The KHRC Scoops the 2011 Civil Society of the Year Award!!!
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!
SUNGUSUNGU: Merchants of Terror and Death in Kisii
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:
- 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;
- 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;
- 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;
- 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,
- 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 9th 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
The Merchants of Terror: The Twisted Tale of (In)Security in Kisii
On 14th 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:
- Overstepping community policing mandate for example arresting and detaining suspects in illegal holding cells and passing judgments in Kangaroo courts;
- Murders of suspected ‘criminals’, and in some instances denial of burial rights in their homes;
- Assault and causing grievous bodily harm , sometimes even based on false accusation and set up;
- 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;
- Enforced disappearance;
- Extortion of funds from members of the public allegedly for payment of security services;
- Sex for protection;
- 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 Faces of Impunity in Kenya
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
KHRC Recent Appointments
Mr. Davis Malombe - Deputy Executive Director

Mr. Malombe has served with the KHRC in various capacities most recently as a Programs Officer Research and Advocacy.
He brings to the Commission experience in policy analysis and governance matters and has an unparalleled passion for human rights activism.
He has written widely on IDPs, governance, transitional justice and human rights issues in Kenya. Davis is a member and/or a convener of a number of national and international organizations and networks including: the Internal Displacement and Advocacy Centre (IDPAC); IDPs Protection Working Group in Kenya; African Transitional Justice Network, Non-State Actors Coalition on Land Reforms; and International Federation of Human Rights (FIDH) among others.
Ms.Judy Ngugi - Finance & Administration Manager

Ms. Ngugi comes to the Commission from the International Livestock Research Institute (ILRI) where she served as Accounting Manager.
Ms. Ngugi brings to the Commission experience in both public and private sector finance and administration systems and therefore an excellent opportunity for the KHRC to learn from other sectors.
We look forward to a continued collaboration with you and trust that you will welcome their appointments in the warm spirit that you have previously extended to us.
Press Statement on Complaints About Human Rights Violations at Loreto Convent Girls’ High School, Limuru
Background
We have received complaints alleging diverse and serious human rights violations arising from administrative actions taken by the school.
We are informed that on Wednesday May 25, 2011, a Form One student came across a polythene bag containing items and a passport photo within the school compound. She showed it to a school Captain. The Captain showed the bag to two other Captains to obtain their opinion on how to address the matter.
Another student identified the passport photo as belonging to a Form Two student, who the three Captains called. She confirmed the items were hers and said they were given to her by her mother—who is believed to be a person within the Ministry of Education—for protection.
The school Housekeeper was then informed and advised the Captains to report the matter to the Deputy Principal. The Deputy Principal referred the matter to the Principal, Mrs Ruinge, who decided to send home the student who had admitted to being the owner of the items.
The mother of the Form Two student sent home then, allegedly, went to the school and in disregard of laid down administrative and disciplinary procedures, demanded to interrogate the three Captains.
On the evening of Monday May 30, 2011, the mother verbally assaulted the three Captains, demanded that they write apology letters giving their index numbers, admission numbers and signatures and threatened them with being “thrown behind bars and locked up for life.” Under duress, the three Captains wrote the said apology letters, which were initially taken away by the mother.
Two of the Captains were then summoned to appear before two representatives of the Board of Governors for disciplinary measures to be taken against them. The Principal said she would deal with the two “appropriately.”
She suspended them on June 6, 2011. The students reported the matter to the KHRC through their parents, in the course of which other allegations of human rights violations emerged and the KHRC wrote to the Principal seeking re-admission for the students and an investigation into the allegations of human rights violations. She has since refused to readmit one of them until she withdraws the complaint made against the school through the KHRC.
Our Concerns
We are concerned about the manner in which this issue has been handled by the school’s administration, contrary to the best interest of the children as stipulated in Section 4(2) of the Children’s Act and Article 53(2) of the Constitution. The child’s best interests are of paramount importance in every matter concerning the child and must be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.
In our opinion, the school deviated from this principle by inter alia allowing an external party (the mother) to interfere with administrative and disciplinary procedures at the school. The Principal also failed to carry out investigations into the allegations and did not call in the parents of the two Captains before taking any administrative action.
Instead, she allegedly allowed a parent into the school to verbally assault and threaten the two Captains in her presence without alerting their parents and advising them to be present. Furthermore, that parent was initially allegedly allowed to take away the apology letters written by the two Captains instead of having them filed in the students’ official records.
As the Principal, she is expected to act as a custodian of the children placed under her care and must at all times act in the best interest of the children. Her failure to protect the students resulted in exposing them to verbal assault, threats and emotional/mental distress in light of the fact that they are scheduled to sit for their mock and Kenya Certificate of Secondary Education (KCSE) examinations this year.
As a result of being wrongfully accused and fearing for her future, one of the students was hospitalised.
We note that:
- The school’s administration disowned its earlier decision of suspending the student found with the items and instead apportioned all blame to two of the prefects who reported the matter for advice.
- The Principal had shirked her responsibility of protecting the two prefects by allowing a parent to verbally assault and threaten them.
- It is unclear whether all members of the Board of Governors have been fully briefed on all the matter, meaning that the Board’s capacity to exercise oversight over the Principal is uncertain.
- All the students involved in the matter who had been earlier suspended for reporting the matter have been re-admitted except one, whose conditions for re-admission include:
- Withdrawing the KHRC’s letter of June 6, 2011;
- Writing apology letters to: a) the school’s administration for indiscipline and incitement; and b) VN (a minor), the student initially suspended;
- Promising to be of good behaviour henceforth.
These conditions are unreasonable and could be construed as preventing the student from raising her concerns regarding the Principal’s handling of the matter at hand so as to prevent the resolution of these concerns.
Our demands
- We demand that all suspended students be re-admitted unconditionally forthwith.
- The Department of Children’s Services was conducting investigations at the school into the matter at hand and other allegations of human rights violations, including defilement of some students by a teacher other arbitrary suspensions on flimsy grounds. We therefore demand that the findings of these investigations be made public.
- We call on the Permanent Sectary, Ministry of Education and all relevant authorities—the Board of Governors, Loreto Convent Limuru Girls’ High School, Cardinal John Njue and the Catholic Archdiocese of Nairobi, and the Secretary, Teachers’ Service Commission (TSC)—to institute investigations into these allegations to establish the truth about them and, if true, to take appropriate action(s) with the persons responsible and ensure policies and procedures are in place/reviewed to prevent any possible recurrence.
Signed:
For the KHRC,
L.Muthoni Wanyeki
Executive Director
Kenya Human Rights Commission
Introducing Our New Executive Director!
Greetings from the Kenya Human Rights Commission (KHRC).
It gives me great pleasure to introduce the KHRC’s new Executive Director, Atsango Chesoni.
Ms Chesoni is an lawyer who has worked for the Federation of Women Lawyers (FIDA)-Kenya, where she initiated the annual status of women’s human rights report. She has spent many years consulting on civil society in Kenya and within the region—focused on governance, human rights (including women’s human rights) and the law.
She was nominated by the African Women’s Development and Communication Network (FEMNET) to represent the women’s movement in the constitutional negotiations known as the Bomas process.
And, most recently, she served as the Vice Chair of the Committee of Experts (CoE) that ushered in our new Constitution.
Ms Chesoni takes over from L. Muthoni Wanyeki, who has led the KHRC since 2007. Ms. Wanyeki led the KHRC at a time of great challenge to Kenya, especially through the post-elections violence and the work of reconstruction and reform thereafter. Her vision, courage, and devotion to human rights—along with those of the great team at the KHRC and the human rights community at large—helped put Kenya back on track.
Her humility and consultative leadership style are a beacon for the human rights community in Kenya and the region. She taught all of us how to practice and think about human rights in the most trying circumstances. Personally, I have been humbled and privileged to work with her. She leaves the KHRC a stronger organisation than she found it.
Ms Wanyeki, whose term with the KHRC officially ends in September 2011, is going abroad to pursue graduate studies and her Doctorate. The Board, management and staff of the KHRC will miss her greatly. But she will remain one of us—no one who has been a member of the KHRC family ever leaves it.
The KHRC’s Board, management and staff are thrilled to have Ms Chesoni with us.
She begins work on July 18, 2011—and will spend four weeks working with Ms Wanyeki, taking over fully on August 1, 2011, with Ms Wanyeki still being on call for a further two weeks. We all aim for the transition to be as seamless as possible.
We wish her all the best as she starts her journey with us—and invite you to do the same. She can be reached at: achesoni@khrc.or.ke. She will also, no doubt, be contacting some of your directly shortly.
We look forward to continued partnership with all our partners, friends associates and all our publics under her leadership.
Sincerely,
Professor Makau Mutua,
Chair of the Board of Directors
International Day in Support of Victims of Torture
In Nairobi, civil society organizations (CSOs) led by the Independent Medico Legal Unit (IMLU), the Kenya Human Rights Commission (KHRC), and Release Political Prisoners (RPP) came together to commemorate the day. Others included the International Commission of Jurists-Kenya Chapter and state human rights body, the Kenya National Commission on Human Rights.
According to the press statement read by the CSOs on Sunday, as the world marks the 13th anniversary of IDSVT, the survivors of torture and victims’ families have nothing to celebrate. The statement further says that as prescribed by the resolution, this day is marked by ceremony and activities across the world with the aim of supporting victims of tortu re; fighting forces of impunity that tolerate and perpetuate torture; safeguarding the gains made in the fight against torture and also make significant policy strides on matters of torture.
Indeed after addressing the media, CSOs gathered at Uhuru Park’s Freedom corner to lead a caravan that visited various ‘monuments of shame’ key among them is the notorious Nyayo House torture chambers. Here candles were lit in solidarity with the torture victims who were detained at Nyayo House during the 1990s. Nyayo House is the Nairobi province headquarters and of the National Security and Intelligence Service (NSIS), formerly known as the Special Branch of the police. Many of the torture victims during the Moi regime, including Prime Minister Raila Odinga, were detained and tortured there.
Paul Amina, freelance journalist, and one of the Nyayo House torture survivors, addressing the gathering in front Nyayo House told journalists that he was arrested for covering the court case of one of the Mwakenya activists in August 1991. Mwakenya was labelled a “dangerous subversive group” that the Moi regime had outlawed. According to Amina, after being arrested he was taken to Nyayo House where he was detained for two days without food or water while being tortured to confess to being a member of the outlawed Mwakenya. Indeed, according to a KHRC report, Independent Without Freedom: The Legitimization of Repressive Laws and Practices in Kenya, Nairobi;KHRC, 1994p.27, critics of the Moi- KANU ( Kenya African National Union, the then ruling party in the single party system) regime mostly students, academicians and civilians would be arrested, tortured in different places and then tak en to court to answer charges of being members of an outlawed organization Mwakenya.
Amina was later transferred to Kamiti Maximum prison, where inmates serving sentences for capital offenses are held and later on released.
Joe Njoroge, another torture Nyayo House torture survivor narrated how he was detained in 1990 for one month in Nyayo house then moved to Kamiti where he was remanded for one year. He was arrested for sedition, th evidence of which was being in possession of 800 copies of a magazine known as the African Event, which was published in London. The ‘offending’ article was titled ‘Mwakenya Demands: the Demans of Kenya.’ Like others taken to Nyayo House, he was tortured with darkness, nakedness and lack of food and water. He was later to be result when the Attorney General Amos Wako entered a nolle prosequi in the case and the case was withdrawn.
Some of the torture survivors in the caravan expressed anger at what appears to be a government attempt to destroy the torture chambers some of which are now being used for storage purposes. The chambers must remain as they were as a monument of shame so Kenyans never forget the dark era of the Moi-KANU regime.
The CSOs further stated that it was regrettable that as we mark the IDSVT, there were 42 Kenyans waking up in pain in their hospital beds in Nairobi and Mombasa as a result of s tate perpetrated torture. “This year alone over 200 hundred cases of torture have been reported, and over 50 cases of proven extra judicial killings. This sad state of affairs is the reality in which we live and all of us remain potentially victims of torture. These trends have long been the tragedy of our national history. These evil and immoral matters of torture must STOP NOW! These victims of torture in our midst are a sad reminder that the police force/service must make a choice in the service of Kenya. Citizens must no longer suffer in the hands of those who are presumed protectors and enforcers of the law,” the statement further said.
The caravan then snaked its way into the Eastlands side of Nairobi, where most torture victims today either hail from or where their bodies are found dumped, specifically at the Dandora informal settlement dumpsite, after extrajudicial execution. In addition, the statement singled out some police stations as being infamous for extra judicial executions. These include Dandora Police Station, Kinyago Police post, Shauri Moyo among others and are located within Eastlands area where the caravan passed through. A new trend is emerging in the Kibaki era where torture victims are no longer the middle class university students, dissenting legislators, university lecturers and other professionals. Most torture victims today come from low income segments of the society. According to the CSO’s statement, torture in the present times is a consequence and a result of poverty.
In fact the report by the UN Special Rapporteur Philip Alston which investigated extrajudicial killings that have been carried out by Kenyan police revealed damning state of affairs in Kenya. The report alleged that police are carrying out executions at will even among suspected criminals who have surrendered. "Killings by the police in Kenya are systematic, widespread and carefully planned. They are committed at will and with utter impunity," stated part of the Philip Alston report.
The civil society has also noted that trends are quickly changing such that even acid is now used after executions in an attempt to destroy evidence. This is the sad reality in Ken ya even to this day. Despite the expanded Bill of Rights in the new Constitution, there has never been a reduction in the level of human rights violations. The cold reality is that cases of extrajudicial killings and disappearances have been rising. “Today we join together to affirm our faith in the strength of our constitution and the letter of our national anthem,” the CSO statement further says.
In Dandora Secondary School, members of the public joined the caravan and were addressed by both the members of the civil society and some of the survivors of torture. Declarations were made to be vigilant that the gains offered in the new Constitution that safeguard the right of every person to be guaranteed, by demanding government accountability.
In conclusion, the CSO statement noted that the Bill of Rights is clear, that among the fundamental rights and freedoms that may not be limited is the right to life, and it is a serious offence to cause death of another person through an unlawful act or omission. Extraj udicial killings have become rampant, perpetrated mainly by units formed to fight organised criminal gangs like the Mungiki. “The police initially said that lack of proper legislation was hindering the fight against outlawed sects. Now that we have strong legislation, due process of the law should be followed. According to Legal Notice No 162, the Prevention of Organised Crimes Act, 2010 came into operation on September 23.”
The Kenya Human Rights Commission (KHRC) Statement on the International Criminal Court and the President’s Judicial ‘appointments’
The Politics
Acting upon the unilateral direction of the President, the Vice-President recently visited several African countries to rally support from the AU for a resolution seeking deferral of the Kenyan situation by the United Nations Security Council (UN SC). To bolster this effort and under the guise of complementarity, the President also unilaterally attempted to nominate persons for the positions of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget—crucial for transformation of the justice system in Kenya. The political context, the manner of execution and timing of these events indicate nothing but an attempt to defeat justice and entrench impunity. This is evident from the following facts:
- The Vice President is reportedly in an ethnically based, political alliance, the Kalenjin, Kikuyu and Kamba (KKK) Alliance, with two of the ICC suspects (Uhuru Kenyatta and William Ruto). All three have expressed their intentions to stand for the Presidency in the 2012 General Elections. Thwarting the ICC process would enable them to exercise their individual and collective presidential ambitions.
- The Party of National Unity (PNU) enlisted the services of supposed civil society organisations (CSOs), including the hitherto unknown Kenya Council for Foreign Relations, allegedly run by the PNU Spokesperson, to make its case for deferral during the AU Summit.
- The names of the President’s Judicial nominees are hardly inspiring of confidence in the transformation of the justice system—and, in fact, could be read as trying to ensure that no transformation occurs:
- The suitability of Justice Alnashir Visram as Chief Justice is questionable, in the light of his unprecedented judgment on libel in favour of Nicholas Biwott in respect of the production and sale of a book on the murder of Robert Ouko that restricted freedom of expression. His likely appreciation of the Bill of Rights and his capacity to espouse the spirit and letter of the Constitution is doubtful as a result.
- The impartiality of Kioko Kilukumi as the Director of Public Prosecutions is questionable, given that he was, until Monday, the defence lawyer for one of the ICC suspects in a fraud case (William Ruto).
- The appropriateness of William Kirwa as Controller of Budget is in doubt, given that he is under investigation by the Parliamentary Committee on Agriculture in relation to his tenure at the helm of the Agricultural Development Corporation (ADC).
The Legal Issues
On the attempt to defer the Kenyan situation:
- Deferral: Article 16 of the Rome Statute allows for deferral of cases before the ICC by the UN SC, where peace and security is threatened. The peace and security of Kenya is not threatened by continued cooperation with the ICC, as per national and international law—unless those who are warning of the same intend to create such a threat.
- Complementarity: Article 19 of the Rome Statute stipulates that the ICC would itself defer a case where the State Party concerned is able, willing and has taken credible and tangible steps towards trying cases within its jurisdiction. We note that Parliament has previously blocked two attempts to set up a Special Tribunal to try suspects, in lieu of the ICC. Moreover, the national courts have only prosecuted six cases, returning but a single conviction in respect of the violence of 2007/8. Furthermore, the said cases did not enjoin suspects with the highest responsibility.
- Sovereignty: Article 1 of the new Constitution vests sovereign power in the citizenry and decrees that any subsequent guardian of Sovereign power must exercise such power in accordance with the letter and spirit of the Constitution. The Vice President’s mission to convince African States to support the deferral of Kenya’s case at the ICC, without popular approval, is a subversion of the sovereignty of the Kenyan people. Latest opinion polls show that 90 per cent of the Kenyan people support the ICC process.
- Abuse of Office and Lack of Accountability: The unilateral decision and subsequent mission by a faction of the Grand Coalition Government to incite African States and the AU into frustrating Kenya’s case at the ICC, without Cabinet deliberation and approval and with unapproved expenditure of taxpayers’ money is a subversion of the sovereignty of the Kenyan people, an unconstitutionality, an illegality and an abuse of office.
On the supposed judicial ‘appointments’:
The Constitution at Articles 1, 3, 10, 73, 156, 157, 160, 166 and 228 and Sections 24 and 29 of the 6th Schedule, read together with Chapter 6 on Leadership and Integrity, govern the appointment of holders to the said constitutional offices.
- National Values and Principles of Governance: national values, promoting national unity and the rule of law and requiring inclusiveness and public participation in governance, have been breached.
- Leadership and Integrity: the unilateral nominations, devoid of public and stakeholder input, have failed to assure Kenyans of objectivity, impartiality and ethical leadership.
- Equal Representation: the lack of representation of women in all four nominations has flouted the principle of equality and equity in representation.
- Independence of Constitutional Offices: the Constitution asserts the independence of constitutional offices and, accordingly, stipulates the appointment procedures thereof. All current Judges are to be vetted to remain in office. Justice Visram’s nomination as Chief Justice, prior to such vetting, is unconstitutional, as is his nomination without having been advanced by the Judicial Service Commission (JSC). The Vice President in his advertiser’s announcement in today’s newspapers alludes to some irregular procedure that was agreed on by the two principals on 6th January 2011 at Harambee House. In the said announcement the Vice President indicates that a technical team had been selected to identify suitable candidates. This announcement further confirms that the appointments were irregular and that the technical team was set up to subvert the functions of the Judicial Service Commission.
- Consultation: the Constitution, read together with the National Accord and Reconciliation Act, requires consultation on nominations between the President and the Prime Minister. The Prime Minister’s disavowal of the four nominations means both the Constitution and the National Accord and Reconciliation Act have been breached.
Demands
- We demand that the President, the Cabinet and Parliament respect and enforce the Government’s national and international legal obligations in accordance with Article 2 of the Constitution.
- We demand that the Government support the establishment of a judicial system premised on competence, integrity and equality and equity in representation, in a manner that respects the due process and rule of law.
- We demand that the PNU, the KKK Alliance—including erstwhile members of the Orange Democratic Movement (ODM)—and other proponents of the deferral of the Kenyan case to desist from threatening the public to undermine the ICC process and from exciting ethnic hatred and tensions solely aimed at defeating the ICC process.
- We demand that the Government and all politicians cease and desist from threatening and intimidating national institutions and non-state actors which have risen to their calling of assisting in the quest for justice.
- We demand to know the names of the private individuals and so-called CSOs who were supported with taxpayers’ monies for politically partisan posturing to attend the AU Summit as well as who authorised their travel and covered their expenses and for those who gave such authorisation to personally refund the Government.
- Finally, we demand that the Speaker of the National Assembly and the Parliamentary Committee on Legal Affairs uphold constitutionalism and the rule of law by rejecting the said list of unconstitutionally nominated officers.
L. Muthoni Wanyeki
Executive Director For The Board of Directors
