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.

HRC ELECTIONS CAMPAIGNS MONITORING REPORT

PRESS STATEMENT

With just three days left before Kenyans go to the polls to conduct the first general elections under a new constitutional dispensation, a number of the key ministries, departments and agencies that are directly involved in the electoral process have assured the Kenyan people that they have put in place sufficient measures to ensure that the polling process will culminate in a credible electoral outcome that will secure a peaceful transition. The Kenya Human Rights Commission (KHRC) has, in the process of monitoring the preparedness of the country to engage in the March 4, 2013 general elections found out that a significant number of positive steps have been and continue to be undertaken towards securing free, fair and peaceful elections.

The KHRC commends the active measures as well as the firm commitments that have been given by the various state agencies and political parties towards ensuring a transparent and informed electoral process. Specifically, we want to single out the following initiatives:

• In our earlier interim report on elections released two weeks ago, we noted that civic education was sorely missing and that the IEBC needed to take roll-out civic education promptly. We are glad to note that the IEBC has actively taken up civic education ahead of the elections and that voter education is being conducted through various public fora as well as through media platforms, mainly through TV and radio infomercials. The recently concluded mock-voting exercise also offered the IEBC a good opportunity to test the voting system and where identified, take remedial measures ahead of the March 4^th General Elections.
• One of the biggest challenges facing the key political protagonists (ODM and PNU) in the lead-up to the 2007 General Elections was the insistence by ODM that the judicial system was partial and therefore incapable of handling an electoral dispute. Kenya’s Judiciary has undergone (and is still undergoing) radical transformation and there is increasing confidence among the Kenyan public that courts can be trusted to be impartial arbiters of all socio-economic and political conflicts. This bodes well for the country as we get ready to go to the polls on March 4, 2013. Politicians have publicly stated that they will handle any elections dispute(s) through the courts. The Chief Justice and the Judiciary have established electoral courts and regulations that will oversee the judicious determination of electoral disputes and the swearing in of new leaders at national and county level.

The joint calls by the presidential candidates to their supporters for the peaceful conduct of campaigns and elections through infomercials, campaign events and a recently concluded national day of prayer and peace concert. When politicians make calls for peaceful elections to their supporters;  when they are seen together in public making a commitment to the nation that ‘Kenya is bigger than any of their individual political ambitions’ and that they will resort to non-violent means to resolve any electoral dispute they might have, then it can be said that the right kind of messages aimed at cooling off the searing political temperatures as opposed to the inflammatory messages aimed at fanning tension are getting through.

• The undertaking of the Inspector General of Police to guarantee security and order throughout the electoral process is commendable. The country has witnessed serious incidents of insecurity in the lead up to the general elections and all measures must be put in place to ensure that Kenyans are safe especially during this time of high-stakes elections.
• The gazettement of the appointed National Land Commissioners by the President in light of the on-going heated debates on the politics of land-ownership and governance in Kenya is a welcome mitigating measure against the rising political temperatures around issues touching on real or perceived land injustices. The National Land Commission has been constitutionally mandated to address the issue of land reforms. Politicians should therefore avoid making land a divisive issue and give the Land Commission an opportunity to discharge its mandate and resolve all the issues surrounding land ownership and use in Kenya.
•  Various initiatives by the  civil society, private sector, religious and development organizations and other non-state actors, including ELOG’s innovative approach of establishing a parallel vote tabulation center and the UN Women’s launch of a situation room to observe and intervene on matters affecting women during the elections are all welcome measures to ensure that the integrity and outcome of the March 4^th General Elections is not compromised.
• The two Presidential debates that were held in the month of February 2013. We laud this noble initiative and take this opportunity to congratulate the organizers of the historic debates. The debates were significant since they sought to promote issue-based discussions around key governance concerns. While the jury is still out on whether the debates played any role in influencing the choice of voters—especially in moving them away from ethnic-driven voting to issue-based voting—we at the KHRC are confident that the debates mark the beginning of a new brand of politics where governance issues, as opposed to ethnic-mobilization, will be the determining factor in electing leaders into political office.
• Two days ago, the 17 constitutional commissions and independent offices with the mandate to deal with different components of electoral governance came together to appraise Kenyans of their preparedness-both at individual and collective levels towards elections. This has minimized political uncertainty and increased public confidence towards the electoral process and outcome.
• The outgoing president has also invited the eight presidential candidates, the chief justice and chair of the IEBC for a breakfast meeting which will be part of the confidence building mechanism ahead of the political transition.
• Finally, the presence of the Inter-governmental observer groups from the African Union, the East African Community, COMESA, IGAD, the Common Wealth, the United Nations and the European Union as well as a host of individual countries and other international elections observation groups provide an environment of ‘collective-watching’, which is likely to greatly diminish both the room and the opportunity of those who might be out to commit electoral malpractices.

All the foregoing measures are good in promoting a favorable environment where as a country; we will secure an open, peaceful and informed electoral process and a peaceful outcome to the 2013 general elections. However, a number of concerns still remain. In monitoring the campaign process, the KHRC found out that incidents that clearly show the continued flouting of electoral laws as relates to the political campaigns remain rampant. This report seeks to highlight the incidences of bribery, violence and intimidation, incitement and the use of unsavory language, the misuse of state resources during political campaigns as well as the destruction of campaign materials by political rivals that were captured by monitors in the course of the now almost concluded campaigns.

1. Voter Bribery: In blatant violation of the provisions of Section 64 of the Elections Act, several aspirants have engaged in attempts to induce support from voters through the direct or the indirect disbursement of monies to participants of public assemblies that the said aspirants have addressed. The practice of bribery is often indirect, with payments being made on behalf of an aspirant thorough his/her henchmen. Payments are usually in cash though some have opted to use the mobile phone money transfer services to disburse money to voters. This has also taken the form of buying identity cards with a view to disenfranchising voters based in areas perceived to be opponent’s strongholds.
2. Violence, Intolerance and Intimidation: Contrary to the guaranteed constitutional freedoms of assembly under Article 36 as well as the restrictions of the Elections Act in Section 67 (1) the use of violence and intimidation by some of the supporters of rival political parties continues to plague political campaign activities in some areas. There were near violent disruptions of campaign events in in Embu, Kiambu and Thika which would have degenerated were it not for the speedy intervention of the police service operating in those areas at the time. Over the last weekend, we also noted reported incidents whereby candidates were either booed or had their speeches disrupted in Nairobi, Kisumu and Baringo.
3. Violations targeted against women and other vulnerable groups:  Women candidates continue to experience intimidation from powerful offices and both discrimination and lack of support within their parties, being considered as weaker candidates.
4. Incitement and use of unsavoury language: In 2007 the overt use of hate speech and insults against political competitors contributed significantly to the violence that was experienced in the aftermath of the elections. The use of hate speech is no longer overt and resort is now had to subtle incitement and outright threats through the distribution of leaflets and application of unsavoury language whose effect is to create an atmosphere of irrational apprehension against competing candidates and supporters. While raising factual matters about an opponent’s policies and competencies is crucial to democratic debate, the vilification of one’s political rivals goes beyond what is necessary for democratic political dialogue. It is for this reason Section 67 (1) (m) of the Elections act criminalizes the dissemination of information with the intention of, amongst other things, creating hostility or fear in order to influence the process and outcome of the elections. While outright name-calling  has not been observed, there were numerous occasions where competing candidates  used phrases or imagery that portrayed their opponents in bad light or demeaned them.
5. Misuse of State Resources and Offices: The use of state resources has continued in campaigns regardless of IEBC warnings to the contrary. Our monitoring has continued to reveal that government vehicles are still being used in political campaign activities contrary to Section 68 (1) of the Elections Act. Often, these government vehicles are disguised with civilian number plates to avoid detection. Moreover, there are allegations that some state officers may be getting involved in politics and partisan electoral projects contrary to the existing laws and policies. We opine that the abuse of public resources and state offices in the process of political contest should raise significant questions about the party’s capability of respectfully and transparently applying state resources.
6. Destruction of campaign materials: The destruction of political party campaign material continues unabated despite the express reprimands against the same by the IEBC and the provisions of the Elections Act in Article 67 (1) (n). It seems that aspirants and their adherents are unwilling to contest fairly, respect the political space of others and abide by the explicit directives of the elections management body.

CONCLUSION:
In conclusion, the KHRC commends the above-mentioned state agencies including the IEBC; National Police Service and Judiciary, for the actions that they are taking towards ensuring the delivery of a peaceful and credible election. The KHRC also notes and welcomes the presence of national, regional and international observer groups. We are concerned that the above mentioned violations continue and request the relevant authorities and political players to ensure that the law is respected and enforced. We believe that ensuring the delivery of a peaceful and credible election will only be achieved if citizens also contribute by being vigilant and we urge our fellow citizens to take up this role. Finally, we take this earliest opportunity to urge fellow Kenyans to turn up in big numbers and vote peacefully and conscientiously during the March 4, 2013 General Elections.

Signed:

Atsango Chesoni,

Executive Director

Present at the event were women leaders in the judiciary, media, corporate and non-governmental organizations. It was noted that each of the guests represented triumph over obstacles and a reason to believe for the aspirants present that there is light at the end of their journey.

Speaking at the event, Atsango Chesoni from KHRC pointed out that the Women in Leadership initiative is designed to ensure more women are elected into public office come the 2013 general elections. She added that the female aspirants are still disadvantaged as compared to their male counterparts locally and their female counterparts regionally. She noted that Rwanda for example has a female majority in parliament while Kenya had less that 10% representation in the 10^th Parliament.

Atsango’s sentiments were echoed by Lindey Wafula an aspirant for the Makadara National Assembly seat who decried the little funding allocated to women candidates by the political parties. Ms. Wafula who previously contested for the same seat during the 2010 by elections said despite splitting of the constituency, she still has to pull in vital resources for the over 120,000 voters registered in her constituency.

The media as an election stakeholder also came into the spotlight as it was noted there is a huge disparity in the coverage of male and female candidates. Media coverage statistics it was noted are heavily inclined towards personality rather than issue-based politics and this has locked out most of the unknown female aspirants from the spotlight, denying them a platform that balances out the skewed playing field.

Other speakers at the event amplified sentiments raised above and called for the aspirants not to give up on their quest to have the female presence in public office. Njeri Kabeberi of the Centre for Multi- Party Democracy spoke on the gains in the women movement, lauding recognition that women rights are now considered as human rights. Grace Maingi from URAIA delved into the journey that has been women in leadership the long road. Winnie Lichuma from the National Gender and Equality Commision asked the aspirants to aspire for a legacy by having their politics driven by a vision of tomorrow. She noted that indeed people go into politics for various reasons and its only with a desire to serve the public that will the aspirants succeed as public servants.

Indeed for all the aspirants, having their names on the ballot paper represents a major milestone for women on the road to leadership. By bringing women leaders together, KHRC hopes that the gains made in women’s movement will be amplified and that women in leaders will form the cornerstone for the vision of Kenya’s future.

About the candidates:

• There are 1026 women candidates who will be on the ballot
• Presidential Candidate                       1
• Governor                                             15
• Senator                                                17
• Women Representative                      340
• National Assembly                              153
• County Representative                       500

• Kisumu leads with 3 followed by Uasin Gishu and Taita Taveta each with 2 gubernatorial candidates each. Only other 8 counties will have a woman gubernatorial candidate.

• 17 Women candidates will vie for Senatorial seats with Nairobi, Nyandarua and Busia each fielding 2 female candidates.

• Kisumu with 12 and Kiambu with 10 lead in number of candidates nominated for National Assembly seats with 12 and 10 respectively. Narok, Kericho, Mandera, Wajir, Marsabit and Tana River have no women aspirants for the National Assembly seats.

• Nakuru with 59 candidates leads the country in County Representative aspirants followed closely by Homa Bay 34, , Nairobi 27, Kilifi 24 and Nandi 22. On the flip side, Lamu, Marsabit, Mandera, Bomet, Elgeyo Marakwet, Kericho, Narok, Bungoma and Busia have no women candidates for this position.

• Counties with most candidates are Nakuru with 80, Nairobi 46, Homa Bay 45, Kisii 39, Machakos 37, Kilifi 34 and Muranga 33.

• Counties with the least candidates are Kericho and Narok with 5 each and Mandera and Bomet with 6 each.

Statement Calling Upon Kenyans to Ensure the Integrity of and Accountability for the Upcoming General Elections, 4^th March, 2013

The Kenya Human Rights Commission (KHRC) is issuing this position in light of its mandate of working towards a human rights state and society and within the context of the upcoming general elections scheduled for the 4^th of March, 2013.  The Commission believes that entrenching the culture of constitutionalism especially the implementation of the Constitution of Kenya, pro-people laws and policies and the democratic governance of elections are critical in the realization of this vision.

The upcoming elections are critical as they will be the first under the new constitutional dispensation ushered in by the Constitution of Kenya (2010).  Consequently, they will mark an important new step in the governance of our nation.  They are also the first national elections to be conducted after the tragic violence that occurred in 2007/2008.

The promulgation of the Constitution of Kenya (2010) was an important step in instituting a culture of accountability, respect for the rule of law, protection of human rights and principles of integrity in the governance of Kenya.  Article 3 calls on “every person to respect, uphold and defend” the Constitution. Article 10 of the Constitution provides that national values and principles of governance include: transparency, the rule of law, human rights, non-discrimination and the protection of the marginalized. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts applies or interprets any law; or makes or implements principles of governance.

Furthermore article 73 of the Constitution provides that:

Authority assigned to a State officer is a public trust to be exercised in a manner… that brings honour to the nation and dignity to the office; and promotes public confidence in the integrity of the office.

We note that all elective offices to be contested in the elections are state offices and that therefore our new President, Parliamentarians, Governors and Members of the County Assemblies will be bound by the provisions of Chapter Six of the Constitution and article 73.

We note with regret that, to date, only six individuals have been prosecuted and convicted[1] for their role in the post-election violence and that many Kenyans are still homeless as a result of politically related violence[2].  The issue of justice for victims and survivors of the 2007/2008 post-election violence is yet to be addressed; this amongst other factors therefore casts a shadow over the upcoming general elections.

It is on the basis of the foregoing that we register our strong disagreement with the decision delivered on 15^th February, 2013 by the High Court in Petition Number 552 of 2012 (as consolidated) on the question of the interpretation and enforcement of the leadership and integrity provisions of Chapter Six of the Constitution. We are of the opinion that this decision is erroneous in law and greatly undermines Article 22 of the Constitution.

Specifically, the decision to award costs to the Respondents sets a bad precedent on the conduct of public interest litigation. The ruling on costs is particularly chilling to individual citizens who wish to exercise their right to defend and/or protect the Constitution through courts. The ruling is a complete negation of Article 3, which obligates citizens to defend and protect the Constitution. It is therefore unfortunate that the High Court, having the jurisdiction to interpret the Constitution, chose to abdicate this duty to other constitutional bodies, which have in the past demonstrated their inability and unwillingness to interpret and implement the Constitution, especially in regard to Chapter Six.

We take this opportunity to remind Kenyans that Kenya’s legacy of impunity as manifested in inequality, failed institutions and bad governance practices led to the macabre scenes of violence experienced in the country in 2007/2008. Respect for the Constitution, and in particular the Bill of Rights and Chapter Six on Leadership and Integrity, is therefore absolutely critical to promoting a culture of constitutionalism.

The Kenya Human Rights Commission does not endorse any political party, or alliance of political parties.  The KHRC is committed to the rule of law and respect for human rights.  We therefore reject the election and appointment of any individual credibly implicated in and accused of any crimes and misconduct including crimes against humanity; economic crimes, gross human rights violations, moral turpitude or violations of any provisions of the Constitution. No matter who wins the March 2013 general elections, the KHRC will continue to engage in an active, peaceful campaign against impunity and will undertake a campaign to vindicate the values contained in our Constitution. We therefore call upon Kenyans to ensure that the upcoming elections meet the highest threshold of the rule of law, integrity, transparency, accountability, equality and respect for human rights.

Thank you

Signed:

Professor Makau Mutua, Chairperson, the Kenya Human Rights Commission

Ms. Betty Murungi, Deputy Chairperson, the Kenya Human Rights Commission

Mr. Davinder Lamba, Member of the Board of the Kenya Human Rights Commission

Professor Karuti Kanyinga, Member of the Board of the Kenya Human Rights Commission

Ms. Mumina Konso, Member of the Board of the Kenya Human Rights Commission

Mr. Mwambi Mwasaru, Member of the Board of the Kenya Human Rights Commission

Mr. Tade Aina, Member of the Board of the Kenya Human Rights Commission

Ms. Atsango Chesoni, Executive Director of the Kenya Human Rights Commission

STATEMENT OF CONCERN BY HUMAN RIGHTS DEFENDERS ABOUT INCREASED THREATS BEING FACED BY HUMAN RIGHTS DEFENDERS AND JOURNALISTS

We as human rights organisations are gathered here today to express our concern about the increased incidence of threats against human rights defenders.  We have noted with concern over the past six months an increasing trend in threats against human rights defenders.  The incidence of such threats has in the last three months intensified.

In particular we note that individuals and or representatives of institutions that have spoken out on the issues of the ICC and integrity have in particular received threats from senior members of the National Police Service.

We note that during the month of December, after the Civil Society Working Group on Police Reforms issued their statement of concern with regards to the integrity of some candidates for the offices of IG and DIG, various members of that team received threats.  We also note the recent berating by parliamentarians of the Chairperson of the Commission on Administrative Justice, Mr. Otiende Amollo, after the Commission made recommendations with respect to the exclusion of potential candidates on the basis of integrity.

We are also cognizant of the rather unpleasant tone that has characterized discourses with respect to the ICC and a continuous trend of ridiculing individuals who have spoken in support of the process or on the issue of witness protection.  In this regard we would particularly like to express concern about the situation pertaining to the Chairperson of the Kenya Human Rights Commission (KHRC), Professor Makau Mutua.

There has been recurrent harassment and intimidation of HRDs through threats, arbitrary arrest and detention and malicious prosecution of HRDs who have raised concerns with regard to deteriorating security situation at urban slums, and those at the forefront of highlighting corruption and champions for the rights of the poor and marginalized groups in the society is a cause for concern.

We have also received reports with regards to various journalists and other human rights defenders who have undertaken investigative work. We are concerned that these threats could have the effect of creating a climate of fear which is not conducive as the country is approaching the electoral period.

We wish to remind our fellow citizens that Kenya is a state party to the Rome Statute, to which it acceded voluntarily.  Furthermore the citizens of Kenya overwhelmingly voted for the Constitution in 2010, Chapter Six of the Constitution which enshrines the principles of leadership and integrity are a fundamental part of the principles and values that we as Kenyans have agreed to be bound by.

We urge all state organs and in particular the IEBC, the National Police Service Commission and EACC to support the initiatives being engaged in by the Kenyan people to ensure that we have leadership that meet the integrity standards that are laid out in our Constitution.  We commend the CAJ, Independent Police Oversight Authority (IPOA), CIC, KNCHR, the Judiciary and other bodies that have been standing up on issues of integrity.

We ask the Kenya Police Service, National Police Service Commission and IPOA as well as other state organs charged with the responsibility of security to reassure the public and human rights defenders that they have put in place measures to ensure their safety particularly in the lead up to and after the elections.