approach to policy reform by key state and non-state actors in removing legislative barriers to the Public Health Imperative.
5. That the Global Fund for AIDS, TB and Malaria (GFATM) and the United States President’s Emergency Plan for AIDS Relief (PEPFAR) revisit national level support as aligned to their well-articulated guidelines.
6. That all citizens including Key populations in Kenya be treated with respect and dignity as enshrined in the Constitution of Kenya.
7. That we as Kenyan citizens reflect deeply on the role that each and every one of us must play in entrenching our position as the most progressive flagship country in Africa.
8. The government guarantees Freedom and Security of all Kenyans regardless of their sexual orientation or gender identity.END

1. The Gay and Lesbian Coalition of Kenya (GALCK)
2. Ishtar MSM
3. Health Options for Young Men Against HIV/STIs (HOYMAS)
4. Minority Women in Action (MWA)
5. Minority Persons Empowerment Group (MPEG)
6. Q-Initiative (Q-I)
7. Tamba Pwani
8. The National Gay and Lesbian Human Rights Commission (NGLHRC)
9. Nyanza Rift Valley Western Kenya Network (NYARWEK)
10. Voices of Women in Western Kenya (VOWEK)
11. Network of People Living with HIV/AIDS in Kenya (NEPHAK)
12. The Key Populations Consortium
13. The Kenya Human Rights Commission (KHRC)
14. The National Coalition for Human Rights Defenders (NCHRD)
15. KELIN
16. HOLAAFRICA
17. Constitution and Reform Education Consortium (CRECO)
18. Akiba Uhaki
19. Coalition for Constitution Implementation (CCI)
20. Society for International Development (SID)

President al-Bashir, charged with genocide, war crimes and crimes against humanity in connection with the conflict in Darfur was in South Africa from 13-15 June for an African Union Summit.  South Africa was under a clear obligation to arrest him pursuant to two warrants of arrest issued against him by the International Criminal Court (ICC) on 4 March 2009 (for war crimes and crimes against humanity) and on 12 July 2010 (for genocide).

South Africa is a party to the Rome Statute of the International Criminal Court. Pursuant to the terms of that treaty mandating international cooperation and assistance with the ICC, South Africa was required to facilitate the arrest and surrender of President al-Bashir to The Hague in the Netherlands, the seat of the International Criminal Court. In addition, South Africa’s domestication of the Rome Statute of the ICC makes the government’s failure to arrest President Omar al-Bashir a contravention of domestic law as well.

On 13 June, ICC Presiding Judge Cuno Tarfusser issued a decision declaring that “there exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar al-Bashir to the Court, and that the competent authorities in the Republic of South Africa are already aware of this obligation.”

Against this background, and because the South African authorities did not appear to intend to effect the arrest of President al-Bashir, the Southern African Litigation Centre moved an application once al-Bashir was in South Africa to compel the Government of South Africa to discharge its legal obligations to arrest al-Bashir and surrender him to the ICC. During the proceedings before the Pretoria High Court, Justice Hans Fabricius made an interim order “compelling Respondents to prevent President Omar al-Bashir from leaving the country until an order is made in this court” after the State opposed the application.

We noted with deep concern reports that rather than arresting President al-Bashir, South African officials apparently allowed him to leave the country in direct defiance of the order by the Pretoria High Court. The actions pose serious consequences for the independence of the judiciary in South Africa and demonstrate a flagrant lack of respect for the rule of law and the rights of Darfur’s victims to have access to justice.

As made clear by ICC Presiding Judge Cuno Tarfusser in his 13 June decision: “the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by resolution 1593 (2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.”

The recent actions by South Africa have the potential to erode the people’s confidence in the administration of justice particularly because it raises issues of equality before the law, the legitimacy of the courts and court orders being binding on everyone as provided for in Article 165 (2), (4) and (5) of the Constitution of South Africa (1994) respectively. If State officials can disregard with impunity the interim order of the Pretoria Court, what will stop them from undermining future court orders? That is the question foremost on the minds of many South Africans today.

We call on the courts of South Africa to establish accountability and on the government to undertake an independent investigation into the circumstances that allowed for the departure of President al-Bashir in defiance of the Pretoria Court order and international arrest warrant and for full cooperation with the Court’s own inquiry on the matter. Those responsible must be brought to prompt justice, including for contempt of court. We also call on the Assembly of States Parties of the ICC to take appropriate action to address non-compliance by South Africa and other States who breach their obligations of cooperation and assistance under the ICC Statute. We call on the United Nations Security Council which was briefed by the ICC Prosecutor on the situation in Darfur on 29 June to strongly reaffirm the obligation of States parties to duly cooperate with the ICC. Members of the Security Council, who referred Darfur to the ICC, have a special responsibility to fully support and facilitate the prosecutor’s continued work.

We also call on governments and political parties alike to respect the space afforded to civil society organisations, pursuant to the South African Constitution, to litigate in the interests of the public. Matters of justice and accountability are pursued in the interests of the public, and civil society organisations have a mandate that warrants action when government authorities act in contravention of constitutionally protected values. Access to justice is a constitutionally enshrined right that all are entitled to utilise.

This document has been signed by the following organizations:

1. Associação de Reintegração dos Jovens/Crianças na Vida Social, Angola
2. Associação Justiça Paz e Democracia, Angola
3. Missão de Beneficência Agropecuária do Kubango, Inclusão, Tecnologias e Ambiente, Angola
4. Omunga Association, Angola
5. DITSHWANELO – The Botswana Centre for Human Rights, Botswana
6. Coalition Burundaise pour la Cour Pénale Internationale, Burundi
7. Cameroon Coalition for the International Criminal Court, Cameroon
8. Associação Caboverdiana de Mulheres Juristas, Cape Verde
9. Coalition pour la Cour Pénale Internationale de la République Centrafricaine, Central African Republic

10. Coalition Ivoirienne pour la Cour Pénale Internationale, Côte d’Ivoire

11. Groupe de Travail sur les Instruments Internationaux de l’ONU, Côte d’Ivoire

12. Observatoire Ivoirien des Droits de l’Homme, Côte d’Ivoire

13. Réseau Equitas, Côte d’Ivoire

14. Action Congolaise pour le Respect des Droits Humains, Democratic Republic of the Congo

15. Club des Amis du Droit du Congo, Democratic Republic of the Congo

16. Observatoire decentralize de la RADDHO pour la Région des Grands Lacs, Democratic Republic of the Congo

17. Vision Sociale, Democratic Republic of the Congo

18. Human Rights Concern - Eritrea

19. African Centre for Democracy and Human Rights Studies, Gambia

20. Africa Legal Aid, Ghana, Netherlands

21. Media Foundation for West Africa, Ghana

22. International Center for Policy and Conflict, Kenya

23. International Commission of Jurists, Kenya

24. Kenya Human Rights Commission, Kenya

25. Kenyans for Peace with Truth and Justice, Kenya

26. Transformation Resource Centre, Lesotho

27. Centre for Human Rights and Rehabilitation, Malawi

28. Centre for Human Rights Education, Advice and Assistance, Malawi

29. Centre for the Development of People, Malawi

30. Network of Religious Leaders Living with or Personally Affected by HIV and AIDS, Malawi

31. Maphunziro Foundation, Malawi

32. Coalition Malienne pour la Cour Pénale Internationale, Mali

33. Femmes et Droits Humains, Mali

34. Association Mauritanienne des Droits de l’Homme, Mauritania

35. Associação, Mulher, Lei e Desenvolvimento, Mozambique

36. AIDS & Rights Alliance for Southern Africa, Namibia

37. NamRights, Namibia

38. Access to Justice, Nigeria

39. Civil Resource Development and Documentation Centre, Nigeria

40. Coalition for Eastern NGOs, Nigeria

41. Legal Defence & Assistance Project, Nigeria

42. National Coalition on Affirmative Action, Nigeria

43. Nigerian Coalition for the International Criminal Court, Nigeria

44. Socio-Economic Rights and Accountability Project, Nigeria

45. West African Bar Association, Nigeria

46. Women Advocates’ Research and Documentation Center, Nigeria

47. Rencontre Africaine pour la Défense des Droits de l’Homme, Senegal

48. African Center for Democratic Studies, Sierra Leone

49. Centre for Accountability and Rule of Law, Sierra Leone

50. Society for Democratic Initiatives, Sierra Leone

51. Centre for Human Rights, University of Pretoria, South Africa

52. Corruption Watch, South Africa

53. Gay and Lesbian Network, South Africa

54. Global Interfaith Network on Sex, Sexual Orientation, Gender Identity, and Expression, South Africa

55. International Crime in Africa Programme, Institute for Security Studies, South Africa

56. Human Rights Institute of South Africa, South Africa

57. Khulumani Support Group, South Africa

58. Ndifuna Ukwazi, South Africa

59. Section27, South Africa

60. Sonke Gender Justice, South Africa

61. Street Law South Africa, South Africa

62. New Sudan Council of Churches, South Sudan

63. Voice for Change, South Sudan

64. Darfur Bar Association, Sudan

65. Darfur Relief and Documentation Centre, Switzerland

66. Children Education Society, Tanzania

67. Kisarawe Paralegals Organization, Tanzania

68. LGBT Voice, Tanzania

69. Services Health & Development For People Living Positively HIV/AIDS, Tanzania

70. Tanzania Network of Women Living with HIV and AIDS, Tanzania

71. African Centre for Justice and Peace Studies, Uganda

72. African Freedom of Information Centre, Uganda

73. Empowered at Dusk Women’s Association, Uganda

74. Foundation for Human Rights Initiative, Uganda

75. Human Rights Network, Uganda

76. Initiative for Rural Development, Uganda

77. Uganda Coalition for the International Criminal Court, Uganda

78. Uganda Victims Foundation, Uganda

79. Initiative for Civil Liberties, Zambia

80. Southern Africa Centre for the Constructive Resolution of Disputes, Zambia

81. Counselling Services Unit, Zimbabwe

82. Research and Advocacy Unit, Zimbabwe

83. Zimbabwe Human Rights Association, Zimbabwe

84. Zimbabwe Human Rights NGO Forum, Zimbabwe

85. Sudan Zero Conflict, UK

86. Waging Peace, UK

87. Act for Sudan, USA

88. Coalition for Darfur & Marginalized Sudan, USA

89. Darfur Women Action Group, USA

90. Dear Sudan, Love Marin, USA

91. International Justice Project, USA

92. Investors Against Genocide, USA

93. Massachusetts Coalition to Save Darfur, USA

94. Pittsburgh Darfur Emergency Coalition, USA

95. San Francisco Bay Area Darfur Coalition, USA

96. Sudan Unlimited, USA

97. Coalition for the International Criminal Court

98. Fédération Internationale des Droits de l’Homme

99. Human Rights Watch

100. International Commission of Jurists

101. Women’s International League for Peace and Freedom

29th Session of the UN Human Rights Council – June 15 - July 3, 2015

Item 4 – Interactive Dialogue

Last December, the U.S. Senate Select Committee on Intelligence released the summary, findings and conclusions of its four-year investigation into the Detention and Interrogation Program operated by the Central Intelligence Agency (CIA). Since then, the international human rights community has reiterated the call for full transparency about and accountability for this unlawful program, in which systematic human rights violations, including the crimes under international law of torture and enforced disappearance were committed. Last March, more than 20 human rights groups called on the Council to take action and demand that the United States fulfill its international human rights obligations on truth, accountability and remedy, including by appointing a special prosecutor to conduct a comprehensive and credible criminal investigation of alleged serious crimes described in the report and to establish a special fund to compensate victims.

Last month, during the United States’ UPR session, a significant number of Member-States joined civil society’s call and raised the issue of accountability and reparations for the use of torture and other human rights violations in the context of U.S. counter-terrorism policies and practices.

They also emphasized the need to end indefinite detention and close the Guantánamo detention facility, one of the remaining examples of the unlawful actions taken in the name of national security since the attacks of 11 September 2001. Delivering justice for the victims and ending indefinite detention in Guantánamo are both issues that still require more decisive and urgent action from the Obama administration.

On 26 June, the world will mark the International Day in Support of Victims of Torture. The

U.S. government was a strong supporter of the adoption of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which is commemorated every year on this day. The United States is also a generous contributor to the U.N. Voluntary Fund for Victims of Torture. But the U.S.’s failure to hold accountable those responsible for the CIA program of torture and enforced disappearance, to ensure the victims’ rights to truth and reparations, and to take other actions to ensure non-repetition of these heinous crimes leaves the U.S. in violation of its own obligations under UNCAT and other international instruments and is a serious blow to the international human rights system, in general, and to the global effort to eradicate torture and enforced disappearance, in particular.

During its next session, the Council will adopt the Working Group report on the U.S. UPR. We call on the Council to send a strong message against impunity for torture and enforced disappearances and demand that the United States take measures to meet the full spectrum of its obligations under international law to ensure accountability, transparency, reparations and non-repetition, including declassification of the full Senate report on the CIA detention program, independent comprehensive criminal investigation, and the issuing of apologies and

compensation to victims of enforced disappearance, torture or other cruel, inhuman or degrading treatment.

Continued impunity is a dark chapter in the history of the United States that threatens to undermine the universally-recognized prohibition against torture and other abusive treatment, and sends the dangerous message to U.S. and foreign officials that there will be no consequences for future abuses. Other governments implicated in the CIA torture program must also be held accountable and are obligated to conduct independent investigations, hold perpetrators accountable, and provide effective remedies to victims of torture, enforced disappearance and other human rights violations.

We know from the experiences of civil society groups and survivors of torture around the world that the struggle for accountability for human rights violations and the search for truth can be a long and difficult journey. Yet the United States has much to gain from rejecting impunity, returning to the rule of law, and providing adequate redress to the dozens and dozens of people it so brutally abused.

We hope the United States will follow that path.

Submitted by:

American Civil Liberties Union (ACLU) Centro de Estudios Legales y Sociales (CELS) Conectas Direitos Humanos

Washington Office on Latin America (WOLA)

Endorsed by

Abogadas y Abogados para la Justicia y los Derechos Humanos, A. C Abuelas de Plaza de Mayo

Acción Solidaria en VIH/Sida Advocates for U.S. Torture Prosecutions

African Centre for Democracy and Human Rights Studies Ágora Espacio Civil Paraguay

Allard K. Lowenstein International Human Rights Clinic, Yale Law School Amnesty International

Appeal for Justice

Asociación de Familiares de Presos y Desaparecidos Saharauis Asociación MINGA

Asociación para la Prevención de la Tortura Asociación Pro derechos Humanos

Cairo Institute for Human Rights Studies Center for Constitutional Rights

Center for Justice and Accountability Center for Victims of Torture

Centre for Human Rights

Centro de Derechos Humanos de las Mujeres, A. C.

Centro de Documentación en Derechos Humanos “Segundo Montes Mozo S.J.” Centro de Políticas Públicas y Derechos Humanos

Centro por la Justicia y el Derecho Internacional

Centro Regional de Derechos Humanos y Justicia de Género - Corporación Humanas

Civilis Derechos Humanos

Colectivo de Abogados "José Alvear Restrepo" Coletivo PESO/Periferia Soberana

Comisión de Justicia y Paz

Comisión Ecuménica de Derechos Humanos Commonwealth Human Rights Initiative

Consultoría para los Derechos Humanos y el Desplazamiento Coordinadora Nacional de Derechos Humanos

Corporación Sisma Mujer

Defensa de Niñas y Niños- Internacional Diyarbakir Bar Association

Due Process of Law Foundation Egyptian Initiative for Personal Rights

European Center for Constitutional and Human Rights

Four Freedoms Forum & Hawai'i Institute for Human Rights Fundación Myrna Mack

Fundar. Centro de Análisis e Investigación A.C

Gillis Long Poverty Law Center - Loyola University New Orleans College of Law Global Justice Clinic, NYU School of Law

Grupo de Mujeres de San Cristóbal de las Casas Helsinki Foundation for Human Rights

Human Rights Committee of the Law Society of England and Wales Human Rights Institute of Columbia Law School

Human Rights Law Network Human Rights Watch

Instituto Braços - Centro de Defesa de Direitos Humanos de Sergipe Instituto Brasileiro de Ciências Criminais

Instituto de Estudios Comparados en Ciencias Penales de Guatemala Instituto de Estudios Legales y Sociales del Uruguay

Instituto Internacional de Derecho y Sociedad Instituto Migrações e Direitos Humanos Instituto Pro Bono

International Center for Advocates Against Discrimination International Commission of Jurists

International Federation for Human Rights

International Human Rights Clinic, Harvard Law School

International Human Rights Program, Boston University School of Law International Justice Network

International-Lawyers

Justice Studies Department -Northeastern Illinois University Kenya Human Rights Commission

KontraS (Commission for the Disappeared and Victims of Violence) in Indonesia Laboratório de Análise Política Mundial

Legal Resources Centre Madres Linea Fundadora

Meiklejohn Civil Liberities Institute Minority Rights Group International Movimiento Autónomo de Mujeres National Lawyers Guild

North Carolina Stop Torture Now Observatorio Venezolano de Prisiones Oficina Jurídica Para la Mujer Partnership For Justice

Paz y Esperanza

PEN American Center Physicians for Human Rights

Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo

Programa de Pós Graduação em Segurança Pública e Direitos Humanos da Universidade Federal de Rondônia

Programa Venezolano de Educación Acción en Derechos Humanos Psychologists for Social Responsibility

Quaker House Reprieve

Santa Clara University School of Law, International Human Rights Clinic Seguridad en Democracia

Sociedade Maranhense de Direitos Humanos

The Rabbinic Call for Human Rights The Woodhull Sexual Freedom Alliance

Torture Abolition and Survivors Support Coalition (TASSC) International

Unidad de Protección a Defensores y Defensoras de Derechos Humanos de Guatemala

Unión Nacional de Mujeres Guatemaltecas Unitarian Universalist Service Committee US Human Rights Network

Women's Link Worldwide

World Organization Against Torture

African governments are meeting at the 25th summit of the African Union (AU), from June 7 to 15 in Johannesburg and Pretoria. The groups that signed the letter are among the most active partners of an informal group of African and international organizations based in more than a dozen African countries that seek to promote justice for serious crimes that violate international law.

“Progress in the case against Hissène Habré, Chad’s former president, and the surrender of Lord’s Resistance Army leader Dominic Ongwen to the ICC have been important developments this year, but justice is undermined by the lack of accountability for grave crimes committed in South Sudan and other conflict areas,” said Penny Mbabazi of Uganda’s Foundation for Human Rights Initiative.

While the majority of AU members are also members of the ICC, most of those countries lack domestic laws that fully incorporate the crimes of genocide, war crimes, and crimes against humanity, and cooperation with the ICC, as key pillars of justice, the groups said. Victims of serious crimes may feel betrayed when their government does not take steps to remedy the harm done to them.

President Robert Mugabe of Zimbabwe, the AU rotating chair for 2015, threatened in January to push for African ICC members to withdraw from the court at the June summit. In the days leading up to the summit, Malawi officials told reporters that it would not consider withdrawal<http://www.nyasatimes.com/2015/06/01/malawi-rebuffs-mugabes-call-for-icc-withdraw/>. Botswana has consistently stressed its support<http://mg.co.za/article/2009-07-06-botswana-says-albashir-must-stand-trial-at-icc> for the ICC when the court has come under attack at the AU.

“More states should follow Malawi’s recent move to publicly oppose calls for ICC withdrawal and Botswana’s strong public backing of the ICC,” said Timothy Mtambo of Malawi’s Center for Human Rights and Rehabilitation. “The ICC is a crucial court that should be supported and strengthened.”

The organizations called on African ICC members to:

• Enhance the capacity of the AU to respond to conflict situations to avoid international crimes and to facilitate accountability;
• Call for and support credible national proceedings to hold to account those responsible for serious crimes, such as in the Central African Republic;
• Reconsider and revise their stand on immunity for sitting heads of state and government, as well as for senior government officials brought before the jurisdiction of the African Court of Justice and Human Rights; and
• Promote victims’ participation in domestic proceedings on grave crimes.

For more reporting on Africa and the ICC, please visit:

http://www.hrw.org/news/2014/12/17/icc-african-countries-support-court

For more information, please contact:

In Dakar, for Rencontre Africaine pour la Défense des Droits de l’Homme, Aboubacry Mbodji (French): +221-777-408-683; or mbodjiaboubacry@gmail.com In Freetown, for Center for Accountability and the Rule of Law-Sierra Leone, Ibrahim Tommy (English): +232-76-365-499; or ibrahim.tommy@gmail.com In Johannesburg, for Southern Africa Litigation Centre, Angela Mudukuti (English): +27-767-623-869; or AngelaM@salc.org.za.

In Johannesburg, for Kenya section of the International Commission of Jurists, Stella Ndirangu (English): +254-7222-336-399; This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:stella.ndirangu@icj-kenya.org">orstella.ndirangu@icj-kenya.org<mailto:stella.ndirangu@icj-kenya.org>

In Johannesburg, for Kenya Human Rights Commission, Andrew Songa (English): This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:asonga@khrc.or.ke">asonga@khrc.or.ke<mailto:asonga@khrc.or.ke>

In Kampala, for Foundation for Human Rights Initiative, Penny Mbabazi Atuhaire (English): +256-777-753-566; +256-704-600-708; or pennymbabazi14@gmail.com In Lilongwe, for Center for Human Rights and Rehabilitation, Timothy Mtambo (English): +265-992-166-191; or mtambot@chrrmw.org In New York, for Coalition for the ICC, Steve Lamony (English):+1-347-905-3060; or This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:lamony@coalitionfortheicc.org">lamony@coalitionfortheicc.org<mailto:lamony@coalitionfortheicc.org>

In New York, for Human Rights Watch, Elise Keppler (English): +1-917-687-8576; or kepplee@hrw.org In Pretoria, for the International Crime in Africa Programme, Institute for Security Studies, Jemima Njeri (English): +27-832-346-566; or +27-123-469-500; or jnjeri@issafrica.org

To HE Dr. Nkosazana Dlamini Zuma

Chairperson of the African Union

Dear Madam,

Open letter to the African Union on the resurgence of xenophobic violence in South Africa

presented on the occasion of the AU Summit in Sandton, Johannesburg, June 2015

10th, June, 2015. We, the undersigned organisations, write to you as concerned organisations and citizens of the African continent to raise concern about the xenophobic attacks in the Republic of South Africa which have recently taken place against migrants and refugees predominantly from other African countries. We approach you as the body responsible for promoting unity and solidarity among African states. We also call on you as the body responsible for the promotion of peace, security and stability in Africa.

The objectives of the AU are inter alia:-

• To achieve greater unity and solidarity between the African countries and the peoples of Africa;
• To encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights;
• To promote peace, security, and stability on the continent;
• To promote democratic principles and institutions, popular participation and good governance;
• To promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments.

Between 2000 and March 2008, at least 67 people died in what were identified as xenophobic attacks in South Africa. In May 2008, a series of rapid large-scale attacks left 62 people dead and over 600 injured. Twenty-one of those killed were South African citizens, apparently because they were perceived as foreigners. The attacks were apparently motivated by xenophobia, [i] and have continued to occur every year since 2009. And more recently in 2015, another nationwide spike in xenophobic attacks against migrants and refugees occurred in January and again in April. The latter attacks which began in KwaZulu-Natal Province prompted a number of foreign governments to repatriate their citizens. The April 2015 attacks resulted in at least seven verified deaths, but the number is understood to be higher, and at least 5,000 migrants and refugees displaced.

We urge the AU to call upon the South African government to take concrete steps to end these attacks, prosecute perpetrators and protect migrants and refugees living in their territory from violations of their human rights, including the right to life. As organisations operating on the African continent, we are particularly concerned about the loss of lives, injuries to persons, damage to private property and the infringement of dignity of migrants and refugees living in South Africa, which are a grave violation of their rights protected under the African Charter on Human and Peoples’ Rights (the African Charter). The right to life, not to be subjected to torture, cruel, inhuman and degrading treatment, and the right to strict equality before the law are non-derogable rights – not dependent on a person’s status in a country.

South African President Jacob Zuma during a Freedom Day event in April made a statement that Mozambican national Emmanuel Sithole (aka Emmanuel Josias) who was brutally killed during these attacks was an illegal immigrant using a false name.[ii] The immigration status of foreign nationals who are victims of the attacks in South Africa is irrelevant. South Africa has an obligation to protect all persons within its borders.

We are concerned in particular about the situation of asylum seekers and refugees who should receive special protection but who are in a vulnerable and desperate situation following these tensions.

We are further concerned by comments made by persons in positions of authority and influence which may amount to incitement to violence and the role that these persons play in perpetuating xenophobia and intolerance. While some official statements have been made to condemn the violence, we are concerned that not enough concrete steps are being taken to prevent such attacks, prosecute perpetrators, protect migrants and refugees and prevent the mass coerced exodus of foreign nationals from the country. We call on the AU to ensure that South Africa holds leaders and persons in authority accountable for their role in inciting violence and intolerance, or for the systematic failure since 2008 to implement effective prevention and protection plans for migrants and refugees at risk of attack, property destruction and displacement.

We note statements of several governments, including the South African government, to provide assistance for individuals leaving the country. While those who wish to leave should be assisted to do so, the solution to the violence should not be to repatriate all foreign nationals, but to ensure an environment in the country in which their rights are protected. Furthermore, the acts of those carrying out attacks against foreign nationals should not be rewarded by assisting them to achieve their objective of ridding South Africa of foreign nationals.

Following the xenophobic attacks in April there have been nationwide police raids, with military presence on the streets, apparently intended to combat crime, but predominately involve arresting and deporting migrants alleged to be illegally present in the country. We call on the AU to alert South Africa to the unlawfulness of these actions. According to the Department of Home Affairs, 2767 foreign nationals have been repatriated since the April attacks began.[iii] This includes some 913 Malawians, 637 Mozambicans, 17 Tanzanians and 1098 Zimbabweans. There were also reports that an estimated 400 men and women from Lesotho were deported. These repatriations and deportations are ongoing. We are concerned about the mass raids, rounding up of foreigners and ongoing deportations which do not appear to adhere to any procedural safeguards[iv] such as investigations into immigration status; access to legal representation; ability to make representations to a court and steps taken to ensure that no refugees and asylum-seekers, to whom a duty of international protection applies, are not subjected to forcible returns. In this regard, we remind all States of the provisions of Article 12 of the African Charter which prohibits the mass expulsion of foreign nationals. We are also concerned by the heavy handed approach adopted by the South African authorities in carrying out raids and mass arrests with a view to deporting foreign nationals as a response to xenophobia. This was most recently highlighted in “Operation Fiela” which took place in Johannesburg during May. Despite Cabinet’s statements to the contrary this operation has targeted foreigners at a higher rate than citizens.

We refer the AU to the African Commission’s statement in its decision on mass expulsions from Angola[v] which continue to be highly relevant to the current situation in South Africa:

“The Commission concedes that African States in general … are faced with many challenges, mainly economic. In the face of such difficulties, States often resort to radical measures aimed at protecting their nationals and their economies from non‑nationals. Whatever the circumstances may be, however, such measures should not be taken at the detriment of the enjoyment of human rights. Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations "constitute a special violation of human rights". This type of deportations calls into question a whole series of rights recognised and guaranteed in the Charter; such as the right to property (article 14), the right to work (article 15), the right to education (article 17 paragraph 1) and results in the violation by the State of its obligations under article 18 paragraph 1 which stipulates that "the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health". By deporting the victims, thus separating some of them from their families, the Defendant State has violated and violates the letter of this text…

The Commission does not wish to call into question nor is it calling into question the right of any State to take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide. It is however of the view that it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the Charter and international law.[vi]

In a later case, the African Commission stressed the importance of due process and access to legal representation which are, in the current scenario, also of significant importance:

“Time and again, in communication 71/1992, Recontre Africaine pour la Défense des Droits de l’Homme v Zambia [(2000) AHRLR 321 (ACHPR 1996)], the African Commission held that the mass expulsions, particularly following arrest and subsequent detentions, deny victims the opportunity to establish the legality of these actions in the courts. In the present case, there is no indication as to whether the deportees were accorded the opportunity to contact their families, much less attorneys, thereby making the requirement of exhausting local remedies impracticable.”[vii]

It further stated:

“The African Commission is of the view that the actions of the respondent state as shown in the preceding paragraphs not only denied fair treatment of the victims with opportunity to challenge their deportation but also failed to allow them opportunity to deal with their belongings. The complainant argues and the African Commission concurs that the type of deportations involved in the present case (ie mass expulsions without due process) challenge a series of rights and protections afforded by the Charter, including the right to property, and, as such, the measures taken by the respondent state in its arrest, detention and subsequent deportation of the victims ‘called into question a whole series of rights recognized and guaranteed in the Charter’, including the right to property. While the right to property under the African Charter is not absolute, the respondent state has not provided evidence to prove that its actions were necessitated either by public need or community interest. Without such a justification and the provision of adequate compensation determined by an impartial tribunal of competent jurisdiction, the African Commission finds the respondent state’s actions in violation of the right to property under article 14 of the African Charter.”[viii]

We further draw the AU’s attention to the resolution of the African Commission in April 2015 condemning the xenophobic attacks in South Africa[ix] and request the African Union to call upon the government of South Africa to:

1. Protect migrants, refugees and other vulnerable foreign nationals from further attacks, including by increasing impartial and effective police presence in high-risk areas and immediately implementing conflict resolution initiatives in these areas involving the Department of Home Affairs;
2. Provide humanitarian and other social assistance to those affected by the xenophobic attacks in the country, including counselling for trauma and access to information on services and on durable solutions for refugees and asylum-seekers;
3. Bring perpetrators of violence against foreign nationals to justice. To facilitate such prosecutions the Department of Justice should set up special courts, as was done during the 2010 World Cup in South Africa, to deal with all cases of violence against foreign nationals in a bid to ease the burden on the courts. Information on accessing these courts should be widely disseminated;
4. Investigate and bring to justice the instigators behind the perpetration of the violence;
5. Condemn unequivocally comments by persons in positions of authority and influence which may amount to incitement to violence;
6. Effectively engage the broadest possible South African public, in order to curb and eradicate xenophobia and xenophobic violence. These messages should be repeated, constantly re-iterated and not only heard after crises moments. They should be accessible, in local languages, should be expressed directly to communities, and should involve local leaders;
7. Advise and assist all those who have been victims of violence to seek redress;
8. Assist refugees and asylum seekers who have lost their permits to have these re-issued and put in place concrete plans for their reintegration into communities.

As stated above, in 2008, the xenophobic attacks left at least 62 dead, hundreds wounded, and contributed to the displacement of 100,000 people or more. Following those attacks the South African Human Rights Commission (SAHRC) prepared a report with their findings and recommendations[x]. We call on the AU to remind the South African government of this report and call upon the government and the SAHRC to immediately take steps to implement the recommendations found therein.

In addition, we request you to call upon governments of other countries to ensure steps are taken to prevent reprisals against South African nationals in their territories.

Signed by the following organisations:

1. Southern Africa Litigation Centre
2. Amnesty International
3. Lawyers for Human Rights - South Africa
4. Sonke Gender Justice – South Africa
5. Centre for the Study of Violence and Reconciliation (CSVR) – South Africa
6. Human Rights Institute of South Africa (HURISA)
7. International Federation for Human Rights (FIDH)
8. Open Society Initiative for Southern Africa (OSISA)
9. Open Society Foundation for South Africa ( OSF-SA)
10. Oxfam, South Africa
11. Youth Engage - Zimbabwe
12. Centre for Youth and Children Affairs (CEYCA) - Malawi
13. Panos Institute Southern Africa (Psaf)
14. Aids Foundation of South Africa (AFSA)
15. The Scalabrini Centre Of Cape Town – South Africa
16. Positive-Generation - Cameroon
17. Centre for Youth Empowerment and Civic Education (CYECE) – Malawi
18. Khulumani Support Group – South Africa
19. Women and Law in Southern Africa-WLSA MOZAMBIQUE
20. Centre for Girls and Interaction (CEGI) – Malawi
21. Gay and Lesbian Memory in Action (GALA) – South Africa
22. Missão de Beneficência Agropecuária do Kubango, Inclusão, Tecnologias e Ambiente (MBAKITA) – Angola
23. Media Institute of Southern Africa (MISA)
24. United Action for Democracy, Kano – Nigeria
25. Zimbabwe Association for Crime Prevention and Rehabilitation of the Offender (ZACRO)
26. Media Rights Agenda (MRA) – Nigeria
27. Association of Human Rights Organizations (AHURIO) - Uganda
28. Socio-Economic Rights and Accountability Project (SERAP) – Nigeria
29. Service For Peace - Sierra Leone
30. MenEngage Network – Tanzania
31. MenEngage- Namibia
32. Consortium for Refugees and Migrants in South Africa (CoRMSA) – South Africa
33. Development Dynamics – Nigeria
34. Ndifuna Ukwazi – South Africa
35. Women’s Legal Centre – South Africa
36. Zimbabwe Lawyers for Human Rights
37. Initiative for Rural Development – Uganda (IRD - U)
38. Sisonke Sex Worker Movement – South Africa
39. The Wentworth Arts and Culture Organisation – South Africa
40. Men’s Association for Gender Equality (MAGE SL) - Sierra Leone.
41. Congo Men's Network (COMEN) - DRC
42. The khuphuka Project – South Africa
43. International Refugee Rights Initiative (IRRI)
44. Thohoyandou Victim Empowerment Programme (TVEP) – South Africa
45. Empowered at Dusk Women's Association (EADWA) – Uganda
46. Positive Men's Union (POMU) – Uganda
47. State of the Union Coalition
48. Men and Boys for Gender Equality (MBGE) – Botswana
49. Collectif Sénégalais des Africaines pour la Promotion de L'Education relative à l'Environnement (COSAPERE) – Senegal
50. Centre for Human Rights and Rehabilitation (CHRR) – Malawi
51. Malawi Network of Religious Leaders Living with or Personally Affected by HIV and AIDS (MANERELA+) - Malawi
52. Maphunziro Foundation (MAF) - Malawi
53. Women Environmental Programme (WEP) -Nigeria
54. Charles and Doosurgh Abaagu Foundation (C&DAF) - Nigeria
55. Community Emergency Response Initiative (CERI) – Nigeria
56. Lawyers for Human Rights (Swaziland)
57. Transbantu Association Zambia (TBZ) – Zambia
58. Zambia National Women's Lobby (ZNWL)
59. Boys Empowerment International - Zambia
60. Bus and Taxi Association of Zambia
61. Community Support for the Needy - Zambia
62. Office of the Grand Mufti - Zambia
63. Olympic Youth Development Centre (OYDC) - Zambia
64. Planned Parenthood Association of Zambia (PPAZ)
65. Volunteers Welfare for Community Based Care of Zambia(VOWAZA)
66. Young Women Christian Association (YWCA) - Zambia
67. Young Women in Action - Zambia
68. Kenya MenEngage Alliance (KEMEA)
69. Uganda MenEngage Network (UgaMen)
70. FEMNET - African Women's Development and Communications Network
71. Omunga – Angola
72. Treatment Action Campaign (TAC) – South Africa
73. International Commission of Jurists, Kenya (ICJ-Kenya)
74. Africa Legal Aid (AFLA)
75. Trust for Indigenous Culture and Health (TICAH) – Kenya
76. Masimanyane Women’s Rights International
77. People Opposing Women Abuse (POWA) – South Africa
78. Africa International Development and The Environment in XXI century (AIDE21)
79. African Woman and Child Feature Service (AWC)
80. Coalition for Action on 1325 – Uganda
81. African Sky
82. Malawi Human Rights Resource Centre (MHRRC)
83. Forum for Women in Development, Democracy and Justice (FODDAJ) - Kenya
84. Corruption Watch – South Africa
85. Centre for Human Rights, University of Pretoria (CHR) -South Africa
86. Women’s Coalition of Zimbabwe (WCoZ)
87. Humanitarian Information Facilitation Centre (HIFC) - Zimbabwe
88. Echoes of Women in Africa Initiative (ECOWA) – Nigeria
89. Young Women Christian Association (YWCA) - Nigeria
90. Institute for Human Rights and Development in Africa (IHRDA)
91. Isis-Women’s International Cross Cultural Exchange (Isis-WICCE) – Uganda
92. Women and Youths Environmental Safety and Empowerment Organisation (E-WAY for Development) - Nigeria
93. Akina Mama wa Afrika
94. solidarité des femmes pour le développement intégrale (SOFEDI) - DRC

100. Treatment Advocacy and Literacy Campaign (TALC) - Zambia

101. Uganda Network of Young people living with HIV/AIDS (UNYPA)

102. Zimbabwe Human Rights NGO Forum

103. Communities’ Initiative for Holistic Social Advancement (CHISA) – Malawi

104. Action Locale pour un Développement Participatif et Autogéré (ALDEPA) – Cameroon

105. Voice for Change (VFC) – Nigeria

106. Centre for Youth and Children's Affairs (CEYCA) – Malawi

107. Community Health And Information Network (CHAIN) – Uganda

108. First Lady's Save Our Youths Campaign – Nigeria

109. Coalition Ivoirienne pour la Cour Pénale Internationale (CI CPI) - Cote d'Ivoire

110. Réseau Equitas Côte d'Ivoire (REQCI) - Cote d'Ivoire

111. Groupe de Travail sur les Instruments Internationaux (GT2I)

112. Temba Community Development Services- South Africa

113. Swaziland Action Group Against Abuse (SWAGAA)

114. International Community of women living with HIV Eastern Africa (ICWEA)

115. International Federation of Women Lawyers (FIDA) – Nigeria

116. Media Institute of Southern Africa – Botswana (MISA Botswana)

117. Media Institute of Southern Africa – Lesotho (MISA Lesotho)

118. Media Institute of Southern Africa - Malawi (MISA Malawi)

119. Media Institute of Southern Africa – Namibia (MISA Namibia)

120. Media Institute of Southern Africa – Zambia (MISA Zambia)

121. Media Institute of Southern Africa – Zimbabwe (MISA Zimbabwe)

122. Media Institute of Southern Africa – South Africa (MISA South Africa)

123. Associação Justiça Paz e Democracia (AJPD) – Angola

124. Kenya Human Rights Commission (KHRC)

125. Liga Moçambicana dos Direitos Humanos (LDH) – Mozambique

126. Pan African Positive Women's Coalition-Southern Africa and Indian Ocean Islands (PAPWC-SAIOI)

127. Katswe Sistahood – Zimbabwe

128. Economic and Social Rights Centre, Nairobi – Kenya

129. Zimbabwe Women Lawyers Association (ZWLA)

130. Gay & Lesbian Network, Pietermaritzburg - South Africa

131. Love Life – South Africa

[i] See L.B. Landau (ed), 2011. Exorcising the Demons Within: Xenophobia, Violence and Statecraft in Contemporary South Africa. Johannesburg: Wits University Press; Tokyo: United Nations University Press.

Violent conflicts continue to blight the lives of millions of people across Africa, including in the Central African Republic (CAR), Democratic Republic of Congo (DRC), Libya, Nigeria, South Sudan, Sudan, and Somalia. In addition, countless people across the continent continue to live in a state of fear and insecurity as a direct result of increased violence by radical armed groups, including al-Shabab and Boko Haram. This is specifically the case in Kenya, Somalia, Nigeria, Cameroon, Niger, Mali, and countries in the Sahel region. The ongoing protests in Burundi, government’s crackdown of these protests, and the failed coup attempt are yet another grim reminder of not only the fragile security situation of many countries on the continent, but also of the associated human rights violations.

Despite the recognition of the linkage between human rights and conflict, a structured and consistent practice of responding to human rights violations in the context of conflicts, either towards addressing the persistent violations that lead to conflicts or preventing or ensuring accountability for gross violations being committed during conflicts, is yet to be developed at the regional level. The discussion will interrogate the following:

1. What has the performance of the AU Peace and Security Council (PSC), other structures of Africa Peace and Security Architecture (APSA), sub-regional mechanisms and the regional human rights treaty bodies been like in dealing with conflict-related human rights violations in Africa;
2. What are the strengths and/or notable achievements of the human rights treaty bodies and how can these be replicated/up-scaled or leveraged in situations of conflict?
3. What are the normative and institutional challenges or gaps hindering regional responses to conflict-related human rights violations; and
4. What are the possible ways of strengthening the capacity of the PSC, APSA, structures, sub-regional mechanisms and the regional human rights treaty bodies in responding to conflict-related human rights violations?

It is hoped that this meeting will serve as an initial inquiry that yield subsequent stakeholder dialogues on strengthening the normative and institutional framework for addressing human rights violations committed in the context of conflicts in Africa.

Further Details:

Date: 10 June 2015
Time: 13:30 – 16:30
Venue: Holiday Inn Sandton – Rivonia Road, Johannesburg, South Africa

This was followed by undue intimidation and interrogation of the staff and board members of the said organizations as well as the confiscation of their crucial records, data and information by officers drawn from the Criminal Investigations Department (CID) and the Kenya Revenue Authority (KRA) under the guise of tax evasion. The affected and targeted organizations have continued to cooperate with the relevant state authorities while seeking redress from courts. They seek conservatory orders lifting the suspension of their bank accounts and restraining the government from declaring them as ‘terror organizations’ until the hearing and determination of this petition.

Despite this cooperation, Yusuf Mahamad Fazul, the Executive Director of the NGOs Coordination Board wrote to the said organizations on May 12, 2015, giving them 14 days’ notice of intention to cancel their registration certificates on the alleged grounds of violating the provisions of the NGO Cordination Act of 1990, the attendant regulations and the terms and conditions attached to the certificate of registration.

MUHURI wrote back on May 15, 2015 requesting for details on the areas and provisions of the law and regulations violated. Seeing no response from the Board, MUHURI dispatched a follow-up letter to the Board on Monday, May 25, 2015. Owing to the non-response by the NGO Board, MUHURI came to Nairobi on Wednesday, May 27, 2015 when they met with the NGO Board. Here the Director to the Board clarified the areas alleged violated and requested MUHURI to have the same rectified, minuted and come for another meeting two days later (on Friday, May 29, 2015).

Thus it is shocking to learn from the media about the purported devious deregistration of the targeted organizations. Such tactics expose a state that is operating in bad faith and driven by the unbridled quest to curtail the operations of civil society organizations under the guise of accountability. It further shows a repugnant trend of abuse of authority of the NGO Board, CID, KRA and other apparatus to intimidate the operations of MUHURI and APD among other civil society organizations2 without due regards to the existing constitutional, legal, administrative and judicial process.

These actions are ill advised and in clear contravention of various Constitutional provisions, chief among them the right to fair administrative action enshrined under Article 47. The action to allegedly deregister the organizations is unlawful and unreasonable. 2

Consequently, we urge the NGO Board and the Presidency to:

1. Issue an urgent official response by the NGO Board, explaining the reasons and circumstances under which MUHURI and APD were de-registered without regards to due processes.
2. Provide an immediate public apology from the Board owing to the inconveniences and embarrassment suffered by the three organizations arising from its irregular and illegal actions.
3. Provide a written and concise response to the letters by the three organizations on the clarification sought.
4. Undertake unconditional and immediate removal of said organizations from the terrorism list published via Gazette Notice 2326 of 7th April 2015, lift any and all freezing of their activities and services.
5. Stop arm-twisting, harassing and intimidating the civil society, development partners, media, citizenry and other independent voices and instead purpose to manage public affairs within the provisions of the Constitution in the governance of state affairs.
6. Convene a consultative meeting with key stakeholders to discuss the ever increasing tension between the state and civil society and agree on the best way of responding to the security challenges facing our country.

The civil society is keen to participate in the fight against terrorism within the provisions of the Constitution of Kenya. The current attempt by the government to create a dichotomy between national security verses human rights is unacceptable and unsustainable since security is equally a fundamental right and freedom for all.

Signed by:

Prof. Makau Mutua, on behalf of the KHRC Board,

Davis Malombe, Ag, Executive Director.

In its resolution speaking to the escalation of terror activities in Kenya by the Al Shabab group, the ACHPR stands in solidarity with Kenya expressing its dismay at the tragic loss of life and acknowledges the role played by Kenya in combating terror within and outside its borders as part of the African Union Mission in Somalia (AMISOM). The ACHPR however goes on to caution the Kenyan government against the use of retaliatory measures such as collective punishment, expulsion of refugees, freezing of funds, suspension of various civil society organizations and the threat of closure of refugee camps suspected of having links with terrorism. This is a positon that KHRC ascribes to and is reflected in its Country Brief on the Human Rights Situation in Kenya which was submitted to the ACHPR for consideration during this session.

Davis Malombe, the Ag. Executive Director at KHRC stated, “This resolution critically reaffirms that the fight against terror must not be allowed to undermine the fundamental rights and freedoms of the public in the guise of enhancing security. Kenya’s strength lies in its diversity and values of human rights, equality, freedom, democracy, social justice and the rule of law. We must not reward Al Shabab by turning our backs on these values”

The resolution on the right to rehabilitation provides a critical reflection on rehabilitation as a core component of the broader right to reparation, noting that it lacks sufficient clarity and is hampered primarily by financial constraints. The ACHPR however urged States to implement domestic laws prohibiting torture with clear provisions on rehabilitation. The resolution further calls for States to offer appropriate medical care and access to appropriate social rehabilitation to victims of torture and their dependents. KHRC stands in support of this resolution, having co-convened a side-event with partners entitled, “Realizing the Right to Rehabilitation and Reparation in Africa”, on the margins of the session and submitting a proposed Resolution on the Right to Rehabilitation for consideration by the ACHPR during this session.

Andrew Songa, the Program Manager- Transformative Justice at KHRC described the resolution as “A significant step in enhancing the meaning of reparation for victims of torture. Our experience in working with victims of torture and Internally Displaced Persons (IDPs) from the post-election violence points to a clear gap in State interventions in as far as rehabilitation is concerned. Furthermore, the Kenyan government should consider the resolution as a wakeup call to finally enact legislation on the prohibition of torture.”

KHRC continues to value the ACHPR as a regional platform for illuminating and addressing human rights concerns and will avail itself as a strategic partner in seeking to implement the objectives of these resolutions and by extension realize the vision of Human Rights States and Societies. Read more on KHRC’s activities at the 56^th session here.

We, members of civil society organisations, small scale farmers’ organisations and workers’ organisations from East Africa and beyond, assembled in Nairobi on 4-5 March 2015, deliberated on the recently concluded Economic Partnership Agreement (EPA) between the East African Community Partner states and the European Union.

Various papers were presented at the conference written by experts with deep theoretical and practical knowledge of the subject. We were pleased to have amongst us top-level officials from the Kenya Ministry of Foreign Affairs and International Trade, responsible for trade negotiations at various bilateral, regional and international levels, EALA representative as well as a representative from the European Union. They, too, presented papers at the Conference, and were given ample time to explain their positions.

HAVING NOTED, AMONG OTHER THINGS, BUT IN PARTICULAR:

• That the EPA is concluded but not yet signed, pending legal scrubbing, translation, ratification and due legal processes at national and East African regional levels;
• That the signing, after the above mentioned due processes are completed, might take place at the earliest in August/September 2015;
• That the Government of Kenya has started a “sensitisation” process in more than 13 counties in Kenya
• That Kenya will host the 10^th WTO Ministerial Conference in December 2015

ABOVE ALL, WE NOTED, IN PARTICULAR:

That the East African intra-regional trade consists largely of value-added manufactured products, whereas the exports to Europe consist almost entirely of raw materials, which is a carry-over from the colonial period.

EXPRESS DEEP CONCERN, ON SEVERAL MATTERS, BUT IN PARTICULAR:

• That Kenya and EAC will be under immense pressure to deliver a “successful” 10^th Ministerial conference in December, 2015.
• That consultation of stakeholders including trade unions, small scale manufacturers, Small and Medium Enterprises and parliament were not adequately consulted even after Kenya small scale farmers took government to court.
• That the governments of East Africa were severely constrained in the negotiations process on account of their financial dependence on the very party – the EU – with which they were negotiating; and they were subjected to meeting unreasonable deadlines unilaterally set by the European Union.
• That the East African governments, during the negotiations process, faced some challenges trying to harmonize their common positions;
• That four of the five countries – Burundi, Rwanda, Tanzania and Uganda – being `
• LDC countries were not obliged to enter into this agreement, and yet they now stand to face trade liberalization of 82.6 per cent over the next 25 years
• That the East African Partner States face considerable supply side constraints that have not been adequately addressed; and
• That in the next phase, after the signing of this agreement (assuming this takes place), the East African countries have agreed, under the so-called “Rendezvous Clause”, to begin the process of negotiating on the “Singapore Issues” – competition policy, Procurement, and investment – which have been thrown out of the Doha Round, and thus this new envisaged phase would contradict the letter and spirit of the WTO, and hence WTO-incompatible. These issues obliging EAC countries to give foreign investors national treatment will allow our countries the tools to support local firms and are inappropriate for our level of development.
• That regional production and trade therefore regional integration will be deeply and negatively affected by the EPA since the EAC would form a common market with the EU. Given that the EU is much more competitive, EU products will have an advantage in the common market. This will marginalize intra-EAC trade, production and effectively, integration.
• That the level of liberalisation proposed in the EPA will adversely affect food production and food security.
• That tariff revenues arising from increasing EAC imports from EU, is a source of income from the EAC that is growing every year. This revenue will not be foregone as a result of the EPA and experience elsewhere has shown that it cannot be replaced easily by value added tax.

WE CONCLUDE:

1. That the negotiations processes have been seriously flawed and UNDEMOCRATIC.
2. That EPA should not be signed and ratified since the costs (industrial development, small scale farmers’ livelihoods and regional integration, and tariff revenue) outweigh the benefits (maintenance of preferences only for very few sectors e.g. flowers).
3. Instead, the region should look into alternatives to the EPAs which include:
4. Ways of supporting the affected industries if the EPA is not signed
5. Enhancing intra-EAC and intra-African trade and also trade with other partners.

WE, THEREFORE, URGE ON THE EAST AFRICAN GOVERNMENTS AND THE EAST AFRICAN COMMUNITY:

1. To take immediate steps to consult with the small scale farmers, small scale manufacturers, and workers - unionised and non-unionised – as the major stakeholders who have repeatedly expressed their legitimate grievance that they have been excluded from the process of negotiations;
2. To ensure that the recently concluded EPA must be properly discussed in the national and regional parliaments at the local district and provincial levels, and that Kenya, in particular, the discussions should also be taken to the county assemblies;
3. To ensure that due processes are completed at both national and regional levels before ratification of an agreement that has serious potential fiscal consequences and revenue losses, and put to risk food security, and value-added regional industrialisation.
4. To ensure that the 10^th Ministerial conference in Nairobi puts that African concerns and issues at the centre stage and are not marginalised as witnessed in the previous Ministerial Conferences.
5. To ensure that policy space and sovereignty of the East African countries are respected, and no action is taken by the governments or the East African community for the signing of the agreement in haste without proper consultations using the EU-recognised “principle of subsidiarity” which obliges our governments to properly consult with people at the lowest levels of our society that might be affected by decisions taken from above.
6. As far as is possible, not sign and ratify the EPA but for EAC governments to create alternatives to the EPAs so that the sub-region’s current economic development and growth processes will not be derailed.

Dated in Nairobi this 5^th March 2015

Endorsements: