RUNAWAY INSECURITY IN THE COUNTRY: WHERE DOES THE BUCK STOP?

PRESS STATEMENT DECEMBER 20, 2013

We, the Human Rights Campaigners gathered here today, note with concern the cases of runaway insecurity in the country and the lackluster approach adopted by the country’s security organs in handling the situation. Article 238 of the Supreme Law obligates the Inspector General of Police and other relevant national organs to promote and guarantee national security of Kenyans subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

When Kenyans voted for a new constitutional order in August 2010, they did so with the hope that they were bequeathing unto themselves, a new governance contract anchored on a firm and solid foundation that would ensure that all Kenyans are in a position, and to the fullest extent possible, to enjoy all the socio-economic and political rights espoused in the COK 2010.  In terms of security, the COK 2010 is clear on the constitutional security guarantees for Kenyans, and indeed everybody else within our jurisdiction. At Article 29, the Constitution says, and I quote: “Every person has the right to freedom and security of the person, which includes the right not to be: c) subjected to any form of violence form either public or private sources”. Similarly, at Article 26, the Constitution is crystal clear that, and I quote, “Every person has the right to life”. Our Constitution also provides a framework of the key institutions and actors who have been given the constitutional mandate of ensuring that we are all safe and secure. These are clearly spelt out in Chapter fourteen.

However, despite the foregoing, we are alarmed at the recent levels of runaway insecurity experienced in the country. From the wanton killings of innocent Kenyans by an assortment of marauding gangsto the loss of lives in internecine inter-ethnic and intra-ethnic conflicts—sponsored by politicians and ethnic warlords—spreading from Moyale to Isiolo, Pokot, Turkana, Baragoi, and Bungoma to name just but a few places; to the numerous occurrences of car-jackings and robberies in Kenya’s urban centres; to the continued commercialization of cattle-rustling with its dire consequences amongst the pastoralist communities and their neighbours; to the illegal actions of extra-judicial executions carried out by the police under the ‘shoot-to-kill’ orders in the name of fighting crime and insecurity; to the now common incidents of terrorist-related killings with the worst being the West-Gate Mall siege; to the acts of sexual and gender-based violence meted out, mostly on women and young girls, by repugnant sexual predators; it looks like, unless urgent and concerted measures are taken by both state and non-state actors to stem the tide of rising insecurity in the country, we are fast sliding down a dangerous precipice of utter lawlessness.  The summary that has been presented to you in the power-point succinctly captures the overall state of insecurity in our country.

We want to reiterate the fact that the ongoing state of insecurity in the country is simply untenable. And, on that note, we call upon President Kenyatta and the Senior Security officials in the government to ensure that Kenyans are safe and secure in line with the COK 2010. We think it is in order to echo Mr. Kenyatta’s commitment and pledge to Kenyans during his inauguration speech where he stated that his government will strive for a safe and secure country, and we quote his speech of 9th April, 2013 which read in part, “Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”

The President must now start walking the talk. The buck stops with the President when it comes to the security and safety of our country. We want our country’s safety and security back! We view the ongoing lapses in security as a manifestation of bad governance—NOT AS A CRISIS OF GOVERNANCE—that must not be allowed to continue. We also hope that the on-going police vetting exercise will help us establish a professional police service that will ensure the safety and security of all Kenyans in line with the law. We therefore expect that the exercise will not be a mere smokescreen but rather a national exercise aimed at giving us a first class police service.   As Kenyans get ready to embark on the celebrations to mark this festive season, we hope that the government will do all it can within its capacity to ensure their safety and security.

Signed:

As it is now common knowledge, the KHRC and the MMWVA working with Leigh Day and Co  Advocates achieved an important victory when, on October 5, 2012, the Royal Courts of Justice in London ruled that the case against the British Government for the torture suffered under the colonial government during the state of emergency period in Kenya between 1952 and 1959 could go to full trial.

This journey to justice has been long and arduous. For over ten years (since 2003), the KHRC and the MMWVA 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  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.

The British Government challenged the case on two grounds- limitation and succession. They had argued that the case had been overtaken by time being over 50 years old and also that the Government of Kenya that took over the from the colonial government took over all its liabilities including such cases. However, they lost the case on both grounds when the court ruled that the case should go to full trial and they later agreed to a settlement with the MMWVA which constitutes the following:

1. A statement of regret that was  made by William Hague, the British Foreign Secretary, on the floor of the House of Commons on Thursday 6^th June, 2013;
2. An out of court settlement which will be in the form of payments to 5,228 individuals who are living victims of torture during the colonial era whose torture claims we have been able to authenticate; and
3. A monument to victims of colonial era torture.

Today, together with the MMWVA , the KHRC and the British High Commission launch the design competition for the Mau Mau Memorial. Find the details here: http://www.khrc.or.ke/get-involved/consultancies/185-mau-mau-memorial-design-competition-brief.html

THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT

Members of the CSO Reference Group, a network of civil society organisations (CSOs) working in a wide range of arenas for the public benefit across the country, are deeply disappointed with the recent publication, by the Attorney-General of the Republic of Kenya, on October 30, 2013, of the Statute Law (Miscellaneous Amendments) Bill, 2013 and particularly of the proposed amendments to the Public Benefit Organisations (PBO) Act, 2013. The Bill seeks, amongst other things, to amend parts of the Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10^th Parliament passed before the March 2013 General Elections.

CSOs have played a critical role in promoting and delivering socio-economic development, promoting social justice, good governance and democratic development, rights of participation, fundamental rights and freedoms and a wide variety of other outcomes for the benefit of Kenyans. The Statute Law (Miscellaneous Amendments) Bill proposes among other things to cap external funding of PBOs to not more than fifteen percent of the total funding. If passed and implemented, the Bill will have serious negative impacts on Kenya’s social and economic development. It will not only constrain the civil society’s contribution to national development but also make the attainment of socio-economic rights that much more difficult. If one looks at the fact that civil society contributes over KSh 100 billion to the economy, employs more people than the manufacturing sector per capita, benefits millions of Kenyans throughout the country and especially the vulnerable and marginalized amongst others, it is difficult to see how the Jubilee government will achieve many of its campaign promises, let alone Vision 2030.

Since September 2009, the CSO Reference Group has mobilized, informed and consulted widely on the reform of the NGO Act and provided recommendations on the development of the new PBO Act. The Reference Group sincerely appreciated the spirit of cooperation afforded by the government, Parliamentarians and other stakeholders in the formulation and passing of the PBO Bill into law.

The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations.

The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. With the publication of the amendments, the overarching objectives of the Act are under jeopardy. Key among these have been:

1. The re-birth of a sector guided by national values and principles, and upholding high standards of accountability and transparency, in the pursuit of the public benefit;
2. The meaningful protection of the freedoms of association, expression and assembly, which would enable individuals and groups to freely pursue their goals, in collaboration with others for the benefit of Kenyans;
3. The re-structuring of the legal and institutional framework for self-regulation, in order to ensure that the sector governs itself more effectively and engenders public trust; and
4. The facilitation of principled and constructive collaboration between the Government and Civil Society to address the numerous complex challenges facing society today.

The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for CSOs under the infamous Non-governmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for Planning and National Development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process.

It is common knowledge that the latest set of amendments are a narrow-minded attempt at restricting the activities of a few organizations that have rubbed the new administration the wrong way, and are therefore excessively disproportionate in their overall scope. Granted, the relationship between civil society and the state will not always be smooth, especially because of the former’s oversight and demand-based work. However, there is no reason why there should not be a structured, functional relationship based on shared development goals and other principles. To design legislation that aims to punish a few, whatever the state’s impression of the utility of their work, and then end up debilitating an entire sector is something the state would be well-advised to avoid.

Because of the foregoing, it should be abundantly clear that civil society will resist these latter-day attempts to stifle the sector and shrink Kenya’s hard-won democratic space vigorously. Kenyan civil society is aware of the risks of working in an illiberal environment, where the state determines what can or cannot be done, and the fact that the Kenyan state has borrowed from regional and international worst practice with respect to the latest amendments. It is also aware that this latest move is part of a broader scheme to generally restrict the exercise of rights, including the freedoms of expression and association. It will therefore mobilize effectively to resist these attempts and strive for a meaningful development partnership with the state under-pinned by respect for rights and freedoms rather than subservience to the state. As long as CSOs do not break the law, they should be allowed to operate freely in the multiparty democratic society that the Constitution proclaims Kenya to be.

THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT

On October 30, 2013 the Attorney-General of the Republic of Kenya published the Statute Law (Miscellaneous Amendments) Bill, 2013. The Bill seeks, amongst others, to amend parts of the Public Benefit Organizations Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10^th Parliament passed before the March 2013 General Elections. The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for civil society organizations (CSOs) under the infamous Non-governmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for planning and national development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process. From the outset, the following four issues are core to the country’s PBOs in relation to the proposed legislation:

1. The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill-advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations. The proposed amendments take the country back to the '90s era when the state treated CSOs as security threats that had to be muzzled along with other alternative voices, in a very restricted democratic space.

INSPECTOR GENERAL AND OTHER SECURITY ORGANS: STOP ARBITRARY DIRECTIVES AND EMBRACE ACCOUNTABLE POLICING WITHIN THE NEW CONSTITUTIONAL ORDER 

The Kenya Human Rights Commission wishes to strongly condemn the IGPs’ illegal directive of arrest of some media personnel for executing their societal duty of sharing information to the public. It is our submission that the media acted within its constitutional rights which are entrenched under Articles 33, 34 and 35 thus providing the requisite safeguards on the freedom of expression, freedom of the media and right to information, respectively among others.

Moreover, we wish to bring to your attention that Article 238 of the Supreme Law obligates you and other relevant national organs to promote and guarantee national security of Kenya subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Of course

In addition to this, we affirm that Article 10 on the National Values and Principles of Governance expects you to foster the same tenets plus good governance, integrity, transparency and accountability in making and implementing public policy decisions-including all the security operations.

It is on this basis that the Commission takes great exception in the manner in which the IGP has in the recent days issued arbitrary directives and indecorous warnings that are tantamount to stifling the said hard-earned civil and political rights. It is our considered opinion that this is part of the new and immoral schemes by your office, other state apparatus and merchants of impunity to muzzle our democratic space; undermine social accountability (over the many bungled security operations) and entrench political repression in the society.

While we appreciate the great efforts and sacrifice by our security apparatus to protect the country against internal and external threats, we wish to remind the IG and other members of the National Security Council that that as a state officer, he took an oath to obey, preserve, protect and defend the Constitution of Kenya in the management of the affairs of the state.

In the same vein, the KHRC greatly appreciates and recognizes the role played by other stakeholders to deal with the various insecurity crises and we particularly commend members of the fourth estate for their immense contribution towards enhancing the right to access to information by giving factual and timely information regarding many issues affecting Kenyans, with the most recent exposure of the Kenya state security agencies response to the Westgate attacks and other security issues and operations in the country and beyond.  We further recall that the president of the republic of Kenya once quoted as saying that “free media is the heart of democracy”

We wish to remind the IGP that it is through this great work by the media that Kenyans have been constantly informed about the escalating incidences of insecurity in the country particularly in the past ten months where over 200 innocent civilian and as well as dedicated security personnel, have lost their lives through preventable acts of criminality in situations of terrorist attacks as experienced in Garissa, Mandera and Nairobi (Westgate attack), organised illegal gang attacks in Bungoma and Busia, cattle rustling in Baragoi, Kuria, Pokot and Baringo counties, clan clashes in Moyale and Mandera and robberies. These incidences are reminiscent of the insecurity incidences we experienced last year most notably in Baragoi and Tana River. His incidences have further resulted in physical and psychological trauma of hundreds, thousands displaced and property worth millions of shillings destroyed or stolen.

These events evidently expose the existence of fundamental governance and structural deficiencies within the state security architecture which must be given the due attention it deserves and conclusively addressed.

The KHRC therefore calls upon:

1. The IG to unequivocally retract and apologize to the media and the country at large for the arbitrary and unconstitutional directives.
2. The state security apparatus to have a candid reflection on the gains and pitfalls of the Westgate and other security operations and formulate strategies that responds to both the roots causes and manifestations of insecurity in Kenya and within the established Constitutional principles and threshold.
3. The IGP to explore and exploit laid down procedures, if aggrieved by the conduct of some of the media personalities, to engage with the Media Council of Kenya to address his concerns.   The IGP should note that Kenyans do not want to see a return to the dark repressive days.
4. The IGP to stop acting as the mouthpiece of the KDF and instead reflect upon reforming the NPS to strengthen its operations to prevent and effectively respond to incidences of internal insecurity. The IGP should focus on policing within the COK framework and overall goal of making Kenya a safe place for all citizens and non-citizens in Kenya.
5. The President of the republic of Kenya together with the National Security Council, the leadership of the National security organs, other bodies and personalities charged with the security of this nation to critically examine the state security architecture and make hard and strategic decision for the sake the safety of Kenyans.

The KHRC wishes to remind the President of Kenya of his pledge to Kenya in his inaugural speech on 9^th April, 2013 which reads in part “…..Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”

We cannot underscore enough the fact that the government holds the primary obligation of ensuring safety and security of all citizens and others living in country. 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. This is a key element throughout the COK and emphasized further in article 238 of the COK.

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 of fellow human beings.

______________________________________________________________________________

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 envision a human rights state and society predicated on our mission of fostering human rights, democratic values, human dignity and social justice.

Davis Malombe,

Deputy Executive Director

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

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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.