Should the police “shoot to kill” suspected criminals to counter the high security threats in the country?

In the face of increased insecurity in the country over the recent months resulting in loss of many innocent lives, physical and emotional trauma among other impacts, the National Police Service (NPS) has devised strategies to combat crime. Whereas most of these strategies are lawful and acceptable, our attention has been drawn to directives issued by senior police officers ordering police officers to ‘shoot-to-kill’ suspected criminals. Appreciating the challenging task facing our security forces in guaranteeing security in the face of violent criminality especially terror-related and other related crimes police will inevitably be required to use force on occasion, and sometimes lethal force in order to protect life.

It is however important for police officers in particular and Kenyans in general to understand the circumstances under which a police officer is legally allowed to use force and firearms (lethal) in executing his/her duty.

When should police officers use lethal force or firearms while combating crime?

Section 1 Part A of the Sixth Schedule of the National Police Service Act 2011 sets out the rules and procedures on use of force and firearms by police officers. The schedule states that:

1. A police officer shall always attempt to use non-violent means first and lethal force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result

1. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.

1. Firearms or lethal force may only be used when less extreme means are inadequate and for the following purposes—

ü Saving or protecting the life of the officer or other person; and

ü In self-defense or in defence of other person against imminent threat of life or serious injury.

1. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except;

ü where doing so would place the officer or other person at risk of death or serious harm; or

ü If it would be clearly inappropriate or pointless in the circumstances

1. A police officer shall make every effort to avoid the use of firearms, especially against children.

Note: Any use of firearms outside the ambit of the instances provided above amounts to unlawful use of firearms and in case of deaths, extrajudicial executions.

WHAT IS AN EXTRAJUDICIAL EXECUTION?

Extra-Judicial Executions are planned executions committed by governments or government-backed agents with a total lack of regard for due process of law and/or judicial procedure as protected in the law. Kenya is a party to both the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights. International law prohibits the “arbitrary deprivation of life”, and obligates governments to both “respect and ensure” the right to life.

Article 238(2) of the Constitution of Kenya, states that national security shall be promoted and guaranteed in accordance with the principle of compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. In common parlance the police while implementing their mandate should uphold the principles set under the bill of rights where the right to life is protected under article 26(2) that states that a person shall not be deprived of the right to life intentionally, except to the extent authorized by this constitution or other written law 

WHAT ARE THE POSSIBLE EFFECTS OF THE SHOOT TO KILL ORDERS?

Killing of innocent people: The laws of Kenya assert that a person is innocent until proven guilty by a court of law. Any shoot to kill order would undermine this presumption and most critically may result in the killings of innocent persons as has been evidenced and documented variously in reports and courts judgments.

Proliferation of more militarized criminal gangs: Responding to crime and insecurity by using force would most likely see the proliferation of more militarized criminal gangs, increased gang wars and infiltration of more sophisticated illegal arms in the country. This is because such action would alienate and threaten public relations and hence a reluctance by members to share crucial information they may be having. Further the gangs would employ retaliation tactics as common in a state where the rule of law is violated.

Police officers individual liability: Police officers who follow directives on use of force not in line with the abovementioned provisions shall face individual disciplinary action or prosecution for unlawful use of force where it amounts to a criminal offence despite the fact that they were acting pursuant to a purported superior order.

WHAT SHOULD YOU DO IN CASE YOU ARE A WITNESS TO EXTRA JUDICIAL EXECUTIONS?

You are legally and morally obligated for the sake of the victims, community and the betterment of policing, to make a statement to the following institutions with clear details about the incident covering noting that this information will be upheld in utmost confidentiality:

• The date and the time ofthe incident
• The police service number of the officer(s) if displayed, name if known, gender etc
• In case of a vehicle, the registration number and any other details on the vehicle
• Witnesses to the incident if any
• Any other details.

ALL INFORMATION RECEIVED WILL BE TREATED AS CONFIDENTIAL.

Mr. President,

As you are well aware, it has been one year since terrorists attacked and mercilessly took away the lives of at least sixty seven (67) persons during the Westgate Mall terror attack. It is four and half months since criminal gangs unleashed untold terror on thousands of Kenyans and left eighty (80) people dead in Mpeketoni. It has been one year and five months since criminal gangs terrorized the residents of Bungoma and Busia, killing more than fifty (50) people and seriously injuring more than one hundred (100) Kenyans. It has been four months since inter-clan wars in Mandera claimed the lives of over forty three (43) people, left hundreds injured and over one hundred thousand displaced.

In the Northern and Rift regions in Kenya especially Turkana, Wajir, Mandera, Baringo insecurity soars with at least over one hundred and twenty (120) people dead, more than ninety five (95) seriously injured and not less than thirteen thousand five hundred and thirty six (13,536) left displaced since 29 June, 2013. In addition to these insecurity statistics we have more unmentioned incidents in Nairobi, Mombasa, Tana River, Eldoret among many more. Worse still is the fact that even security agents trained to protect civilians have themselves become victims of insecurity. Beyond losing people beloved to them, the survivors of the attacks -men, women, children civilians and security agents - suffer post-traumatic stress disorders and other forms of social distress.

Join The Campaign: Read more of the Petition

We wish to raise our voices to the European Union and government negotiators that:

1. We are deeply concerned about the asymmetrical nature of the EPA negotiations thus far. Studies show that EAC’s  51.3% of tariff lines/products where there is current local production will be put at risk, perhaps even damaged (1,100 tariff lines out of 2,144) as these are lines where liberalization will take place and the EU is more competitive on these lines than the EAC. Taking into account potential future production (tariff lines where there is no current production), 2,366 tariff lines will be liberalized making the possibility of having future production in these products questionable. In total, 68.8% of all tariff lines or products could be put at risk (current and future production).
2. We further express concern with regard to the delays in agreeing the European Partnership Agreement (EPA) between the European Union and the East Africa Community (EAC). In particular, we wish to alert you to the potentially severe impact on the lives of 500,000 people dependent on the Kenyan floriculture business. Fair-trade and Kenya flower council works with large numbers of cut flower producers in Kenya, who largely supply European retailers. More than 33 out of 61 Fairtrade certified cut flower producers are Kenyan. Together, they employ over 32,000 workers. Country wide, the Kenyan Flower Council have estimated that over 500,000 people including 90,000 direct flower farm employees depend on the floriculture industry for their livelihoods. It is the second largest agricultural foreign exchange for Kenya valued at more than $250 million a year.
3. Small-scale farmers and producers are alarmed by the agricultural subsidies provided in the EU; and the weak safeguards provided for in the EPAs. The EU has rejected the discussion of its subsidies in the EPAs on the grounds that this is a WTO issue. However, we argue that the issue of subsidies has not been addressed in the WTO as  developed countries, including the EU have failed to live up to what was agreed on during the WTO Hong Kong Ministerial to eliminate export and trade distorting subsidies by 2013.
4. We further note that the programme is the most expensive scheme accounting for more than 40% of its annual budget and one of the most controversial. In 2013 the budget for direct farm payments (subsidies) and rural development-the twin “pillars” of Comprehensive Agricultural Policy–is 57.5 Billion Euros (Euros 49bn), out of a total budget of 132.8 billion euros (that is 43% of the total). Most of the CAP budget is direct payments to farmers.
5. There is ample evidence to show that agricultural subsidies in the EU have led to dumping of agricultural products with far reaching implication on Africa’s agricultural production and agro-processing.EU is spending way too much on subsidies when agriculture creates just 1.6% of EU GDP and employs only 5% of EU populations
6. We note that EAC having been in these negotiations since 2007, the European Union’s rigid and unilateral deadline to Conclude EPAs is not a desirable way in achieving the desired results. The conclusion of any Free Trade Agreement like EPA must take into account the interests and address the concerns of both parties, and not through timeframes. Therefore, we urge the EU to show necessary flexibility in the negotiations process, respecting the different levels of development of each EAC country.
7. We urge the EAC negotiators should therefore continue pushing for an extension of the Regulation 1528/2007 to such a period where the negotiations have been concluded or an alternative trade arrangement has been initiated. It should be appreciated that the difficult to conclude these talks are not only on the shoulders of EAC countries, but also due to rigidity on the side of the EU.
8. We emphasize that trade policy instruments such as export taxes are an integral part of East African industrialization since they promote value addition, protects infant industries and improves agricultural productivity. We further note that export taxes remain very critical after the discovery of oil, natural gas and other minerals. In fact, Kenya’s accession agreement to WTO does not prohibit it from imposing export taxes. We therefore seek an agreement that protects the livelihoods of millions of smallholder farmers and producers in the EAC region.
9. Civil society organizations, workers and Smallholder farmers argue that negotiators and the private sector have focused extensively on commercial interests without focusing on major aspects of labor, standards, human rights, environment and climate change as well as development as it was initially envisaged by the Cotonou Partnerships Agreement. The cost of signing EPA is much higher than the benefits. Kenya stands to lose USD 193.2 million and gain just about USD 87.1 million upon signing an EPA.
10. We therefore call upon the international trading partners to extend duty free quota free treatment to Least Developed Countries and non-Least Developed countries in Africa. If this is enacted, a country like Kenya which is in a least developed region will have the same trade regime with her Least Developed Counterparts of Burundi, Rwanda, Uganda and Tanzania.
11. We note with concern that the tariffs that will be imposed will increase the price of cut flowers considerably. This extra cost must either be borne by producers themselves, or by European traders and major retailers. The imposition of tariffs therefore poses a high risk of trade moving away from Kenyan sourcing into countries which are retaining preferential market access into the EU, such as Ethiopia as a Least Developed Country. The imposition of tariffs is an unacceptable price for Fairtrade farmers and workers to bear. Fairtrade works to alleviate poverty through establishing fair trading relationships between European businesses and Kenyan producers. Through this relationship flower workers and their communities have seen improved healthcare, income, education, and reduced poverty. We now fear that the work of many years will be undermined.
12. We therefore ask the EU to extend the current tariff regime beyond 1 October 2014, to allow negotiations to be successfully concluded. Should agreement not be reached, we ask you to ensure that the moves to approve the Commission Regulation granting GSP preferences to Kenya are successfully concluded in time for 1 October 2014. We urge the European Commission to act with the utmost responsibility and awareness of the impact their decisions will have on the lives of hundreds of thousands of workers in Kenya’s floriculture industry, and with due regard to its high level commitments to poverty reduction”
13. We retaliate that the 1^st October deadline should not be a basis upon which the talks should be based on but on how to conclude the talks. In order to have a “win-win” outcome of negotiations, then the EU must be willing to support the development pillar that addresses supply side constraints. In addition, Special and differential treatment has to be part and parcel of the developmental EPA. We therefore urge the EU to extend the waiver with tariff preferences for Kenyan horticultural produce including flowers, beyond 1^st October until the outstanding issues between the EU and EAC are finalized.

The organizations include both African groups and international groups and have a presence in 40 African countries. The African Union (AU) Office of the Legal Counsel is convening a meeting in Nairobi on August 25 and 26, 2014, with government officials of AU member countries in East Africa to promote ratification of AU treaties. Discussions, which will take place at the Hilton Hotel, are expected to include a newly adopted protocol to extend the African Court’s jurisdiction to trials of genocide, war crimes, and crimes against humanity, while providing immunity for sitting leaders and other senior officials. The protocol to expand the authority of the African Court was adopted at the 23rd African Union summit, in Malabo in June.

“The immunity provision is a regrettable departure from the AU’s Constitutive Act, which rejects impunity under article 4,” said George Kegoro, executive director of the International Commission of Jurists Kenya. “Immunity takes away the prospect that victims can access justice at the African court when leaders commit atrocities. African states should take a clear stand opposing this immunity.”

The adopted Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights is the first legal instrument to extend a regional court’s authority to criminal jurisdiction over genocide, war crimes, and crimes against humanity. The protocol also covers 11 additional crimes and notably provides for an independent defense office

But Article 46A bis of the amendments provides immunity for sitting leaders, stating: “No charges shall be commenced or continued…against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

The statutes of international and hybrid international-national war crimes tribunals reject exemptions on the basis of official capacity. Other international conventions, including the Convention against Torture, the Convention on the Prevention and Punishment of the Crime of \ Genocide, and the Geneva Conventions of 1949, recognize the crucial importance of accountability for serious crimes.

“Granting immunity to sitting officials is retrogressive, and risks giving leaders license to commit crimes,” and Timothy Mtambo executive director at Malawi’s Centre for Human Rights and Rehabilitation. “Immunity also risks encouraging those accused of the crimes to cling to their positions to avoid facing the law.”

Some African countries like Benin, Burkina Faso, Democratic Republic of Congo, Kenya, and South Africa rule out immunity for sitting officials for serious crimes under their national laws, the groups said.

This text of the group declaration was drafted by Malawi’s Center for Human Rights and Rehabilitation, with input from several African organizations and international organizations with a presence in Africa.

“Instead of retreating from important achievements to limit impunity, advance the rule of law, and promote respect for human rights, African governments should remain steadfast in supporting justice for victims of the worst crimes by rejecting immunity before\ the African Court,” said Angela Mudukuti, international criminal justice project lawyer at the Southern Africa Litigation Centre.

To read the declaration,please visit:

https://www.hrw.org/news/2014/08/22/call-african-states-reject-immunity-serious-crimes-african-civil-society-organisatio

To see other group initiatives by these organizations, please visit:
http://www.icj-kenya.org/index.php/media-centre/press-releases/20-press-statement/598-letter-to-the-justice-ministers-and-attorneys-general-of-the-african-on-immunity-of-heads-of-states
http://www.southernafricalitigationcentre.org/2013/11/18/salc-in-the-news-icc-africa-should-reject-free-pass-for-leaders/
http://www.issafrica.org/uploads/African-civil-society-letter-to-AU-on-ICC-withdrawal-Oct-2013.pdf

For more information, please contact:
In Accra, for Media Foundation for West Africa, Sulemana Braimah (English): +233-302-242-470; or +233-244-520-243;
or sulemana@mfwa.org<mailto:sulemana@mfwa.org>

In Dakar, for Rencontre
Africaine pour la Défense des Droits de l’Homme, Aboubacry Mbodji (French):
+221-777-408-683; or This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:mbodjiaboubacry@gmail.com">mbodjiaboubacry@gmail.com<mailto:mbodjiaboubacry@gmail.com>

In Johannesburg, for Human Rights Watch, Tiseke Kasambala (English): +27-110-622-852; or +27-792-205-254;
or This email address is being protected from spambots. You need JavaScript enabled to view it.%3chttps://mail.hrw.org/owa/redir.aspx?C=62bfcf6eb34e4416a6066327f155ddaf&URL=mailto%3Akasambt%40hrw.org">kasambt@hrw.org<https://mail.hrw.org/owa/redir.aspx?C=62bfcf6eb34e4416a6066327f155ddaf&URL=mailto%3Akasambt%40hrw.org>

In Johannesburg, for Southern Africa Litigation Centre, Angela Mudukuti (English): +27-767-623-869; orAngelaM@salc.org.za<mailto:AngelaM@salc.org.za>

In Kampala, for Foundation for Human Rights Initiative (English), Penny Mbabazi Atuhaire: +256-777-753-566; This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:pennymbabazi14@gmail.com">orpennymbabazi14@gmail.com<mailto:pennymbabazi14@gmail.com>

In Kampala, for Ugandan Coalition for the ICC, Patricia Bako (English): +256-785-138-755; or This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:ucicc2@gmail.com">ucicc2@gmail.com<mailto:ucicc2@gmail.com>

In Kigali, for Human Rights First Rwanda Association, Louis Busingye (English): +250784252917; orlouwizel@gmail.com<mailto:louwizel@gmail.com>

In Lilongwe, for Center for Human Rights and Rehabilitation, Timothy Mtambo (English): +265-992-166-191; or
This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:mtambot@chrrmw.org">mtambot@chrrmw.org<mailto:mtambot@chrrmw.org>

In Nairobi, for Kenya section of the International Commission of Jurists, Stella Ndirangu (English):
+254-20-208-4836/8; or This email address is being protected from spambots. You need JavaScript enabled to view it.%3cmailto:stella.ndirangu@icj-kenya.org">stella.ndirangu@icj-kenya.org<mailto:stella.ndirangu@icj-kenya.org>

In Pretoria, for the International Crime in Africa Programme, Institute for Security Studies, Jemima
Njeri (English): +27-832-346-566; or +27-123-469-500; or This email address is being protected from spambots. You need JavaScript enabled to view it.%3chttps://mail.hrw.org/owa/redir.aspx?C=62bfcf6eb34e4416a6066327f155ddaf&URL=mailto%3Ajnjeri%40issafrica.org">jnjeri@issafrica.org<https://mail.hrw.org/owa/redir.aspx?C=62bfcf6eb34e4416a6066327f155ddaf&URL=mailto%3Ajnjeri%40issafrica.org>

The conference seeks to assess the overall performance and effectiveness of long term election observation and monitoring as a process through which an election is scrutinized and evaluated for purposes of determining its impartiality in terms of organization and administration.

Among those invited are representatives from civil society organizations involved in election observation in Kenya, Tanzania, Uganda, South Sudan and Sudan, regional observer networks such SADC-ESN and WAEON; the election
management body in Kenya (IEBC); developmental partners; EHORN secretariat; and the Kenya Human Rights Commission staff who will seek to exchange knowledge and experiences that will contribute to improving the integrity of elections through long term election observation activities.

Election observation in Africa tends to be heavily focused on procedures on polling day yet this is only one aspect of the election process. The opportunities for abuse are usually created, deliberately in the pre-election period when the voter register is prepared, political parties formed and registered, candidates nominated and campaigns carried out. On the other hand the election observation period of field presence is often too short to cover the entire process and hardly is the number of observers sufficient to ensure adequate coverage.

The main strategy proposed for dealing with this problem is to employ a system of long-term observation as opposed to short-term observation. While short-term observation covers the activities of voting, vote counting and the declaration of results, long-term observation involves observing the events that define the electoral process from the setting up of electoral management bodies, voter registration, voter education, political party registration, candidate nomination political campaigning and media issues, voting and the counting through to the swearing in of elected regimes.

Admittedly, most of the observation bodies in Africa have been struggling to operationalize the concept of long term observation. This has been exacerbated by lack of or limited resources in the post-election period. As a result, most
long term observation attempts have remained informal and limited in scope hence reduce in effectiveness. These problems can be tackled within a framework of institutionalized observation in which a universally acceptable mechanism that is bilaterally agreed upon is employed. This is what informs the need to have a regional conference aimed at engaging peer to peer to come up with a resolution on the way forward in the region.

2014 THEME: FIGHTING IMPUNITY

 On June 26^th every year the world marks the International Day in Support of Victims of Torture. Today the world stands in solidarity with victims of torture, to reiterate the fact that torture is a gross and cruel violation of human rights. The day is anchored in the United Nations Convention against Torture (UNCAT) that seeks Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kenya ratified the convention in 1997.

The theme for this year’s campaign is Fighting Impunity.

The Constitution and Legal Framework for Torture in Kenya

Articles 25 and 29   of the Constitution of Kenya provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment as a fundamental right that may not be limited. The UNCAT obligates governments to take effective measures to prevent torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment within their jurisdictions.

Despite its prohibition under both international and national law, torture and related human rights violations are still prevalent in Kenya. Independent surveys by the Independent Medico-legal Unit (National Torture prevalence Survey 2011) and Amnesty International (Torture in 2014:30 Years of Broken Promises) indicate that torture in Kenya is particularly perpetrated by police and prisons officers.

Torture methods ranging from beatings, electric shocks, prolonged isolation, sleep deprivation and denial of medical care are being used by law enforcement officers to expeditiously extract information from suspects as a short cut to the judicial process or as a means of punishment.

Remedies for Torture in Kenya

As such, to effectively combat torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Kenya effective policing and prisons reforms must be implemented. The government must institute legislative and policy reforms to effect both the constitution of Kenya and international treaties that guarantee Kenyans their inalienable rights against torture.

On the occasion of the UN Day in support of Victims of Torture we wish to remind the government that:

• Article 1 of the UNCAT obliges member states to enact legislation that comprehensively defines and makes torture a specific offence; providing for effective right to reparation for victims of torture. Kenya has not enacted such a law. We urge the government to table the Prevention of Torture Bill 2011 in parliament to provide for the specific legal framework for combating torture and related violations.

• The United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR) provides for humane treatment of prisoners and detainees. Monitoring of these minimum standards is critical in combating torture and related human rights violations in places of detention. We urge the government to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) to provide a system of regular monitoring of places where prisoners and detainees are likely to be deprived of their liberty.

• Effective investigations for unnatural deaths in Kenya have hindered access to justice for victims of torture and related human rights violations. The country has never had concrete and adequate laws to address matters relating to investigations of deaths by violent criminal acts, extra-judicial killings, or deaths in the prison or police custody. As such we urge the government to expeditiously table in parliament the National Coroners Service Bill, 2011 that provides for effective investigations and documentation on unnatural deaths.

• Effective documentation of torture and related violations is critical in seeking legal redress for victims. We urge the government to review the “P3” form to ensure compliance with the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2004).The form should also be made available  free of charge in all public hospitals.

• Ever the years victims of torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have lodged successful complaints in courts of law demanding compensation. The passivity of the government in executing or honoring judgments that award compensation to victims of torture has been a significant barrier to the search for justice. The government must put in place a Torture compensation Fund to ensure victims are promptly compensated after a successful judicial process.

A call to avert development induced poverty as is a common consequence of mammoth development projects that displace people and alter their way lives.

During the period between March, 2011 and April, 2014, the Kenya Human Rights Commission (KHRC) set out on a series of fact finding missions to Lamu spanning from . This was spurred by concerns voiced throughout KHRC’s collaboration with various community based organizations in Lamu and had the sole purpose of interrogating the validity of community fears in regard to the proposed Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor Project.

Lamu hosts indigenous peoples who have the right to determine and develop priorities and strategies for exercising their right to development. In recognition of the fact that indigenous communities are predisposed to human rights violations; the fact that land rights have historically been a thorny subject even for dominant ethnic groups along Kenya’s Coast; and the fact that Lamu is a UNESCO World Heritage Site on which the Aweer and fisher folk are solely dependent for their livelihood, this Position Paper focuses on the land rights, economic, social and cultural rights of the people resident in Lamu prior to the LAPSSET Project and in particular the indigenous Aweer and fisher folk community. It raises concerns that the manner in which the LAPSSET Project is being administered will relegate host communities further into the periphery of poverty and invisibility and offers recommendations on how to urgently mitigate against this adverse yet imminent outcome.

The KHRC launched the  Forgotten In The Scramble And Petition of Lamu: The Case of the Aweer and the Fisher-folk on the 18^th of June, 2014 at the Manda Island in Lamu.

The findings of this audit raise a red flag that if the LAPSSET Project proceeds in the same manner as it is being currently administered, it is unlikely to result in poverty reduction and improved livelihoods for the people that inhabited Lamu before the Project’s onset.  KHRC intends that the recommendations of this Position Paper will be applied towards ensuring that the LAPSSET Project results in inclusive growth of the Lamu community and sustainable development. To this end, the Position Paper offers recommendations on how various stakeholders may engage towards achieving the state of respect for human rights and environmental justice in implementing colossal development projects.

For these reasons the Position Paper:

1. Recommends that the development of the oil and industrial infrastructure is not executed in a manner that displaces existing and potential livelihoods. On the contrary, it should complement, even boost local capacities for production. It further exhorts government to support host communities towards adapting to new developments without being compelled to abandon old trades. They should, in addition, be enabled to compete effectively in emerging economic activities;
2. Recommends that historical economic marginalization of communities and persons should be addressed within its immediate and appropriate context rather than through blanket “development projects” whose impact might be to aggravate the incidence of marginalization;
3. Argues for the protection and promotion of the rights of indigenous communities in light of pressure to modernize and of their continued vulnerabilities;
4. Argues for a comprehensive Equality and Non-Discrimination policy which also anchors questions of affirmative action, for the benefit of marginalized communities, groups and persons. It, thus, calls for the establishment of equalization models and benefits-sharing standards that seek to rebalance age-old disparities;
5. Tests the principle of “Public Participation” with regard to the Constitutional thresholds of public involvement in government decision-making as part of the broader end of good governance and accountability. It is suggested that a minimum standard for public engagement in questions that directly affect the well-being of communities be established;
6. Echoes calls for a well-managed, yet, timely transition into the newly established land tenure systems and structures of accountability as well as the continued regulation of the system thereafter;
7. Argues for the expansion of grievance redress mechanisms beyond those that are presently utilized by communities, for the resolution of cases of violation of economic, social and cultural rights by State, corporate entities and development partners alike. It suggests viable avenues of grievance redress, beyond the conventional structures of accountability; and
8. Urges the respect for human rights by the State, corporate entities and citizens alike. As such, it suggests the establishment of, among others, protective legal frameworks and the enforcement of law and policies to protect vulnerable persons and communities from the adverse effects of large scale development projects.

Please click here to download the report.

KHRC is here today to present the findings of a series of fact-finding missions carried out between March 2011 and April 2014 with the sole purpose of interrogating the validity of community fears in regards to the proposed Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor Project. In this respect KHRC is pleased to present, “Forgotten in the Scramble and Partition of Lamu: The Case of the Aweer and the Fisherfolk.” This Position Paper documents concerns voiced throughout KHRC’s collaboration with various community based organizations based in Lamu.

The LAPSSET Corridor Project will usher in an extensive industrial and infrastructural system that is powered by an emerging local oil economy. The Project aims to, among others, catalyze regional trade between Kenya, South Sudan and Ethiopia, ultimately, a wider reach, as far as Cameroon. Locally, the Project aspires to create jobs and opportunities for business as well as access to social amenities within a region - Northern part of Kenya - which has, historically, been condemned to its own devices. It is illustrative that the arid North remains the hub of long-standing economic marginalization in Kenya.

Under the Economic and Social Rights Programme (ESR) thematic set-up, the KHRC engages with past and contemporary developments relating to the economic, social and cultural rights of communities. The protection of economic, social and cultural rights is integral to sustainable development. The Constitution of Kenya, 2010 provides that protecting and promoting these rights is not solely the obligation of the government; on the contrary, the wider civil society and corporate entities are enjoined in this quest.

While development projects create jobs and open up formerly remote and underpopulated areas, the host communities rarely benefit from these jobs, urbanization and the much needed change. This is because often, members of the host community to majority of development projects in rural Africa cannot immediately qualify for the jobs created, or afford to buy or rent the lovely new houses built or pay for the upgraded education, healthcare, electricity, water and sanitation systems that mega development projects bring. As the new business opportunities created by development projects attract new investors, entrepreneurs and skilled and semi-skilled workers, members of the host community, and particularly indigenous communities have two choices:- i) to engage in the new economy but from a powerless position at the bottom by offering menial, unskilled and semi-skilled labour; or ii) to relocate; be displaced by receding deeper into the periphery to establish a new informal settlements where their now reduced incomes can support a living.

One may argue that those displaced by development projects are almost always paid some compensation to facilitate resettlement and relocate voluntarily, it is important to note that often, the compensation paid or resettlement support given is inadequate to make a fresh start from an empowered position. Consequently, there is need to seriously guard against development projects creating new poverty – greater impoverishment, disempowerment and invisibility; amongst the very host communities that the project was intended to uplift out of poverty. This is what the people of Lamu and particularly the indigenous Aweer fear will and is happening to them.

This resultant position paper raises critical questions on the value, purpose and intended beneficiaries of development projects in Kenya. Whose lives should be positively transformed by the discovery of oil in Kenya or from an investment of the magnitude of the LAPSSET Project? What is the role of the state, international agencies, and the private industrial sector in promoting the interests /human rights of vulnerable populations such as indigenous communities, small scale producers and grossly marginalized host communities, facing the prospect of the introduction of a dominant economic activity?

We welcome you to read the position paper, interrogate it and utilize the lessons learnt towards contributing to a society that respects human rights. The paper is a product of a dedicated team of practitioners and resource persons; too many to enumerate.

The KHRC greatly appreciates the people of Lamu and in particular, the individuals and organisations that make up the Lamu Human Rights Network; with Jafar Omar; Ahmed Famau, Hababa Noor; Hadija Hamid; Muhammed Sadiq; Sharifa Abubakar and Maamun Abubakar warranting specific mention. KHRC also appreciates the invaluable contribution of leaders of the Aweer community, the fisher-folk of Lamu as well as the Lamu Beach Management Unit, Save Lamu, Inuka Kenya Trust and the Secure Project who all must be singled out for gratitude. Your concerns, data gathering and information sharing are the subject of this report. Thank you for trusting the KHRC to articulate these and for your logistical support in validating the same.

The KHRC is also indebted to Andrew Charles Odete for leading the fact-finding mission, information compilation and drafting this  position paper, with the support of Maryanne Mburu, Douglas Odhiambo, Fridah Kaimuri, Herman Omiti, Florence Njoroge, Marie Utetiwabo; Jakline Wanja and Paulina Warinda. Great thanks to George Morara, Esther Waweru, Achieng Orero, Maureen Mugesani, Martin Mavenjina, Fred Njehu, Samwel Oyomo, Martin Pepela and Faith Alubbe for providing invaluable support during the fact-finding missions in Lamu.

For their technical insight, the KHRC is indebted to Commissioner Lawrence Mute, Sara Singh, Steph Booker, Hadija Ernst, Davis Malombe, Sylvia Kithinji, Nduta Kweheria and Andrew Songa as well as to well as the KHRC editorial team comprising of Beth Nduta, Vincent Musebe, Julie Kingsland, Francis Akali, Kathleen Rubia and Beryl Aidi.

To our partners, the Norwegian Government, who made this publication possible by providing the financial support necessary to successfully complete this project, we are singularly grateful.

Lastly, the KHRC appreciates the support of its board of directors and secretariat staff in ensuring the successful implementation of this project.

Atsango Chesoni

Executive Director

Grave human rights violations due to widespread insecurity

The human rights and fundamental freedoms of the people living in Kenya continue to be violated unabatedly. In the past several months Kenya has witnessed what has been called terror attacks in places of business and worship for the very ordinary citizens from the nerve centre of Kenya, Nairobi to our coastal city Mombasa with the most recent attack of yesterday evening in Mpeketoni, Lamu, where 48 people including security personnel were reportedly killed. The violence and insecurity is wide-ranging from the murders in Kitengela that were meticulously planned and executed even before Bungoma could cool off, all the way to the counties of Wajir, Mandera and Garissa where ethnic and clan conflict is rife as well as intensified cattle rustling in Samburu, Baringo, Turkana. These acts of terror target very innocent children; the youthful population, men and women alike.

Ineffective state security response

The KHRC decries the fact that the deteriorating security situation is made worse by the apparent failure of security governance at national and county levels manifested in the collective irresponsible acts of commission and omission. It is intolerable that corruption, unemployment, poverty, ethnic and religious intolerance and inequality in Kenya remain the dominant causes of insecurity as well as factors fuelling insecurity and conflict in many parts of the country.  In the face of these colossal and continually widening crises confronting our Nation, the state governance and political leadership continue to be incapable of rising to the occasion, while the military and security forces along with the intelligence services continue to dither, as if overwhelmed by the challenge.

The KHRC is further deeply concerned that leaders have resorted to the all too familiar reactionary mode of giving instructions and orders without the benefit of insightful and actionable information and intelligence. Such instructions have engendered forms of discrimination and ethnic profiling leading to inhuman treatment of individual such as evident in   “Usalama Watch Operation”; targeted security checks; policy declaration on biometric registration without the requisite legislative support; and government resorting to collecting and counting bodies rather than providing security.

Alienation of communities amid political blame games

It is critical for the state to realize that such actions results in alienation of communities who would otherwise provide useful intelligence information towards preventing attacks. Such actions also result in polarisation of the Kenyan society along ethnic, religious and class lines which thence portend a major security crisis.  KHRC further notes with grave concern the manner in which Parliament continues to abdicate its constitutional responsibility of exercising oversight over security matters affecting the country. The political class continues to engage in an endless blame game geared at furthering their campaigns’ for the next term clearly ignoring the effect of insecurity of the country they so badly decide to have power over.

At such a critical moment, all Kenyans are obligated by the sovereign power they possess to make their voices heard, and call the leadership to order. Notwithstanding the fact that all people must at all times undertake all measures possible to ensure that our country is secure, the Constitution of Kenya confers primary obligation to secure safety and security for all people living in Kenya on the government of Kenya. This responsibility must however be executed within the confines of the rule of law and protection and promotion of all rights of all people and groups.

MOVING FORWARD

The KHRC demands that as a measure of the seriousness of the current situation that all arms of government cease their bickering and superiority contests and as a matter of urgency convene to put in place mechanisms and frameworks to address insecurity. We insist that just this once they prioritise the collective interests of our people over their individual greed.

Specifically we call upon;

1. The executive and relevant organs to fast-track comprehensive reforms of the national security organs in the country; to ensure that immediate steps be are taken towards realizing an improved coordination among security services, agencies and relevant constitutional bodies;
2. The executive and National Assembly to fast-tract the formulation and enactment of a national policy on security which will provide legal backing and clear framework for comprehensive security sector reforms;
3. The KHRC finally calls on all the citizens and non-citizens of Kenya to uphold the sanctity and dignity of human life and as such take responsibility of their individual security as well as promote the security, human rights and dignity of all their fellow human beings;
4. The National Assembly to move with speed to enact the Identification and Registration of Persons Bill to enable the biometric Integrated Population Registration System;
5. Finally, we impress upon the President to set up an all-inclusive and professional taskforce to interrogate the root causes and factors of the increase in  terror attacks, conflicts and insecurity in the country, and publicly present a conclusive report within specified timelines to the executive further policy and legislative actions
6. The National Assembly to give cognisance and legislative and budgetary strength to the now almost redundant National Cohesion and Integration Commission to deal with ethnic and religious tensions.

The Kenya Human Rights Commission (KHRC) is a premier non-governmental human rights and governance institution that was founded in 1991. Our mission is to foster human rights, democratic values, human dignity and social justice, with the mandate of securing human rights states and societies. Its founders and staff are among the foremost leaders and activists in struggles for human rights and democratic reforms in Kenya. KHRC works at community level with human rights networks across Kenya and links community, national and international human rights concerns.

The Kenya Human Rights Commission wishes to express solidarity with the non-governmental organizations in Hungary.

Since its re-election, the Hungarian government launched a campaign attacking the credibility of Hungarian NGOs and are striving to gain controlling power over their funding distributed independently from the government. We believe that a dynamic and independent civil society plays a fundamental role in a democratic society, as it is one of the key checks and balances to governing power. As demonstrated by Putin’s Russia, the harassment of the civil sector could easily lead to the criminalization of NGOs and could effectively hinder their work. We stand in solidarity with the Hungarian NGOs and call on the Hungarian and all other governments to refrain from harassing civil society!

Background:

After the widespread criticism due to the elimination of independent institutions, the dismantling of the framework of parliamentarianism, the opening of the second term of the Orban’s government in 2014 has seen even more challenges: new impetus was given to questioning the credibility and hindering the independent financing of autonomous civil organizations representing a counterbalance to the government.

The Norway Financial Mechanism (Norway Grants) is part of an agreement between the EU and Norway, Iceland and Lichtenstein about funding projects in less-developed European economies. The Hungarian government launched its attack against the Norwegian Civic Fund (NCTA) at the beginning of April, only a day after its massive re-election victory. The NCTA is a small portion of the Norway Grants, which is distributed by a consortium of four Hungarian foundations, which have previously administered the grants with great success. The accusation is that through the four foundations, Norway is trying to influence Hungarian politics. Norway firmly denied the accusations.

When the Norwegian government rejected the charges, the Hungarian government sent agents of the Government Control Office (KEHI) to audit the Fund's administering organizations. The government has led an escalating campaign accusing the four NGOs of political meddling that helped Norway disburse the grants. It said KEHI would audit Okotars, the consortium leader NGO, but sent KEHI agents to two other partner organizations as well. The foundations were threatened with the suspension of their tax number if refused cooperation. The legal basis of the audit is disputed by the administering organizations of the consortium.

In the past years, NGOs, especially those critical of or countering the ideology of the government (LGBT+ rights groups) were subjected to defamatory attempts. On May 30, 2014, an article was published stating that the government blacklisted independent Hungarian civil organizations that have benefitted from the Norwegian Civic Fund (NCTA) on the basis of their alleged political affiliation. In an emailed statement to Reuters on this day, the government said it had no intention of fighting individual NGOs, but it repeated the charges that the grants sought to exert political influence.

Civil organizations' opportunities for legal advocacy and the room to maneuver are becoming smaller, and media publications may be henceforward constrained to exercise self-censorship because regulations of the media law curtailing the freedom of speech and judicial practices would hold them back from publishing articles criticizing the government. All these steps make Hungary resemble Putin's Russia, where, with the silencing of the last free voices, all the defenses of the democratic state are being demolished.

According to Atlatszo.hu – one of the blacklisted NGOs: the scandal sparked by the Hungarian government over the Norwegian funding of local NGOs has escalated to the extent that groups advocating environmental concerns and anti-corruption are being targeted by the authorities. The only tangible reason to be found is that the Hungarian government doesn’t approve of funding being distributed to organizations, which they do not approve of.

As things stand, the organizations that are receiving or have received a grant are prone to face investigations from the authorities, with the declared intent to decide whether they were legitimate recipients of the Norwegian tax-payers’ money, or whether they were handpicked to represent niche political interests that go against the will of the Hungarian majority.

According to the Hungarian Civil Liberties Union, another blacklisted NGO: These are steps in a series of government actions aiming to silence people, from ordinary citizens to the press to civil society, and prevent them from voicing any criticism against the government. An examination of government actions since 2010 shows that the elimination of independent institutions, the dismantling of the frameworks of parliamentarianism and the trivialization of opposition voices already started during the previous government cycle. Such measures include the Media Law, the curtailing of the Constitutional Court's authority, the elimination of the institution of the independent Data Protection Ombudsman, the transformation of the election system and the means of approval and contents of the Fundamental Law.

As part of the government’s silencing efforts of independent voices, the editor-in-chief of one of the largest Hungarian online news sites, Origo.hu, was forced unexpectedly to leave his job on June 2. On the last week of May, the news site published a series on János Lázár, Secretary of State for the Prime Minister's Office, noting that his recent spending of 6.500 EUR from public funds on travel expenses was presumably unjustified. In response, János Lázár exercised visible pressure. It is probably due to this incident that the editor-in-chief of Origo.hu, who was said to have resisted the political pressure exercised by the publishing company, was forced to quit yesterday. The editorial board of Origo.hu expressed its disagreement with dismissing the editor-in-chief and considers the conditions for continuing its work insecure. Since June 2, a number of staff members quit their jobs. The management of Origo.hu denied the accusations about political pressure.

Recommended articles, statements:

http://www.liberties.eu/en/news/putins-methods-against-criticism

http://norvegcivilalap.hu/en/government_attacks_hungarian_NGOs

http://english.atlatszo.hu/2014/06/03/hungarian-govt-targets-ngos-atlatszo-hu-is-also-under-assault/

http://www.transparency.org/news/pressrelease/transparency_international_calls_for_an_immediate_end_to_intimidation_

http://www.reuters.com/article/2014/06/02/us-hungary-norway-funding-ngo-idUSKBN0ED1QW20140602?feedType=RSS&irpc=932

http://www.hrw.org/news/2014/06/05/dispatches-harassing-civil-society-hungary

About the constitutional de-constructing:

http://tasz.hu/en/news/hclu-hungarian-example