The KHRC has been at the forefront in advocating for accountable, equitable and rights-centered governance and more so, justice for victims of gross human rights violations attributable to both the state and non-state actors, and ranging from the colonial to post-independence atrocities.

We have always maintained that the trial of President Uhuru Kenyatta, his Deputy William Samoei arap Ruto and radio journalist Joshua arap Sang at the International Criminal Court(ICC) is an opportunity for Kenya to fight impunity following the PEV, being the last resort following a failure to establish any meaningful judicial proceedings locally.. We strongly believe that a legitimate and credible justice mechanism anchored in constitutionalism is a critical ingredient of these processes especially for societies emerging from a post-conflict situation characterised by gross human rights violations such as the killings, rapes, internal displacements and property destruction witnessed during the PEV.

We affirm our commitment to human rights and justice for all. Contrary to what has been propagated, the ICC is not a foreign court. Kenya is a signatory to the Rome Statute and is also bound by its Constitution to comply with the rules of international law and ensure that no one is exempted from accountability for crimes against humanity.  It is therefore unfortunate that the current cases at the ICC against the President and his Deputy have been cast to look as if they were a case of an illegal extradition process akin to the notorious renditions against Kenyan citizens.   On the contrary, it must be noted that the ICC is a court of last resort in cases where effective complementarity has not been established. As a county, we must neither forget nor tire to point out the duplicitous character of our politicians who effectively blocked any efforts at establishing a local mechanism through their thunderous call:  Let’s not be vague, let’s go to The Hague!!. Again, since this call was made, only half-hearted measures (key among these being the wrong-headed attempts to set up an International Crimes Division) have been taken to show that Kenya is serious in its efforts to address the grave and serious crimes arising out of the 2007/08 PEV. Therefore, it is our position that  a deferral of the Kenyan cases would be tantamount to a miscarriage of justice since victims have waited for more than six years for justice, not to mention that there have been no real or meaningful attempts to bring justice and accountability for the 2007/08 PEV.

KHRC regrets the AU's decision to request that the cases against President Kenyatta and Mr. Ruto be either deferred by one year or be stopped altogether, and more so when there is no credible local process to seek justice for the victims or accountability for 2007/08 PEV We further reject the notion that the  the cases are now national or regional as the Minister for Foreign Affairs, Ms Amina Mohammed, would want us to believe. The ICC places responsibility on individuals, not communities, countries or regions. President Kenyatta has on several occasions superbly captured the foregoing by publicly stating that the ICC was a ‘personal challenge’ that he hoped to deal with even if he were to be elected President of the Republic of Kenya. Similarly, the President has publicly reiterated that Kenya will continue to cooperate with the ICC and its international obligations.  Additionally, while the complaints raised by the AU contend that the ICC is  biased against African countries, we hold that such complaints should be treated as political posturing on the part of the resurgent African Big Men and Women who invoke sovereignty and Pan-Africanism as a cover-up for their gross misrule.  The grand irony of the AU’s position against the ICC is its failure to acknowledge that most of the cases before the Court have  been referred to the ICC by the respective countries themselves.

The current efforts by Members of Parliament to seek Kenya’s withdrawal from the Rome Statute and their push for the repeal of the International Criminal Crimes Act, may not only affect Kenya’s cooperation with the Court but casts further doubts on the Kenyan authorities’ willingness to bring justice to victims through national proceedings. This grand-stalling by the politicians is a further affirmation of their desire to perpetuate the culture of impunity in the country. At the same time, what the politicians are not telling Kenyans is that a withdrawal from the Rome Statute would not affect the jurisdiction of the Court in the already on-going cases against President Kenyatta, his Deputy William Ruto and Journalist Joshua Sang.

We note that while the current efforts to withdraw Kenya from the ICC are pre-occupied with the dignity and image of a sitting head of state facing criminal charges and concerns of destabilization of the country, we wish to advise the President to dissuade himself from any advice not to attend the trials scheduled to begin from November 12, 2013. By attending the trial, the President will not only be remaining true to his promise of Kenya’s continued cooperation with the ICC but will be demonstrating his belief in the rule of law. It is our firm belief that trials in all court jurisdictions provide the requisite opportunities for the accused to present his or her side of the story before the court.  Therefore, not appearing before the court may be interpreted as an attempt to escape from truth and justice and any resultant consequences would be detrimental to the Country as a whole.

If President Kenyatta fails to honour his earlier pledge of appearing before the Court, he may be the subject of a warrant of arrest. This turn of events will likely subject our country to sanctions with far-reaching social, political and economic ramifications to the citizens.  To this extent, we laud the decision made  by the Deputy President William Ruto on October 16^th 2013 to press on with the Hague Trials even in light of the developments at the AU front.  We however differ with his request for recusal from the proceedings for this is contrary to the Rome Statute and the established trial procedures and practices worldwide.

African states form the largest bloc of state parties to the Rome Statute. We encourage and challenge the Kenyan and African leaders to consider canvassing their concerns and grievances in respect of the ICC process within the Assembly of State Parties (ASPs) scheduled for November 2013. Indeed as indicated by Tina Intelmann, the President of the ASPs, “The Assembly provides a forum to exchange views on issues of concern to States, to consider amendments to the Court’s legal framework, to discuss how to enhance the capacity of national judicial mechanisms and assistance to victims and much more”.

.  Finally, we take this opportunity to advise that African Union interventions have to be undertaken within the human rights principles set out in the AU Charter which stipulates that "freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples". We must always remember to protect the rights of the victims and the underprivileged in society; not just the vested interests of the political elite.

The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envisiona human rights state and society predicated on our mission offostering human rights, democratic values, human dignity and social justice.

Davis Malombe,

Deputy Executive Director

On Tuesday, 10 September 2013, Ruto, and his co-defendant, Joshua Arap Sang, former head of operations of Kass FM, will face the judges of Trial Chamber V(a) of the ICC. Both accused are charged with murder, deportation or forcible transfer of population and persecution amounting to crimes against humanity under the Rome Statute of the ICC, committed in the context of the 2007/2008 post election violence.

The Kenyan President, Uhuru Muigai Kenyatta, also faces trial at the ICC, which is scheduled to start on 12 November 2013. The President is accused of murder, deportation or forcible transfer of people, rape, persecution and other inhumane acts as crimes against humanity committed during the post-election violence.

This is the first time that an incumbent President and Vice-President face trial before the ICC. The Rome Statute, the treaty governing the Court, provides that it should apply equally to all persons, without any distinction based on official capacity. No Head of State or Government, or any member of Government enjoys immunity from prosecution at the ICC. Their position does not grant them any benefit and nor should it hinder their rights according to the legal texts of the International Criminal Court.

"These are not the trials of a President and a Deputy President. These are trials to establish the facts and individual criminal responsibility for serious crimes. Their positions are and should be irrelevant. The unsung heroes of these proceedings are the victims and witnesses who, despite a difficult and sometimes threatening environment, have committed themselves to the search for truth and justice. Their engagement will benefit the whole Kenyan society" , stated Patrick Baudouin, FIDH Honorary President.

More than 300 victims have been authorised to participate in the proceedings in the case against Deputy President Ruto. During the last couple months, victims and witnesses participating in the proceedings withdrew their participation in the midst of alleged intimidation. Along with civil society organisations, they have faced an environment in which public and political figures, as well as some sections of the media, have contributed to create some hostility towards those supporting the investigations and prosecutions of the ICC.

"The victims of the 2007/2008 post-election violence have waited for more than five years to get justice. Given the time-lapse and the intricacies that continue to surround the Kenyan cases, it is time the trials begin ! The ICC can not afford to lose the confidence and trust that the victims have placed in it. It must deliver on the expectations that it will ultimately offer an opportunity for truth about the post-election violence to be unravelled in an impartial judicial process" , expressed David Malombe, KHRC Deputy Executive Director.

"These trials are in the interest of all Kenyans and all Africans. Post-election violence has been suffered in different countries around the continent, and in some instances has reached worrying levels that warranted an international reaction in solidarity with the victims. Mechanisms that provide an opportunity to stem and reverse violence and gross abuse of human rights should be supported" , said Sheila Muwanga Nabachwa, FIDH Vice President, Ag. Deputy Executive Director at the Foundation for Human Rights Initiative (FHRI – Uganda).

The Office of the Prosecutor of the ICC requested an authorization to open the investigation after Kenyan authorities failed in bringing to justice those responsible for the crimes committed during the post-election period. "The commencement of this trial will bring some hope to victims and their communities, who could not find relief in Kenyan courts. Their quest has been long, their suffering too deep. Looking at those accused in Court would send a strong message that what happened was wrong, and Kenyans should be reunited in the will to prevent similar atrocities from happening again" , expressed Drissa Traore, FIDH Vice President (Côte d’Ivoire)

The limited scope of the ICC, which only focuses on those bearing the greatest responsibility, requires that national authorities investigate and prosecute the crimes committed by middle and lower level perpetrators. However, more than five years after the violence, there has been little efforts by the Kenyan government to ensure accountability for the perpetrators and ensure justice and reparation for the victims. The current efforts by members of Parliament from the Jubilee Alliance – supporting Uhuru Kenyatta and William Ruto – to seek Kenya’s withdrawal from the Rome Statute and repeal of the International Criminal Crimes Act, may not only affect Kenya’s cooperation with the Court but casts further doubts on the authorities’ willingness to bring justice to victims through national proceedings and further perpetuates the culture of impunity. At the same time, a withdrawal from the Rome Statute would not affect the jurisdiction of the Court in the already open cases.

"In the perspective of the upcoming trials, it is of the utmost importance that Kenyan authorities abide by their obligation and responsibility to fully cooperate with the ICC. Their credibility and victim’s rights to truth and justice are at stake” , declared Dismas Kitenge Senga, FIDH Vice-President, President of the Groupe Lotus (GL - Democratic Republic of Congo).

"The politicization and media coverage of these trials will be exhausting for victims who have already suffered serious crimes. In such a hostile context, institutions such as the African Union have the responsibility to show full support and solidarity with them. This implies a public stand for Kenya’s unconditional cooperation with the ICC and for effective national proceedings" , declared Mabassa Fall, FIDH Representative to the African Union.

Signatory organisations :

• Association Africaine de Défense des Droits de l’Homme (ASADHO) – Democratic Republic of Congo
• African Center for Justice and Peace Studies (ACJPS) – Sudan
• Associação Justiça Paz e Democracia (AJPD) – Angola
• Association Malienne des Droits de l’Homme (AMDH) – Mali
• Association Mauritanienne des Droits de l’Homme (AMDH) – Mauritania
• Association Tchadienne pour la Promotion des Droits de l’Homme (ATPDH) – Chad
• Civil Liberties Organisation (CLO) – Nigeria
• Foundation for Human Rights Initiative (FHRI) – Uganda
• Groupe Lotus (GL) – Democratic Republic of Congo
• International Federation for Human Rights (FIDH)
• Kenya Human Rights Commission (KHRC) – Kenya
• Lawyers for Human Rights (LHR) – South Africa
• Legal and Human Rights Center (LHRC) – Tanzania
• Ligue Burundaise des Droits de l’Homme (ITEKA) – Burundi
• Ligue des Électeurs (LE) – Democratic Republic of Congo
• Ligue Centrafricaine des Droits de l’Homme (LCDH) – Central African Republic
• Ligue Ivoirienne de droits de l’Homme (LIDHO) - Côte d’Ivoire
• Liga Moçambicana dos Direitos Humanos (LMDH) – Mozambique
• Ligue Sénégalaise des Droits Humains (LSDH) – Senegal
• Ligue Tchadienne des Droits de l’Homme (LTDH) – Chad
• Ligue Togolaise des Droits de l’Homme (LTDH) – Togo
• Maison des Droits de l’Homme du Cameroun (MDHC) – Cameroon
• Mouvement Burkinabè des Droits de l’Homme et des Peuples (MBDHP) – Burkina Faso
• Mouvement Ivoirien des Droits Humains (MIDH) – Ivory Coast
• Observatoire Congolais des Droits de l’Homme (OCDH) – Republic of Congo
• Organisation Guinéenne des droits de l’Homme et du citoyen (OGDH) - Guinée Conakry
• Organisation Nationale des Droits de l’Homme (ONDH) – Senegal
• Zimbabwe Human Rights Association (Zimrights) – Zimbabwe

1. We, the undersigned human rights organizations, wish to condemn the summary execution of Hassan Guyo, a prominent human rights defender based in Moyale, Marsabit County. Our preliminary investigations indicate that Mr Guyo was shot from the back by a military officer on 7^th August 2013 at around 1700 hours.
2. Mr Guyo, 40, was founder member and the Programmes Director at Strategies for Northern Development (SND), an organization that promotes human rights for women, children and refugees and also works on human trafficking issues in the region.He was an active member of the UNDP Amkeni waKenya Civil Society Governance Programme Stakeholders Reference Group and partnered with various human rights organizations including the Independent Medico Legal Unit (IMLU), the National Coalition of Human Rights Defenders – Kenya (NCHRD-K), Kenya National Commission on Human Rights (KNCHR) and the Kenya Human Rights Commission (KHRC).
3. The under signed deployed a fact finding mission to Moyale between 8-12 August 2013 to investigate the incident. The findings indicate that the deceased was fatally shot as he documented excessive use of force and other human rights violations against demonstrators during a joint operation of the Kenya Defense Forces and the Kenya Police Service in Moyale.
   The military then fired at anyone who attempted to assist him, blocking assistance for nearly two hours, an action that could have been aimed at ensuring that the victim died for lack of quick medical attention.
4. Prior to his execution, a demonstration was held by area residents to protest the suspension and arrest of Mr Jillo Boru, the chief of Bori location by the Moyale Deputy County Commissioner. The Chief had allegedly been arrested in relation to the insecurity in the area. The team of investigators has reliably learnt that the area County Commissioner Mr. Isaiah
   Nakoru called in the police and the army from Odda town to help disperse the crowds. The circumstances under which the army was deployed to handle such an ordinary policing issue remains unclear, especially in view of conflicting reports as to whether the demonstrations were ongoing by the time the military arrived.
5. Police and Army officers used excessive force against civilians. They unjustifiably used live bullets, in the process leaving two people with serious gun injuries.The two were admitted at the Moyale General Hospital, one with a bullet lodged in his back and the other with a serious head injury. Mr. Hassan Guyo was not in Moyale at the time of the demonstration that took place in the morning and early afternoon. He arrived in Moyale from Wajir in the evening
   after receiving reports of the disturbances.
6. Upon his arrival in Moyale town at around 1700 hours he hired a motorcycle to take him to the hospital to meet with the victims and to the scene of the skirmishes. This was part and parcel of his regular human rights work to monitor and document human rights violations. It
   was while he was on his way that he found a road block that was erected by a contingent of army officers at Sessi, which is approximately three hundred meters from the police station and two hundred meters to his office. The army had barricaded the road and was beating people indiscriminately. Guyo and his rider found several people that had been forced to lie down near the barricade where they were also being beaten.
7. Ahead of Guyo near the barricade was a taxi whose driver was attempting to back up at high speed after being ordered to do so by the army officers. Guyo’s motorcyclist gave way to the taxi as he also attempted to turn on orders from the same army officers. Guyo alighted from his motorcycle to allow the rider to turn. At that time army officers were shouting at them, at which point he raised his arms to indicate that he was not armed and a sign of surrender since there were gunshots. As he turned to board the motorcycle, he was shot and fell down.
8. His rider attempted to get him on the motorcycle in order to take him to a hospital. He was however unable to do so because more shots were fired in his direction. He sped off and went to the police station to seek the assistance of the police to get Guyo to hospital. He was not
   assisted. He rode to the town centre where he informed other people that Guyo had been shot. A group of bodaboda (motorcycle taxi operators) rode to the scene to offer assistance. They were however repulsed by the army officers who shot at them forcing them to scamper for safety. No one was allowed near Guyo including a uniformed Kenya Red Cross official and no medical assistance was given to him for about an hour until around 1815 hours when the army men drove off and the locals went near Guyo and found that he was dead.
9. His body was picked up from the scene at around 1830 hours by the police. It was taken to Moyale General Hospital where a post mortem (PM) was conducted. The PM report indicated “the cause of death of the late Hassan Guyo is chest and abdominal injuries due to a perforating single gunshot. There was also a major laceration of the left lobe of the liver tearing through the inferior and superior surfaces”.
10. We are gravely concerned by the arbitrary killing of Mr. Hassan Guyo and the excessive use of force by the security agents in the region. Guyos’s execution is not an isolated incident. The
    killing comes at a time when threats to human rights defenders in both urban slums and the rural areas have escalated in recent months. Various individuals and human rights organizations who have received such threats are concerned that the government is either condoning this or is unwilling to hold those responsible accountable.
11. We are further concerned by the disturbing increase in killings by security agents in the name of curbing crime. In the past four months, human rights groups have recorded over one hundred (100) such extra judicial killings. The magnitude and pattern of the killings suggest
    existence of a “shoot to kill policy” by our security agents. This worrisome trend is inimical to the Principles of National Security in the Constitution particularly Article 238(2)(b) which provides that “National Security shall be pursued in compliance with the law and with
    the utmost respect for the rule of law, democracy, human rights and fundamental
    freedoms.”
12. We remind security agencies of their obligations to respect and uphold human rights both as institutions and persons as enshrined in Article 21 of the Constitution of Kenya. They are not exempt on any grounds whatsoever from observing the rule of law and the human rights of
    the people of Kenya, particularly right to life, freedom of assembly and expression which are the core pillars of any democratic civilization. The people of Kenya have an indisputable legitimate expectation that security agents will defend and not curtail their rights. The execution of Mr. Guyo is not only a very bad thing to happen, but also a totally unacceptable and abhorrent act.
13. The Killing of Guyo is a blatant violation of constitutionally guaranteed rights. Article 26 provides that a person shall not be deprived of his life intentionally except to the extent authorized by the constitution and other written law. (3). Further, the right to life is guaranteed under Article 3 of the Universal Declaration of Human Right (UDHR) which states that “Everyone has the right to life, liberty and security of person”; Article 6 of the International Covenant on Civil and Political Rights (ICCPR) (Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life) and Article 4 of the African Charter on Human and Peoples' Rights (ACHPR)
    “Everyone has the right to life, liberty and security of person”.
14. Moreover, Mr. Guyo was a human rights defender and a pillar in the realization of human rights at the vast marginalized Northern Kenya region. The killing of Guyo is clearly a well calculated move to cover-up ongoing human rights violation and impunity of security forces sent in the region to conduct security operations.
15. It must be emphasized that an attack on human rights defenders is not only a violation of the rights of the individual human rights defender but also a serious threat to the promotion and protection of human rights in the society. This is clearly codified in the UN Declaration on
    Human Rights Defenders that was adopted by the UN General Assembly in 1998. The Declaration recognizes the legitimacy of human rights activity and the need for those who carry out human rights work to be protected. States have a responsibility to implement and respect all the provisions of the Declaration. In particular, states have a duty to protect HRDs against any violence, retaliation or intimidation as a consequence of human rights work. Further in 2004, the African Union through the Africa Commission on Human and Peoples Rights created the mandate of the Special Rapporteur on Human Rights Defenders in Africa to deal with the protection of human rights defenders. Kenya as a member of UN and AU is
    therefore obligated to guarantee the safety and security of HRDs across the country.
16. We are therefore calling for:
    • The Inspector General of Police (IG), the Director of Public Prosecutions (DPP), the National Police Service Commission and the Independent Police Oversight Authority to exercise their mandate to ensure justice for the victims and accountability for the responsible security officers.
    • The DPP to institute an inquest into the circumstances surrounding the killing of the human rights defender, Mr Hassan Guyo, in Moyale, pursuant to Section 386 of the Criminal Procedure Code.
    • An independent investigation into the conduct of the County Commissioner, police and the military officers on the material day and the use of live ammunition against unarmed civilians.
    • The suspension from duty of the commander of both the military and police units that was responsible for the joint operation in Moyale pending investigations.
    • The Cabinet Secretary for Defense to clarify the circumstances under which the Army was deployed in Moyale and whether parliamentary approval was sought and given pursuant to Article 241 (3) (c) of the Constitution.
    • The Cabinet Secretaries for the Ministry of Interior and Coordination of National Government, and Ministry of Defense to ensure that security forces on the ground strictly respect the rule of law and Chapter 4 on Bill of Rights and in particular to immediately cease arbitrary use of lethal force and extra-legal actions against civilians.
    • The Independent Police Oversight Authority (IPOA) to institute investigations and appropriate actions pursuant to Article 25(10) IPOA Act and Schedule 6 (b) (5) to the National Police Service Act with regard to death and serious injury occasioned by use of fire arms.
    • The Government to domesticate the UN Declaration on Human Rights Defenders by
      enacting and operationalizing a policy/legislative framework for safety and protection of human rights defenders.
17. We take this opportunity to condemn recent and past incidents of human rights violations directed at security agencies by civilians resulting in loss of life, injury and humiliation. We particularly condemn the most recent incident in which a Member of Parliament reportedly
    engaged in physical and verbal assault on a female police officer in Nakuru County. We call for immediate legal action on this incident. There cannot be rule of law when those in leadership are themselves not subject to the law. We further urge the people of Kenya jealously safeguard our constitution, respect our institutions and desist from taking the law into their hands.
18. Finally, we call upon human rights defenders at every corner of the country not to succumb to these acts of threats, intimidation, vilification and violence but to remain steadfast in their
    internationally and constitutionally recognized right to defend and champion human rights. This is the best way to honor comrade Hassan Guyo. We remain in solidarity with Guyo’s family, colleagues and his community and assure them of our resolve to seek justice for Hassan and to continue the good work for which he sacrificed his life.

Signed:

Kenya National Commission on Human Rights (KNCHR)

Kenya Human Rights Commission (KHRC)

Release Political Prisoners (RPP)

Independent Medico Legal Unit (IMLU),

National Coalition of Human Rights Defenders – Kenya (NCHRD-K)

Katiba Institute

Human Rights Watch

We, the members of the Police Reforms Working Group- Kenya drawn from fifteen (15) governance and human rights organizations;

Committed to safeguarding the core principles entrenched in the Constitution of Kenya, 2010, in relation to the National Police Service, including:

• Respect for human rights and fundamental freedoms and dignity;
• Highest standards of professionalism and discipline, competence and integrity;
• Preventing corruption, promoting and practicing transparency and accountability; and,
• Fostering and promoting relationships with the broader society;

Guided by the need to remain true to accountability, police welfare, public participation and quality service; do state as follows:

1. That we are utterly disappointed by the lack of momentum towards realization of comprehensive police reforms as provided for by the Constitution as well as various legislations.
2. We hold strong reservation towards the amendments proposed to the National Police Service Act, 2011 and the National Police Service Commission Act, 2011. Noting that these acts were enacted pursuant to articles 243 and 246 of the Constitution which clearly provide the legal foundation for democratic policing in Kenya. These laws established the National Police Service (NPS) and the National Police Service Commission (NPSC) and clearly defined their functions and responsibilities.
3. That over the last 10 months, the institution of the police has become known for its squabbles that have neither legal nor institutional basis, between the Inspector-General and the Chairperson of the National Police Service Commission, instead of responding to, and addressing the increased cases of insecurity being experienced in various parts of the country.
4. We are greatly concerned by attempts to deny the public an opportunity to understand and exhaustively engage the National Assembly in the development of the two bills. The publication time for the two bills has been undemocratically reduced from 14 days to 7 days. Further, on Thursday 25^th June 2013, the National Assembly published a notice inviting summons to the amendments in which it gave a six day window period for public input on the bills.

As governance and human rights institutions, we wish to state that many of the proposed amendments instead of providing a new impetus to police reforms, will only serve to:

• Greatly inhibit the role of the National Police Service Commission to instill professionalism and quality service in the National Police Service;
• Prevent the Independent Policing Oversight Authority from fulfilling their mandate of investigating and acting on police abuse of power, including arbitrary use of firearms, torture and extra-judicial executions, by introducing the clause on classification of information;
• Prevent the carrying out of a non-politicized, professional and objective vetting of all police officers;
• Enable police officers to shoot to kill at will by introducing new provisions that allow them to shoot to protect property, contrary to the international standards on policing.
• Remove critical safeguards for the Inspector-General to be accountable to the public.

We therefore propose that:

1.  The Cabinet Secretary for Interior and Coordination of National Government immediately withdraws the bills before Parliament to allow for broader consultation with the public in the 47 counties on the best way to provide impetus to comprehensive reforms;
2.  The Cabinet Secretary gives full and unconditional support to the National Police Service Commission to develop and gazette regulations guiding the implementation of the National Police Service Commission Act and the National Police Service Act 2011 in their current state; and,
3.  The Clerk to the National Assembly to publish the two amended bills in newspapers with nationwide circulation to enable access to Kenyans and hence increase public participation.

Lastly, we wish to reiterate the fact that the Police reform agenda remains a priority in Kenya's pursuit for peace and sustainable development. Key to the realization of this ideal is the independent and accountable policing institutions which protect and promote the rights and liberties of citizens.

The Nakuru Industrial Court is tomorrow set to hear a case file by the by the Kenya Human Rights Commission (KHRC) on behalf of 64 former employees of Kaisugu Tea Limited in Kericho Trade Dispute 1 of 2013. This follows the initial filing of the in case in February 2013 seeking to redress on a number of violations of constitutional and labour rights by the company.

Among a raft of violations, the KHRC notes that:

1. The principle of last in first out was not applied
2. Notice was not issued: Upon dismissal, workers were only paid for the days worked, despite no notice being issued or workers being paid their notice period. According to the Collective Bargaining Agreement (CBA) provisions – “Notice of redundancy shall not be less than two months or pay in lieu”.
3. Employees laid off in February 2012 have not been given priority (against the CBA provisions) despite the company’s subsequent engagement. This is provided in the manual and the company management promised the workers the same. Those employees who have been engaged, have been taken in on fresh terms after declaring there is no existing engagement with the same companies
4. There was No Service Pay paid to the dismissed workers. As per the January 2012 – December 2013 CBA agreement, which Kaisugu is party to, “……An employee declared redundant shall be entitled to 21days pay for each completed year of service….”
5. That the company threw them out of the company housing against the CBA provisions - that the employee shall be allowed to stay on the farm up to a maximum period of three months from the date of notice.

The court has also allowed an additional 35 claimants, also former employees of Kaisugu dismissed on 10^th February 2012 following an application by the Kenya Human Rights Commission. The court will also determine an application from Kituo cha Sheria to be enjoined as amicus curiae in the matter.

For more information on this issue please contact us through Beryl Aidi or Esther Waweru on 254-20 2044545, 254-20 2106709, 254-20 3874998

________________________________________________________________________________________

The Kenya Human Rights Commission (KHRC) was founded in 1991 and registered in Kenya in 1994 as a national Non-Governmental Organisation (NGO). Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. 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 (HURINETS) across Kenya and links community, national and international human rights concerns.

Background of the Case

The case of Ndiku Mutua & Others – v – The Foreign and Commonwealth Office: The settlement is based on the case of Ndiku Mutua & Others – v – The Foreign and Commonwealth Office Case No: HQ09X02666 of 2012, a test case on torture that was filed in the UK by the law firm, Leigh Day, on 23^rd June 2009. There were five claimants in this case: Ndiku Mutua, Jane Muthoni Mara, Wambugu Nyingi, Paulo Nzili and Susan Ciong’ombe Ngondi.  Susan Ngondi passed away whilst Ndiku Mutua withdrew for personal reasons.

The British Government challenged the case on two grounds: state succession and limitation.  Under the State Succession contention, the British Government argued that it was not liable for atrocities committed by the British colonial regime and, if such liability survives, it was transferred to the Kenyan Republic (via s.26 of The Constitution of Kenya (Amendment) Act, (Act No 28 of 1964)). On the issue of limitation the British Government argued that the claims were time barred by virtue of the Limitation Act (1980) in that they should have been brought much sooner.

The British Government lost on both these grounds i.e. the court found that the case was properly before the British Courts and that it was not barred by virtue of the fact that the events had occurred several decades ago.  Both these decisions are precedent setting.   The first ruling was delivered on July 2011 and the second in October 2012.  Due to the unprecedented nature of both these rulings they have received immense coverage in both the local and international press. It is important to state that these were decisions on preliminary matters and the case never proceeded to a full hearing on the facts since it has now been settled.

The Settlement Announced on 6^th June 2013 

The settlement has three components: (a) A statement of regret made to victims of colonial era torture, by the Foreign Secretary of the UK in the House of Commons on 6^th June, 2013; (b) Damages awards made to 5,228 individuals who fit the criteria of torture as set out in the test-case claims of Jane Muthoni Mara, Wambugu Nyingi and Paulo Nzili  and who personally authorized Leigh Day & Co to act on their behalf; and (c) a contribution that will be made by the British Government towards the construction of a monument in memory of Kenyan victims of colonial era torture.

Key Questions

What was the case about?

The case, Ndiku Mutua & Others – v – The Foreign and Commonwealth Office Case No: HQ09X02666 of 2012, was never about the broader ills of colonialism such as: the land confiscation of those who were Mau Mau or those who were associated with Mau Mau; the lack of education opportunities for those who were held in detention centres or villages; or the property lost during the emergency period. While the foregoing concerns are legitimate, we have elected to pursue these within the framework of the governance institutions existing in post-colonial Kenya. We have immense hope that the Constitution of Kenya(2010) as well as other mechanisms like the recently released TJRC Report and the National Land Commission will provide the framework for us to address these issues as a nation, especially in the renewed vigour of Pan-Africanism lately espoused by our leaders under the apt banner of “Finding African Solutions to African Problems”.

How were the victims selected?

The KHRC and Leigh Day worked for 9 months with the MMWVA and reviewed 50,000 cases.  Only those Kenyans who were the victim of torture or abuse whilst detained by the British colonial government had viable legal claims.  Legally, it is not enough simply to have been a member of the Mau Mau or to have participated in the fight for independence.  Of the 50,000 cases, 15,000 people were selected for one-to-one interviews and of those Leigh Day put forward 5,228 cases which were credible cases of torture and abuse.  The cases were then reviewed in detail by the lawyers for the Foreign & Commonwealth Office.

Who agreed to the settlement?

Each individual claimant was interviewed in person after the British Government’s settlement offer was made.  Each claimant personally agreed to the settlement.

How much is each victim receiving?

Each victim will be paid KHS 330,000 each.  The money will be paid directly to the victims in Kenya from London.

What about the lawyer’s costs?

No monies whatsoever have been taken from the claimants’ damages or monument to pay for legal fees.  The fees were substantial because of the lengths the British Government went to in resisting these legal claims for 4 years and the vast amount of legal work involved in these claims.  But the costs have been paid by the British Government separately from the claimants’ damages.   Not one shilling of claimant damages has gone to pay legal fees.

What about victims who were not seen by Leigh Day and the KHRC?

The Kenya Human Rights Commission is fully aware of the fact that the 5,228 claimants are in no way inclusive of all the Mau Mau veterans whom we have documented over the years as well as those who belong to the various Mau Mau groups. However, this case was very specific to those who were tortured because of either having been Mau Mau or simply being associated with the Mau Mau. The claimants in this case were from diverse ethno-cultural backgrounds and were not necessarily members of the Mau Mau but were all victims of colonial era torture and consented to be part of the court process.  The KHRC and Leigh Day do not claim to have a monopoly on the case.  If there are other credible cases of serious abuse and torture by British colonial officials of Kenyans who are still alive, they are free to take their case to the British Government.

Why take the case to the British courts?

as well as the Hansard of the British Parliament’s House of Commons which can be found at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/chan13.pdf, at pages 1692 - 1700.

In a nutshell, the KHRC, the MMWVA and Leigh Day have so far done what we could within the scope of the case we set out to litigate and within the means we had to support it.   We have worked tirelessly for years to bring justice to a forgotten generation of Kenyans.  However, as the British High Commissioner has said, nothing is preventing others from bringing their claims to the British courts if they also have credible claims.

Atsango Chesoni,

Executive Director, the Kenya Human Rights Commission

Press statement from lawyers for Kenyan victims of colonial torture in response to William Hague announcement.

In a statement read out today in the House of Commons, the Foreign Secretary, William Hague, expressed regret for the first time that thousands of Kenyans had been subjected to torture and other forms of ill-treatment at the hands of the British colonial administration during the Kenya Emergency during the 1950’s.

Mr Hague expressed “sincere regret” that these abuses had taken place and he announced that the British Government would pay compensation of £13.9 million to Leigh Day’s 5,200 clients and finance the construction of a memorial in Kenya to the victims of colonial era torture.

Martyn Day, Senior Partner at law firm Leigh Day, who represents 5,200 Kenyan victims of colonial torture, said:

“I take my hat off to Mr Hague for having the courage to make today's statement and to announce this settlement with our clients.  Albeit he was looking down the barrel of the gun in terms of a court process which he had a strong chance of losing, it takes courage to publically acknowledge for the first time the terrible nature of Britain's past in Kenya.

“During the run up to Kenyan independence thousands of Kenyans suffered horrific treatment in British run detention camps. These crimes were committed by British officials and have gone unrecognized and unpunished for decades. They included castration, rape and repeated violence of the worst kind. Although they occurred many years ago, the physical and mental scars remain.

“Many of those who were detained and tortured were never tried and had little or nothing to do with the Mau Mau insurgency.

“The elderly victims of torture now at last have the recognition and justice they have sought for many years.  For them this significance of this moment cannot be over emphasised.

“We welcome the statement from William Hague today in the House of Commons, and also the sentiments expressed by the High Commissioner to some of the surviving victims today in Nairobi.  These words will hopefully go a long way to lifting the cloud that has hung over our clients for so long.

“It is also fitting that a memorial to those, for whom this acknowledgement comes far too late, will be erected in Nairobi, paid for by the British Government to remember those many thousands of Kenyans who similarly suffered torture and abuse in the colonial era.

“The British Government rightly states that it is the sign of a strength of a democracy that it is willing to learn from its past.   This case has been a long, hard struggle for justice; taking four years and two court defeats for the Government before they finally agreed to treat these victims of torture with the dignity they deserve.

“Our clients would like to pay tribute to the British legal system, which impartially and rigorously scrutinised the complex factual and legal issues raised by this historic case.   Equally, the role of the expert historians Professor Caroline Elkins, Professor David Anderson and Dr Huw Bennett in this case has been of critical importance.

“Our clients would also like to pay tribute to the Kenyan Human Rights Commission and the Mau Mau War Veterans Association who have provided them with every assistance during this arduous legal battle.

“We hope that this case will act as a reminder that there are human rights abuses so grave that they deserve recognition and redress even if the events in the question happened many years ago.  That was true of those who sought redress decades after the Second World War, including the British Prisoners of War of the Japanese (whom we also represented), and now it is equally true for these African victims of British colonial abuse.”

-ENDS-

The journey to justice has been long and arduous. For over ten years (since 2003), the Kenya Human Rights Commission (KHRC) and the Mau Mau War Veterans Association (MMWVA) have remained focused and relentless in their fight for justice for the Kenyan victims of colonial torture as well as for the rightful recognition of our liberation heroes within Kenya’s body politic. It is that focus and relentless commitment from the KHRC and the MMWVA that has yielded the victory—an out of court settlement with the British Government; an apology from the British Government; and the funding of a memorial from the British Government—that we celebrate today.

The KHRC has been working with the victims of colonial era torture since 2003, shortly after the Mau Mau movement had been un-proscribed. Prior to 2003 it had not been possible for victims to organise themselves and pursue a claim on behalf of survivors of the camps, since it had been unlawful to organize or take part in any activity of or on behalf of the Mau Mau society.

It was only once this ban was lifted that those who had suffered during the Emergency were able to form the Mau Mau War Veterans Association (MMWVA). The formation of the MMWVA saw the beginning of a slow and difficult process of identifying genuine survivors of the detention camps.

The KHRC contacted Leigh Day & Co. Advocates in London on behalf of the MMWVA who then moved to court to institute the case against the British Government, aprocess that has been riddled with a number of hurdles from the British Government including arguments on succession and limitation. However, on October 5, 2012 when the Royal Courts ruled that the case could go to full trial, which was a glimmer of hope that finally wheels of justice were rolling.

The protracted negotiations with the British Government took place after the Limitation judgment.  Yesterday, the Government announced that they were abandoning their appeal and:

1.  Made a statement to Parliament in London and to the victims in person in Nairobi acknowledging for the first time that Kenyans had been subjected to torture and other forms of ill-treatment at the hands of the colonial administration and expressed “sincere regret” that these abuses had taken place.
2. Agreed to pay compensation of £2,600 per claimant, amounting to a total of £13.9 million.
3. Agreed to finance the construction of a memorial in Kenya to the victims of colonial era torture.
4. Agreed to pay the legal costs of the case to ensure the claimants received all the agreed monies.

The proposed deal was put to all 5,200 Claimants and not one has turned it down. They have expressed delight that the world is now aware of the injustice they endured and that, at last, the British Government has acknowledged the wrong which was done to them.

The statement read by the British Foreign Secretary, Mr. William Hague is available on the British High Commission in Kenya’s website on:

https://www.gov.uk/government/news/statement-to-parliament-on-settlement-of-mau-mau-claims

Leigh Day& Co. have prepared a media brief which is available on http://www.khrc.or.ke/resources/publications/doc_details/61-long-march-for-justiceleigh-day-a-co-media-briefing.html

The Leigh Day & Co. statement is also available on  http://www.khrc.or.ke/media-centre/press-releases/145-lawyers-statement-in-response-to-the-british-government-announcement.html

The journey to justice has been long and arduous. For over ten years (since 2003) now, the Kenya Human Rights Commission (KHRC) and the Mau Mau War Veterans Association (MMWVA) have remained focused and relentless in their fight for justice for the Kenyan victims of colonial torture as well as for the rightful recognition of our liberation heroes within Kenya’s body politic. It is that focus and relentless commitment from the KHRC and the MMWVA that has yielded the victory—an out of court settlement with the British Government; an apology from the British Government; and the funding of a memorial from the British Government—that we celebrate today.

Today’s celebration is a true testimony to the fact that all those who commit serious human rights violations, regardless of their standing or position in society, or their might among the nations of the world, must be held to account for their actions. However, we are fully aware of the fact that such accountability is only possible if the perpetrators of human rights violations are subjected to a free, fair and functional justice system. We take this opportunity to thank the British courts for having provided that system for the Kenyan victims and the British government for having finally accepted responsibility for the serious crimes of torture that were perpetrated by the British Colony during the emergency period.

We note that today’s victory only marks one step in the journey for justice for the wrongs that were suffered during the fight for Kenya’s independence as well as providing a real opportunity for a meaningful acknowledgement of the heroic role of the Mau Mau in the struggle for our independence. Therefore, while it is commendable that the British have taken responsibility for the way they treated Kenyans during the Emergency, we will now turn our full focus and attention to the Kenyan Government and demand that it must also take full responsibility for its less than stellar treatment of the Mau Mau liberation heroes since Kenya became independent.

For example, the Mau Mau veterans have long standing issues around land that must be resolved. Most continue to live in conditions of abject poverty and squalor despite their gallant contribution to Kenya’s Uhuru. We hope that any outstanding issues facing the Mau Mau will now be addressed within the framework of the recently released TJRC report, the National Land Commission and the robust provisions of the Constitution of Kenya framework that recognizes the heroic roles of our Mashujaa as well as providing a framework for ensuring that the elderly live in dignity.

Finally we want to note that today’s celebration would not have been possible without the solid and honest commitment of the many men and women who held the firm belief that all those who commit serious human rights violations, regardless of their standing or position in society or their might among the nations of the world must be held to account for their actions if or when they are subjected to a free, fair and functional justice system. While it is impossible to name all of them, we want to take this opportunity to recognize the following for their immeasurable contribution to the Mau Mau cause:

1. Mzee Gitu Wa Kahengeri, Secretary General of the MMWVA: He has remained firmly committed to the course of searching for justice for the Kenyan victims of colonial torture and remained true and honest in his commitment to the Mau Mau.
2. John Nottingham:  We would not have come this far without his meticulous research on the colonial era torture and without his invaluable first-hand account of the terrible acts of torture that took place during the Emergency.
3. Prof. Makau Mutua and the entire KHRC board for their commitment to the Mau Mau case
5. The KHRC staff (both past and present who have worked on this case) and in particular Atsango Chesoni, our current Executive Director and her Deputy Davis Malombe, Steve Ouma, Dan Juma, Mikewa Ogada and George Morara who have all contributed greatly in pushing the wheel of justice for the Mau Mau case this far.
6. Our partners, Senior Counsel Paul Muite and Hon. Gitobu Imanyara as well as Njeri Kabeberi, the Executive Director of the Centre for Multiparty Democracy (CMD), for their unwavering commitment to the Mau Mau case.
7. Prof Carolyn Elkins of Harvard University and Prof. David Anderson for their ground-breaking research on the colonial torture of Kenyans.
8. We also want to thank the former Prime Minister Raila Odinga; the former Foreign Affairs Minister Moses Wetangula; the former Attorney General Amos Wako; the former Justice Minister Eugene Wamalwa and the current Attorney General Prof. Githu Muigai who all have made significant contributions to the Mau Mau case.
9. Last but not least, we want to thank Leigh Day for having taken this case up in 2003 and meticulously pursued it to its logical conclusion. We are most grateful to Martyn Day, Dan Leader, David Roberts, Rebekah Read, Kavita Modi and her field team and our QCs Richard Hemmer and Phillipa Kaufmann for a job well done!

Signed:

Atsango Chesoni, Executive Director, the KHR

Kenyan Members of Parliament (MPs) are known to be some of the best paid in Africa and in deed in the world. In the past they had they had the privilege of setting their own salaries. In the period 2008- 2013, Kenyan taxpayers paid MPs KES 851,000 per month and the President KES 2.4M per month. In the same period, Kenya’s per capita income has been KES 2,000 per month, while minimum wage remained KES 4,050 per month. This means the President earned over 595 times than the average citizen, while MPs in the 10th Parliament earned over 425 times more than the per capita income and 210 times more than the minimum wage paid to the many workers in the agriculture, plantations and allied sector whose sweat is the backbone of Kenya’s economy.

The same MPs in the 10th Parliament in October 2012 passed a bill to pay themselves a further ‘retirement package’ of over Ksh9Million (USD 110,000) each for the 210 MPs. Had this passed, at the time, it would have meant that at Ksh2,000 per month, it would take 61 years for the average Kenyan to earn the Ksh9M bonus that MPs had proposed for each of themselves. In addition to the bonus, the proposed retirement package for MPs included diplomatic passports for them and their spouses, a state funeral and access to the nation's VIP airport lounges. The proposal was thwarted following demonstrations by KHRC and other civil society organizations and public outcry on all media and that resulted in the President slashing the bonuses by half.

But in 2013, the Salaries and Remuneration Commission, a body with the constitutional mandate to among other functions set and regularly review the remuneration and benefits of all state officers include Members of the National Assembly and Senate, reviewed  their salaries downward from a high of KES 851,000 per month to amounts ranging between KES 532,500 – KES 710,000 per month. This was on the basis that the national wage bill that consumes up to 35% of the total national budget is unsustainable in the current state of the Kenyan economy.

However, even before getting down to business, the newly elected Members of the National Assembly have put high on their agenda their demand for pay rise and have rejected the pay cut.

So,what exactly should to elected state officers be doing to earn this money and are they actually offering Kenyanstheirmoney’s worth?

“Functions of Elected State Officers” breaks down the functions of the elected Members of the National Assembly , Senate down to the Ward Representatives that number upto 1450.  It provides short explanations on the functions that the different elected state officers should perform. It has been developed in response to studies that have noted the need to build the capacity of legislators to understand and better perform their role.

The brief also takes cognizance of the right to and duty of citizen participation now recognised in the Constitution of Kenya 2010. It is therefore also intended to help citizens to understand what functions each of the elected state officers ought to perform, be aware of how much s/he as a taxpayer is paying each elected state officer to perform these functions and create awareness on the fact that the Constitution now provides for citizens to recall nonperforming elected state officers. Finally, this brief provides a breakdown of some of the responsibility that citizens ought to take to fulfil their duty of citizen participation.