Entitled “Privacy in the Digital Age,” the convening examined where we are now and where we are going in wake of the Snowden revelations, which revealed the enormous scope of both US and international government surveillance.

The idea behind the INCLO gathering was to review challenges and compare strategies for reining in surveillance regimes and promoting privacy protections at the national level, and to explore more systematic involvement for INCLO on informational privacy issues at the national and international level.

The convening opened with a briefing by Edward Snowden, who joined the group via Skype, and spelled out the dangers of the far-reaching surveillance powers now being deployed not only by the US but by many other countries as well.

As part of the two-day conference, INCLO organized two panels that were open to the public. The first, entitled “What Would U.S. Surveillance Reform Look Like and Do We Need It?” was a discussion between Jameel Jaffer, Deputy Legal Director of the ACLU, and Robert Litt, the General Counsel of the U.S. Director of National Intelligence. The panelists agreed that in order to maintain trust in the government, the public needs information about the government’s surveillance authorities and activities, though they fundamentally disagreed on the adequacy of existing oversight mechanisms.

The second public panel, “How the Snowden Revelations are Reshaping Global Perceptions of Privacy & Big Brother: Perspectives from Around the World,” featured President Emeritus of the Open Society Foundations, Aryeh Neier, moderating a discussion with the Brazilian Ambassador to the United Nations, Antonio de Aguiar Patriota and representatives from civil liberties groups from Hungary, Germany, Brazil, the UK and the US.

The panel addressed, among other questions, how their governments, the public and technology companies reacted to the Snowden disclosures. The speakers agreed that the revelations have created momentum to push for reform and limit mass surveillance.

Participants in the conference included the following INCLO members: American Civil Liberties Union, Association for Civil Rights in Israel, Canadian Civil Liberties Association, Centro de Estudios Legales y Sociales, Hungarian Civil Liberties Union, Irish Council for Civil Liberties, Kenya Human Rights Commission, Liberty, Legal Resources Centre, and also Antivigilancia, Columbia Law School, the Ford Foundation, Italian Coalition for Civil Liberties, Matrix Chambers, Open Society Foundation, Privacy International, Renewable Freedom Foundation, Stiftung Neue Verantwortung, Transnational Institute, US Office of the Director of National Intelligence and University of Pennsylvania.

For Media booking contact:

Audrey Wabwire/Communications Manager/ Email:awabwire@khrc.or.ke

In January 2015, AUPSC members decided to defer consideration or publication of the African Union Commission of Inquiry on South Sudan (AUCISS) report because they thought it would obstruct the achievement of a peace agreement. But as a 5 March deadline for reaching a final agreement has now passed, the organizations renewed calls for the report to be published.

“A culture of impunity has fuelled South Sudan’s conflict and emboldened combatants to target civilians, commit sexual violence, destroy and loot civilian property without fear of legal consequences,” said Arnold Tsunga, Africa Director of the International Commission of Jurists. “The release of the report could help deter further atrocities, by bringing to light what has taken place and making more real the prospect of accountability,”

For over a year, parties to the conflict have demonstrated disregard for international human rights and humanitarian law. UNICEF recently reported the forced recruitment of what it believes may be hundreds of children in Upper Nile state to serve in a government-allied militia group.

The AUCISS had the mandate to investigate human right abuses and violations in South Sudan and make recommendations on the best ways to ensure accountability, reconciliation and healing.

“The Government and the Sudan Peoples’ Liberation Movement-In Opposition (SPLM-IO) have already agreed that a comprehensive system of transitional justice—including truth and reconciliation, criminal prosecution, reparations and institutional reforms—is necessary for achieving sustainable peace,” said David Deng, research director with South Sudan Law Society. “The AUCISS recommendations could make an important contribution to the design of such processes.”

In their letter to AUPSC members, the organisations urged the immediate publication of the report in order to honour the expectations of victims and witnesses of atrocities who recounted painful experiences in order to contribute to a more complete record of the conflict.

“Hundreds of people took time to speak with members of the AUCISS because they thought the report could make a positive contribution to the future of South Sudan. Shelving the report demonstrates a complete disregard for the individuals whose testimonies, ideas, and opinions were used to compile the report,” said Frans Viljoen, Director of the Centre for Human Rights at the University of Pretoria.

The seventy-six organizations reminded the PSC of its obligations under the PSC Protocol to promote “good governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, as part of its efforts for preventing conflicts.”

“We urge you to prove wrong those who doubt the commitment of the AU to justice and accountability by receiving, considering, and immediately publishing the AUCISS report,” the letter concludes.

Background 

The PSC is the AU’s standing decision-making organ for the prevention, management and resolution of conflicts. Its current members are Algeria, Burundi, Chad, Equatorial Guinea, Ethiopia, Gambia, Guinea, Mozambique, Namibia, Niger, Nigeria, Libya, South Africa, Tanzania, and Uganda.

Only two weeks after the outbreak of violence in Juba in December 2013, the PSC called on the African Union Commission to establish a commission of inquiry. In March 2014, Chairperson of the AU Commission, Dr. Nkosazana Dlamini-Zuma presided over the swearing in of the six members of the AUCISS: former president of Nigeria, Olusegun Obasanjo (the chairperson), Sophia A. B. Akuffo, Mahmood Mamdani, Bineta Diop, and Pacifique Manirakiza.

In June the Commission submitted an interim report to the PSC and was granted a three month extension of its mandate to complete work. In its June interim report, the AUCISS promised that the recommendations to be included in its final report would contribute to finding lasting solutions to the crisis in South Sudan.

The PSC heads of state were scheduled to consider the AUCISS report on 29 January 2015, but instead decided to “defer consideration [of the report] to a later date.” The chairperson, Olusegun Obasanjo was not given an opportunity to present the report’s content and the report was not distributed to the PSC members.

Meanwhile, the Government of South Sudan has made no credible efforts to hold accountable individuals responsible for crimes under international law and other serious violations and abuses of international human rights law.

Negotiations between the Government of South Sudan and the SPLM-IO are being brokered by the Intergovernmental Authority on Development (IGAD), an eight-member regional body. Despite multiple commitments to cease hostilities, the conflict has continued. On 1 February President Salva Kiir and opposition leader Riek Machar signed an agreement committing to conclude a final peace agreement by 5 March. Despite this, negotiations have failed to result in a final agreement.

For more information or to arrange an interview contact:

For the Association of Women for the Development and Culture of Peace in Chad: Céline Narmadji, (+235) 66 29 40 85 / 99 12 13 59, narmadjicel.64@gmail.com

For Amnesty International: Mildred Ngesa, mildred.ngesa@amnesty.org, +254 732 495 215  

For International Commission of Jurists: Arnold Tsunga, +27 (71) 6405926, arnold.tsunga@icj.org

For the Centre for Human Rights at the University of Pretoria: Frans Viljoen, +27 012 4203228, frans.viljoen@up.ac.za

For the Institute for Justice and Reconciliation: Friederike Bubenzer, friederikebubenzer@gmail.com

For the South Sudan Law Society (SSLS): David Deng, +254 703754068 ddeng@sslawsociety.org

For Assistance Missions for Africa: James Ninrew Dong, +211 955224368, jninrew@yahoo.com

For the Institute on Human Rights and Development in Africa: Djeugoue Brice Martial, +2207751208, bmdjeugoue@ihrda.org,

By; Teddy Tabu Odira

Introduction

From Margaret Sanger[1] saying, “No woman can call herself free until she can choose consciously whether she will or will not be a mother,” to Mother Teresa[2] stating, “I feel the greatest destroyer of peace today is 'Abortion', because it is a war against the child... A direct killing of the innocent child, 'Murder' by the mother herself,” I am left to wonder, which side of the argument should we incorporate in our culture.

Abortion, the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman's uterus[3], has emerged as a polarizing and multifaceted debate within the Kenyan context. It traverses a spectrum encompassing medical, legal, moral, and socio-economic dimensions, profoundly impacting individuals, families, communities, and the nation at large. The discourse is interwoven with notions of bodily autonomy, religious doctrines, societal mores, and the pursuit of equitable healthcare, painting a nuanced portrait of a nation in pursuit of progress and compassion.

Unwanted pregnancies pose a serious health risk to women across various regions in the developing world, particularly in terms of morbidity and mortality related to pregnancy and childbirth.[4] In nations where safe abortion services are hindered either by legal constraints or logistical challenges, unsafe abortions become a major contributor to maternal fatalities. These unsafe procedures are often conducted by untrained individuals in unhygienic settings. However, in countries such as Kenya, accurately documenting the precise scale of morbidity and mortality linked to abortion, as well as the root causes of unsafe abortions, proves challenging.[5]

Be that as it may, in the years preceding the constitutional reform process of 2009-2010, a research done by center for reproductive rights indicated that approximately 2,600 women lost their lives each year in Kenya due to complications arising from unsafe abortions.[6] During the early 2000s, unsafe abortions accounted for 35% of maternal deaths in Kenya, a figure nearly three times higher than the global average for deaths resulting from unsafe abortions, which stood at 13%.[7]

In this exploration of Kenya's stance on abortion rights, I delve into the historical evolution of abortion legislation, the prevailing legal framework, its implications on women's health and well-being, and the role of cultural and religious beliefs. This journey unfolds against the backdrop of a nation at the crossroads, seeking to honor tradition while acknowledging the changing tides of global human rights discourse and the imperative of providing safe and compassionate reproductive healthcare to its populace.

Historical Evolution Abortion Legislation

In the golden era of Jamaican reggae, “Legalized Crime” by Ntshenge and the Jah Live was a powerful anthem we all cherished. Let’s reimagine its message, “I wonder why you pass laws that legalizes a crime, maybe you don’t know that abortion is a crime, abortion is not a human right, it is a crime, it is a crime, abortion is a crime.”[8] How true were these lyrics within the Kenyan context?

Throughout history, abortion has remained steeped in controversy and continues to do so. Reaching a moral consensus on this matter proves exceedingly difficult.[9] Concurrently, within the era of human rights, government entities, including legislative bodies and the judiciary, cannot cite the absence of political, moral, or religious consensus on abortion as a valid excuse for their failure to address the injustices women endure due to unsafe abortions.[10]

Kenya, being a British colony, relied so much on British laws. A significant historical milestone in the evolution of abortion legislation emerged with the English Offences Against the Person Act of 1861.[11] This legislation, along with its judicial interpretation, was later adopted and implemented in British colonies Kenya included.[12] The main abortion provision in the Act was Section 58 of the 1861 Act which made it an offence for a woman to “unlawfully” procure an abortion.[13] Additionally, Section 59 of the Act punished a person who supplied the woman with the means for unlawfully procuring an abortion.[14]

Section 58 of the Act stated that;

“Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with the intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony and being convicted thereof shall be liable to imprisonment for life.”[15]

The Right Honorable Sir Malcolm Macnaghten interpreted this Section in the case of Rex v. Bourne.[16] He stated that the 1861 Act, by employing the term "unlawfully" to describe the ban on procuring an abortion, conveyed to the courts that not every abortion was deemed unlawful. It subtly acknowledged situations in which an abortion could be obtained in a "lawful" manner. However, clarity was lacking regarding whether abortions, beyond those necessary to preserve the pregnant woman's life, could be lawfully conducted.[17] In the absence of legislative intervention, the case of Bourne in 1938 played a pivotal role in elucidating this legal stance.

Influence of Rex v. Bourne in Kenyan Jurisprudence

The laws on abortion in Kenya were heavily inspired by a significant legal precedent that was set in 1938 in the United Kingdom with the case of Rex v. Bourne.[18] In this case, a surgeon faced charges under section 58 of the Offences against the Person Act 1861 for performing an abortion, via surgical means, on a 14-year-old girl impregnated through rape. The jury was instructed that the burden of proof rested with the prosecution to demonstrate, beyond a reasonable doubt, that the surgical procedure was not undertaken in good faith solely to preserve the girl's life. The court and jury relied on the surgeon's expert opinion, rooted in his vast knowledge and experience. The surgeon did not wait until the patient was in imminent danger but acted when he was convinced that the pregnancy resulting from rape would seriously jeopardize the physical and mental health of the young girl, putting her life at significant risk. The jury acquitted the surgeon based on these grounds.

The influence of this case could be seen in our constitution, penal code and case laws. Article 26(4) of the Kenyan Constitution states that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.[19] Section 240 of the penal code on the other hand outlines "offences endangering life and health." It introduced a subtle exception to the blanket prohibition against abortion. This exception is implicit, permitting a departure from the ban under specific circumstances. It stipulates that "a person is not criminally responsible for performing, in good faith and with reasonable care and skill, a surgical operation upon any individual for their well-being, or upon an unborn child to preserve the mother's life, provided that the performance of the operation is deemed reasonable, considering the patient's condition at the time and all pertinent circumstances."[20] In essence, this provision allows for a surgical intervention on an unborn child to be considered a lawful act if it is deemed reasonable and necessary for the preservation of the woman's life, even if the consequence may involve an abortion.

The standard established in Rex v. Bourne was subsequently affirmed in a Kenyan case of Mehar Singh Bansel v R .[21] The court held that, “Defined an illegal operation as one which is intended to terminate pregnancy for some reasons other than what can, perhaps be best be called a good medical reason, which the court interpreted to be the genuine belief that the operation is necessary for the purpose of saving the patients life or preventing severe prejudice to her health.” This was also reinstated in PAK & another v Attorney General & 3 others.[22]

However, the penal code, specifically section 240 and other Kenyan laws, lacked explicit guidance on how to put this provision into practice.[23] Furthermore, the language in section 240 of the penal code suggested a limited scope—only abortions resulting from surgical procedures on a fetus were implied to be permissible. This implication potentially excluded other medical treatment methods, like medical abortions, even if used to safeguard a woman's life, from being considered lawful.

Prevailing legal framework

Article 43(1)(a) of the 2010 Constitution of Kenya unequivocally articulates the fundamental right to the highest possible standard of reproductive health.[24] Its counterpart, Article 43(2), firmly decrees that no person shall be denied emergency medical treatment.[25] The nuanced sphere of safe abortion is particularly governed by the intricate mandate of Article 26(4), [26] emphasizing that abortion is permissible only if deemed necessary by a qualified health professional in situations of emergency, threats to the mother's life or health, or when authorized by pertinent laws.

Additionally, Section 6(1) of the Health Act provides invaluable insights into matters concerning abortion.[27] It emphatically affirms every individual's right to comprehensive reproductive healthcare, encompassing access to treatment by proficient healthcare practitioners for conditions arising during pregnancy. These encompass abnormal pregnancy conditions such as ectopic, abdominal, and molar pregnancies, or any medical condition exacerbated by pregnancy to an extent endangering the mother's life or health. Notably, all such cases are designated as notifiable conditions.

The subsequent Section 6(2) defines the term "trained health professional," delineating qualifications at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer.[28] These professionals must possess formal medical training and hold a valid license from recognized regulatory authorities to perform procedures concerning pregnancy-related complications in women. The Act further necessitates that such procedures be conducted within legally recognized health facilities, equipped with adequate human resources, infrastructure, commodities, and supplies.

In parallel, the Penal Code delineates the criminalization of unsafe abortion through sections 158-160.[29] It sternly penalizes any individual engaged in actions aimed at procuring a miscarriage through administering poison, using force, or other means. However, the Code extends a crucial exception under Section 240, providing a sanctuary for trained health professionals.[30] When acting in good faith and with reasonable care, they are shielded from criminal liability when conducting surgical operations to preserve the life of the mother or the unborn child.

In practice, law enforcement often manipulates Section 158 of the Penal Code to intimidate medical providers offering safe abortion services, contrary to the law.[31] Strikingly, Makueni County's progressive Maternal Newborn Child Health Act of 2017 embraces the recognition of termination of pregnancy under diverse circumstances, including rape, fetal abnormalities, and mental incapacity to comprehend the pregnancy.[32] Conversely, Kilifi County restricts access to safe termination only to emergent situations, highlighting the decentralized perspectives within the legal framework. However, at the national level, the established legal framework continues to serve as the overarching guiding principle.

Prevailing Case laws          

PAK & another v Attorney General & 3 others[33]

At the center of this case is the petitioner, a second-year student, who found herself pregnant following a consensual encounter with another student. As her pregnancy progressed, complications arose, marked by severe pain and bleeding, compelling her to seek urgent medical attention at Chamalo Medical Clinic in Ganze Location. There, the second petitioner, a healthcare professional, diagnosed her with a spontaneous abortion and performed a successful manual vacuum evacuation, resulting in her stable condition.

However, the situation took an unexpected turn when plain-clothed police officers, without prior notice or consent, abruptly entered Chamalo Medical Clinic. They demanded access to the petitioners' medical records, eventually confiscating them from the second petitioner. Both the first and second petitioners, along with two female clinic employees working as cleaners, were then arrested and transported to Ganze Police Patrol Base.

Subsequently, the first petitioner was compelled to undergo a medical examination at Kilifi County Hospital, during which a medical examination form was completed. Following this, the first petitioner was charged with the offense of procuring abortion under section 159 of the Penal Code. The second petitioner faced charges in Kilifi under criminal case number 395 of 2019 for procuring abortion, with an alternative charge of supplying drugs to induce abortion under section 160 of the Penal Code.

In their response to these charges, the petitioners initiated legal proceedings to challenge the criminal trial at the Kilifi Law Courts. They contended that Article 26(4) of the Constitution outlined specific situations in which abortion was permissible.[34] The petitioners further asserted that the actions of the police, involving the detention of the first petitioner and a forced medical examination, infringed upon her fundamental human rights, including the rights to life, privacy, the highest attainable standard of physical and mental health, freedom from torture, inhuman and degrading treatment, and punishment.

In addition to seeking the quashing of their charges, the petitioners also called upon the court to declare sections 154, 159, and 160 of the Penal Code, which criminalize abortion, as unconstitutional.[35] In response, the respondents argued that the Constitution unequivocally declared abortion as illegal, except in circumstances where a qualified healthcare practitioner deemed the mother's life to be at risk, or when emergency treatment was deemed necessary, or when permitted by another written law. They asserted that it was therefore implausible to argue that Article 26(4) had nullified sections 158, 159, and 160 of the Penal Code.[36]

The courtroom, with its hallowed halls, resounded with a powerful proclamation: the sweeping ban on abortion, as dictated by Sections 158-160 of the Penal Code, exposed not only the expectant mother but also the unborn child to the haunting specter of mortality.[37] This, the Court declared, was nothing short of an infringement upon the sacred right to life.

With unwavering clarity, the Court ruled that a woman should be entrusted with the profound decision of whether to terminate her pregnancy, a choice to be made in the tender care and counsel of a trained healthcare professional. In this, the Court illuminated the path, affirming that such a medical expert, when guided by their expertise and the wisdom of the Constitution and allied statutes, bears no criminal burden for undertaking a medical abortion procedure.

The High Court, in no uncertain terms, reinforced the notion that the right to abortion, though not an absolute liberty, is etched within the constitutional and human fabric. Yet, it unveiled a shadowy void in the Penal Code, a gaping omission in the context of Article 26(4) of the Constitution, rendering it flawed and incomplete.

Reasoning of the court

Judge Reuben Nyambati Nyakundi had a lot to disclose in the Obiter. In his opinion, in Kenya, the legal status of abortion had long been a complex issue, yet a glimmer of hope shone through the Constitution and various international agreements such as CEDAW.[38] They provided a solid legal framework to bolster the reproductive rights of women, reaffirming their place in the pursuit of equality and the highest attainable standard of health. These rights encompassed not only their right to benefit from scientific progress but also to access healthcare services, especially those linked to reproductive and sexual health. Failing to protect these rights could amount to a grave transgression, including cruel, inhuman or degrading treatment, torture, or even a violation of the right to life.

The application of international law to the unique Kenyan context found its footing in Article 2(5) of the Constitution.[39] It unequivocally declared access to safe abortion services as a fundamental human right. Forcing someone to bear an unwanted pregnancy or pushing them towards unsafe alternatives infringed upon their human rights, including the cherished rights to privacy and bodily autonomy.

He reiterated that, the absence of accessible, quality abortion care posed a serious threat to various human rights of women and girls. These encompassed the right to life, the right to the highest attainable standard of physical and mental health, and the right to benefit from scientific progress. Equally significant were the rights to make decisions regarding the number, spacing, and timing of children, as well as the right to be free from torture, cruel, inhuman, and degrading treatment and punishment.

Kenya's restrictive abortion laws, coupled with the lack of effective legislation to give life to Article 26(4) of the Constitution, left women and girls exposed to mental and physical health risks, often associated with unsafe abortions. These laws stigmatized those seeking abortions, further violating their right to life and the right to the highest attainable standards of health.

He stated that the right to terminate a pregnancy stood as a fundamental and deeply personal liberty. The court recognized the immense burden the State placed upon pregnant women by denying them this choice, including the potential health risks of pregnancy and the financial and emotional toll of bringing a child into a family without regard for the fetus's viability or the mother's well-being.

The honorable judge opined that it was imperative for the legislature, as the governing body, to expedite the passage of legislation that ensured access to safe abortion for women in Kenya, fully realizing the provisions of Article 26(4) of the Constitution. In the criminalization of abortion under the Penal Code, the judge found a shifting landscape, one that hadn't been a consistent feature in the adjudication of evidence destined for use by the Director of Public Prosecution under Article 157(6), (7), and (8) of the Constitution.

The contentious sections aimed to address societal concerns regarding the preservation of the right to life, predating the enactment of the 2010 Constitution. It became imperative for a new act to be enacted by the legislature, outlining conditions under which procuring an abortion would be deemed a criminal offense. The prohibited conduct should be clearly and unambiguously defined within the text of Article 26(4) of the Constitution, and the scope of the disputed sections should be scrutinized in light of fundamental rights, such as women's rights to health, life, dignity, and security.

Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others[40]

In September 2012, the Ministry of Medical Services, following a consultative process, issued the "2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya" (referred to as the 2012 Standards and Guidelines) and the "National Training Curriculum for the Management of Unintended, Risky, and Unplanned Pregnancies" (the Training Curriculum). However, on December 3, 2013, the third respondent, the Director of Medical Services (DMS), issued a letter withdrawing both the 2012 Standards and Guidelines and the Training Curriculum. Subsequently, the DMS issued a memo to all health workers, instructing them not to participate in any training related to safe abortion and the use of medabon (medicines for inducing abortion). The memo warned that those who attended such trainings or used medabon would face legal and professional consequences.

In 2014, the second petitioner, an 18-year-old, was subjected to non-consensual sexual intercourse, resulting in an unwanted pregnancy. She sought an abortion, which led to severe complications. She was subsequently admitted to Kenyatta National Hospital, where her diagnosis at the time of discharge indicated a septic abortion, hemorrhagic shock, and the development of chronic kidney disease. Tragically, the second petitioner passed away before the resolution of this petition. The petitioners argued that the DMS had exceeded their authority by unilaterally and arbitrarily withdrawing the 2012 Standards and Guidelines and the Training Curriculum. This withdrawal created a void and exposed individuals, including the second petitioner, to a denial of their reproductive health rights, among other consequences.

A panel of judges, including Aggrey Otsyula Muchelule, Lydia Awino Achode, Mumbi Ngugi, George Vincent Odunga, and John Muting'a Mativo, rendered a partial decision in the case. They ruled that the third respondent's actions, particularly the letter dated December 3, 2013, had violated and/or threatened the rights of the second, third, and fourth petitioners, who represented women of reproductive age, along with other women and adolescent girls of reproductive age. These violated rights encompassed the right to the highest attainable standard of health, the right to non-discrimination, the right to information, consumer rights, and the right to benefit from scientific progress.

The judges issued a declaration that the memo dated February 24, 2014, issued by the third respondent, violated or threatened the rights of healthcare professionals. These rights included access to information, freedom of expression and association, consumer rights, and the right to benefit from scientific progress.

Furthermore, the judges decreed that the third respondent's letter dated December 3, 2013, and the memo dated February 24, 2014, were not in accordance with the law. They were deemed unlawful, illegal, arbitrary, and unconstitutional, and, as a result, were null and void from their inception. These documents were consequently revoked.

The court upheld the general illegality of abortion in Kenya, except for specific exceptions as provided under Article 26(4) of the Constitution. Additionally, the court confirmed that in cases of pregnancy resulting from rape and defilement, a trained health professional may terminate the pregnancy if it poses a danger to the life or health (physical, mental, and social well-being) of the mother, as permitted by the exceptions outlined in Article 26(4) of the Constitution.

In terms of compensation, an order was issued, directing the respondents, whether jointly or individually, to pay PKM a sum of Ksh. 3,000,000. This compensation was granted to address the physical, psychological, emotional, and mental anguish, stress, pain, suffering, and the unfortunate death of JMM, all of which were attributed to the respondents' violation of JMM's constitutional rights.

Implications of abortion on women's well-being and health

Mother Theresa of Calcutta[41] asked a rhetorical question that remains disturbing to date. She asked, “It is poverty to decide that a child must die so that you may live as you wish?” The Turnaway Study conducted at the University of California, San Francisco, tends to answer this question. It shows that women experience harm from being denied a wanted abortion.[42]

The study found that refusing a woman's request for an abortion has far-reaching economic repercussions and creates long-term insecurity.[43] Women who were declined an abortion and subsequently gave birth faced a significant and enduring increase in household poverty, spanning at least four years, compared to those who were granted an abortion.[44] Even years after being denied an abortion, these women were more likely to struggle with financial challenges, including difficulties in affording basic necessities such as food, housing, and transportation.[45]

Furthermore, the denial of an abortion had a negative impact on a woman's financial stability. It led to a decline in their credit score, an increase in their overall debt burden, and an uptick in the number of adverse financial records, such as bankruptcies and evictions.[46]

The Turnaway study also found that women who are refused abortions are more likely to remain in contact with a violent partner and are also at a higher risk of becoming single parents responsible for raising the child alone.[47] Notably, instances of physical violence from the men involved in the pregnancy decreased for women who chose to receive abortions.[48] However, for those who were denied abortions and subsequently gave birth, the pattern of violence from these partners persisted.

Over a span of five years, it became evident that women who were denied abortions were more likely to be in a situation where they were raising their children independently, without the support of family members or male partners.[49] This was in stark contrast to women who opted for an abortion.

Childbirth is associated with a greater incidence of severe health complications compared to having an abortion. Women, in the Turnaway study who were denied an abortion and subsequently gave birth reported a higher occurrence of life-threatening issues such as eclampsia and postpartum hemorrhage, in contrast to those who received the desired abortion.[50] Additionally, these women who gave birth instead experienced more chronic health problems, including headaches or migraines, joint pain, and gestational hypertension, compared to their counterparts who chose abortion.[51]

Tragically, the increased risks associated with childbirth were starkly exemplified by two women who were denied an abortion and tragically lost their lives following delivery. No such fatalities were reported among women who underwent abortions.[52]

Furthermore, the study found that the financial well-being and overall development of children are adversely affected when their mothers are denied abortion.[53] In cases where women already have children when they seek abortion, the children's development tends to suffer when their mothers are denied this choice, in contrast to the children of women who are granted an abortion.[54] Children born as a result of the denial of abortion are more likely to grow up below the federal poverty level when compared to children born from a subsequent pregnancy to women who received the abortion they sought.[55]

Furthermore, the act of carrying an unwanted pregnancy to full term is linked to a diminished maternal bonding experience. This may manifest as feelings of being trapped or harboring resentment towards the child, particularly in the case of the child born after an abortion was denied, as opposed to the next child born to a woman who received the abortion she wanted.[56]

In the Kenyan context, the findings of this study can be linked to the Article 53 (2) of the Constitution which states that a child’s best interests are of paramount importance in every matter concerning the child.[57]

Role of Cultural and Religious Beliefs on Matters Abortion

The decision to seek abortion services was deeply influenced by a complex interplay of religious beliefs, community norms, and cultural traditions, directly and indirectly shaping women's choices regarding abortion and post-abortion care (PAC). For instance, in numerous rural communities and religious groups, there was a strong preference for traditional birth attendants (TBAs) and traditional healers over hospitals. This cultural preference actively discouraged women from accessing abortion services at healthcare facilities.

A study named, “Stigma and agency: exploring young Kenyan women’sexperiences with abortion stigma and individual agency,”[58] interview girls aged 18 to 24 to understand this dynamic. One participant, who is a Maasai-Kikuyu, said that the Maasai believes in getting wakunga (Swahili name referring to mid-wives) when you give birth. Even when you want to terminate a pregnancy, they call all the elderly women, and they sit on your stomach repeatedly. She stated that the women then bounce on a woman’s stomach it till it's 'dead.' For her this process was scary. [59] The respondent in this case was aged 24 years.

When asked about the significant influence of religious beliefs and cultural traditions on women's ability to access abortion-related care, participants noted a pervasive belief in Nairobi that abortion is morally wrong, sinful, and illegal. This belief was firmly rooted in faith in God and the sanctity of life.

Another Respondent aged 20 stated that in her religion, they are not allowed to abort a child, and apart from religion, she opined that it's something that is not right. Moreover, in addition to the powerful impact of religious and cultural beliefs, many communities employed stigma, isolation, and shame as mechanisms to ensure that women adhered to traditional norms.[60] Women who sought abortion services and were discovered often faced public condemnation as immoral and hypersexual. As a result, they might be ostracized, disowned, or subjected to even more severe consequences.[61]

The study also indicated that the first thing people think of when they hear someone had an abortion is that the person is a prostitute. For some, the weight of these cultural beliefs was so profound that they felt that women who sought abortions "deserved" to be stigmatized or mistreated. While experiences with social stigma and cultural beliefs surrounding abortion varied among participants, the unanimous thread was the belief that abortion is morally wrong and a sin, and that women who choose abortion are often labeled as promiscuous and shameful.

Conclusion.

In conclusion, from Margaret Sanger to Mother Teresa to real life stories of the girls in our country and beyond, it is evident that our journey through this intricate debate, in the Kenyan context, goes far beyond the realm of laws, medical complexities, religious beliefs, and cultural norms. It's a profoundly human narrative, where the stories of countless lives are interwoven, shaping our collective identity.

At the heart of this discussion is our commitment to ensuring the reproductive health, autonomy, and well-being of women. It is evident from the above findings that finances also play a huge role in this conversation, both to the mother and the child’s wellbeing. The haunting specter of unsafe abortions, with their devastating impact on maternal health, serves as a stark reminder of the urgent need for transformation. We are challenged to create a healthcare system that is not only equitable but also compassionate, embracing every individual, regardless of their beliefs or backgrounds.

Ultimately, in the Kenyan context where religion and culture also plays a role, it is safe to say that resolving the abortion debate doesn't require imposing one belief over another. It demands that we engage in open dialogue, understanding, and compassion. This debate calls for finding a path that respects individual choices while nurturing the common good. It's a journey marked by complexity and kindness, where diverse voices contribute to our nation's vibrant story. I will end this with a quote by Abhijit Naskar in his book, “Hometown Human: To Live for Soil and Society.” Worse than aborting is birthing in instability.

[1] Margaret Higgins Sanger, also known as Margaret Sanger Slee, was an American birth control activist, sex educator, writer, and nurse.

[2] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.

[3] ‘ABORTION Definition & Meaning - Black’s Law Dictionary’ (The Law Dictionary28 March 2013) <https://thelawdictionary.org/abortion/#:~:text=ABORTION%20Definition%20%26%20Legal%20Meaning&text=The%20artificial%20or%20spontaneous%20termination> accessed 17 October 2023.

[4] Jean Baker and Shanyisa Khasiani, ‘Induced Abortion in Kenya: Case Histories’ (1992) 23 Studies in Family Planning 34.

[5] Ibid

[6] Center for Reproductive Rights., ‘A Decade of Existence: Policy Work Revealing Progress, Reversals, and Betrayal of a National Compromise’ (2020) <https://reproductiverights.org/sites/default/files/documents/A-Decade-of-Existence-Kenya_0.pdf> accessed 17 October 2023.

[7] Ibid

[8] ‘Ntshenge & the Jah Live - ABORTION IS a CRIME’ (www.youtube.com) <https://www.youtube.com/watch?v=lhiINgsUiXg&ab_channel=MutevhetsindoWaMbilu> accessed 18 October 2023.

[9] Prof Charles Ngwena, ‘A Handbook for Judges Human Rights and African Abortion Laws’ (2014) <https://www.kelinkenya.org/wp-content/uploads/2015/12/HANDBOOK-ON-AFRICAN-ABORTION-LAWS.pdf> accessed 18 October 2023.

[10] Ibid

[11] Offences Against the Person Act of 1861.

[12] RJ Cook & BM Dickens ‘Abortion Laws in African Commonwealth Countries’ (1981) 25 Journal of African Law 60.

[13] Offences Against the Person Act of 1861, Section 58

[14] Ibid, Section 59

[15] Ibid

[16] Rex v. Bourne, Central Criminal Court 3 All E. R. 615 (1938)

[17] Ngwena (n9)

[18] Ibid

[19] Constitution of Kenya, 2010

[20] Penal Code ‘CAP. 63’ (Kenyalaw.org2014) <http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063>.

[21] Mehar Singh Bansel v R  111 (1959) EA 832

[22] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)

[23] Centre for Reproductive Rights (n 4)

[24] Constitution of Kenya 2010, Article 43(1)(a)

[25] Ibid

[26] Ibid, Article 26 (4)

[27] Health Act, 2017 Section 6 (1)

[28] Ibid Section 6 (2)

[29] Penal Code, 2009

[30] Ibid Section 240

[31] Ibid Section 158

[32] Maternal Newborn Child Health Act of 2017

[33] PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment)

[34] Constitution of Kenya 2010, Article 26

[35] Penal code 2009, Section154,159 and 160

[36] Ibid

[37] Ibid

[38] Convention on the Elimination of All Forms of Discrimination against Women 1979

[39] Constitution of Kenya 2010, Article 2(5)

[40] Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR

[41] Mary Teresa Bojaxhiu MC, better known as Mother Teresa, was an Albanian-Indian Catholic nun and the founder of the Missionaries of Charity.

[42] The Turnaway Study included one thousand women from clinics in 21 states, who closely resemble the population seeking abortions in the United States as a whole. Women who received abortions and women who were denied abortions were similar at the time they sought abortions. Their lives diverged after in ways that were directly attributable to whether they received an abortion. A testament to how well the study was designed and its scope, the Turnaway Study has produced 50 peer-reviewed papers in top medical and social science journals.

[43] ANSIRH, ‘The Harms of Denying a Woman a Wanted Abortion Findings from the Turnaway Study Denying a Woman an Abortion Creates Economic Hardship and Insecurity Which Lasts for Years. 1’ (2020) <https://www.ansirh.org/sites/default/files/publications/files/the_harms_of_denying_a_woman_a_wanted_abortion_4-16-2020.pdf>.

[44] Diana Greene Foster and others, ‘Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States’ (2018) 108 American Journal of Public Health 407.

[45] Ibid

[46] Sarah Miller, Laura Wherry and Diana Foster, ‘NBER WORKING PAPER SERIES the ECONOMIC CONSEQUENCES of BEING DENIED an ABORTION’ (2020) <https://www.nber.org/system/files/working_papers/w26662/w26662.pdf>.

[47] ANSIRH n 43

[48] Sarah CM Roberts and others, ‘Risk of Violence from the Man Involved in the Pregnancy after Receiving or Being Denied an Abortion’ (2014) 12 BMC Medicine <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4182793/>.

[49] Miller n 46

[50] Caitlin Gerdts and others, ‘Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy’ (2016) 26 Women’s Health Issues 55 <https://www.sciencedirect.com/science/article/pii/S1049386715001589>.

[51] Lauren J Ralph and others, ‘Self-Reported Physical Health of Women Who Did and Did Not Terminate Pregnancy after Seeking Abortion Services’ (2019) 171 Annals of Internal Medicine 238.

[52] Ibid

[53] ANSIRH n 43

[54] Diana Greene Foster and others, ‘Effects of Carrying an Unwanted Pregnancy to Term on Women’s Existing Children’ (2019) 205 The Journal of Pediatrics 183 <https://www.jpeds.com/article/S0022-3476(18)31297-6/fulltext>.

[55] Diana Greene Foster and others, ‘Comparison of Health, Development, Maternal Bonding, and Poverty among Children Born after Denial of Abortion vs after Pregnancies Subsequent to an Abortion’ (2018) 172 JAMA Pediatrics 1053 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6248140/>.

[56] Ibid

[57] Constitution of Kenya 2010, Article 53(2)

[58] Deeqa Mohamed, Nadia Diamond-Smith and Jesse Njunguru, ‘Stigma and Agency: Exploring Young Kenyan Women’s Experiences with Abortion Stigma and Individual Agency’ (2018) 26 Reproductive Health Matters 128.

[59] Ibid

[60] Ibid

[61] Ibid

The Ethics and Anti-Corruption Commission (EACC) has made some steps towards the investigation of Mr. Isaack Hassan, Mr. James Oswago, Mr. Davis Chirchir, Mr. Paul Wasanga and Mr. James Oyombra who were unequivocally mentioned during the UK court case for having received bribes in order to award Smith & Ouzman tenders to print election materials and national examination certificates.

KHRC’s Program Advisor on Electoral Governance Carol Werunga states that, “Public officers whose conduct does not bring honour, public confidence and integrity in the performance of their duties have no place in the management of public affairs. Public officers’ must adhere to set out value and principles that govern their various mandate”.

KHRC strongly believes in the criteria set out in the Constitution of Kenya that stipulates the expected conduct of public officer (Articles 10 & 232, and Chapter 6). Therefore it is alarming that the implicated officials namely: Mr. Isaack Hassan – Chairperson of IEBC, and Mr. Davis Chirchir - Cabinet Secretary of Energy and Petroleum, and former Commissioner in the defunct IIEC) - are still holding their positions as public officers. KHRC hereby demands that Mr. Isaack Hassan and Mr. Davis Chirchir step down to pave away for transparent and effective investigations.

As the world watches, EACC must expedite investigations and hearings and ensure that the process is transparent to ensure that Kenyans have leaders who protect the institutions of state from mega corruption.

Media bookings contact:

Audrey Wabwire/Communications Manager/ Email: awabwire@khrc.or.ke

The International Centre for Transitional Justice (ICTJ) is currently hosing an online debate entitled “Is the International Community Abandoning the Fight Against Impunity?” The debate has seen contributions from prominent personalities in the field of transitional justice ad human rights including: David Tolbert- President of ICTJ; Michael Ignatieff- Professor and Human Rights Scholar; Zeid Ra’ad Al Hussein- UN High Commissioner for Human Rights; Betty Murungi- Former Commissioner in Kenya’s Truth, Justice and Reconciliation Commission (TJRC) and; Aryeh Neier- President Emeritus, Open Society Foundations. David Tolbert begins by making the case for the need to critically reflect on whether the developments in transitional justice over the last 25 years have served to advance the prospects of justice for victims. Micahel Ignatieff articulated some of the recent setbacks experienced by the International Criminal Court (ICC) as an indicator of the international community in retreat in as far as impunity is concerned. Betty Murungi chose the path of the middle-ground, calling attention to the duty of individual states and citizens in ensuring that the fight against impunity succeeds. Aryeh Neier called for a reinvigoration of the international justice movement through another purposeful global convening such as the Rome conference which birthed the Rome Statute. While I identify with the sentiments of all contributors in various respects, I find myself more aligned with Betty Murungi’s middle-ground perspective in considering Africa’s experience with the fight against impunity.

In assessing the level of commitment by the international community in the fight against impunity, we must first dispense with certain misconceptions associated with international justice system and the mechanisms that facilitate it. The biggest misconception that is largely ascribed to the International Criminal Court is that it is a “silver bullet” or panacea to the impunity challenges that countries face and that it’s utility somehow absolves states from assuming their primary responsibility in ensuring that there are complementary mechanisms at the national level with requisite political will to ensure their effectiveness. Since the focus of the ICC and international tribunals are restricted to prosecuting persons bearing the greatest responsibility for mass atrocities, it is not conceivable to expect them to deal comprehensively with the impunity question. The absence of domestic processes that deal with the so called mid-level and low-level perpetrators can only mean that the impunity gap will persist and most likely occasion the re-emergence of violent conflict.

There is a genuine grievance from Africa with regard to the ICC’s apparent fixation on the continent and its double standards as manifested by the court’s hesitance to intervene in conflict situations that suggest criminal culpability on the part of members of the UN Security Council and/or its close allies. There is however a misconception of what the continent’s response to that grievance is. A section of African leaders with vested interests in the outcome of this debate such as Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan will have you believe that the collective African response is to repudiate the ICC and the Rome Statute or temper it with retrogressive amendments (such as immunity from prosecution for sitting heads of state). Admittedly, African States as individual entities and as a collective within the African Union (AU) have issued contradictory positions that have allowed this misconception to propagate.

The AU through an extra-ordinary session convened in 2013 issued a decision purporting to among other things, prohibit the ICC from proceeding with President Kenyatta’s trial and regulate the interaction between individual African states and the ICC. While this decision on face value carries with it the perceived consensus of the continent, a closer look at the prevailing situation on the ground suggests otherwise. The foreign policy posture of various states since the 2013 decision was issued has suggested that national interest reigns supreme in as far as relations with the ICC are concerned. Despite the AU decision, numerous African states at the 2014 Assembly of State Parties (ASP) to the Rome Statute not only reaffirmed their support for the ICC but also gave Kenya’s diplomatic efforts to introduce immunity clauses to the Rome statute a wide berth. Omar al-Bashir still faces considerable travel restrictions on the continent as he remains unsure of whether various states would be willing to overlook their Rome Statute obligations with regard to his outstanding arrest warrant. It is indeed insightful that in considering its progress report on the implementation of previous ICC related decisions, the AU at the January 2014 summit felt the need to reiterate its call for member states to speak with one voice and to comply with the position of overlooking Omar Al Bashir’s arrest warrant. The fact is there is no consensus.

Finally, in considering international commitment to the fight against impunity, we must move beyond the conventional notion of the international community consisting of just state entities. While the State remains the key actor in international relations which serves as the platform for negotiating the future of international justice, we must take due cognizance of the increased influence of other actors in the context of multi-track diplomacy. Non-governmental organizations and individual activists from different countries and continents have over time managed to enhance their collaborations and sustain global debates on impunity that have considerably influenced state positions on this matter. The Kenyan government for example, was particularly incensed and startled by the ability of civil society to intervene in its 2013 request for a deferral of the ICC cases by the UN Security Council. Furthermore it has long branded civil society’s contact with the organs of the ICC as politicization of the judicial and prosecutorial functions of the court. The rise of civil society in the diplomatic and wider foreign relations sphere has meant that the debate on the future of the fight against impunity is a robust one and not monopolized by States who would willingly overlook justice concerns in the face of other interests.

In summation, while international support for the fight against impunity has suffered some significant setbacks in the face of prioritized national interest (read political leaders’ interests) all is not lost. There is a core constituency of states that continue to display a tacit resoluteness on fighting impunity and; a vibrant global civil society that will continue to challenge those states that waver on their commitments while also supporting victims in search of justice.

You can follow the Impunity Debate here.

KHRC Executive Director Atsango Chesoni encourages Kenyans to monitor this process keenly. “We urge all citizens to seize this opportunity and make recommendations as to how we can move forward on the important human rights questions of our time,” she says.

The aim of the UPR process is to improve the human rights situation within a given country. It is hoped that the process will result in commitments by the Kenyan government to improve the human rights situation in the country. This will be Kenya’s second review having first undergone the process in April 2010.

KHRC is a premier and flagship non-governmental human rights and governance institution in Africa that was founded in 1991 with a vision to Securing Human Rights States and Societies.

 Media bookings contact:

Audrey Wabwire/Communications Manager/  Email: awabwire@khrc.or.ke

The Bill seeks to amend the following Laws;
Public Order Act (Cap 56), Extradition (continuous and foreign countries) Act (Cap 76), Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Prevention of Terrorism Act (2012), Sexual Offenses Act (2006), Registration of Persons Act (Cap 107), Evidence Act (Cap 80), Prisons Act (Cap 90), Firearms Act (Cap 114), Radiation protection Act (Cap 243), Rent Restriction Act (Cap 296), Kenya Airport Authority Act (Cap 395), Traffic Act (Cap 403), Investment Promotion Act (Cap 485), Labour Institutions Act (2012), National Transport Safety Authority Act (2012), Refugee Act (2006), National Intelligence Service Act (2012), Kenya Citizenship and Immigration Act (2011), National Police Service Act (2011) and Civil Aviation Act (2013),Public Benefits Organizations Act,2013. The bill once enacted as it is will have an impact on many more laws.

In exercise of our respective mandates we bring to the attention of the public the under-listed summary of our concerns, our detailed submissions will be made available on our respective websites.

1. PROCESS: We are concerned that contrary to the express provisions of Article 118(b) Parliament has not facilitated meaningful and effective engagement of the public with the Bill. The Bill was published on 10^th December and was not made easily accessible. The tight timelines given by the Departmental Committee on Administration and National Security for making submissions combined with the difficulty in accessing the Bill limited public participation in the process. The proposed changes are not minor. They are momentous and seek to amend the Bill of Rights through the back door. Accordingly, any changes to the Bill of Rights require a referendum as per Article 255. The proposed Security Laws (Amendment) Bill 2014 makes major amendments to at least 22 laws and impact on several others including the laws relating to County Governments.

2. UNCONSTITUTIONALITY OF A NUMBER OF THE PROVISIONS. We are concerned that a number of the
provisions are in conflict with the provisions of the constitution or will in implementation result in a limitation of the rights provided for in the constitution. Article 238 of the Constitution provides that National Security shall be promoted and guaranteed subject to the authority of the constitution and parliament and further, that the national security shall be pursued in compliance with the law and utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This is an absolute requirement and not subject to the exercise of discretion.

Freedom of Assembly and Association: Clause 4 proposes to amend the Public Order Act so as to give powers to the Cabinet Secretary to designate areas where and times at which public gatherings or public processions may be held. This contravenes Articles 10, 36,37 and 119 of the Constitution. The Limitations have the effect of negating the essence of the right. The current law that requires that an individual in notifying the authority give details of the purpose, date, duration, location and route of the procession are adequate. It is not clear how the proposed amendment to the Public Benefit Organisations Act will address the security challenges. The proposed amendment signifies an intention to maintain control over these organisations.

Freedom of Expression and Information: Clause 15 amends the penal code to create the offence of publishing or causing to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace. The offence created is a felony and if committed by an individual the penalty is a fine not exceeding 1 million and imprisonment for a term not exceeding 3 years. If committed by a media enterprise a fine not exceeding 5 million shillings. Whereas the import of these provisions is clear when applied to communication by extremist and terrorist groups, the section does not seem to make exception for the role media and other actors play in sharing information and social commentaries on current issues. As framed the clause is an infringement on the right to expression and information. The existing media regulatory framework can adequately address the concerns of responsible journalism.

• • The immediate withdrawal of the said bill from parliament.
  • The separation of major from minor amendments proposed in the Bill.
  • Compliance with values and principles stipulated under Article 10 and 118 of the Constitution on public participation.
  • The subsequent bill or bills should therefore be made accessible in a simple language to Kenyans with reasonable timelines to allow public participation.
  • That any amendment proposed on any provision in the Bills of Rights should be subjected to a referendum in line with the Constitution

Signed:
Kenya National Commission on Human Rights, ARTICLE 19, Constitution and Reform Education Consortium (CRECO), Gay and Lesbian Coalition of Kenya (GALCK) Human Rights Watch, Independent Medico-Legal Unit (IMLU), Katiba Institute, Kenya Human Rights Commission (KHRC), Legal Resources Foundation, National Coalition for Human Rights Defenders-Kenya (NCHRD-K) and UHAI-EASHRI, The Federation of Women Lawyers – Kenya, Haki Focus

Towards this, the KHRC has been involved in the campaigns for reforms and justice processes in Kenya and beyond. These initiatives have realized many gains and faced a number of pitfalls. The latest challenge relates with the on-going attempts by the state to undermine the constitutional and democratic gains realized after many years of struggles and sacrifices.

Some of the key indicators of the retrogressive developments includes but are not limited to: the campaign to discredit and undermine the operations of the both the independent state offices and non-state actors(especially media, trade unions and civil society organizations) through threats, hate messages, repugnant legal and administrative systems among others.

Last week, the Government of Kenya (GoK) published the Security Laws (Amendment) Bill that purport to provide a panacea for the current gaps in security governance. KHRC and in partnership with the other human rights organizations have declared the Bill unconstitutional for both the process and contents are inimical to human rights and other governance principles and systems enshrined in the Supreme Law of the land and the regional and international human rights frameworks.

Yesterday, the government through the NGO Coordination Board(NCB) deregistered 501 NGOs and gave twelve international NGOs of good standing and with an annual income of more than Ksh. 500 million twenty one days to account for their finances failure to which they will be shut down. Moreover, fifteen NGOs, based mainly in Northern Kenya and the Coast Regions were accused of funding terrorism were banned.

The KHRC wish to raise five Constitutional questions in respect of the due diligence considerations by the NGO Board in making the far reaching decision:

• To what extend was the NGO Council, the sector coordination mechanism and other stakeholders consulted and involved in the decision making process? Public and stakeholder consultation is a fundamental principles enshrined in Article 10 of the Constitution.
• To what extend were the affected 501 NGOs contacted and given adequate notice for compliance. What are the opportunities for appealing against these decisions?
• What are the considerations in the decision making process-failure to account or support of terrorism or both? Was the decision based on fair processes and considerations, pursuant to Article 47 of the Constitution which guarantees a right to fair administrative action that entails expeditious, efficient, lawful, reasonable and procedurally fair?
• What is the logical congruence between the so called “having humongous amounts of money” in NGOs accounts and funding terrorism? This postulation sounds selective, spurious and a gross affront on the right to equality and freedom from discrimination enshrined in Article 27 of the Constitution.
• How comes this decision coincides with current context where by the civil society and other independent actors and stakeholders are involved in the campaign against the repugnant Security (Amendment) Bill?

This decision coincides with the government’s strategy to shrink the civic space and silence the operations of NGOs and other independent voices in Kenya. It is a ploy to unconstitutionally limit such fundamental rights as the freedoms of conscience, belief, opinion, expression and association.

We wish to state that: We strongly believe in transparency, accountability, integrity and other principles entrenched in the Constitution of Kenya- both in our operations and engagements at all levels, in the society. Moreover, we believe that security if a fundamental right without which other rights cannot be released.

However, while we appreciate the state’s interventions geared towards securing the country and enhancing accountability for state and non-state actors, we declare that these must be executed within the established constitutional and legal frameworks. Any limitation should be reasonable and justifiable in an open and democratic society based solely on human dignity, equality and freedom.

Davis M Malombe

Deputy Executive Director     

Towards this, the KHRC has been involved in the campaigns for reforms and justice processes in Kenya and beyond. These initiatives have realized many gains and faced a number of pitfalls. The latest challenge relates with the on-going attempts by the state to undermine the constitutional and democratic gains realized after many years of struggles and sacrifices.

Some of the key indicators of the retrogressive developments includes but are not limited to: the campaign to discredit and undermine the operations of the both the independent state offices and non-state actors(especially media, trade unions and civil society organizations) through threats, hate messages, repugnant legal and administrative systems among others.

Last week, the Government of Kenya (GoK) published the Security Laws (Amendment) Bill that purport to provide a panacea for the current gaps in security governance. KHRC and in partnership with the other human rights organizations have declared the Bill unconstitutional for both the process and contents are inimical to human rights and other governance principles and systems enshrined in the Supreme Law of the land and the regional and international human rights frameworks.

Yesterday, the government through the NGO Coordination Board(NCB) deregistered 501 NGOs and gave twelve international NGOs of good standing and with an annual income of more than Ksh. 500 million twenty one days to account for their finances failure to which they will be shut down. Moreover, fifteen NGOs, based mainly in Northern Kenya and the Coast Regions were accused of funding terrorism were banned.

The KHRC wish to raise five Constitutional questions in respect of the due diligence considerations by the NGO Board in making the far reaching decision:

• To what extend was the NGO Council, the sector coordination mechanism and other stakeholders consulted and involved in the decision making process? Public and stakeholder consultation is a fundamental principles enshrined in Article 10 of the Constitution.
• To what extend were the affected 501 NGOs contacted and given adequate notice for compliance. What are the opportunities for appealing against these decisions?
• What are the considerations in the decision making process-failure to account or support of terrorism or both? Was the decision based on fair processes and considerations, pursuant to Article 47 of the Constitution which guarantees a right to fair administrative action that entails expeditious, efficient, lawful, reasonable and procedurally fair?
• What is the logical congruence between the so called “having humongous amounts of money” in NGOs accounts and funding terrorism? This postulation sounds selective, spurious and a gross affront on the right to equality and freedom from discrimination enshrined in Article 27 of the Constitution.
• How comes this decision coincides with current context where by the civil society and other independent actors and stakeholders are involved in the campaign against the repugnant Security (Amendment) Bill?

This decision coincides with the government’s strategy to shrink the civic space and silence the operations of NGOs and other independent voices in Kenya. It is a ploy to unconstitutionally limit such fundamental rights as the freedoms of conscience, belief, opinion, expression and association.

We wish to state that: We strongly believe in transparency, accountability, integrity and other principles entrenched in the Constitution of Kenya- both in our operations and engagements at all levels, in the society. Moreover, we believe that security if a fundamental right without which other rights cannot be released.

However, while we appreciate the state’s interventions geared towards securing the country and enhancing accountability for state and non-state actors, we declare that these must be executed within the established constitutional and legal frameworks. Any limitation should be reasonable and justifiable in an open and democratic society based solely on human dignity, equality and freedom.

Davis M Malombe

Deputy Executive Director     

The objectives of the forum were i) to share with relevant institutions, the observations, findings and recommendations from recent by-elections; ii) to discuss, enrich and commence preparations on the adoption of recommendations aimed at improving the management and administration of upcoming elections and iii) to develop a road map of required administrative and legal reforms within the current electoral cycle.

The forum saw over 40 representatives from civil society organizations, the Judiciary, Independent Electoral and Boundaries Commission (IEBC), Office of the Registrar of Political Parties, National Police Service, Political Parties Disputes Tribunal, the National Registration Bureau and Political Parties attend and participate in the electoral discourse. Notably, Ms. Lilian Mahiri-Zaja (Vice Chairperson, IEBC), Ms. Lucy Ndungú (Registrar of political parties), Mr. Mohamed Alawi (Commissioner, IEBC), Ms. Grace Maingi (Executive Director, Uraia Trust), Mr. Justice Luka Kimaru (Judge, High Court), Mrs. Susan Mwongera (CEO, Youth Agenda), Ms. Tryphaena Estambale ( CEO, Political Parties Dispute Tribunal), Ms. Anne Nderitu ( Director, Voter education and Partnerships, IEBC), Ms. Immaculate Kassait (Director, Voter Registration and Electoral Operation, IEBC) graced the Forum.

The forum entailed presentations by key experts followed by plenary discussions. To this end, Mr. Oloo led a presentation and a discussion on the gaps in the electoral legislation and the role the courts play in the electoral process while highlighting the importance of dispute resolution mechanisms and electoral jurisprudence emanating from the supreme court; Mr. Mike Yard – the Chief of Party-IFES, highlighted the issue of technology in elections with a focus on what technology can and can’t do during elections; Ms. Grace Maingi, underscored strategies on the implementation of the 2/3 gender rule; Ms. Lucy Ndungú highlighted and reiterated the role political parties play in elections with a focus on the challenges political parties faced during the 2013 general elections as well as the way forward; Ms. Carol Werunga of KHRC, underscored the human rights perspective in elections with a focus on the political participation of persons with disabilities; and Ms. Susan Mwongera highlighted the challenges youth faced during the 2013 electioneering period. Lastly, IEBC was able to share their strategies that will see them deal with the challenges around voter registration, party lists, nominations, dispute resolution, the participation of special interest groups in electoral processes, voter education and the use of technology in the electoral process.

As a result of the forum, a comprehensive report, highlighting, among other things, a road map that identifies key issues, strategies, timelines and responsibilities is being developed and will be shared with all participants for validation before being shared with other stakeholders.