General Observations:

The stakeholders supported the rationale of consolidation of the multiple laws and institutions (state corporations) that regulate the many crops cultivated in Kenya reducing costs to the tax payer. However, the forum took issue with lack of consultative process with key stakeholders in development of the bills, prior to their tabling in parliament.

As general observations on the two bills, the forum recommended the need for the bill to promote value addition before crops are exported so that farmers get higher returns and are cushioned from exploitation by key players in the value chain through inclusion of a formula that provides for a minimum price for all scheduled crops.

Specific Observations, concerns and recommendations:

The stakeholders have raised the following specific observations and recommendations on the ALFFA Bill, 2012 and Crops Bill, 2012:

ALFFA Bill, 2012:

1. That the functions of the Authority be expanded to include promotion of best practices in and regulation in matters of financing farm inputs and harvesting. Specifically, on the functions of the Authority, it was recommended that the Cabinet Secretary in consultation with the relevant stakeholders should scientifically determine and set a crop pricing formula for every scheduled crop. This is critical in ensuring farmers get a fair return, as currently benefits and risk sharing across the value chain is not equitable, with farmers being the main losers.

1. On the board of the authority(ALFFA), the forum raised concerns that whereas the statutes to be repealed provided for a higher growers’ representation through elected directors, this seems to have fallen through the cracks in the proposed bills.  The forum hence recommended that: chairperson appointed by the President be approved by National Assembly; that in place of the 4 appointees of the cabinet secretary, there be eight persons, being farmers representatives, elected by the farmers to represent such major crop subsectors in Kenya. Specifically, there is need for provision  that the Cabinet Secretary shall develop rules/regulations for the election of the members of the board and provide for a mechanism to ensure that not more than two thirds of the members so elected are of the same gender.

1. That the bills need to appreciate the participation of farmers through farmer’s organizations in development of policies or regulations or in the making of any major decisions that has effect on the agricultural sector, currently not factored in. This is for the sole purpose of ensuring effective participation of farmers in the governance of the agricultural sector in Kenya.

1. On the finances of the authority the forum recommended the need for a ceiling on the funds to be spent on administrative expenses  of the Authority;

1. That in dealing with Noxious and invasive weeds (Part IV), the county government should provide the technical support to the eradication of noxious and invasive weeds, as the county government has a constitutional responsibility for plant disease control as provided for in Fourth schedule of the COK, 2010. This is as opposed to having the farmer to bear the sole responsibility and or shouldering the financial costs that arise from such clearance by the county government as currently provided in the bill.

between the players will be dealt with. For instance, the Sugar Act 2001

1. That compared with the current statutes set for repeal with the adoption of the Crops Bill and ALFFA Bill, there is an apparent gap in how arising disputes established the Sugar Arbitration Tribunal. The forum recommended that an alternative dispute resolution mechanism for conflicts arising between different players in the sector be developed at the county level.

vii. The forum also recommended that the Authority in consultation with the relevant Ministry should develop regulations setting the decent working conditions and minimum wages applicable to workers in the agricultural sector.

THE CROPS BILL, 2012

1. That there is need to expand interpretation section to include more terms for enhanced clarity including  “Breeding Programmes “, ”Compulsory certification”, “Voluntary certification”, “outgrower institution”, “co-operative societies”, “dealing in crops” specify who the “dealers” are;

1. That additional provision on the promotion of scheduled crops be factored in to cater for promotion of value addition as a condition for export crops, and crops exported without value addition should attract higher taxes. And that specifically, there is need for formulation of general and specific policies and industry agreements to regulate the minimum period within which farmers should be paid for their crops and financial penalties for delayed payments.  Currently some farmers are not paid promptly.

1. That farmer’s organizations should be recognized as representatives of growers, and this should be reflected throughout the Bill. The Bill should also specify that whenever farmers have agreed to allow deductions of their earnings to farmers’ institutions, the party responsible for effecting such deductions should comply e.g. the millers. This will allow for the growers to support the farmer organizations of which they are members.

1. The forum took note of possible overlap of functions of the subsidiary bodies (section 33 of the Crops Bill) with the directorates established in section 11 of the ALFFA Bill. The forum recommended that instead of establishment of subsidiary bodies, the Directorates established in ALFFA should carry out these functions.  In addition, the establishment of multiple subsidiary bodies will result in a large work force and high wage bill. We support lean effective Directorates.

1. The forum noted with concern that as opposed to current Acts on sugar, coffee; the proposed bill has no provisions on regulating the relationships between different players in the sector, on crop pricing  and on industry wide agreements. The stakeholders proposed the need for the cabinet secretary in consultation with the stakeholders to come up with regulations on these aspects.

1. The stakeholders also noted with concern that whereas rice, which is a major food crop is a scheduled crop in the First Schedule, over-regulation of this crop should be avoided. The forum proposed that the Irrigation Act, Cap 347 which currently regulates its production in the irrigation schemes, should be repealed.  Similarly, the National Irrigation Board should be dissolved as the rice sub sector should be regulated under one law. In itself, Cap 347 defeats the spirit of Crops and ALFA bills, and has provisions that are unconstitutional, retrogressive and if not repealed the sector will still over-regulated.

We are particularly glad that the interview process upheld the principles of transparency with uninhibited participation of the public, the civil society, the media and international observers. For this we laud the NPSC. We further recognize the extra effort the Commission has expended in expediting the interviewing process, recommending the successful candidates and forwarding their names to the relevant authorities for appointment. We are appreciative of the fact that the Commission worked long hours including weekends to ensure strict observance of recruitment deadlines.

Whereas, we are cognizant of the fact that the NPSC has had to balance various interests including gender, academic qualifications, experience, integrity and regional balances in recommending the candidates for appointment, we strongly call for a closer scrutiny of the recommended candidates with a view to ascertaining their suitability for the jobs.

The PRWG-K sat through all the interviews as observers and prepared a report which was presented to the NPSC before it identified the nine individuals for appointment to the three positions. Our reports interrogated the suitability of each of the twenty seven candidates’ on the basis of their integrity (as outlined in chapter 6 of the constitution), professionalism, academic qualifications, experiences and the general ability and willingness to steer forward police reforms.

We have reviewed the nine names recommended for appointment and wish to state as follows:

1. That we are particularly concerned that some of the recommended candidates had serious integrity and suitability issues raised against them by the public, the civil society and other agencies during the interviews. These allegations range from corruption, drug trafficking, contempt of court processes and their role in during the 2007/2008 PEV. As such we call for a thorough and comprehensive review of the suitability of each of the recommended candidates to ensure the much needed police reforms are steered by competent and reform minded individuals.
2. In particular, we call upon the NPSC to outline to the public their specific findings on the suitability of the following:

i) Ms. Grace Syombua Kaindi: What were the Commission’s findings on her role during the 2007/2008 PEV in Kisumu where she served as the PPO at the height of the violence? Did the Commission investigate her alleged reluctance to cooperate with the ICC in procuring evidence to prosecute the perpetrators?

ii) Mr. David Mwole Kimaiyo: What were the Commission’s findings on his role during the 2007/2008 PEV? Under what circumstances was he transferred to the Ministry of Gender at the height of the PEV?

iii) Mr. Francis Ndegwa Muhoro: Did the Commission investigate his alleged roles in the DRC gold syndicate, contempt of court accusations and drug dealing?

iv) Mr.Samwel Arachi: Did the Commission investigate serious accusations of ethnic favoritism and corruption raised against him during the interviews?

In view of these concerns, we wish to bring to the attention of the appointing authority

the High Court three-judge bench’s pronouncement in the case against the appointment of Mumo Matemu as the chairman of the Ethics and Anti-Corruption Commission (EACC) that, “The Court will interrogate whether the appointing authority undertook a ‘proper inquiry’ before pronouncing whether the appointee has reached the constitutional threshold for appointment. In other words, the Court will not merely be satisfied by the fact that the appointment process seemed to have gone through the procedural hoops.” 

1. The Parliamentary Committee on Administration and National Security should engage the public, the civil society and other agencies in undertaking objective research on the recommended candidates before tabling the names in parliament to ensure that any allegations against them are clearly and transparently addressed. This will ensure that those with questionable records do not assume leadership of the NPS.
2. We wish to state that these recruitments are not ordinary as they touch on the very heart of the existence of this country: National security. Even more important the recruitments are meant to restore the confidence of Kenyans in the NPS as a critical cog of the country’s socio-economic and political stability. It is therefore imperative that the country gets competent, transformational, proactive and strategic thinkers for these critical positions. We therefore call upon His Excellency the President and the Right Hon. Prime Minister and Parliament to consider these important factors in appointing the top command of the NPS.
3. We reiterate our earlier call to all Kenyans with any information on the suitability of any recommended candidate to come forward and present it to us, to the Parliamentary Committee on Administration and National Security or to Parliament. Information on corruption, human rights violations among other ills will particularly be useful in further evaluating the recommended candidates.
4. Finally we strongly urge the NPSC to expedite the process of vetting all police officers serving in the NPS, starting with the top 100 senior officers, as an important process in restoring public confidence in the police service 

    

We the undersigned human rights and governance organizations under the auspices of the Police Reforms Working Group Kenya (PRWG-K) wish to once again convey our deepest condolence and sympathy to all the relatives and friends of our fellow civilian as well as members of the National Police Service who have died, sustained serious injuries, or have been victims of massive destruction of property and grave human rights violations in recent incidences of violence in various parts of the country.

We take great exception that in the recent months, the country has witnessed an unprecedented spate of coordinated armed violence perpetrated by civilians or illegal organized gangs specifically targeting and resulting in the deaths of over 60 police officers, and the Kenya Police Reservists (KPR). We also note with great concern the emerging situation of apparent ‘incapacity’ of the police to manage these situations, and the emergence of the Kenya Defense Forces as key player in internal security operations, a situation that does not augur well for democracy and protection of human rights.

POLICE WELFARE AND CAPACITY

We wish to categorically state that, we wholly support the improvement of the welfare of all officers of the Kenya Police Service. We wish to restate, as we have consistently done recently, and as early as the first Constitutional Conference at Bomas of Kenya, that we are calling for improvement of living conditions, salaries, morale, transparent decision making, training, medical and life insurance, as well as equipment including facilities like forensic investigations, and other prerequisites that will transform the Kenya Police Force into a SERVICE that is concerned with the welfare of the officers and whose services citizens will be proud of.

We shall continue to gallantly champion these issues together with all other actors in government, citizens, development partners and those members of the Kenya Police Service whose desire is to transform the service. The National Police Service Commission will be a key partner in this endeavor.

IMPLEMENTATION OF POLICE REFORMS

The PRWG-K has taken a very firm and progressive position on the need for immediate and comprehensive implementation of reforms in the police force as articulated in the 2009 Ransley Report, the Constitution of Kenya 2010 and various police legislation.

To support these reforms the PRWG-K has since November 2011 take several measures including: a) we have been enjoined in High Court case where two Kenyans want the court to stop police reforms. Our position in that case is that police reforms must continue as provided for by the Constitution; b)Developed model vetting tools and guidelines for officers in the NPS and shared these tools and guidelines to the NPSC for consideration; c) We have drafted Guidelines for Policing the 2013 general elections which we will soon share with the NPSC for consideration c) We petitioned the AG to  ensure that the Judicial Commission of Inquiry on Tana violence include a specific investigation of the circumstances under which nine police officers died.

It is important for all Kenyans to know that failure to reform the police will continue to be a major hindrance to reforms in the administration of justice sector, for the police is a critical cog in the wheels of justice, and occupy a critical seat at National Council for Administration of Justice and Court Users Committees in the 47 counties.

SPECIFIC POSITION ON RECRUITMENT OF INSPECTOR GENERAL AND DEPUTIES

We wish to state that contrary to impressions created by sections of the media over the last one week we recognize and laud the National Police Service Commission (NPSC) who have initialized the recruitment process for the Inspector General (IG) and the two Deputy Inspector Generals (DIGs) to command the Kenya Police Service (KPS) and the Administration Police Service (APS), by expeditiously and successfully completing the interviews for the three positions and forwarding their names to the relevant authorities for consideration and appointment. We are particularly glad that the interview process upheld the principles of transparency with uninhibited participation of the public, the civil society, the media, local and international observers.

Whereas we appreciate the efforts made by the NPSC to balance various interests including gender, academic qualifications, experience, integrity and regional balances in recommending the candidates for appointment, the working group recommends that the serious integrity issues ranging from corruption, drug trafficking, contempt of court and role during the 2007/2008 post election violence leveled against four of the nine recommended candidates by the public, the civil society and other agencies during the interviews, be investigated and the reports made public to enhance public confidence and accountability.

At our press conference on Thursday 22^nd November 2012, we did not reject the nine nominees but urged the NPSC to go public and communicate to Kenyans their specific findings on these individuals to confirm that indeed the commission made serious consideration of these allegations and complaints, and what their position is. This request in itself does not amount to blocking police reforms, but is an endeavor in upholding requisite levels of integrity as provided for by the Constitution.

MOVING FORWARD

We note with appreciation that police reforms have now gathered momentum as we approach the March 2013 general elections. This is most welcome coming from a situation where police were highly indicted for their failure to police the resultant violence of 2008.

It is for this reason that we call upon the NPSC, the President, the Prime Minister and Parliament to expedite the appointments of the Inspector General, two deputies and the Director of CID to ensure that we go to the elections with a new, but most important a CENTRAL POLICE COMMAND.

We urge the new police leadership to move with speed and put in place adequate measures to secure the electoral environment, and prevent the 2007/2008 scenario and the scenes we have seen in Tana River, Mombasa, Kisumu and Baragoi.

In this regard we commit to share and discuss the development of Police Guidelines for Policing in an Electoral Environment to provide for a standard procedure for police officers’ conduct in the forthcoming general elections. These guidelines need to include reporting and response mechanism for Sexual and Gender Based Violence (SGBV), among other critical components.

Lastly, we commit to remain vigilant, monitor and continue to advocate for and support comprehensive security sector reforms both publicly and privately, to realise a reformed, transformed and service-oriented National Police Service.

Our support for these reforms are premised on fundamental principles as provided by the constitution including integrity, gender equity, diversity and public participation. It is on the basis of these principles that we shall continue to raise our reservations about the entire process of reforming the police including recruitment of the top command.

Signed by: Members of the Police Reforms Working Group Kenya (PRWG-K)

A cross section of children interviewed during the study say parents often try to prevent them from spending time with children from other ethnic communities or warn them against it. The children also said they feel that their ethnic communities are more superior to others and prefer to keep friends from their own ethnic communities.  The study also reveals that some ethnic communities are associated with negative attributes and 12% of children have at one time discussed throwing out an ethnic community from their area of residence.

The Study focused on 5 equality themes namely ethnicity, gender, disability, age and economic status covering total of 844 questionnaires, 24 focus group discussions and 24 key informant interviews. The majority of the schools (10 out of 12) had pupils from different ethnic communities. Other findings of the report indicate that although 55% of the children interviewed agree that girls are as brave as boys, they exclusively accord boys the right to decision making and the right to protection from war. The findings also show that school children consider people 65 years and over as poor leaders, lacking appropriate wisdom, while those less than 19 years are dismissed as inexperienced and irrelevant.

The study was inspired by the realization that children were not only affected by the 2007/8 post-election violence, but in some cases formed part of the perpetrators.  Children aged 15years and above formed part of the youth militia that spread inciting messages and meted out violence following the 2007 elections. This realization raises questions on how much the primary, secondary and teacher training curricula invest in teaching children about equality/ non-discrimination and encouraging a culture of diversity.

A related study titled ‘Curriculum Opportunities to Teach Children on Equality and the Constitution of Kenya, 2010’, identifies numerous opportunities to begin teaching children tolerance with respect to national diversities in ethnicity, gender, age, disability and wealth or economic status. This comes at a time when the Ministry of Education is reviewing its curricula at various levels to ensure compliance with the new Constitution.

In view of the findings and recommendations of the two studies, the Kenya Human Rights Commission (KHRC) has developed and released ‘Attack of the Shidas: AKAs Save Planet Earth’ a story book for children aged 9-15years. The book creatively addresses discrimination on the basis of ethnicity, gender, age, disability and wealth status through a deep friendship between three children from different ethnic communities, one of whom is a blind girl. The book is conceptualised to bring equality and human rights debate to school children and their teachers as well as parents.

“Attack of the Shidas:AKAs Save the Planet” is the story of three communities who live in a desert town which depends on a lone borehole for all their water.  But the people are threatened when they discover that the water is mysteriously being emptied at night. Three children in the town discover they have special powers as only they, can see and hear the  invisible water thieves that bring with them numerous other problems to the three communities. Yet nobody believes what the children have to say, because these three children possess special powers of equality and tolerance that enable them to see what others in their communities cannot see.  Can the children stop the aliens before war breaks out in the town?

“Attack of the Shidas:AKAs Save the Planet” is among the first to venture into the genre of science fiction to address the very delicate and contentious issue of discrimination by providing simple and practical messages to children in an entertaining manner. The storybook has been  pre-tested among pupils and students of 5 primary  and one secondary school as well as 15 teachers  drawn from Siaya, Kitale, Marigat, Kwale, Wajir and Nairobi (Kawangware, Kibera, Musa Gitau, Mathare and Lavington).

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According to the children who have read the storybook, its greatest attribute is that it makes children who are tolerant of ethnic and other diversities the super heroes, whose special powers come from having skills to recognise and confront discrimination in the form of hate speech, songs, poems, sayings, proverbs and even jokes in the form of  ‘mchongoano’ often used by children. The storybook is expected to impact on children’s knowledge, attitude and practices on equality / non-discrimination.

Attack of the Shidas: AKAs Save Planet Earth confirms that it is possible to innovatively use the curriculum to deliver education that is relevant to Kenya’s current needs. Relevance is one of the goals of the Education for All (EFA) campaign which the Kenya government has been party to since 1990 when the 1^st EFA conference was held in Jomtien and the second in 2000 where Kenya was represented by Hon. Kalonzo Musyoka, then the Minister for Education

With equality/non-discrimination being one of the key values embedded in the Constitution of Kenya 2010, it is clear the Ministry of Education is on the right path in its review of primary, secondary and teacher training curricula to give equality, tolerance and peace building the weight they deserve in the socialization of Kenya’s children.

The Kenya Human Rights Commission (KHRC) envisions a Kenya that respects, protects and promotes human rights and democratic values. The KHRC’s objective is to enable the society to attain equal and accessible rights and opportunities for all; specifically,  endeavour to prevent discrimination across all levels of society including in the school setting.

The report findings and the story book  were launched on 10^th September 2012 at the Hilton Hotel in an event presided over by Hon., Mutula Kilonzo, EGH MP., Minister for Education.

The book is retailing at various  Nakumatt Books First outlets in Nairobi for KES. 400.00

It is also available at Amazon on http://www.amazon.com/Attack-Shidas-Planet-Earth-ebook/dp/B0091D8V2Q/ref=sr_1_19?s=books&ie=UTF8&qid=1347276253&sr=1-19&keywords=storymoja

Atsango Chesoni

Executive Director

For more information on this book and report anplease contact

Kenya Human Rights Commission (KHRC)

Beryl Aidi

Tel: 254-20 2044545

Email: baidi@khrc.or.ke

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

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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