The Non-Governmental Organizations Coordination Board rejected the group's request to register in March 2013. The Board said that the name of the organization was “unacceptable,” and that it could not register it because Kenya's penal code “criminalizes gay and lesbian liaisons”.

The court’s decision is a significant victory for the LGBTIQ community in Kenya. The decision clearly stated that the denial of registration of NGLHRC violates Article 36 of the Constitution of Kenya, which protects everyone’s freedom to associate with others, and clearly includes the LGBTIQ community and individuals in Kenya.

KEN 001 / 0415 / OBS 034

Harassment

Kenya

April 23, 2015

The Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), has received new information and requests your urgent intervention in the following situation in Kenya.

Description of the situation:

The Observatory has been informed by reliable sources about the administrative harassment of Haki Africa and Muslims for Human Rights (MUHURI), two human rights organisations, which advocate for constitutional means to counter terrorism while also observing human rights.

According to the information received on April 20, 2015, at approximately 2 p.m., officers of the Kenyan Revenue Authorities (KRA) raided the premises of Haki Africa in Mombasa and seized computers, hard disks, documents and financial files. The officers, who presented a court order and were accompanied by at least four policemen, declared to be investigating on allegations of tax evasion.

The same facts happened on April 21, 2015, at approximately 11 a.m., in the premises of MUHURI, where officers of the KRA presented a warrant mentioning criminal investigation on possible tax evasion. In addition to seizing documents, they also dismantled the office server.

The Observatory recalls that earlier on April 7, 2015, these two organisations<https://www.fidh.org/International-Federation-for-Human-Rights/Africa/kenya/kenya-human-rights-organisations-are-not-terrorist-organizations> had their accounts frozen. This followed their listing as “Entities Suspected to be Associated with Al-Shabaab” by the Kenyan Government, in the aftermath of the terrorist attacks in Garissa.

Furthermore, the Observatory denounces the administrative harassment against Haki Africa and MUHURI, which seems to merely aim at preventing them from carrying out their legitimate human rights work, and calls on Kenyan authorities to put an end on it.

Finally, the Observatory reiterates its concern regarding the shrinking space imposed by the Government to the Kenyan civil society, following the inclusion of several organisations, among which also Haki Africa and MUHURI, on the official list of terrorist entities as well as the freezing of their bank accounts. Our organisations call for a prompt revision of such list, in order to guarantee full freedom of association for NGOs that are merely carrying out human rights activities.

Actions requested:

Please write to the authorities of Kenya, urging them to:

i. Put an end to any kind of harassment – including at the judicial level – against Haki Africa and MUHURI, their members, as well as all human rights defenders in Kenya so that they are able to carry out their work without any hindrances;

ii. Remove immediately and unconditionally MUHURI and Haki Africa from the terrorism list and lift immediately any freezing or restriction of the activities of these organisations;

iii. Guarantee in all circumstances the physical and psychological integrity of the members of Haki Africa and MUHURI, as well as of all human rights defenders in Kenya;

iv. Comply with all the provisions of the United Nations Declaration on Human Rights Defenders, in particular with its Article 1, which provides that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels”, as well as with Article 12.2 (“the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”);

v. Acknowledge the important role played by civil society in promoting tolerance in the struggle against violent extremism and ensure an enabling environment in which human rights defenders and civil society can operate free from hindrance and insecurity;

vi. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with the Universal Declaration of Human Rights and with international and regional human rights instruments ratified by Kenya.

Addresses:

• Hon. Uhuru Kenyatta, President of the Republic of Kenya, State House, Statehouse Road, P.O Box: 40530 00100, Nairobi, Kenya., Fax: +254-020-2436, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:president@statehousekenya.go.ke">president@statehousekenya.go.ke<mailto:president@statehousekenya.go.ke>

• Hon. William Ruto, Deputy-President of the Republic of Kenya, Office of The Deputy President, Harambee Avenue, P.O. Box 74434 - 00200 Nairobi, Kenya., Tel: +254 20 3247000/1/2/3/4/5, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:dp@deputypresident.go.ke">dp@deputypresident.go.ke<mailto:dp@deputypresident.go.ke>

• Hon. Joseph Nkaissery, Interior & Coordination of National Government, Harambee House, Harambee Avenue, P.O Box 30510,00100 Nairobi, Tel: +254-20-2227411, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:ps.interior@kenya.go.ke">ps.interior@kenya.go.ke<mailto:ps.interior@kenya.go.ke>

•Commissioner of Police, Kenya Police Headquarters, Vigilance House, Harambee Avenue, P.O. Box 30083, Nairobi, Kenya, Tel: +254-020-341411/6/8, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:commissioner@police.go.ke">commissioner@police.go.ke<mailto:commissioner@police.go.ke>, This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:complaints@police.go.ke">complaints@police.go.ke<mailto:complaints@police.go.ke>

• Commissioner Kagwiria Mbogori, Chairperson, Kenya National Commission on Human Rights, Fax: +254-020- 2716160 E-mail This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:haki@knchr.org">haki@knchr.org<mailto:haki@knchr.org>

• H.E. Mr. Stephen Ndungu Karau, Permanent Mission of Kenya to the United Nations in Geneva, Av. de la Paix 1-3, 1202 Genève, Switzerland, Fax: +41 22 731 29 05, E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:mission.kenya@ties.itu.int">mission.kenya@ties.itu.int<mailto:mission.kenya@ties.itu.int>

• H.E. Johnson Weru, Embassy of Kenya in Brussels, 208 av. W. Churchill, 1180 Uccle, Belgium, Fax: + 32 2 340 10 50 / + 32 2 340 10 68. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:kenbrussels@hotmail.com">kenbrussels@hotmail.com<mailto:kenbrussels@hotmail.com>

Please also write to the diplomatic representations of Kenya in your respective countries.

***

Paris-Geneva, April 23, 2015

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory, a FIDH and OMCT venture, is dedicated to the protection of Human Rights Defenders and aims to offer them concrete support in their time of need. The Observatory was the winner of the 1998 Human Rights Prize of the French Republic.

To contact the Observatory, call the emergency line:

•E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:Appeals@fidh-omct.org">Appeals@fidh-omct.org<mailto:Appeals@fidh-omct.org>

•Tel and fax FIDH + 33 1 43 55 25 18 / +33 1 43 55 18 80 •Tel and fax OMCT + 41 22 809 49 39 / + 41 22 809 49 29

The recent feature by Kenya Television Network (KTN) named Profits for Plague exposes serious human rights violations by Metal Refineries (EPZ) Limited and its affiliate entities on communities living in Uhuru Owino in Mombasa. The level of impunity depicted by the company was highly appalling and the inordinate complacency of government institutions charged with safeguarding the rights of its citizenry shocking. The feature revealed gross human rights abuses including irreversible damage to the health of community, dangerous labour conditions, unrealistically low wages, discrimination against workers, abuse of children’s rights and severe environmental degradation. Visibly, years of wanton destruction of the environment has resulted to increased mortality, slow cognitive development among children, debilitating health and generally increased vulnerability of the community living in the area.

The Kenya Human Rights Commission strongly condemns the actions of Metal Refineries (EPZ) Limited. Further, the Commission is extremely concerned by the inaction of government institutions charged with licencing, regulation, enforcement and compliance. The inaction further intensified the human rights violations. Of particular note, we would like to highlight the following:

• The National Environment Management Authority (NEMA) failed to adhere to provisions of the Environmental Management and Co-ordination Act in issuing a licence to Kenya Metal Refineries Limited and neglected to conduct further monitoring even after receiving reports on the unlawful and irresponsible emission and disposal of toxic fumes and waste ; and
• the Ministry of Health and the Department of Health of the Mombasa County Government failed to pursue and enforce requirements under the Public Health Act to remove the toxic substances such as lead that are dangerous to the health of workers and communities living in Owino Uhuru.

The Constitution of Kenya binds the State and all persons including corporate bodies to respect human rights. On this basis, businesses have responsibility to take into account the impact of their operations on human rights. The Government on its part has a duty to protect citizens against violations by third parties.

We therefore demand:

1. that Government, as a matter of urgency, conducts elaborate screening of the community members and provides treatment to all those that are found to have lead poisoning;
2. that the Government fulfills its obligation under Article 21(3) of the Bill of Rights by evacuating all residents of Owino Uhuru to avoid further exposure to lead poisoning and providing rehabilitation and psychosocial support for all affected persons;
3. that NEMA immediately issues a comprehensive Environmental Restoration Order to Metal Refineries (EPZ) Limited and/or its affiliates as provided for under Section 108 of the Environmental Management and Co-ordination Act to restore Owino Uhuru to its original state;
4. that the Government provides protection for the community representatives who have been threatened following exposure of the human rights abuses by Metal Refineries EPZ) Limited;
5. the Director of Public Prosecution institute proceedings against the owners of Metal Refineries (EPZ) Limited as an offence under the Environmental Management and Co-ordination Act; and
6. that the Government fulfills its duty under Article 21(4) of the Bill of Rights to enact and implement legislation in respect of human rights by developing a policy and law to address violations of human rights by business entities
7. that after full audit of the Environmental Social Impact Assessment the victims be fully compensated.

END

Media bookings contact:

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

1. Team Participation

1. Development and submission of a Country Breif on the situation of Human Rights in Kenya

• In recognition Kenya’s State Report for 2008-14 that was submitted in February 2015 and other contemporary developments, KHRC will be developing a country brief on the human rights situation in Kenya. While Kenya is not listed for review in this session, it may still be prudent to develop the country brief and seek a bilateral engagement with the Country Rapporteur, Commissioner Pacifique Manyirakiza. The brief will be largely based on the information already submitted to the UN Human Rights Committee (2012), the UN Committee against Torture (2014) and under Universal periodic Review (2015)

  2.  Development and presentation of a statement on Human Rights Situation in Kenya

• The KHRC team including the Transformative Justice team will develop a 5 -minute statement on the Human Rights Situation in Kenya and present it on the 21^st of April, 2015.

ii. Transformative Justice Thematic Participation

3. Attend panel discussion on Torture and Death Penalty

• Follow-up on PARI and CPTA discussions on a General Comment on Article 5 of the African Charter: At the 55^th session, ACHPR’s Committee on the Prevention of Torture in Africa (CPTA) and the Pan-African Reparations Initiative (PARI) had commenced a conversation regarding the development of a general comment on Article 5 of the African Charter with regard to reparations and torture. It had been agreed that a technical paper would be presented to CPTA by PARI before the deliberations could go any further.
• As a member of PARI, KHRC will attend a panel discussion on torture that will take place on 22^nd of April and a panel discussion on Death Penalty that will take place on the same date. KHRC will attend a Launch of Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa and Interactive Sessions on Policing and Human Rights: April 25

   4. Draft Resolution on Human Rights and Terrorism

• Discussions are underway with the International Federation for Human Rights (FIDH) to draft a resolution on human rights and terrorism for consideration and adoption by the ACHPR.

5. NGO Forum Panel on Elections

• With regards to Electoral Governance, KHRC will be a panelist on the first day of the NGO Forum to discuss elections from a human rights perspective with an emphasis on the human rights-based election observation initiatives in Africa. KHRC will in this context discuss its Electoral Observation framework along with preliminary findings from regional election monitoring with the object of influencing similar initiatives in the region.

    6. Transitional Justice

• Meeting of the Advisory Committee to the Study on Transitional Justice in Africa: Depending on the availability of quorum in Banjul, there is a scheduled status update meeting on the progress made with regard to the Study on Transitional Justice in Africa including a review of the available draft. In any case a meeting with the Commissioner Pacifique as the lead on the study should be scheduled.
• A side event on Rehabilitation and Reparations organized by Peace through Accountability in Africa Project Partners (PTAAP). In keeping with past practice PTAAP will probably undertake a side-event to discuss rehabilitation and reparations. The deliberations from this event will eventually be synthesized into a brief that will be an published and disseminated alongside the brief of the panel from the last session which was entitled “Transitional Justice: An Effective Tool for Transitional Justice or an Exercise in Futility?”
• Will participate in a roundtable discussion on South Sudan: At the invitation of Amnesty International, KHRC will be participating in the roundtable discussion entitled, “Waiting for Justice in South Sudan: Exploring the Need, Prospects and Options for Accountability. It will will reflect on the need for justice, take stock of the regional response to the conflict, explore what more can or should be expected from the region, and consider the possible options for pursuing accountability.

 7. Side event on Implementing of decisions from the African Commission

• KHRC will be participating in a convening on the implementation of decisions from the ACHPR with the possibility of inviting the ACHPR Working Group on Communications.

 iii. Political Plurality and Diversity Participation

    8. General Comment on Article 7(d) of the Maputo Protocol on Women's land and property rights

Follow up on the advocacy for the adoption of a General Comment on Article 7(d) of the Maputo Protocol. In this regard, we shall hold a meeting with the implementing partners as a follow up to the regional meeting held in June 2014 as well as with Commissioner Maiga, the relevant mandate holder. We will also hold consultative and strategy meetings with IGED Africa and ISLA on how to take the GC forward as well as have meetings with other practitioners and commissioners to garner support for the GC.

 9. Panel Discussion on Elections and HRs

We shall have a joint side event with the TJ team, FIDH and Amnesty International on Elections in Africa. The PPD team will seek to advance our agenda on enhancing the participation and representation of marginalized and special interest groups. This meeting will also serve as a precursor to a planned regional meeting on electoral governance and political participation and representation to be held later this year under the Ford Global initiatives.

   10. Terrorism and human rights

KHRC and FIDH will hold a joint side event on terrorism and human rights. In this regard the PPD team will seek to bring into the discussion the interlinkage between counter terrorism and citizenship and ethnic and racial discrimination.

  11. Sexual Orientation and Gender Identity

On SOGIE, we shall seek to build on the partnerships we have been exploring with regional actors and to further the discussion on monitoring the extent of States’ compliance with the ACHPR Resolution^[1] passed in 2014. We will also highlight recent developments in Kenya on the same.

We shall further have strategy discussions with partners across the continent on countering the anti-homosexuality legislation ripple.

  12. General

Preparation of a thematic brief and statement as part of the institutional country brief and NGO statement respectively shall be done. PPD shall also hold advocacy meetings with relevant mandate holders and other partners on thematic and areas of interest.

 iv. Economic and Social Justice Thematic Participation

1. The Extractive Industry and Corporate Accountability

Kenya is currently experiencing a surge in the entry of Multi-National Corporations (MNCs) seeking to exploit natural resources such as coal, oil and gas along with large-scale commercial agriculture. The entry of MNCs and the increased activity of natural resource extraction have however brought with it several human rights concerns. Community land is increasingly being appropriated by the government to facilitate the activities of MNCs without the requisite safeguards in the absence of community land legislation. Large-scale projects such as the Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor project pose a threat health, culture and livelihoods of several communities as the project commenced without the necessary environmental and social impact assessments being undertaken. Concerns over equitable benefit sharing of natural resources have also been expressed by various communities who have lost land to the extractive industry.

Some MNCs also stand accused of presiding over poor working conditions and other labour related violations such as unfair dismissal of workers, denying workers the opportunity to join or form unions, a disproportionate employment of foreign workers to the detriment of local communities and sexual offences within the work place.

We call on the Commission to remind the Kenyan government of obligation to ensure effective public participation and transparency in any land acquisition process as articulated in article 55 (d) of the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. The government should be compelled to enact legislation on community land, agreements relating to natural resources and equitable benefit sharing of natural resources without further delay. The government should develop a National Action Plan on the United Nations Guiding Principles on Business and Human Rights as well as develop an effect and appropriate non-judicial grievance mechanism as a supplement to Kenya’s judicial system in offering remedies for business-related human rights abuses. Lastly we request the Commission to consider undertaking a baseline survey on the impact MNCs on human rights in Kenya.

    2. Corruption

Kenya continues to experience numerous instances of corruption at the highest levels of government that threatens to undermine the principle of governance based on human rights, equality, freedom, democracy, social justice and the rule of law. The Auditor General recently made an alarming admission that half of the country’s annual budget is either misappropriated or “squandered”.

Corruption has also occasioned a loss of public trust in critical public institutions such as the Independent Electoral Boundaries Commission (IEBC). Several IEBC officials have been implicated in a series of procurement-related scandals dubbed ‘chicken-gate’ that have seen the conviction of directors of a London-based company by the British courts on account of bribing the said IEBC officials in order to receive tenders for the printing of election materials. The imputation of corruption in such a critical public institution raises considerable concern in the face of the upcoming 2017 general elections and in the light of the 2007-08 post-election violence that was triggered by the lack of public trust in the management of elections by the now defunct Electoral Commission of Kenya (ECK).

We however acknowledge the recent re-dedication by the President to combat corruption as stated in his third State of the Nation Address; where he forwarded to Parliament, a confidential report from the Ethics and Anti-Corruption Commission (EACC) indicating the status of pending investigations against public officials and; directed that all officials of the National and County governments adversely mentioned in the report should step aside pending conclusion of the investigations. We however further note with concern, that this re-dedication by the President has seen been plagued with in-fighting among the EACC Commissioners and allegations of interference in the affairs of the EACC being levelled at the Executive where officials in the Office of the President have been accused of trying to compel EACC Commissioners to resign from office.

We call on the Commission to encourage the government to translate the President’s pledge on fighting corruption into a comprehensive and transparent process based on the rule of law and our Constitution’s standards on leadership and integrity. The government should refrain from any actions that interfere with the independence of the EACC and therefore undermine or taint any ongoing investigations. The fight against corruption must be comprehensive and shielded against any possible accusations of political bias. In light of the centrality of the IEBC in the management of the upcoming 2017 general elections, we call on the government to speedily conclude the investigation of IEBC officials implicated in the “chicken-gate” scandal.

   3. Labour Rights

Labour rights remain a critical concern particularly among workers in the agricultural sector. For instance, the minimum wage set by government at Kenya Shillings (Ksh.) 4,854 and 9,780 for unskilled workers in the agricultural sector and domestic workers respectively is still insufficient in affording workers a decent standard of living that allows them to access other economic, social and cultural rights. In this regard, the government has exhibited complacency in defining and adopting a living wage.

We call on the Commission to encourage Kenya to expediently conduct a study to determine what constitutes a living wage in Kenya and based on the findings from that study, develop a living wage policy.

The Kenyan human rights community is extremely concerned about the decision to freeze the accounts of two human rights organisations, Haki Africa and Muslims for Human Rights (MUHURI), in the aftermath of the terrorist attack in Garissa.

According to Gazette Notice 2326 of 7^th April 2015, the Inspector General has listed five organizations under a list titled, “List of Terrorist Organizations”. These are Al-Shabaab, Mombasa Republican Council, Al-Qaida, ISIS (Islamic State of Iraq and Syria) and Boko Haram. The same Gazette notice contains a longer list titled, “List of Entities Suspected to be Associated with Al-Shabaab.” This list has 85 entities which appear to be companies, business organizations and individuals. MUHURI and Haki Africa have been listed here.

As peer human rights organizations, we have worked closely with both MUHURI and Haki Africa in our attempt to counter violent extremism and improve security at the Coast. Both organizations work openly and peacefully and have advocated for constitutional means of ensuring countering terrorism while also observing human rights. Their work is respected nationally and internationally. Notably, the Executive Director of Haki Africa, Hussein Khalid, was one of two Kenyan civil society leaders who was invited to and participated in the White House Summit in DC on Countering Violent Extremism in February 2015. We therefore do not see a justification for the inclusion of these two organizations in this list.

We note that the Prevention of Terrorism Act, on which the notice in the Gazette is purported to be based, confers on the Inspector General and the Cabinet Secretary, the power to make a “specified entity order” against an entity involved in terrorism. The Act also provides that “Before making a recommendation … the Inspector-General shall afford the affected entity an opportunity to demonstrate why it should not be declared as a specified entity.”

We are concerned about the procedure that has been used by the Inspector General. First, although the law clearly provides that the Inspector-General shall afford the affected entity an opportunity to demonstrate why it should not be declared as a specified entity, the two organisations have had no contact with the Inspector-General and have learnt about this process from reading the Kenya Gazette. The failure to give the organisation’s notice or to allow them an opportunity to defend themselves is inherently prejudicial and offends all notions of fairness.

Secondly, as indicated above, the Gazette Notice has two lists, the first containing five entities listed as terrorist organizations, and the second with 85 entities listed as entities suspected to be “associated with Al-Shabaab.” Because the list is long and the organizations whose names form the list appear unrelated, we are concerned that the list is a meaningless attempt to bring under one label different organizations, many of which may be innocent, as terrorist organizations.

While we support the Government’s effort to also counter violent extremism, particularly in the wake of the killing of 147 Kenyans, mostly university students from Garissa University College, we consider the listing of MUHURI and Haki Africa to be an unthinking reaction to intimidate not only the two organizations but all civil society. Such reactions have continued, the latest being the demands by a group of Kenyan legislators and the Deputy President to close down Daadab refugee camp, disregarding Kenya’s obligations under regional and international law and blaming violent extremism on asylum-seekers and refugees.

We emphasize that, without due regard to the standards and procedures outlined in law requiring material grounds for claims of terrorism-related activities and affording the affected individuals and organisations reasonable opportunity to demonstrate why they should not be declared specified entities, any action taken is of dubious legality and unfair, and devalues the government’s efforts to fight terrorism.

Counter-terrorism can only succeed if both civil society and the Government work together to counter violent extremism. Continuous antagonism of civil society will only aggravate the situation. We wish to express our solidarity with our peer human rights organisations and reaffirm our commitment to countering violent extremism through rule of law.

We therefore demand:

1. Unconditional removal of MUHURI and Haki Africa from the terrorism list and the immediate lifting of any freezing or restriction of the activities of these organisations;
2. That the Government adheres to Article 47 of the Constitution of Kenya which provides for the right to “administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” In particular Article 47 (2) which provides that: “if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
3. That the Government upholds Article 27(4) in the Bill of Rights and desists from profiling individuals of Muslim or Somali descent;
4. That the Government fulfills its obligation to protect its citizens by enhancing its security presence in vulnerable parts of the Country and assures all citizens and residents of Kenya of their safety. In this regard the Government should address root causes of insecurity, including inequality and other grievances in vulnerable parts of the country;

1. That the Government acknowledges the important role played by civil society in promoting tolerance in the struggle against violent extremism and ensure an enabling environment in which human rights defenders and civil society can operate free from hindrance and insecurity.| END

SIGNED

1. Kenya Human Rights Commission (KHRC)
2. The Kenya Section of International Commission of Jurists (ICJ Kenya)
3. National Coalition of Human Rights Defenders (NCHRD-K)
4. Kenyans for Peace with Truth and Justice (KPTJ)
5. Constitution & Reform Education Consortium (CRECO)
6. ARTICLE 19 Eastern Africa
7. Human Rights Watch
8. Freedom House
9. Mazingira Institute
10. UHAI - the East African Sexual Health and Rights Initiative
11. Gay and Lesbian Coalition of Kenya, the (GALCK)
12. Commonwealth Human Rights Initiative (CHRI)
13. FIDH, within the framework of the Observatory for the Protection of Human Rights Defenders
14. OMCT, within the framework of the Observatory for the Protection of Human Rights Defenders
15. Coalition for Constitution Implementation (CCI)

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

Such strength has already been on display through the gallant efforts of our security officers whose response saw 663 students rescued even as some of the officers made the ultimate sacrifice and lost their lives in the line of duty. In the aftermath of the attack, the indomitable spirit of the Kenyan people has been illustrated through various forms of support and donations taken to the families at Chiromo Mortuary, Kenyatta National Hospital and Nyayo National Stadium. We also compliment the Kenya Red Cross Response teams that were on the ground soon after the attack working closely with other command structures within the government and deploying ambulances and paramedics at the scene. We must also commend the spontaneous efforts by Kenyans to ensure that the memory of the victims is celebrated and not forgotten, most particularly through the “#147notjustanumber” campaign that is now a global discussion online, and the vigils that have accompanied it.

We must however reflect on the challenges we have encountered in combating this terror threat and the Commission wishes to state as follows:

1.  In addition to the immediate security threat, the government must also safeguard against the social and economic isolation of the Northern Kenya region as it bears the brunt of these terrorist attacks. The Garissa attack comes in the wake of similar incidences in Mandera County that had already seen an exodus of teachers who had cited the region as being unsafe. In similar fashion, Garissa now faces the indefinite closure of the only University College in the region. This has the huge potential of curtailing the right to education for most families. These actions are a huge setback for a region that had only begun to emerge from a history of social and economic marginalization through the promise of devolution. With the education sector already in peril, it would be catastrophic if other public services such as their already fragile health sector were to follow suit. It is imperative that Kenyans are able to exercise their freedom of movement and conscience and that the government guarantees the security of individuals in every part of the Country.

The government must enhance its security presence in these counties that have been consistently targeted by Al Shabaab and give an assurance to ALL residents of their safety. This must however be reinforced by a concerted effort in conjunction with local leaders to counter the narrative of ethnic and religious division that is being propagated by Al Shabaab.

Most importantly, the government must immediately follow through on the President’s pledge in his State of the Nation Address for “strategic initiatives in marginalized and at-risk regions and populations of our country”. We call on the wider Kenyan public to stand in solidarity with our brothers and sisters in this region and frustrate all those who seek to divide us through fear.

2.  The government in undertaking counter-terrorism security operations must uphold all human rights obligations and abide by the Constitution. We must remember that Al Shabaab hopes to undermine our governance structures by playing into our fear and provoking us into measures such as collective punishment and discrimination against targeted groups. The government must instead embrace an inclusive and consultative approach that establishes a partnership with the public in as far as a counter-terrorism strategy is concerned. All investigations and prosecutions must be done in accordance with the law so as to curb any allegations of victimization or persecution that Al Shabaab may wish to rely on.

3. The government must fully commit to and invest in comprehensive security sector reforms governed by the rule of law. Such reforms include: a clear coordination framework for all security agencies that is respectful of the Constitution and related laws; the proper allocation and use of resources in responding to security threats; and a rapid improvement in the welfare of security personnel entrusted to keep us safe. The President’s recent directive on police recruitment unfortunately undermines these reforms by creating a dispute with the Judiciary and other State organs rather than maintaining a focus on the terror threat.

We must pay tribute to our fallen comrades by reaffirming our Kenyan unity and way of life based on the values of human rights, equality, freedom, democracy, social justice and the rule of law.

Atsango Chesoni

Executive Director the Kenya Human Rights Commission (KHRC)

| END

The meeting agreed that the ACHPR was well equipped to address transitional justice concerns courtesy of the normative framework provided by the African Charter on Human and Peoples and Rights. The challenge lies in how to purposefully channel the mandate of the commission towards realizing the right to a remedy and reparations for gross human rights violations. The study should yield practical policy options for the Commission towards the same.

The meeting resolved to ensure that the different contextual experiences with transitional justice currently unfolding on the continent would be harnessed not only for the ACHPR study, but would be used to infuse the public voice in other governance processes such as the Africa Union Transitional Justice Framework (ATJF) and Africa Governance Architecture (AGA).

It was also agreed that participants would work to enhance the promotion and protection mandate of the ACHPR through active and increased engagement with it as civil society. To this end, KHRC committed itself to facilitate capacity enhancement initiatives that would encourage other civil society organizations to engage with ACHPR and also expand spaces for dialogue between civil society and other AU organs.

KHRC contributed as part of a six-member advisory committee to the study appointed by the African Commission to enrich its research processes and validate its findings. KHRC as an advisory committee member to this study endeavoured to infuse Kenya's contextual experience with transitional justice and advocate for a more focused and resourced African Commission on this issue.

The other members to the Advisory Committee are: The Centre for the Study of Violence and Reconciliation of South Africa which is also the secretariat for the study; The Egyptian Initiative for Personal Rights (EIPR); Fambul Tok International, Sierra Leone; International Peace Institute (West African Research Fellow); The Refugee Law Project from Uganda and; the Zimbabwe Lawyers for Human Rights.

The President’s third State of the Nation Address marked a pivotal turning point in Kenya’s transitional justice agenda. Acknowledging our tragic history of mass human rights violations, the President:

• Called for Parliament to process the Truth, Justice and Reconciliation Commission (TJRC) report;
• Instructed the Treasury to establish a fund of Kenya Shillings 10 billion for restorative justice and;
• Took the unprecedented step of making an apology on his own behalf, that of his government and on behalf of all past governments for historical violations.

This is arguably the boldest political commitment to addressing historical injustices in recent memory. However more must be done if it is to prove meaningful to victims. The President must exert his political influence on Parliament to ensure they enact a comprehensive implementation framework for the TJRC report. The framework must respond to all findings and recommendations of the report, ensure the full participation and consultation of victims, maintain transparency in its operations and have accountability to the public on the progress made in implementing the report. As party leader of the majority Jubilee Coalition in Parliament, the President must ensure that the parliamentary debate does not lead to editing of the TJRC report or mutilation of its findings and recommendations.

The President’s embrace of restorative justice is indeed welcome but requires clarity. The proposed fund though necessary, must be based on a clear understanding of who the victims are and what their needs are. We would urge the President to commit to the reparations policy outlined in the TJRC report as the basis for utilizing this fund. The reparations policy identifies restoring the dignity of victims as a key objective, outlines the types of reparation and provides a categorization of victims that allows for a systematic and realistic approach to processing claims. Lessons must be learnt from past experiences such as Operation Rudi Nyumbani.

The apology offered by the President is a significant step forward but must be owned by all State organs, especially those the TJRC report has called on to apologize specifically alongside the President such as the Kenya Defence Forces and Kenya Police Service. More needs to be done to specifically recognize the various victim groups and their experiences through memorialization as part of the reconciliation process. The apology must translate into a reflection on the progress made in reforming State institutions previously accused of committing human rights violations. Are we assured of non-repetition and a change in the moral character of these institutions as the apology suggests?

The President has reawakened a yearning for justice among victims of Kenya’s historical injustices and invited the Kenyan public to imagine that true reconciliation and cohesion is indeed possible in our lifetimes. KHRC will remain vigilant in ensuring that the government maintains fidelity to the restoration of dignity to victims that embraces the approach of “nothing for us without us”. Restorative justice exercises a sacred trust with victims that must not be betrayed. END

For media inquiries please contact:

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

Sexual violence by duty bearers and those in positions of authority has often been let to fizzle out once public outrage on the issue dies. Regrettably, indecent assault, sexual and gender based violence and related violations have not been adequately addressed. There are hundreds of cases of this nature that underscore how dire the situation is becoming. More must be done to protect women and girls from sexual violence, and to ensure that they are not made vulnerable in the hands of those in public leadership.

These violations have gone unaddressed despite the existence of strong legislative framework such as the Sexual Offences Act 2006 and other laws of Kenya which criminalize all forms of sexual violence. Moreover, Kenya has ratified and domesticated several regional and international human rights instruments such as the Convention on the Elimination of Discrimination against Women (CEDAW), The Maputo Protocol to the African Charter on Human and People’s Rights and Zero Tolerance to Violence against Women for the Great Lakes Region, among others which offer the requisite legal obligations of the State. These affirm the State’s responsibility to protect women and girls from sexual and gender based violence.

This responsibility has been affirmed and further emphasized by the commitment by the His Excellency the President Uhuru Kenyatta in his support for women’s rights when he launched the “He for She” campaign in Kenya on 24^th November 2014 saying

“I am He For She because gender equality is not only a woman’s issue, it is a human rights issue that requires my participation. I as the President of Kenya, I commit to take action against all forms of violence against women and girls.”~ Uhuru Kenyatta 24/11/2014 [emphasis added]

Despite the existence of these legal and political commitments we have in the recent past witnessed a disturbing increase in reported incidences of sexual violence against women and girls in Kenya:

• In February this year, it was widely reported by the media that Juja Member of Parliament, Francis Waititu was allegedly suspected of sexually harassing a female member of his staff, including by sending her sexually offensive messages. The inaction by relevant offices against this MP is heavily accentuated by a disturbing and deafening silence on the issue.
• In the last couple of days, a Female Member of Parliament on official mission with the President of the Republic of Kenya reported that she had been subjected to indignifying and violent sexual advances from a fellow male Member of Parliament. Again, there has been resounding silence and inaction on the matter!
• The Members of Parliament have not spared the female law enforcement officers either. A traffic police woman in Nakuru was allegedly assaulted by a member of parliament resulting in actual bodily harm and there is still significant silence on the same.

These are just but a few alarming reports that have made their way to the media. Increasingly, there has been a worrying trend of rape and other sexual violence being meted against women and girls in Kenya, with little or no action taken to apprehend and prosecute the offenders and safeguard the rights of women and girls. Most unsettling is that on Saturday the 21^st March 2015, a helpless mother of two allegedly came face to face with this monster of sexual violence occasioned against her by the Imenti Central Member of Parliament. The sexual violations and acts of indecent assault included:-

1. The Member of Parliament with the help of his personal assistant administering a substance with intent to subdue her;
2. Trespassing on her privacy by instructing his private medical practitioner to forcefully conduct an HIV test against her will;
3. Physically assaultingher, causing actual bodily harm; and
4. Engaged in the heinous act of rape,
5. To make matters worse the alleged perpetrator has embarked on a mission to intimidate and compromise the survivor, her family and possible witnesses in the case.
6. To exacerbate the matter. The MP continues to receive preferential treatment while in custody. i.e. having dinner with the top investigating officers, not spent a single night in custody, driven around the city in a convoy of police vehicle supposedly other tight security ( Daily Nation, Thursday, March 26, 2015 Page 4)

Unfortunately, this is a familiar story for a number of women who have been the innocent victims of sexual violence in Kenya. Many women continue to cry for justice without the prospects of ever receiving any. A woman’s dignity and bodily integrity is priceless! Obtaining justice for the indignifying violations remains a mirage for many victims! Kenya is slowly and painfully etching out a reputation of being an unsafe country for women and girls with rapists and defilers walking scott-free. It is abominable that members of Parliament who are mandated with passing laws that safeguard our rights and better our societies would behave in such a DISHONORABLE manner!

The prevalent culture of the dehumanization of women as sexual objects for men’s gratification along with the bizarre myth, attitudes and assumptions that men cannot control their sexual desires must be fervently abhorred.

We DECLARE THAT ENOUGH IS ENOUGH!!! to All acts of violence against women and girls and STATE that full responsibility and action to ensure their safety and protection of their human rights is upheld!! In so doing, we uphold our humanity with the hope that we can create a better world for us ALL – where we treat each other with dignity and respect, regardless of age, class, sex, ethnic or dress as provided in article 27 of our Constitution.

The Government of Kenya must live up to its role and discharge its obligations under national, regional and international law and effectively protect women and girls from sexual and gender based violence. It is imperative that the Government ensures that our women and girls are safe in every part of this Country.

We therefore demand that:-

• The Inspector General of Police swiftly moves to comprehensively, independently and objectively investigate these allegations and make recommendations for prosecution of the perpetrators;
• The Speakers of the National Assembly- Parliament and Senate uphold integrity through development of a code of conduct, including a sexual harassment and gender based violence Policy regulating the conduct amongst the members of the national assembly, staff and officials. Any suspected member of the National Assembly should be suspended from their duties until they are cleared of the allegations by a court of law.
• The JudiciaryOperationalizes the Sexual Offenders Register and make it accessible
• The Judiciary further establishes a Sexual Gender Based Violence Court within the judicial system to provide privacy and expedite the cases on sexual violence in the shortest time possible in a safe environment.
• The Director of Public Prosecution to establish a gender based violence department within his office that will facilitate expedition of cases of crimes of sexual violence ensuring the observance of the rule of law.
• The Cabinet Secretary of the Ministry of Devolution and Planning, to facilitate full implementation and mainstreaming of all sexual and gender based violence policies and frameworks across all Government bodies at both the national and county levels.
• We call upon the Commission on Administrative Justice, Public Service Commission, Ethics and Anti-Corruption Commission, to expedite their role in promoting national values and principles by ensuring all public officials, accused of sexual crimes relinquish their positions until their cases are heard and determined. Any person whose name appears in the sexual offenders register must not be cleared for any public office, whether appointive or elective. .

We call for the Media to conduct comprehensive awareness, sensitization and empowerment campaigns to help prevent the gross human rights violations on women. This should include information on how to report cases, where to report cases and every person’s role in protecting women from these brutal attacks by callous individuals.

We also urge the public to be vigilant and break the culture of silence around these atrocities by reporting all cases of sexual defilement, abuse and violence of women, girls, children within families, schools, public spaces and the community at large.

May justice be served! Pamoja Tutetee Haki!

Endorsers: attached

1. Women’s Empowerment Link (WEL)
2. Kenya Human Rights Commission (KHRC)-
3. FIDA Kenya
4. Center for Rights Education and Awareness(CREAW)
5. AKILI DADA.
6. Maendeleo ya Wanawake
7. African Women Child Features(AWCFS)
8. International Rescue Committee
9. Action Aid International Kenya
10. Girl Child Network
11. Association of Media Women In Kenya (AMWIK)
12. Association of Professional Women with Disabilities
13. FEMNET
14. Youth Agenda
15. Inuka

Corruption has behaved like a cancer that has spread beyond economic sabotage, and ventured into the destruction of our democratic system. It has derailed our aspirations for national cohesion. The failure to demonstrate progress in the fight against corruption points to a political leadership that has not learnt anything from the 2007-08 Post-Election Violence. The Kenya National Dialogue and Reconciliation process led by Koffi Annan, and including most of today’s political leaders identified the lack of transparency, accountability and impunity as one of the root causes for the conflict. Kenya will inevitably return to violence if the disparities between the rich and the poor are allowed to subsist in the face of continued looting of public resources.

KHRC hereby calls on the President to display political responsibility by immediately purging his Executive of officers accused of corruption rather than shuffling them within government. The Ethics and Anti-Corruption Commission and the Director of Public Prosecutions must swiftly conclude all pending investigations and mount proper prosecutions in the courts of law. Kenyans can no longer be subjected to endless procrastination when dealing with the so-called ‘high-voltage files’. Kenyans, as owners of sovereign power must challenge their political leadership and demand that they comply with a higher standard of leadership and integrity. KHRC undertakes to confront errant leadership through legal channels and galvanize the public to demand accountability at all levels of government.

We appeal for a return to the enthusiasm and sense of purpose that saw Kenyans enforce citizen arrests against officers who would dare take bribes. Corruption is at the heart of what ails our country and if it is allowed to persist, it will consume us all.

Media Inquiries: Audrey Kawire Wabwire | Communications Manager | Kenya Human Rights Commission | Opposite Valley Arcade, Gitanga Road | P.O Box 41079, 00100 GPO, Nairobi, Kenya | Tel. +254-020-3874998/9 3876065/6