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

____________________________

Atsango Chesoni

The Award was given to the KHRC having demonstrated the progress made in establishing systems and structures that enable the organization to work towards a clear vision. The KHRC also implemented these systems effectively in achieving targets and as a result of this is working towards realizing the results.

We also got the award for the best CSO in Community Focus, Productivity and Impact, tying with International Commission of Jurists Kenyan Chapter (ICJ-Kenya); and finally 1st Runner up in Leadership, Governance and Management.

Each year the Civil Society under the banner of the Constitution and Reform Education Consortium (CRECO) presents awards to outstanding Civil Society Organizations. The CSOYA Awards, which is in its fifth year, are given in recognition of performance, service delivery, leadership and accountability. The awards are not meant for organizations to pat themselves in the back but to motivate them to learn and improve on their performance.

This achievement is a team effort and we definitely thank all our partners, networks and coalitions in various capacities who have made our work possible. Hoyee, aluta continua!

In the course of the mission, the three commissions have sought and solicited views from various actors namely the Faith Based Organizations, Community and Civil Society Organizations, the Provincial Administration, the Police, the victims and members of the public who shared the information that informs our findings and subsequent recommendations.

These investigations are a follow-up on previous missions conducted by our respective organizations. Further, the investigations have been prompted by reports of continued violations allegedly perpetrated by the outlawed Sungusungu vigilante received by our respective organizations. Specifically, our joint mission sought information on the following issues:

1. The alleged inaction by the government security agencies to tame crime and insecurity and the alleged failure or inability of the judicial system to deal with issues of crime and insecurity in Gusii-land;
2. Concerns of rising levels of crime and insecurity in Gusiiland and the emergence of the Sungusungu vigilante group sometimes back in 2003 and whether a clear distinction can be made between Sungusungu and community policing;
3. The alleged transformation of the Sungusungu vigilante group into community policing sometimes in 2009 and the cases of gross human rights violations and criminality linked to Sungusungu acting under the guise of community policing;
4. Community perceptions and attitudes of the state and non-state actors towards Sungusungu /community policing and the way forward in addressing crime and insecurity in Gusiiland; and,
5. Challenges facing the re-integration into society of persons who have gone through the Courts and Penal Institutions.

We must state here that while we hold no brief for any criminal elements in society, we will continue to ask—as indeed we have done time and again in the past—that any issues of crime must be addressed within the clearly defined confines of the law. We are concerned that though some members of the public and government officials have informed us that Sungusungu is no longer in existence and that those who used to be members of Sungusungu are now members of Community Policing, our findings indicate that the groups’ criminal activities are still prevalent in various parts of Gusiiland.

What is more, it is worrying that there seems to be no clear distinction between Sungusungu activities and community policing. While community policing entails an approach that seeks actively to prevent, detect crime, reduce fear and improve communication between the community and police, what is taking place currently in Gusiiland is a serious perpetration of crimes and human rights violations under the guise of community policing. The following are some of the serious crimes and violations that were brought to the attention of our joint mission:

1. OVERSTEPPING COMMUNITY POLICING MANDATE

Those who purport to be acting as security providers under community policing have clearly over-stepped their mandate. For example, they are known to make arrests, carry out investigations, detain suspects in illegal holding cells and pass judgments in Kangaroo courts. Additionally, members of the public say that those purporting to be members of community policing conduct night patrols. However, some of the chairs of Community Policing we spoke to categorically denied that these allegations.

2. MURDERS OF SUSPECTED ‘CRIMINALS’

Our team was informed of cases where people who were suspected of being criminals had either been threatened or murdered. Additionally, our team was told that in some instances, the victims of these murders are denied burial rights in their homes and directives are given to their relatives to bury them at the public cemeteries in either Kisii or Nyamira towns.

3. ASSAULT & GRIEVOUS BODILY HARM

The team received numerous reports of assaults perpetrated by those purporting to be members of Community Policing. A witness told the team of an incident where a man suspected of having stolen money from a relative was seriously beaten and suffered grievous bodily harm. The witness stated thus:

“They tied his hands together and they put a stick between his knees and thighs. They beat him until his testicles were ruptured. They used timber with nails at the end. The nails contributed to the rupturing of the testicles. The suspect died in September 2011 as a result of the injuries”.

It must be noted that the money purportedly stolen was later found by the said relative where it had been stashed in the house after the victim had been assaulted by members of the so-called community policing.

4. ISSUANCE OF THREATS

The team received allegations of issuance of threats by those purporting to be members of Community Policing not to report their criminal acts. The threats range from those who have been assaulted by the gang being warned against reporting assault cases to the police; holding pre-burial meetings; or burying their dead in their homes and to only bury them at designated cemeteries. Our team received copies of leaflets containing the warnings. Our team was further told that politicians, public officials as well as civilians are reported to be using Sungusungu to issue threats or assault persons believed not to be in good terms or in political agreement with the said persons.

5. ENFORCED DISAPPEARANCE

Our joint mission was told of a case involving community policing members who raided the house of a suspect in Nyamataro together with police from Kisii Central Station. The suspect disappeared the following day and the High Court in a Habeus Corpus application ordered on 9^th September 2009 for production of applicant by Commissioner of Police and DCIO, Kisii. This has not been done.

6. EXTORTION OF FUNDS FROM MEMBERS OF THE PUBLIC

Some members of the public stated that they have been paying amounts of monies suspected Sungusungu members alleging to be providing security. These amounts range from Kshs.30-150 per month per household. However, members of the community policing denied the allegation that they extort or ask for protection fees from members of the public.

7. SEX FOR PROTECTION

There were allegations of instances where those who have reported cases to community policing /Sungusungu, but have no money, have exchanged sexual in lieu of cash payments.

8. PARALLEL JUSTICE SYSTEM

The team received allegations that members of Community Policing / Sungusungu run a parallel justice system. They intervene in domestic disputes and pass judgment, including administering 40 strokes of the cane to domestic violence suspects. They also impose fines and banish offenders who have gone through the Court and Penal institutions from being re-integrated back into the community.

9. OTHER UNDERLYING ISSUES

In our assessment, land and property ownership tussles as well as strong cultural beliefs play a critical role in fuelling acts of general crime and insecurity in Gusii-land, leading to gross human rights violations, including the lynching of witches.

RECOMMENDATIONS:

From the foregoing, we the KNCHR, the KHRC and the NCIC recommend as follows:

(i)That the relevant state agencies who have abrogated their duties and responsibilities must, as a matter of urgency, rise to the occasion and provide the necessary security that will nullify the need for the local communities to resort to acts of ‘self-protection’ which inevitably lead to the violation of the law. Hence, while we take into account the right of the community to live in safe and secure environments, we must state that the responsibility of guaranteeing this right remains squarely within the mandate of the state security agencies.

(ii) We call upon the investigative arm of the security agencies to interrogate further the various issues of crime and human rights violations identified by our joint mission with the express aim of bringing an immediate cessation of further human rights violations and atrocities.

(iii)We call upon a review of the existing community policing structure in the region with particular attention being paid to issues of vetting and recruitment, adherence to the principles and mandate of community policing so that criminal elements do not operate under the cover of community policing. To this end, we call upon the Commissioner of Police to take notice of the serious lapse in the provision of security in Gusiiland and how an otherwise noble initiative like community policing has been turned into a vehicle for the perpetration of crimes and human rights violations.

(iv)We call upon the State Law Office to operationalise the Witness Protection Agency so that those who have suffered serious violations or witnessed the same can be guaranteed of security and protection should they go to our courts of law to give evidence.

(v) Finally, we call for a multi-sectoral approach involving state and non-state actors to redress the issues crime and insecurity identified by our joint mission.

Signed By:

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Ann Ngugi, Commissioner

The Kenya National Commission on Human Rights

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Mohammed Hallo

Secretary, The Kenya National Commission on Human Rights

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Davis Malombe, Deputy Executive Director

The Kenya Human Rights Commission

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Tom Kagwe

Senior Programme Officer- Kenya Human Rights Commission

On 14^th October 2011 in a press statement while launching a preliminary report in Kisii on crime and insecurity situation in Gusiiland, the three commissions noted that though some members of the public and government officials had informed the team that Sungusungu is no longer in existence and that those who used to be members of Sungusungu are now members of Community Policing, findings indicate that the groups’ criminal activities are still prevalent in various parts of Gusiiland. The complete findings are to be published in a report tilted “Sungusungu: Merchants of Terror and Death in Kisii.”

The preliminary findings however indicate a worrying development in the Gusii situation where there seems to be no clear distinction between Sungusungu activities and community policing. The joint statement emphasized that that any issues of crime must be addressed within the clearly defined confines of the law. While community policing entails an approach that seeks actively to prevent, detect crime, reduce fear and improve communication between the community and police, what is taking place currently in Gusiiland is a serious perpetration of crimes and human rights violations under the guise of community policing.

Among the serious crimes and violations committed by the Sungusungu listed by the three commissions include:

1.  Overstepping community policing mandate for example arresting and detaining suspects in illegal holding cells and passing judgments in Kangaroo courts; 
2. Murders of suspected ‘criminals’, and in some instances denial of burial rights in their homes;
3. Assault and causing grievous bodily harm , sometimes even based on false accusation and set up;
4. Issuance of threats where in some cases politicians, public officials as well as civilians are reported to be using Sungusungu to issue threats or assault persons believed not to be in good terms or in political agreement with the said persons;
5. Enforced disappearance;
6. Extortion of funds from members of the public allegedly for payment of security services;
7. Sex for protection;
8. Parallel justice system where due course of law is interfered with and ‘punishment’ is meted out extra judiciously.

The team noted that there were underlying issues to this problem, land and property ownership tussles as well as strong cultural beliefs play a critical role in fuelling acts of general crime and insecurity in Gusii-land, being the leading cause to the these gross human rights violations.

The mission was informed by interviews by the three commissions of various actors including Faith Based Organizations, Community Based Organizations and Civil Society Organizations, the Provincial Administration, the Police, the victims and members of the public who shared the information that informs our findings and subsequent recommendations.

The report, titled Lest We Forget: The Faces of Impunity in Kenya, is based on a the KHRC’s Review of the Official Reports Project that has compiled a list of individuals recommended for further investigation or criminal proceedings in official reports on gross and systemic human rights violations as well as grand corruption. The question many people ask usually is Who Owns Kenya; in this report the big question is WHO OWES KENYA?

This project is meant to address the following gaps in truth and justice seeking:

• First, the inadequate understanding and appreciation of the level of the truth already existing in the current official and other reports;
• Second,the inadequate review, harmonization and presentation of the findings of the official and other reports over historical injustices in Kenya;
• Third,the inadequate analysis and presentation of both the patterns and perpetrators of impunity across the different regimes, reports and categories of injustices in Kenya;
• Finally are the inadequate interventions to ensure that the cross cutting findings and recommendations are applied to expose, lustrate and hold to account, the purveyors of impunity.

You can find the publication on this website through this link: LEST WE FORGET-The Faces of Impunity in Kenya