The British Government had moved to court to have the case struck out by invoking the defense of State Succession, transferring responsibility to the Kenya Government. This second phase will focus on the issues of the state of Limitation, and as expected, the British Government is already arguing that the case is time barred, with over 50 years having elapsed since the alleged atrocities took place.

We, at the Kenya Human Rights commission (KHRC), have however made all the requisite arrangements by preparing the witnesses both at legal and medical levels. Our lawyers, Leigh Day & Co Solicitors are optimistic that should we win this phase, then there is high likelihood that the British Government will be persuaded to settle out of court, due to expected snowballing of many more clams.

Implications

There are a number of implications to this case. It is creating a global awareness for the moral and legal claims of the Mau Mau. In this regard, it is a test case that may open Britain and by extension, other former colonial powers, up to hundreds of similar legal challenges and a compensation bill running in the millions, which would prompt the British Government to settle out of court. It also casts aspersions into the British Government’s proclaimed commitment to international justice as it has has been reluctant to confront its own shameful heritage. It has been opposed by Britain at every step.

The KHRC and the MMWVA also hope that this time the Kenyan Government will make good the promise it made to pay for the case and take off the financial burden that the case has hitherto imposed on the KHRC.  The KHRC had taken exception with the manner in which the Government of Kenya has handled the request for assistance in this case. In July 2011, the KHRC, MMWVA and the law firm of the Leigh Day and Co met with the Prime Minister Rt. Hon. Raila Odinga, the then Minister for Foreign Affairs, Hon. Moses Wetangula and the Attorney General Prof. Githu Muigai, all who categorically stated that they will support the Mau Mau case both at the financial and the political levels. Prime Minister Mr. Raila Odinga has once again publicly pledged government support for the case summoning the Attorney General to look the matter. This follows our complaint, which was the reported by both local and international media, on government reneging on its promise to support the case financially.

The “State of Emergency” 1952-1960

1.The full extent of the brutality of the British Colonial Government in the decade preceding Kenyan independence in 1963 has only recently been understood.  The work of historians, who have taken testimonies from numerous elderly Kenyans and carefully analysed the public records in Nairobi and London, has changed our understanding of this period of history[1].
2.“The Mau Mau rebellion” lasted from 1952 to 1960.  The core of the resistance was formed by members of the Kikuyu ethnic group, although a wide range of other Kenyan tribes also participated.  In 1952 the Governor of Kenya, Sir Evelyn Baring, declared a state of emergency and obtained authorisation from the Colonial Office in London to detain suspected Mau Mau members without trial.
3.On 24 April 1954, the Colonial Administration launched an assault on the Mau Mau which was known as “Operation Anvil”, whereby 17,000 Mau Mau suspects were rounded up and incarcerated in detention camps without trial.  Detainees were moved from one camp to another, where the treatment was of increasing or decreasing severity depending on the detainee’s willingness to cooperate and denounce the Mau Mau.  In particular, detainees were expected to confess that they had taken “the Mau Mau oath” and to repent of having done so.
4.It is estimated by historians that, over the years which followed, as many as 150,000 suspected Mau Mau members and sympathisers were detained without trial in a labyrinth of about 150 detention camps littered around Kenya known at “the Pipeline”.
5.From the inception of the detention camps the Colonial Administration engaged in widespread acts of brutality.  Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment.  The acts of torture included castration and sexual assaults which, in many cases, entailed the insertion of broken bottles into the vaginas of female detainees.  Camp guards engaged in regular severe beatings and assaults, often resulting in death.  In the course of interrogations guards would hang certain detainees upside down and insert sand and water into their anuses.
6.In 1957, the Colonial Administration decided to subject the detainees who still refused to cooperate and comply with orders to a torture technique known as “the dilution technique”.  The technique involved the systematic use of brute force to overpower the Mau Mau adherents, using fists, clubs, truncheons and whips.  This brutality would continue until the detainees cooperated with orders and ultimately confessed and repented of their alleged Mau Mau allegiance.[2]

7.The dilution technique was officially endorsed by the Colonial Office in Britain and was implemented in five camps on the Mwea plain (“the Mwea camps”) in March 1957.  The technique was administered under the command of a British Colonial Officer, Terence Gavaghan, and was named “Operation Progress”.  The Colonial Administration thereafter authorised the extension of the dilution technique to other camps, including those at Athi River, Aguthi and Mweru, all of which became known as “filter camps”.

8.In short, the dilution technique was used as part of an orchestrated regime of systemized violence which had been approved at the highest levels of the British Government and which resulted in grave injuries and, in many cases, death.

In particular, in March 1959, eleven detainees were killed by camp guards at a detention facility known as the Hola Camp in the Tana River District of Coast Province.  The Inquest found that each

9.death was caused by shock and haemorrhage due to multiple bruising caused by violence at the hands of camp officials.
10.The public outcry which resulted from the Hola killings lead to the Fairn Report, which was published on 1 September 1959 and admitted the use of excessive force in the emergency detention camps.  The emergency was ended on 13 January 1960 and the camps were closed.   Harold Macmillan gave his “Winds of Change” speech on 3 February 1960 and Kenyan independence was eventually granted in 1963.
11.Prof Elkins states:

“There is no record of how many people died as a result of torture, hard labour, sexual abuse, malnutrition, and starvation.  We can make an informed evaluation of the official statistic of eleven thousand Mau Mau killed by reviewing the historical evidence we know…The impact of the detention camps and villages goes well beyond statistics.  Hundreds of thousands of men and women have quietly lived with the damage – physical, psychological, and economic – that was inflicted upon them during the Mau Mau war.”

The first batch of the Mau Ma War Veterans Association (MMWVA) Wambugu Nyingi, Paulo Nzili, Jane Muthoni Mara and Naomi Nziula Kimweli left for London  on July 8, 2012, accompanied by George Morara, a programme officer at the Kenya Human Rights Commission to attend the second phase of the hearing. The second team consisiting of the veteran’s spokesperson Gitu Wa Kahengeri together with John Notingham and Muthoni Wanyeki who are witnesses to the case and legal advisor Paul Muite joined them on July 15, 2012.

THE LAUNCH OF THE ELECTIONS MONITORING AND ADVOCACY PROGRAMME: Toward an Accountable, Ethical and Rights-Based Electoral Process

Introduction

The Kenya Human Rights Commission (KHRC) is pleased to announce the launch of its Electoral Processes Monitoring Centre for the upcoming general elections under the new constitution, the Constitution of Kenya, 2010 (COK, 2010). Over the years the KHRC has engaged with electoral processes to promote democratic, accountable and human right-centered governance.

KHRC has consistently championed free and fair elections as an important first step towards enhancing accountability, promoting human rights and ensuring a government that is truly representative of all persons and communities within the country. The KHRC believes that the COK 2010 provides the basic foundation that is expected to guide the conduct of free and fair elections through the established electoral institutions, procedures and rules.

KHRC is confident that the proper conduct of elections under the COK 2010 will serve as a critical milestone towards the realization of a free and open society that respects human rights and fundamental freedoms for all. To this end we have established an Electoral Processes Monitoring Centre (EPMC) whose main focus will be to scrutinize the actors, processes and rules that are expected to have the greatest influence on the outcome of the general elections. The Centre is supported by 36 trained monitors who are already working in 17 counties that have been mapped across the country.

1. The Rights-Based Approach

The KHRC will apply international human rights standards to monitor the electoral processes. Using a rights-based approach, the KHRC will scrutinize the extent to which the fundamental rights and freedoms that are necessary to the democratic and accountable conduct of elections are applied, protected and promoted in accordance with the letter and spirit of the constitution. The rights monitored will include: the freedom of expression; the freedom of assembly; the freedom of movement; the freedom of the media, access to information, equality and freedom from discrimination as well as all the elections related rights as set out both within  the national, regional and international human rights instruments.

Specifically, the KHRC will lay emphasis on the education, participation and registration of voters; political party nominations and campaigns; and the actual polling and post-polling processes from July 2012 up to June 2013.  Throughout this period, the Commission will pay particular attention to women, youth, persons with disability and other marginalized groups to ensure that unscrupulous politicians who either exclude or misuse these groups during the electioneering period are duly exposed and deterred as per the established law. Finally the KHRC will monitor and respond to cases of sexual and gender-based violence (SGBV), which are mostly meted out against women during the election period.

2. Key Actors and Processes

The KHRC will be monitoring the following key actors within the electoral process before, during and after the general election’s date with the intention of determining the extent to which these actors influence the free and fair conduct of the general elections:

a) Monitoring Political Parties and Aspirants

The conduct of aspirants and political parties in previous elections has been marked by a multiplicity of human rights violations and acts of gross electoral misconduct that have had an adverse effect on the outcome of those elections. Consequently, the KHRC will be monitoring the conduct of political parties and aspirants for violations  during the electioneering process with regard to the following issues:

1. Use of violence, threats of violence, militias and criminal gangs against all persons, whether contestants or the electorate
2. Gender-based violence and discrimination
3. Use of hate speech and unsavoury language in electoral campaigns
4. Abuse/misuse of public resources (physical, financial and human resources) by those in power to their unfair advantage in the electoral contests. Public resources also include assets belonging to public benefit entities such as Churches, NGOs or CBOs
5. Voter buying, voter bribery, unwarranted  assisted voting and voter intimidation 

b)Media Monitoring

The media will play (and in fact does so on a daily basis) a fundamental role in informing and alerting the public of the opportunities, dangers, threats and choices that they will face throughout the electoral process. Political coverage, whether through mainstream news, documentaries, advertisements or infomercials, will therefore be a key area of focus in KHRC’s monitoring of the electoral process.

We will pay keen attention to activities of both the aspirants and political parties as reported within the media on the one hand and the activities of the media itself on the other. We will especially scrutinize the level of coverage given by media houses to various aspirants and political parties and the extent to which media houses adhere to standards of fairness and responsible broadcasting during the electioneering period.

It will be important to know whether candidates are accorded equal access not just in unpaid airtime and space but also equal access in political advertising where no aspirant or party is locked out by unfair advertising practices such as fixing of exorbitant rates. To this effect, we have written to the regulator, the Communications Commissions of Kenya for intervention regarding tracking and having a ceiling on amounts charged for political advertising.

We are also employing ICTs to monitor violations occurring on both the traditional media and the social media with a view to reducing incidences of incitement and hate speech. The public can use the SMS numbers 0708000555 OR 0734447444 to report violations which will then be channeled through the USHAHIDI platform for faster response to violations.

c)Monitoring of Relevant Institutions:

As you recall, the Constitution and enacted legislation have established various bodies which are to play specific fundamental roles throughout the electoral process. Of particular importance are the Independent Electoral and Boundaries Commission, the Registrar of Political Parties, the National Cohesion and Integration Commission, the Panel on Elections Dispute Resolution the National Police Service and the Independent Policing Oversight Authority, the Director of Public Prosecutions, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the National Gender and Equality Commission and the Communications Commission of Kenya.

The KHRC will monitor the response of these institutions on the violations and trends against their mandate with respect to the electoral processes. The Commission will partner with and support them in making proactive responses with regard to matters raised.

3.Advocating for Leadership and Integrity:

The Constitution requires the enactment of legislation that will ensure the realization of the principles and standards set out in Chapter Six. However, in the absence of legislation, these principles must still be implemented in accordance with the letter and the spirit of the Constitution.

The KHRC, in engaging with the design of the legislation on leadership and integrity, has conducted research on the important aspects that must be captured within the draft Bill. The KHRC expects that the draft Bill will establish the proper vetting mechanisms that set the standards that will put into effect the provisions of Article 10 on National Values and Principles and Chapter Six.

These include standards and criteria for profiling, vetting, lustration and litigation on matters of leadership and integrity for elective and appointive positions.  In this regard, the KHRC has narrowed the fundamental principles to the following ten-point clearance checklist that must be met by any individual aspiring for State or Public office:

1. Tax Compliance
2. Certification from the Ethics and Anti-Corruption Commission
3. Certificate of Good Conduct
4. Clearance letter from the Chief Registrar of the Judiciary
5. Clearance from the Credit Reference Bureau Africa Limited
6. Clearance from the Higher Education Loans Board
7. Clearance from the relevant/respective professional associations
8. Clearance of Kenya Counseling Association
9. Clearance from the National Intelligence Service
10. Clearance from independent commissions under the Bill of Rights (i.e. the Commission for Administrative Justice, Kenya National Commission on Human Rights and National Commission on Gender and Equality

Click here to see the full document

Based on these ten-point criteria, the KHRC is at an advanced stage of compiling a profile of aspirants who have been adversely mentioned in various official and records. This will produce a detailed list of shame which will be used to block the candidates from taking political offices through administrative, legal and civic actions both at the national and county levels.

Similarly, and as part of strengthening the culture of open and meaningful representative democracy, we are compiling a case digest of electoral offenses and we will be instituting court actions and engaging in legislative advocacy around other election-related issues and processes.

We believe that this threshold will give us a general election outcome that will move our country toward a constitutional democracy and away from a repeat of the serious violence that rocked our country following the disputed 2007 presidential poll.

We therefore call upon the public and all stakeholders to remain vigilant and proactive as these processes roll-out to ensure an accountable, ethical and rights-based electoral process.

END

Signed:

Atsango Chesoni

The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).

The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year in which countries’ statuses are reviewed.  Kenya’s acceded to the ICCPR in March1972.

• Kenya will be reviewed by the HRC on its compliance with its obligations under the International Covenant on Civil and Political Rights (ICCPR) from the 16th to the 18th of July in Geneva, Switzerland.  OHCHR-Kenya in partnership with Kenya Television Network (KTN) will broadcast live the Tuesday July 17, 2012 at 3.00pm  and Wednesday July 18, 2012 at 10.00am  HRC dialogue with Kenya delegates and that the public sessions will be on the webcast at the following address www.treatybodywebcast.org
• The Government submitted its report in 2010, but has since added an addendum this year with respect to the developments that have occurred after August 2010.
• A number of civil society organizations have submitted alternative or shadow reports to the Human Rights Committee for consideration during the review, which should be used to gauge the government performance.

Thematic areas of advocacy that the Civil Society Coaltion on Civil and Political Rights has made submissions are summarised in the Civil Society ICCPR Advocacy Brief and they include:

• Rights of marginalised communities and minority groups
• Protection of refugees and asylum seekers
• Access to effective remedies
• Prevention of forced evictions
• Prohibition gender based violence
• Right to life
• Prohibition of torture
• Prohibition of arbitrary detention
• Prohibition of arbitrary detention
• Slavery, servitude and forced labour in practice
• Right to privacy
• Freedom of opinion, expression, assembly and association
• Protection against propaganda, discrimination and national, religious, or racial hatred
• Electoral rights

The Constitution provides that Parliament shall not confer advantages to itself and any law that grants such an advantage should only come at a later date. Section 34 of the Elections Act which reads thus: “the nomination party lists to be submitted to IEBC before the elections may not contain the name of any presidential or deputy presidential candidate nominated under the Act”. The original bill worked on by the Commission for the Implementation of the Constitution (CIC) had used the stronger term “shall not” but that was watered down by MPs to “may not”. Party lists were meant to be affirmative action for the persons with disabilities, women, youth and marginalised communities in the National and County Assemblies as well as the Senate. The above proposal gravely undermines the principles of affirmative action which the Constitution aims to promote

As the Kenyan public, we read mischief in the manner and speed with which this amendment is being executed. Further, the drive to amend the Political Parties Act to give party leaders rejected by the people at the ballot a chance is a manifestation of narrow self-interests of politicians and at best perpetuation of impunity. Kenyans must rise up against these schemes by Members of Parliament to erode reform as established by the Constitution of Kenya 2010.

KPTJ would also like to remind His Excellency President Mwai Kibaki and the Right Honourable Prime Minister Raila Odinga of the commitments they made on the 27^th August 2010 to uphold the Constitution and promote adherence to and respect for the rule of law.

KPTJ wishes to remind the Members of Parliament that the proposed amendment negates the principle of constitutionalism requiring  that all governance matters and actions be limited by the Constitution as opposed to rule by the arbitrary judgment and whims of public officials. We call on the Members of the August House who are reform-oriented to reject this latest scheme to rob Kenyans of the gains made through the Constitution.

We take note that the CIC already termed these amendments as unconstitutional and we hereby support that view. Should the Bill be enacted into law we shall, together with other like-minded organizations and individuals, take legal action in courts of law, so as to uphold, defend and protect the letter and spirit of the Constitution.

In conclusion, these amendments are a manifestation of the absurdity and the lengths to which its proponents are willing to impose bad laws on Kenyans. To this end, we pledge ourselves and call upon all other Kenyans to take responsibility for the new Constitution, resist all attempts at undermining the new Constitution, and speak up and organise against the impunity, injustice and corruption that is perpetrated across this great land.

Signed this Thursday, June 21, 2012, on behalf of Kenyans for Peace with Truth and Justice,

_____________________________

Atsango Chesoni – Executive Director,

Kenya Human Rights Commission

The Kenya Human Rights Commission congratulates Tom Kagwe, the Senior Programme Officer for having successfully applied and been appointed to the Board of the Independent Policing Oversight Authority (IPOA). Tom has been instrumental in pushing for security sector reforms here at the KHRC where has has served for the last six years.The KHRC is definitely proud to be associated with such a hardworking and passionate individual who has been at the for front of working for alternative and transformative leadership in Kenya.

Knowing how poorly the police department has performed, IPOA has a Herculean task ahead but it is our sincere hope and belief that it will bring the requisite changes to transform the security sector of this country. Expectations from the public are high ranging from stamping out corruption to a faster rather than slower transformation from the Police Force to the Police Service.

In his report, Mr. Obura stated that the history of conflict in that region had largely been based on cattle rustling or livestock theft, unresolved land grievances and political issues. The areas affected by the current cycle of conflict were identified to be Tinderet, Muhoroni and Aldai districts. In his estimation, the overall results of the violence that began on the evening of February 25, 2012 were 10 fatalities, 22 persons injured, 1,576 Internally Displaced Persons (IDPs), 100 houses burnt down, 217 houses looted, over 222 acres of sugar cane burnt down and an unknown number of cattle stolen. It is on the basis of this report and media coverage on the same that the KHRC urgent action committee resolved to conduct a fact-finding mission in the region.

The Findings

The findings of the KHRC fact-finding mission are of great concern.

1. While relative calm has been restored in the area following the deployment of General Service Unit (GSU) officers in the region, the victims however view such calming of tensions as temporary in the absence of a permanent presence of GSU officers in the area and additional police posts at the incident sites. Security concerns therefore remain a foremost issue.
2. It was evident that the government through the then provincial administration had provided some measure of humanitarian assistance to the victims; however, there are substantial concerns that need to be addressed.  For instance Owiro Primary School and the then Muhoroni District Commissioner’s office offered safe haven to victims fleeing the conflict but did not have a sufficient number of tents to house the families seeking refuge. The camps established reportedly received food rations which were deemed as insufficient by the displaced families.
3. While some information is available through consultations between the victims and the offices of the then District Commissioner, there has been no concerted effort to conclusively and comprehensively document the true impact of the conflict in terms of injuries, the number of persons displaced, loss and damage to property. As a result there is no authoritative database of IDPs emanating from this conflict and this is bound to adversely affect the assistance and protection accorded to them.
4. Further, there has been no indication or undertaking from government officials to assist the displaced persons reconstruct their burnt down houses or restore their livelihoods in light of their lost crops and livestock.
5. What is worrying though is that there are inconclusive reports that attribute the current cycle of conflict to factors that go beyond the conventional wisdom of cattle rustling/ livestock theft. These include: tensions around land settlement schemes and in particular, the Kibigori plantation project; and political tensions currently exacerbated by the ongoing Kenyan cases before the International Criminal Court (ICC) and the ethnic ties of some of suspected perpetrators and some of the accused persons at the ICC. Some victims further accuse various local politicians and private citizens of supporting the violence by offering the perpetrators financial and other forms of material support.
6. The victims of this conflict have suffered a similar fate of displacement in previous episodes of conflict and there is growing support for resettlement as the most viable durable solution.
7. Commendable, though, is that there are ongoing attempts at reconciliation through dialogue forums between the Luo and Nandi as communities most affected by the conflict. Indeed, the National, Cohesion and Integration Commission (NCIC) during a baraza, encouraged the community members to continue the process of dialogue. The mission team however noted a dissenting opinion from some community members who felt the dialogue process was thus far superficial and did not address the true underlying causes of the conflict such as land.

Recommendations

In light of the aforementioned findings, the mission team makes the following recommendations:

1. The government through the Ministry of State for Special Programmes (MoSSP) takes the lead in coordinating a comprehensive programme that will see both the immediate and long-term assistance needs of IDPs from this conflict addressed. In the short-term, the government should provide: sufficient food rations, tents for shelter, medical supplies and clean drinking water. In the long-term, the government should provide support in the reconstruction of burnt down shelters and support the resumption of livelihoods through the recovery of livestock and support in replenishing lost crops. The support of humanitarian agencies should also be sought in facilitating such assistance.
2. The MoSSP should coordinate the documentation and profiling of IDPs from the conflict as a matter of urgency. The IDPs must however be consulted and be active participants if the profiling process is to be legitimate and valid.
3. The government should consider lasting solutions to the security concerns in the area such as the establishment of permanent police posts in the areas that have consistently registered instances of livestock theft.
4. The police in the course of its investigations should explore the validity of allegations that the conflict was orchestrated and supported by various politicians and private citizens and in the presence of conclusive evidence, arrest and prosecute such persons.
5. The attempts at community dialogue must be maintained and encouraged with the support of the local administration, NCIC and relevant non-state actors.
6. An analysis of the conflict trends and the underlying issues fueling the conflict must be undertaken. This will assist in identifying the true drivers of the conflict and isolate them for resolution.

Given the findings above, failure to adequately and conclusively address these issues, leaves communities sitting on a time bomb, vulnerable to clashes reminiscent of the 2008 PEV.

KHRC in conjunction with other relevant stakeholders continue to monitor the situation in this area with a view to assessing ongoing efforts of assistance and recommending the most viable durable solutions.

KHRC’s fact-finding mission was conducted by a three-member team namely George Morara, Andrew Songa and Eva Kaloki, all of the KHRC, accompanied by Mr. Obura. The mission, conducted over a period of two days from March 8-9, 2012, consisted of visits to sites of violence, interviews with the provincial administration and interviews with a cross-section of victims.

Due to time constraints, the mission team was only able to visit two epicenters of the conflict, namely: Nyangore sub-location in Muhoroni district and Owiro farm in Tinderet district. Some of those interviewed included: Mr. Washington Obura, IDP Network Coordinator for the Kisumu region; Helen Ongere HURINET Coordinator for Nyando region; the then District Commissioner for Muhoroni District, Mr. Ake Abwaku Solomon and a total of eight victims from Nyangore sub-location and Owiro farm.

Compiled by Andrew Songa and edited by Beryl Aidi

In the recently concluded GEMA Limuru II and the KAMATUSA meetings in Eldoret, the groups’ religious and cultural “leaders” made a raft of declarations and demands around the ICC process and the elections whose effect is to mobilize a total of 5 million signatures to lobby parliament into petitioning the UN Security Council to seek a deferral of the Kenyan cases at the ICC in order to facilitate “fair elections”.

Let us be clear. The UN Security Council only acts to defer cases at the ICC where it is convinced that there is a threat to peace. We hope the latest attempt is not meant to be a veiled warning of violence. Let it also be clear that a postponement of the trials means postponement of justice both to the accused and victims. Why are we seeking to defer justice?

Kenya has already made a highly publicised but unsuccessful attempt to influence the UN Security Council to defer the ICC cases against the original six suspects. The attempt to revive this petition by collecting signatures is an indication that the groupings, by dint of their declarations are bent on ensuring that the elections shall not be perceived to be free and fair if the Kenyan cases before the ICC are not deferred. The ICC process is a legal process and as has been noted by representatives of the Court is not premised on the electoral calendar.

Further, the declarations and the meetings are exclusive to seven (7) of the more than 40 ethnic communities in Kenya. This goes against the spirit and letter of the Constitution; the very Constitution that the two parliamentarians who are accused and several of their sympathizers swore to protect and uphold. In particular, actions that result in ethnic polarization contravene Article 10 of the Constitution, which enshrines the national values of national unity, inclusiveness and social justice.

We therefore:

• Note that the so-called “prayer meetings” are contrary to the spirit of Article 10 of the Constitution, which calls for patriotism, rule of law, national unity, social justice and inclusiveness. We commend the religious leaders who have spoken against these prayer meetings and pledged not to offer their pulpits as platforms for sowing seeds of ethnic discord.

• In unequivocal terms, condemn the ongoing ethnic mobilization and polarization, which, we note, was one of the factors that led to the 2007/8 post-election violence. In the same breath, we call upon the police and the National Cohesion and Integration Commission to monitor, investigate and prosecute any activities that may lead to ethnic polarization even if held under the auspices of “prayer” or “cultural meetings”.

• Wish to set the record straight by reminding Kenyans that the ICC is a court of law and not a political court; and that Kenyans should, therefore, not be hoodwinked into believing that a public petition can interfere with or stall the ongoing ICC cases. We urge the citizens of this country not to be drawn into any processes of building exclusive ethnic blocs for the political expediency of one or two individuals and that may cause more Kenyans to lose their lives or suffer further injustices.

• Take exception to the recent comments by the Minister for Justice, Hon. Eugene Wamalwa, to the effect that his Ministry has nothing to do with the ICC process. By virtue of its functions and mandate the Ministry of Justice, National Cohesion and Constitutional Affairs is charged with making policy on administration of justice, social justice, elections and national cohesion, which then makes it integral in the ICC process.

• Call on all responsible agencies to be vigilant about the safety of the ICC witnesses in light of the recent attempts to expose presumed ICC witnesses. This should be viewed as a broader scheme aimed at defeating the ICC process through intimidation. Further, we note that this is a violation of the conditions for release set by the ICC Pre-Trial Chamber II to the accused not to directly or indirectly interfere with witnesses.

Signed:

Atsango Chesoni,

Executive Director, Kenya Human Rights Commission

“A female employee proceeding on maternity leave shall apply for the same and will be entitled to payment upon return to work with the dues being paid to the employee after working for one month” says the report quoting from some flower farm company policies. This contravenes the employment act which states, “A female employee shall be entitled to 90 days maternity leave without loss of benefits”.

The report titled, Wilting in Bloom: The Irony of Women Labour Rights in the Cutflower Sector in Kenya, established that this subtle discrimination begins to manifest itself through pre-employment pregnancy tests which are part of company practice. Further, some employees are forced to proceed on maternity leave 2 months before their due date; which in some cases results to women taking less than 2 months maternity leave after delivery. 20% of the flower companies in the study were found to apply this practice, thus violating women’s rights to time to recover after delivery and care for their newborn child. Requirements by Fairtrade companies recommend 6 weeks compulsory maternity leave post-delivery.

The Kenya Employment Act 2007 states that, “a female employee shall be entitled to 90 days maternity leave on giving 7 days notice and without loss of benefits. An employee proceeding on maternity leave may apply to take annual leave consecutively”.

The KHRC report also highlights the systematic replacement of women in certain departments in the flower industry that were traditionally women dominated due to the delicate handling required. During the study, some Companies admittedly volunteered information on their preference to employ men for jobs that have been traditionally segregated for women as women are proving too expensive to employ. Some workplaces have moved from 70% women to 50% women and still going down such as pack-houses. The state is obligated under ILO convention 183 to put in place measures that ensure that women do not get disadvantaged as a result of the increase in the maternity leave period.

Women, who play more reproductive roles than men, constitute the majority of employees at cut flower farms and of these, single -mother employees account for over 55% of the staff, according to the report. According to the report, women staff working in flower farms have an average of 3 children and leave them in ‘day care’ centres. During the study KHRC established that these so called ‘day care’ centres are unhygienic and unsuitable for human habitation, with reports of children suffering rickets and malnutrition while in such facilities.

Findings of the report show that the women with young children both single and married alike have no supportive social structure to care for their children, and such there is a proliferation of day care centres in the suburbs where workers live. Reporting time in most flower farms is between 7.00 and 7.30am and during peak hours the employees could work until 9:00pm.

“These ‘day care’ centres are mainly single roomed residences that are converted to be day care facilities during the day. Women leave their children in these facilities and are required to leave food and changes of clothes for the children during the day” states the report.

Facilities are the ‘day care’ centres are wanting, as the study found most of the toddlers are dropped with food which often goes bad during the day as there are no facilities to preserve or warm it. A visit to one of the day care facilities revealed that there were 20 children of different ages cramped in a 10”X10” room with only one wet bed available for all the children. The centre had two care givers who forced children to remain seated on the cold cement floor for hours on end.

In Naivasha, the study indicated that malnutrition and inability by some parents to provide food for the children was prevalent, as some care givers told researchers that it is not uncommon for women to leave their children without any food in these facilities.

The study was done in 15 farms located in Naivasha, Thika and Athi River and focused on 6 key areas namely: equal pay for equal work, maternity and paternity leave, child support, sexual harassment, dismissal, and casual labour and contracts”.

Further findings of the KHRC report indicate that women in the flower sector are “time-poor” and hardly invest in preventive or promotive health care let alone nurturing the family. Some employers argued that workers can use their one day off per week to visit the health facilities.

The report also reckons specific serious health and safety violations in certain farms such as spraying and burning of sulphur at night when workers are in their homes which close to the farms. High prevalence of oedema reported by women in pack-houses as a result of standing for a long work days without work breaks was also reported during the study.

In general wages in the sector, like other labour intensive driven sectors, are too low to cater for workers basic necessities of housing, food, healthcare, child education, childcare, transport, water and clothing.

The role of the Ministry of Labour is central to the realisation of women labour rights as the women of Kenya lack in mechanisms of accessing judicial means of enforcement. During the study, officer’s admitted the Ministry suffers poor “working environment in addition to inadequate staff, insufficient budgetary allocations, dilapidated and obsolete equipment and inadequate operational facilities, among other difficulties”.

However, the study showed marked improvement on prevention of sexual harassment in workplaces with 46 percent of respondents reporting policies in place to be adequate to protect workers.

We the Kenya Transtional Justice Network (KTJN) are concerned that the embattled former Chairman of the TJRC is seeking to reclaim his position again.  This is happening when the commission, though riddled with many integrity and operational problems is supposed to wind up its work and submit its final report in May 2012.  It is now clear to the general public that Kiplagat is led by personal ambition as opposed to the greater good of the country and especially victims of human rights violations, victims he claims to care about.

Kiplagat was sworn in as the chair of the TJRC on the 3^rd of August 2009.  Immediately after his appointment, victims and human rights defenders under the umbrella of KTJN opposed this appointment and asked him to resign pending an investigation by a tribunal as provided for in the TJRC act.   This was because of his alleged links to issues expected to be investigated by the TJRC including: the Wagalla Massacres; political assassinations (especially the murder of Dr. Robert Ouko) and illegal and irregular allocation of public land (as adversely mentioned in the Ndung’u Report).

On 13^th April 2010, the rest of the TJRC commissioners petitioned the then Chief Justice Hon Evans Gicheru to form a tribunal to investigate the conduct of Mr Kiplagat. On 12^th of October 2010, the human rights organizations in Kenya under KTJN petitioned the same chief justice to set a tribunal to investigate Kiplagat.  In February 2010, the former chairpersons of the Truth Commissions from all over the world urged him to resign. All this time Kiplagat consistently refused to step aside until the chief justice set up a tribunal on the 10^th of December 2010.

It is worth noting that the government was not interested in the establishment of this tribunal thus unnecessarily delayed the process of establishing the tribunal. And indeed if there were forces seeking to scuttle the TJRC process through his appointment, it would appear that his return demonstrates their tenacity to curtail truth and justice. Could the return and continued intransigence of Kiplagat be evidence of the wider scheme by the forces of impunity to scuttle the transitional justice agenda in this country?

We reiterate our reasons for strongly opposing Kiplagat’s chairmanship in the TJRC:

1. A tribunal was established to investigate Ambassador Kiplagat in December 2010 but did not commence its work until February 2011, a delay that was neither explained nor mitigated. This was a deliberate attempt to frustrate the process from its inception. The tribunal never received the requisite support to undertake its task.
2. Kiplagat stepped aside and pledged to submit himself to the process of the tribunal but soon after mounted a legal challenge as to its validity to investigate him. His primary interest seemed to be to forestall the tribunal process and shield himself from further scrutiny as opposed to clearing his name of existing allegations.
3. While the legal challenge against the tribunal’s investigation into his past conduct may have been dispensed with through his withdrawal of the application, the substantive issues challenging his fitness as chair to the TJRC persist:

• He has been adversely mentioned and appeared in sessions regarding the Wagalla Massacre. He has been on record denying any involvement in the massacre but later conceding that he was in a delegation that toured the region during the material time and also sat in the Kenya Intelligence Committee that has been adversely mentioned in planning the massacre. Such inconsistencies, lies and potential culpability merit further scrutiny and outright disqualification.
• He will be required to appear in other thematic hearings such as that on political assassinations to provide testimony on the murder of Robert Ouko and also on illegal allocation of public land where he will be required to answer to his various mentions within the Ndung’u Land Report.

1. There are emerging reports of staff intimidation and possibilities of interfering with progress reports in which he has been adversely mentioned. He has not formally engage the commissioners or requested for a formal handover from the interim chair.

We therefore:

1. Urge the Chief Justice either extends the mandate of the former tribunal or constitute a new tribunal that will comprehensively investigate and conclude the substantive concerns raised.
2. In light of the substantive questions on his integrity, call for further reviews of his participation in other public bodies. This is in line with the requirements on integrity of public officers under the Constitution of Kenya.
3. Demand his vacation from office until he has been cleared of allegations by the tribunal constituted to investigate him.
4. Recognizing that the TJRC mandate is truth seeking, justice and reconciliation with the interest of victims at its core, we appeal to Kiplagat to honorably and morally resign in recognition of his potential to derail, delay and disrupt the transitional justice process.

THE KENYA TRANSITIONAL JUSTICE NETWORK

We hereby submit as follows:

1. First, the Preamble of the Constitution clearly states that the citizens fully recognised ‘the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.” The Preamble goes further to state that in adopting and enacting the Constitution of Kenya 2010, Kenyans were “exercising our sovereign and inalienable right to determine the form of governance of our country, and in so doing, Chapter 8 of the Constitution establishes the Senate. The Senate has a specific role and it is the Senate that is the bulwark for devolution in the Constitution.
2. Second, we need to recall that Kenya’s Independence Constitution had provided both for regional governments and for the Senate. However, within less than three years after independence, the Kenyatta government had done away with both the Senate and regional governments. Following this abolition of Senate in 1967 and the subsequent killing of devolution, Kenya has made several attempts at taking development to community level, but most have failed because they lacked constitutional backing and the oversight that should have been provided by Senate and regional governments.
3. Third, there is need to know the devastating effect of what Hon. Kioni and others are proposing, since it is important to consider the role of Senate as envisaged in the Constitution. Article 96 (3) of the Constitution identifies the role of Senate as being: i) to determine the allocation of national revenue among counties, as provided for in article 217, and ii) to exercise oversight over national revenue allocated to the county governments. If there is no Senate, who will negotiate with the National Assembly on how much of national revenue should be allocated to counties? Do Kenyans at community level, particularly in the less developed counties want to place the fate of their development in the hands of Members of the National Assembly, who have in the past demonstrated their inability to defend the interests of the people?
4. Fourth, and as a consequence of the above, without the Senate, Kenya will have literally killed devolution of power, because the financial fate of counties will rest solely with the National Assembly and the Executive, who have in the past demonstrated that they clearly need to be checked or overseen. Without the Senate, Kenya will be plunged back into the past they aspired to move away frommultiple trial and error decentralisation of public funds intended more for the appeasement of MPs and to provide corruption opportunities for public officials in the Executive.
5. Fifth, it is important to note that the Senate has been created to represent the counties and protect their interests, as well as those of the marginalised and special interest groups. Kenyans cannot trust the National Assembly alone to do this because their track record indicates otherwise.
6. Finally, beyond the efforts of Hon. Kioni and others, we must recall that the Executive, and in particular the Ministry of Finance has made great attempts to scuttle devolution – through influencing the composition of the Taskforce on the Devolved Government, sponsoring the drafting finance bills that weaken devolution, attempts to retain the provincial administration through draft bill titled Coordination of National Government Functions Bill, 2011, the attempted posting of county commissioners without constitutional or legal backing or even consultation with the Controller of Budget to determine whether or not salaries of such county commissioners should be provided for.

Article 3 (1) of CoK places a responsibility on ever citizen to respect, uphold and defend the Constitution. As the Kenya Human Rights Commission, we reiterate that Kenyans must remain vigilant, expose these attempts and categorically reject any attempts to convolute or weaken devolution. Kenyans must remain alert to the fact that the Constitution is theirs and any attempts by members of the executive or legislature are but a distraction from what should be the diligent implementation of the Constitution.

Stay Alert: The Constitution must be Fully Implemented

Signed this Friday, 16 December 2011

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Atsango Chesoni