On record, several patriotic and spirited activists and organizations have gone to court to challenge Ruto's punitive and retrogressive taxation, among other policies in Kenya. Such includes Senator Okiya Omtatah, Kenya Human Rights Commission (KHRC), Katiba Institute, The Institute for Social Accountability (TISA), Transparency International-Kenya, International Commission of Jurist—Kenya, Siasa Place and Tribeless Youth.

Individuals and actors who stand for the sovereignty of the people and values and principles of governance enshrined in the Constitution should be protected and respected rather than be treated or profiled as enemies of the State, as Ruto tried to posture.

His statement, coming at a time of deepening culture of impunity, creeping dictatorship, and shrinking democratic space in the country, reminds Kenyans of the very sad, dark, and bleak colonial and KANU regimes that were characterized by gross repression and injustices.

It is no wonder those who tried to fight these horrible policies in the streets between June and August 2023 were met with unprecedented and unmatched police brutality. It also explains why the regime police in Kisii resisted the efforts by Senator Omtatah to record a statement regarding the same threats.

Let it be clear: We won't sit and watch any ruler defile our hard-won democracy and Constitution, which safeguards our fundamental rights and freedoms to seek legal and political recourses amid governance adversities. No one, including Ruto, can curtail it.

It is essential for the ruling regime and the political class, in general, to understand that while they have tried to advance their interests and undermine people's rights over decades, Kenyans have a robust history of rebelling, resisting, and overcoming fiercely and fearlessly.

As per the second stanza of our national anthem, "Let one and all arise; with hearts both strong and true," we remain bold and committed to standing against any policy that undermines public interests and people's rights.

KHRC remains committed to advancing its mandate of human rights-centered governance and standing with the people of Kenya for the envisioned human rights state and society where citizens can freely exercise their rights without fear or favor.

Aluta Continua.

Signed

KHRC

From the outset, the court observed that the prosecution's approach was designed for failure, characterized by a reckless dereliction of duty. The collapse of the Arror and Kimwarer case confirms the ODPP is politically captured and part of a conspiracy to defeat justice.

However, this outcome did not come as a surprise to us.

Various stakeholders, including the civil society, the Judiciary, and the public, have consistently voiced concerns regarding the ODPP's handling of high-level criminal cases, especially those with political connections. We have observed a worrying emerging pattern where cases have fallen apart due to withdrawal by the prosecution or ended in acquittals because of poor prosecution.

In the Arror and Kimwarer case, it became evident that the prosecution was committed to deliberate failure. The trial faced continuous frustration, prompting both Magistrate Eunice Nyutu and High Court Judge Nixon Sifuna to openly call out the prosecutors in charge of the case, Geoffery Obiri and Oliver Mureithi. The management of this case exemplified what can be termed "prosecution-assisted acquittals": the prosecution mischievously outdid the defense counsel's efforts in securing the release of the suspects.

The fact that the prosecution scheduled and failed to interrogate 41 witnesses who could have submitted credible evidence to win the case indicates incompetence and manipulation. The prosecutor who led this case must not handle any prosecutorial role and must be removed from that office through any legal means.

DPP Renson Ingonga must know that prosecutorial powers are not a plaything that can be exercised at whims between his office and political power holders to absolve suspects with political connections.

The deliberate undermining of cases for political reasons is not a recent development.

The pattern began in the reign of former DPP Noordin Hajj. Despite the former DPP's public assurances that charges were only filed when fully satisfied that the cases met the evidentiary threshold to secure a conviction—which in criminal cases must be beyond a reasonable doubt—his office frustrated the same matter with the same evidence and the same witnesses that informed their decision to charge. ODPP is such a critical cog in the criminal justice system, and the right to justice and the fight against corruption must not be handled with such casualness.

Our demands

We are demanding the following from the DPP:

1. To assert authority, the DPP must seize the Arror and Kimwarer case, redirecting it towards its foundational principles, raison d'être, and constitutionalism. Immediate and decisive action is required. This entails promptly assuming responsibility for the issue and undertaking urgent remedial measures. It is crucial to identify any personal culpability among his officers that led to the wrongful identification of the 41 witnesses as credible—if indeed they were. Subsequently, the DPP should initiate a swift process to ensure that the actual culprits are brought to court and charged accordingly. If Rotich and eight others were the real suspects, they must face the law again.
2. If the DPP does not do this, we will take the requisite legal measures including individual action against the relevant officers in the ODPP who acted outside the principles of the Constitution and the law in handling the case, and in so doing have led to the loss of public resources including financial and human resources spent on the investigation, prosecution, and adjudication of the matter.

Further, we demand that:

3. Former CS Rotich and the eight other suspects involved in the Arror and Kimwarer dam case should be barred from public office appointments. Their acquittal is suspect and requires a comprehensive, independent investigation to examine the circumstances surrounding the collapse of the case thoroughly.

Signed

1. Kenya Human Rights Commission (KHRC)
2. Transparency International-Kenya (TI-Kenya)

Article 132 (1) of the Constitution mandates the President to address Parliament annually, providing a comprehensive report on the measures taken and progress achieved in realizing national values and principles of governance.

Kenya Human Rights Commission (KHRC) raises the following concerns in response to the State of the Nation Address.

1. Integrity, transparency and accountability in public finance management

The President talked boastfully about cutting down on wasteful spending, but it's just words! There's a massive gap between what he said and what his regime does with Kenyans money. The Office of the Controller of Budget's report for the second quarter of the 2022-2023 financial year revealed a serious breach of the Constitution and the Public Finance Management Act 2012. Picture this: in just three months, from November 2022 to January 2023, ministries, departments, and agencies threw away over Sh3 billion on local trips, Sh2.8 billion on statehouse functions, and another Sh0.88 billion on the Deputy President's office's coordination and supervision. They failed to meet the 70:30 budget spending rule—out of the whopping Sh3.3 trillion budget for the 2022-2023 financial year, only 21.5 percent went to development. This was a letdown!

On top of everything, we've had more than five major corruption scandals and unethical behaviors during this time. From the Sh3.7 billion KEMSA mosquito net scandal to the release of contaminated sugar by KEBS, the former Trade and Industry CS Moses Kuria attacking the media, and scandals with edible oil and NHIF. And let's not forget the recent Sh17 billion fuel importation scandal at the Kenya Ports Authority (KPA). It’s been an absolute disaster, yet the President's address did not say how he intends to effectively tackle graft. This paints a grim picture for the leadership of this country. Kenyans need to use their power to demand better. We should be ready to kick out leaders with questionable characters and use the courts and other legal tools to deal with this problem.

This regime also attempted to extend the Chief Administrative Secretary (CAS) positions, with 50 officials raking in at least Sh780,000 monthly of taxpayers’ money. And that’s not all. The regime succeeded in creating unnecessary roles and offices for the spouses of the Deputy President and the Prime Cabinet Secretary, a reward for the President's allies but a failure in governance and a burden to you, a taxpayer.

If we don't put a lid on this regime’s extravagance, we should forget essential services, a crucial part of devolution. This regime must respect, follow, and defend the rules about managing our money in the Constitution. And the National Assembly Public Accounts Committee (PAC) must step up—keeping the regime in check and making sure they don't play fast and loose with our money should be its priority.

2. Human rights and security

In his talk, the President said our freedoms and rights are essential for democracy. He said the whole system should be people-friendly and protect our independence, per the Constitution. To make it happen, he stressed that everyone in charge, like the police and the courts, should be professional, independent, fair, and stick to our national values. But in the past year, things have been the opposite.

Between March and July 2023, the police shot and killed more than 30 people protesting. The President said he'd get rid of a killer police squad, but it came back under his watch. And to make things worse, the President praised the police for acting in a way that's not humane, dignified, and according to the law.

Then there's the President's "mambo ni matatu" line, basically saying he can deal with the so-called cartels however he wants. This goes against the Constitution and hints that he can do whatever he pleases–like influencing court decisions and going after his opponents. That's an abuse of power and a danger for those trying to get justice in cases involving big names and government agencies. Ruto didn't mention these threats in his speech, but we want him to know we haven't forgotten and we're keeping a close eye on him.

3. Inclusion and non-discrimination

The President discussed inclusion in his address, citing financial incorporation through the Hustler Fund and expanding the National Youth Service (NYS) enrollment. However, per the Constitution, inclusion must be integrated into governance's political, economic, and social spheres, which this regime has failed. For instance, 50 percent of the President's Executive appointments came from the Gikuyu, Embu, and Meru communities, 30 percent from the Rift Valley region, leaving a mere 20 percent for the rest. This blatant favoritism is not just a betrayal in the face of diversity; it's a recipe for perpetuating ethnic discontent that has plagued our nation. The current cabinet composition falls short of the promised inclusion and threatens to undo any progress in fostering unity among different communities. The President's words on inclusion ring hollow against this backdrop of skewed appointments. He should strictly uphold this critical constitutional value.

4. Democracy and participation of the people

Public participation is critical in how the government runs, according to Article 10 of the Constitution. But here's the problem: the President's State of the Nation address didn't mention this crucial value. It makes us wonder, does this regime care about hearing from its citizens? Even though there are laws to involve the public, many obstacles get in the way, including tokenism, insufficient information, political games, and other barriers that stop people from having a real say in decisions that affect them. Here's a clear example: 970 of 1,080 petitions said no to extra taxes in the Finance Bill of 2023. But the regime-friendly lawmakers pushed it through anyway, with the President warning his allies not to go against it. They recently gave the public just a few days to have a say on health-related bills—not enough time for real input. Sadly, this kind of thing is becoming a trend, going against what citizens want. Public participation means letting people have a real say in decisions and policies that affect them. It's a democratic principle that ensures the government listens to all kinds of voices—and this regime should not ignore it.

5. High cost of living

In his talk, the President bragged about his government pouring a ton of money into agriculture to make more food and reduce the cost of living. Fertilisers’ prices reduced to Sh2,500 from Sh6,500. Even though this was commendable, many farmers are griping that they can't even get their hands on the fertilizer. And the President didn't say how his administration would fix this.

Additionally, since Ruto took charge, living costs have shot up, and things will get worse. The administration keeps piling on new taxes, squeezing Kenyans so much that many can't pay their debts, lose jobs, and struggle. We can’t breathe because the Ruto regime is choking us with taxes. Fixing the sky-high cost of living requires a serious plan, not punitive levies and taxes. The administration should ditch tax additions, cut out wasteful spending, fight corruption, and put that money where it counts—into things that help the country grow and improve Kenyans lives.

6. Odious debt

The Kenya Kwanza regime promised not to borrow more and burden us with extra debt during their campaigns and when they took office. As of September 2022, our public debt hit Sh8.7 trillion, about 69.4 percent of our Gross Domestic Product (GDP). However, nine months after this regime came to power, the debt shot up to Sh10.2 trillion, compared to Sh8.579 trillion in June 2022. That's a whopping Sh1.5 trillion borrowed under President Ruto's watch.

Shockingly, the Controller of Budget in November this year told the National Assembly that taxpayers coughed up Sh1.89 billion as commitment fees for loans that were never even given out. The President didn't even mention this severe breach in public borrowing during his address, raising questions about whether the non-disclosure were deliberate actions by his administration. We need an urgent audit of all the money we owe, inside and outside the country, to ensure the regime uses public resources wisely.

7. State of judicial system

At the start of the President's term, there was talk about fixing the justice system for fair law enforcement, an independent judiciary, and the rule of law. Appointing six judges to the Court of Appeal, as the Judicial Service Commission (JSC) suggested, and boosting the Judiciary budget by Sh3 billion was a good move.

But there's a persistent takeover of independent institutions by the Executive, and it's in plain sight. Serious cases against high-profile individuals, including murder, were dropped without a solid reason. Is it just a coincidence that the President's allies who ended up in his cabinet were the first ones benefiting from shady decisions by the Office of the Director of Public Prosecution (ODPP)? When he addressed the nation, why didn't the President come clean about why the people he defended during campaigns, claiming their prosecution was just politics, suddenly walked free when he took power? This regime is doing the opposite of what it promised—they're practicing the very state capture they vowed to stop. It's all a big deception!

8. Hustler Fund

The President talked up the achievements of the Hustler Fund, launched on November 30, 2022, aiming to offer affordable credit and boost savings for ordinary Kenyans and small businesses. The President coined some successes that look way bigger than they are, all to make the Fund seem more successful than it is. In reality, many who got loans find it tough to pay them back, showing the need for a serious look at what the program is meant to do and how it's set up to ensure it works well and isn't just about politics. There are also worries about how the data of people applying for the fund is protected. The regime must implement solid policies to keep applicants' information safe, per the Data Protection Act of 2019.

9. State of education sector

The Kenya Kwanza regime promised to fix education by creating a team to sort out the problem bedeviling the sector. But the team didn't get its act together for junior secondary school. There are no enough buildings, school resources are coming in late, and teachers aren't getting the training they need.

The new funding for higher education turned things upside down, making parents carry the load that used to be on the government. Now, university and technical courses cost more than expected. Before, government-backed students paid Sh16,000 a year for classes and got a yearly loan of up to Sh60,000. But now, they must cough up an average of Sh650,000 a year, and scholarships are so little to offset the fee.

This change is pushing students to drop out or skip courses altogether. And to top it off, because of technical glitches, only 30 percent of students who should get help applied for government scholarships and loans this year through the Higher Education Fund and Higher Education Loans Board (HELB). Most students have been shut out of higher education.

It gets worse. The Kenya Kwanza regime is blocking students under 18 from getting education loans because they're legally minors. Before, these students could use their parents' details to get the cash. It's a mess. Although the National Assembly stopped implementation of some of these plans, it must ensure that they will never be effected to protect the right to education.

10. Breach of Article 132

The President's address was two months late, blatantly violating the constitutional requirement for an annual report. Article 132 (1)(c) explicitly commands that:

"President shall once every year--

(i) report, in an address to the nation, on all the measures taken and the progress achieved in the realisation of the national values, referred to in Article 10;

(ii) publish in the Gazette the details of the measures and progress under sub-paragraph (i); and

(iii) submit a report for debate to the National Assembly on the progress made in fulfilling the international obligations of the Republic."

Kenyans anticipated that the President would uphold his commitment to the rule of law by delivering the address on time. He failed, disregarding the very principles he swore to uphold.

Failed speech

Given all the serious problems mentioned, it's clear that the speech didn't tackle the main issues affecting Kenyans. The current state of the nation is undeniably gloomy and desperate. This regime has set up a weak foundation for governing that won't hold up against the political, social, and economic hits that are sure to come. It's not steering the country towards the transformation we need. Considering all this, we demand that the Kenya Kwanza regime stick to the Constitution. It's the backbone of good governance and the roadmap for Kenya's success.

Signed

KHRC

Kenya positions itself as the leading voice on issues of climate change in Africa, yet viciously evicts indigenous people who play a crucial role in conservation of nature, and are at the frontlines of the impacts climate change. This is the fate of the Ogiek in Kenya who face state orchestrated evictions from their ancestral homes, despite the landmark judgments by African Court of Human and People's Rights, recognizing their entitlement to live on their ancestral land in the Mau Forest and providing reparations for the material and moral harm suffered as a result of their marginalization and dispossession of their lands.
On this national tree planting day, it is worth remembering that indigenous people are the unsung heroes of environmental stewardship and must be at the centre of climate action. The Preamble of the Paris Agreement to the United Nations Framework Convention on Climate Change makes it clear that all States "should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.” It is only through equitable, and inclusive partnerships that seek to strengthen and empower communities most impacted by climate change, that we can truly attain just and sustainable climate action. On this tree planting day, let us also sow seeds of human dignity, equity, social justice, inclusiveness, equality, human rights, and non-discrimination.

Consequently, we demand:

1. The government must expedite the implementation of the African Court's judgments on the Ogiek case, which stated Mau Forest is their ancestral home. The government, among other reparations, must also compensate the Ogieks Sh157 million for moral and material harm they suffered, as the court ordered.
2. The government must cease and desist from any further violations, including but not limited to forceful evictions, and undertakes to commit to using the best available means to provide reparations to preserve the dignity, culture, and future of indigenous communities affected and to explore alternatives in line with its international and regional treaty obligations.
3. We strongly oppose using exclusionary and militarized methods in conservation that limit access to essential resources without offering fair or better alternatives. This undermines people's fundamental rights and freedoms. We insist that indigenous communities should be a top priority in climate action.

 Signed:

1. Ogiek People’s Development Project
2. Kenya Human Rights Commission (KHRC

SOMO and KHRC are publishing a dossier of evidence based on the testimonies of 31 current and former employees and members of the local community.

The sexual abuses reported at Wildlife Works’ Kasigau project include physical assault and attempted rape on company premises or land as well as persistent harassment and the use of humiliating sexualised slurs.

One employee testified that,“Women are treated as sex objects but nothing happens because [the perpetrators] intimidate everybody.”*

Senior men in the company used their positions of power to demand sex in return for promotions and better treatment at work. Refusal of these sexual demands was met with retribution, including being bullied, intimidated, and refused promotions or other work-related benefits.

One woman described how rejecting sexual advances leads women to “live and work in fear…because we can be dismissed at any time without good reason.”*

The culture of abuse at Wildlife Works’ Kasigau project was widely recognized by men and women SOMO interviewed. Key perpetrators of the abuse were repeatedly named by those interviewed. According to our investigation, the abuse has persisted for a decade or more.

A male employee shared, ‘It’s so cruel… our sisters are just not safe working at that company. I can’t allow my sister or wife to work at that company because the things that will happen to her there can affect her for the rest of her life”.*

SOMO director Audrey Gaughran said, “Our investigation found compelling evidence that the culture at Wildlife Works’ Kasigau project is one that has enabled sexual abuse to become common-place and common knowledge.

“Again and again we heard harrowing accounts of assault, abuse, intimidation, and degradation of women by men in positions of power at Wildlife Works' Kasigau project.”

Female employees were not the only targets. The wives of male rangers were also reportedly pursued by one perpetrator and told their husbands’ employment depended on them having sex with him.

The poverty in the region and very limited employment alternatives mean people are desperate to get and keep jobs at Wildlife Works, even when the cost is so egregious.

Humiliating and degrading treatment of female community members

The abuse of power by senior male staff also extended to the local community. SOMO and KHRC received testimony from women living in the villages surrounding this project about encounters with Wildlife Works rangers that left them traumatised, humiliated, and, in some cases, in physical pain.

Rangers subjected women found gathering firewood or grazing their livestock on company land to  humiliation and abuse, forcing them to kneel on the ground for three hours or longer.

“We cried and cried,” one woman recalled, “but there was no mercy.”*

Kenya Human Rights Commission programme manager Mary Kambo said, “We are calling on the Kenyan government to conduct an independent investigation into the serious allegations of sexual abuse at Kasigau.

“As a bare minimum victims must get redress, perpetrators must be held to account and safeguards be put in place to protect the human rights of Wildlife Works’ employees and the local communities.”

Multinational corporations drive demand for the carbon-offsetting industry

Multinationals like Netflix, Shell, and Microsoft, which are based in the Global North, offset their carbon emissions on paper by purchasing carbon ‘credits’ from companies such as Wildlife Works that claim to reduce emissions elsewhere in the world - often in the Global South.

The carbon offset industry is significantly driven by the demand created by these big multinationals.

“Carbon offsetting is a deceptive business that profits from commodifying nature and communities. It enables corporations to greenwash and avoid real emission reductions,” said Audrey Gaughran.

Investigation must be independent

SOMO and KHRC shared the findings about sexual abuse with Wildlife Works in early August 2023, urging an independent investigation that would ensure the safety of victims at Kasigau. Wildlife Works responded by setting up an internal investigation run by a Kenyan law firm.

In October 2023, SOMO asked all of the women and men interviewed in June and July 2023 if they had met with the lawyers working for Wildlife Works. Only one man and one woman of the original 27 people who gave SOMO and KHRC testimonies said they had been interviewed.

Researchers spoke to these two individuals and three additional people who had been interviewed by the lawyers. Four of the five shared that they had told the lawyers about the widespread sexual harassment and abuse happening at the Kasigau project. The fifth person, a woman who said she has been subjected to severe abuses at Wildlife Works, chose not to disclose this to the lawyers, worrying that “maybe they could have me fired.”

Audrey Gaughran said: “It is vital that the investigation into sexual abuse at Wildlife Works’ Kasigau project be fully independent, compliant with human rights standards, and that it leads to accountability and remedy for all those affected.”

Ends

Notes to editors

*Testimony provided to researchers by employees of Wildlife Works Kasigau REDD+ project and members of the local community.

SOMO has shared the findings of the report in advance with Netflix, Shell, McKinsey, and Microsoft in writing. Only Shell has responded and stated that it takes the reports seriously and is in contact with the project developers. Shell awaits the findings of the investigation into these allegations that Wildlife Works has commissioned.

About SOMO

SOMO investigates multinationals. Independent, factual, critical and with a clear goal: a fair and sustainable world, in which public interests outweigh corporate interests. We conduct action-oriented research to expose the impact and unprecedented power of multinationals. Cooperating with hundreds of organisations around the world, we ensure that our information arrives where it has the most impact: from communities and courtrooms to civil society, media and politicians.

About KHRC

The Kenya Human Rights Commission (KHRC) is a premier and flagship Non-Governmental Organization (NGO) in Africa that was established and incorporated in 1992 by Kenyans exiled in the United States of America (USA) and later registered in Kenya in 1994. KHRC founders are among the foremost leaders and activists in struggles for human rights and democratic reforms in Kenya and beyond. The KHRC is committed to its mandate of enhancing human rights-centered governance at all levels and its vision to secure human rights states and societies. KHRC’s mission is to foster human rights, democratic values, human dignity, and social justice.

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They included the family of the late Agnes Wanjiru, a young woman whose family accused British soldiers of having a hand in her gruesome murder in 2012, and the widow of Linus Murangiri, who died during a fire incident linked to BATUK soldiers. The victims planned to air their grievances before King Charles III’s arrival to Kenya.

On October 31, 2023, the police again, without providing any reasons, blocked a peaceful procession by a group of patriots from the Social Justice Centers Working Group who intended to present a petition to the British High Commission. This is despite the group having notified the police of the planned precession on October 27, 2023. Just before the peaceful procession could commence at the Dedan Kimathi monument in the capital, a truck full of uniformed and ununiformed police officers armed with teargas canisters blocked the procession. The police also confiscated two banners with these messages: “BRING BACK KIMATHI REMAINS” and “BRITAIN MUST APOLOGIZE.”

These barbaric acts by the police demonstrate that despite the many attempts at police reforms, the systemic philosophical and operational nature of policing in Kenya has never changed since its establishment as a militia to protect the business interests of Sir William McKinnon and his company Imperial British East Africa (I.B.E.A.) in the 1880s.  As it were in the 1880s and throughout the colonial period, the Kenya police in 2023 is still a tool to protect the elite’s interests (predominantly white) while brutalizing, oppressing, and repressing the so-called natives.

We are especially concerned that this is happening within a context in which for the last year since the Kenya Kwanza regime came into office, the Kenya police has re-acquired a forceful, brutal, coercive character and made it impossible for citizens to organize public protests and other gatherings meant to challenge the governance abuses and failures of the ruling political and corporate elites just as its colonial predecessor.

We strongly condemn these despotic and unconstitutional acts by the police and wish to remind the government that Articles 33, 34, 36, and 37 of the Constitution of Kenya guarantee the freedom of expression, media, association, assembly, demonstration, picketing, and petition, respectively. We reiterate that any attempts to limit these fundamental rights and freedoms unconstitutionally will be vehemently resisted. Police officers perpetrating human rights violations while attempting to limit these fundamental rights and freedoms outside the provision of Article 24 of the Constitution will be held individually culpable.

We demand that the Kenya Police allow all victims of human rights violations perpetrated by British colonial and post-colonial institutions to exercise their rights and freedoms of expression, media, association, assembly, demonstration, picketing, and petition without any intimidation and harassment. These are fundamental, inalienable rights guaranteed by the constitution, which the police have no powers to limit arbitrarily.

We demand that the police resist any attempts to take Kenya back to the dark and repressive Colonial and KANU rules. Kenyans shall sustain the fight for their constitutional rights as they did during the colonial and KANU days.

We call upon all groups who have suffered severe human rights atrocities perpetrated by British colonial and post-colonial institutions to come forward and air their grievances and demands to King Charles III without any fear.

At the minimum, we still maintain that the King must issue a public apology and commit to adequate reparatory and compensatory measures for all the diverse groups of victims of the horrific atrocities.

Signed:

Kenya Human Rights Commission (KHRC)

Editor's note: This is a KHRC press statement and an open letter on the official visit of King Charles Philip Arthur George Windsor of the United Kingdom to Kenya

1. INTRODUCTION

Kenya Human Rights Commission (KHRC) is a premier Non-Governmental Organization (NGO) established in 1992 with a mandate for enhancing human rights-centred governance at all levels.  This entails applying the international, regional and national governance frameworks, including the Constitution of Kenya to foster States obligations to respect, protect and promote human rights, rule of law and accountability.

We advance policy, legal and civic actions in pursuit of redress for such. To this effect, we fearlessly expose, combat and confront diverse and gross human rights and governance abuses committed by both state and non-state actors including corporations and organizations-- ranging from the colonial and to the post-independence regimes in Kenya.

Some of these touch on the victims and survivors of mass and systemic atrocities, historic land injustices and corporate-related violations for which either the British government or corporation, among other powerful actors have been involved in one way or another.

A case in point is the, Mau Mau reparations suit initiated in London by Leigh Day, KHRC and Mau Mau War Veterans Association (MMWVA) against the transgressions committed by British government during the emergency period between 1952 to 1960.

The campaign we started in 2002 ended up with an out of court settlement in June 2013 accompanied by a statement of regret, as opposed to an apology, from then British Prime Minister. And some modest reparations for the 5,228 claimants and fund that saw the construction of a monument at the Freedom Corner in  Nairobi[1].

We understand Charles III, King of the United Kingdom (UK), is set to arrive in Kenya on October 31, 2023, for a four-day state visit that ends on November 3. According to UK’s government, the King’s visit is to “celebrate the warm relationship between the two countries and the strong and dynamic partnership they continue to forge”.

While the UK’s government indicates that the King will “acknowledge the more painful aspects of the UK and Kenya’s shared history, including the Emergency (1952-1960)”, there is no indication that the King plans to meet with all the diverse groups of victims of gross human rights violations perpetrated by the brutal colonial  regime and British multinationals in Kenya or offer full and unconditional apology and commit to effective reparations to victims and their families.

Speaking on Kenya’s Spice FM on Tuesday October 24, 2023, ahead of King Charles III’s visit, UK High Commissioner to Kenya  Neil Wigan  confessed that they haven't  issued an apology in any context  as “ it is really  difficult thing  to do”. He further admitted:

“An apology starts to take you to a difficult  legal territory, and the settlement we made was out of court, so it showed  our sincerity and openness in recognizing the abuses that were committed. That is the route we chose and accepted to the Mau Mau War Veterans Association.”

This confirms why  the British government initially tried to oppose the Mau Mau case on the unjustifiable basis of lack of liability and lapse of time. On the first issue, they had moved to court to have the case struck out by invoking the defense of State Succession, transferring responsibility to the Kenya Government. On the issues of the state of limitation, they argued that the case is time barred, with over 50 years having elapsed since the alleged atrocities took place[2].

This position and approach falls short of the international principles on redress and transitional justice  as established in the UN  Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of the International Human Rights Law and Serious Violations of the International Humanitarian Law[3].

Finally, the UK government indicates that “His Majesty will take time during the visit to deepen his understanding of the wrongs suffered in this period by the people of Kenya”. We welcome the King’s willingness to understand and we,  as key actors, remain available to offer the requisite information and recommendations which we hope will confer effective remedies as espoused in the aforementioned international frameworks.

Based on this, we wish to bring to the attention of the British government some of the critical and interrelated human rights and governance abuses for action.

2. CRITICAL HUMAN RIGHTS AND GOVERNANCE ABUSES FOR IMMEDIATE ACTION

Below are the key injustices committed during  and post colonial rule whose social, economic and political implications continue to be felt to date.

1. Political repression during the Colonial Rule (1895 to 1963)

It is on record that British occupation was characterized from inception by an extremely brutal and excessive force with punitive and violent expeditions that saw unprecedented crackdown of all individuals, communities and associations that resisted its political ventures in different parts of the country. Many fearless women leaders such as Mekatilili Wa Menza, Muthoni Nyanjiru,  Prophetess Syokimau, Moraa Ngiti,[4] among others, were not spared either.

The atrocities committed by the British regime were so gross that the Truth, Justice and Reconciliation Commission (TJRC)[5] when exercising its special mandate on the colonial antecedents summarized it in its primary findings:

“The Commission finds that between 1895 and 1963, the British Colonial administration in Kenya was responsible for unspeakable and horrific gross violations of human rights. In order to establish its authority in Kenya, the colonial government employed violence on the local population on an unprecedented scale. Such violence included massacres, torture and ill-treatment and various forms of sexual violence.

The Commission also finds that the British Colonial administration adopted a divide and rule approach to the local population that created a negative dynamic of ethnicity, the consequences of which are still being felt today. At the same time the Colonial administration stole large amounts of highly productive land from the local population, and removed communities from their ancestral lands[6].”

From 1920 onwards when Kenya attained the colonial status and political authority, the British rule introduced very repressive laws and policies that had adverse effects on both the civil, political, economic, social and cultural rights of the locals. These anti-people and punitive governance systems and practices have been sustained to date. The deeply repressive policing culture is a case in point for it was established and sustained as a tool for suppressing civic uprising.

Owing to this and tired of operating in constrained political spaces, living in infertile and overcrowded native reserves and working for low pay on white owned settler farms, Kenyans began to organize into many resistance movements across the country. To quell the protests, the colonial government responded with extreme levels of brutality and barbarity.

The worst was during the emergency period between 1952 and 1960 when British colonial authorities carried out a brutal campaign against Kenya’s freedom fighters. Over 100,000 Kenyans were killed, tortured and maimed.

1. Land Alienation

The deeply oppressive and alien land policies during the colonial era are widely documented in the official reports, civic investigations and academic journals. Through the Land Acquisition Act (1894), the Crown Lands Ordinance (1902), the Crown Lands Ordinance (1915) and the Kenya Native Areas Ordinance (1926), British colonial authorities forcefully and brutally evicted Kenyan communities from their ancestral lands and handed the high potential land to white settlers and multinational corporations with up to 999 years leases. Kenyan land became ‘Crown’ land owned by the Queen of England.

As a result, Africans were confined to unproductive and overcrowded native reserves. In some cases, the British signed so-called “agreements” with illiterate community leaders leading to dispossession of their land. For instance, the Maasai community signed the Anglo-Maasai agreements that saw massive loss of their grazing land to white settlers. Unfortunately, some of the parcels of lands are still owned by British investors as Lord Delamare, David Craig and corporations such as Kakuzi, Unilever Tea Kenya, James Finlay Kenya, George Williamson.

The adverse effects of these colonial laws are felt to date. It is on this basis that the National Land Policy (NLP) in Kenya points to the fact that:

“It was expected that the transfer of power from colonial authorities to indigenous elites would lead to fundamental restructuring of the legacy on land. This did not materialise and the result was a general re-entrenchment and continuity of colonial land policies, laws and administrative infrastructure. This was because the decolonisation process of the country represented an adaptive, co-optive and pre-emptive process which gave the new power elites access to the European economy[7].”

The long-term effect of this is the historical land injustices.  These according to NLP are:

“ …. land grievances which stretch back to colonial land policies and laws that resulted in mass disinheritance of communities of their land, and which grievances have not been sufficiently resolved to date. Sources of these grievances include land adjudication and registration laws and processes, treaties and agreements between local communities and the British”.

1. Gross Human Rights Violations Committed by the British Corporates

There is a direct link between the above-mentioned colonial and post-independence state governance frameworks and the entrenched power and interests of private sector elite in the land, conservation, and other business ventures in our society where corporate-related human rights violations are committed with minimal, if not zero redress[8].

This is because, colonialism was a political system to advance the imperial interests of the British citizens and corporates. Thus the above-mentioned questions on land alienation and political repression were partly to create an enabling environment for the corporates to advance the land-based agricultural economy with cheap labour and minimal resistance.

This has over time entrenched the culture of corporate capture and led to many human rights violations committed by the British citizens and multinationals in Kenya.  We outline a few cases below to show how powerful British multinational enterprises continue to retain effective control over political and economic spheres in Kenya. Kakuzi Kenya Limited which is a subsidiary of UK based Camillia Park in the UK is a case in point.

On 11^th  February 2021,  and following the intervention of Leigh Day, KHRC and Ndula Resource Centre;  Kakuzi Limited, agreed to 1 billion Kenya shillings settlement for  atrocities ranging from killings, assault, rape, and other forms of sexual and gender-based violence committed by its guards. As if to confirm that colonialism never really ended, to date,  Kakuzi has failed and/or refused to resolve historical land injustices relating to the dispossession of land for more than 13 neighboring communities comprising of at least 3000 members.

Many corporations in Kenya with links to the United Kingdom, either through ownership or trade, have continued to wield huge economic and political power, oftentimes disenfranchising whole sections of communities.

In February this year, the British Broadcasting Corporation released an expose revealing that more than 70 women had been sexually abused by their farm managers in tea plantations operated by two British companies, Unilever and James Finlay. These women told the BBC they had been sexually abused by their supervisors. Secret filming showed local bosses, on plantations owned by Unilever and James Finlay & Co, pressuring an undercover reporter for sex[9]”.

This gross and systemic violation of human rights left some of the victims infected with HIV while in other cases, marriages were shattered. None of the women has been compensated for these egregious human rights violations, which are reminiscent to what happens in many other corporations, including floriculture farms exporting flowers to European countries, among them the UK.

In April this year, a man was killed, and another seriously injured in Ibis Farm, operated by British Flamingo Group. Flamingo is the world’s largest rose grower and top supplier of premium roses to supermarkets in the United Kingdom, including Tesco, Sainsbury’s, Morrisons, M & S, Waitrose and the Coop.

It is the failure by this very company to institute safety measures for transportation of workers that saw dozens of workers injured when a lorry they were being ferried in, fell over in December 2022. In total disregard to safety, workers are ferried around in buses and lorries that have no seats. An estimated 136 workers were involved in the lorry accident that left one dead. Justice has been elusive for the family of the worker who died and those that were injured.

This culture of corporate impunity is common among the many British and other foreign investments in Kenya.  We are currently documenting violations by other British, national and multinational actors.

1. Conservation, the Face of New Colonialism

Related to the above issues, interests and actors, is the question of conservation being supported by many international governments and agencies.  This goes back to the colonial and post-colonial private interests in land and land-based resources.

Current proposals by extremist conservationists to have a third of the Earth designated as protected areas for wildlife conservation which the Royal Family supports is having serious impacts on the lives and livelihoods of communities in Kenya. Communities are being disposed of their land by ‘conservationists’.

In what is reminiscent of the land alienation during the colonial period, illiterate community leaders are duped to sign agreements to relinquish community land traditionally used for grazing to establish military style conservancies and lodges for white tourists. Communities are fast losing vital grazing land in which they have harmoniously co-existed with wildlife for centuries before the arrival of the “white savior conservationist”.

These conservancies also engage in carbon trading without any real benefits trickling down to the communities. International media including the Financial Times and The Guardian as well as reputable environmental groups have exposed the fallacies of carbon credits and offsets. The loss of land and livelihoods and the negative impacts of climate change are causing serious challenges including conflict and migration.

KHRC, Human Rights Watch and Kenya Land Alliance are undertaking a study which would provide deeper findings and recommendations into these issues before December 2023.

1. The British Army Training Unit in Kenya (BATUK)

Kenya hosts British troops who utilize Kenya’s unique geographical features for training. However, instead of reciprocating the warm reception that The British Army training Unit in Kenya (BATUK) receives from Kenyans, the British troops continue to unleash terror on Kenyans.

In March 2012, a British soldier murdered Agnes Wanjiru, a 21-year-old mother and dumped her body into a septic tank at Lions Court Inn hotel in Nanyuki. By the time Wanjiru’s body was found, all the BATUK soldiers who had been at the hotel had returned to the UK. To date, the culprit has never been prosecuted.

In another incident in March 2021, BATUK soldiers deliberately caused a devastating fire at Lolldaiga wildlife conservancy from the use of white phosphorus. More than 10,000 acres of wildlife reserve were destroyed in the fire that caused massive pollution.

Due to the colonial and oppressive nature of the agreement signed between Britain and Kenya, British soldiers cannot be prosecuted for criminal acts in Kenya without agreement from Britain which is totally unacceptable.

3. RECOMMENDATIONS

In light of this, KHRC calls on the King and the British government to take substantial measures to redress these historical and current injustices and to ensure a more transparent, fair and just relationship between the People of Kenya and those of the United Kingdom. We urge the following actions:

1. Unconditional Public Apology and Official Acknowledgement of Wrongs

We concur with the guidance advanced by the International Centre for Transitional Justice(ICTJ) that:

When solemnly and unequivocally given, apologies convey a clear acknowledgement of the responsibility of the state and individuals not only for the harm done, but for the causes of the conflict or repression that led to those harms. In this way, they play an important role in giving meaning to reparations and promoting efforts to reform institutions and guarantee non-repetition.

It is on this basis we call upon the King on behalf of the British government to issue an unconditional and unequivocal public apology (as opposed to the very cautious, self-preserving and protective statements of regrets) for the brutal and inhuman treatment inflicted on Kenyan citizens during the entire colonial period-(from 1895 to 1963) and thereafter, to date. Such an apology is a critical step in acknowledging the pain and suffering of Kenyans.

The Kenya’s TJRC report had recommended that the British Government, the Kenyan President and  Chief Justice offer  public and unconditional apologies to the people of Kenya over the colonial and post-independence injustices[10]. As a result, Chief Justice Dr Willy Mutunga and President Uhuru Kenyatta complied with this in March 2015 where they issued requisite apologies [11].

Kenyatta made his apology during his annual State of the Nation speech on March 26 before a joint sitting of the National Assembly and Senate.  Mutunga made a general apology on March 7 during an event to commemorate the first political assassination in Kenya, the killing of socialist politician Pio Gama Pinto that remains unsolved.

To date, the British government is yet to meet this critical obligation save for the statements of regrets.  The maiden visit by the King provides an opportunity for this.

1. Documentation; Repatriation and Repository of Materials related to British Atrocities

We demand that the British government supports the civil society, victims and academic groups working on this to undertake a comprehensive mapping of all the existing information, adversely impacted groups and the harm suffered.  A lot of research and documentation has taken effect.

Repositories (both physical and virtual) should be established and supported to ensure that different information into this subject matter is secured and easily accessible.  The Mau Mau website and Foundation by the war veterans and being supported by KHRC and scheduled for launch on November 8, 2023 would be one of the crucial spaces.

We also demand that the British government repatriates all the declassified information touching on its rule in Kenya.  It is a pity KHRC and MMWVA had to buy lots of literature from London in the pursuit of the aforementioned case. Moreover, all the historical artifacts held in Britain should be brought back for safe custody at the new galleries at the Uhuru Gardens, the National Museums of Kenya among other sites.

In addition to this, it is time Britain brought back the skull of Koitalel Arap Samoei(just as Belgians have done with the tooth of Patrice Lumumba in DRC) and assisted in  the tracing of Dedan Kimathi’s burial site for decent sendoffs.

With respect to the historical land injustices, we request the British government to support the National Land Commission to carry out further investigations and analysis of all the legitimate claims. The Commission has said many times that it received many cases which require massive resources for the verification and actions to be accomplished from their side.

Finally,  the British government should implore its investors  holding massive and fallow lands in Kenya in the midst of many landless  and impoverished communities to surrender the same to the people and government of  Kenya  for settlement and development.

1. Adequate Reparations for all Victims

We further demand effective reparations for all the atrocities committed to the different groups in the country. This should be in line with the aforementioned UN Principles and Guidelines which provide supporting among others; adequate compensation, rehabilitation, satisfaction and guarantee of non-repetition.

We also demand adequate financial and technical support in the construction and maintenance of the requisite memorials. These are critical for communal and symbolic reparations as well as preservation of memories. The Mau Mau memorial at the Freedom Corner needs constant financial support from the British Embassy in Nairobi for maintenance and improvement[12].

To this extent, there should be a memorandum of understanding between KHRC (which has been using its limited resources to service the monument); British High Commission in Nairobi and the Government of Kenya (through the National Museums and County government) on this. There is also a need to have all these monuments gazetted by the government of Kenya.

Finally, the British government should consider a reparative development programme which provides special materials support for the people and regions that continue to suffer the long term and emerging effects of colonial policies and current investments by British corporates and citizens. As put in the TJRC report, such has led to systemic economic marginalization.

1. Human Rights Commitment and Compliance

We expect the King to express the British government’s commitment to human rights and the rule of law in its foreign policy and operations. This should ensure that its programmes and investments in Kenya and other regions will continue to be undertaken in full compliance with global human rights standards and principles.

In this regard, the British security operations and multinational corporations operating in Kenya must be held accountable for their actions and find amicable ways of co-existing with local communities. It is essential that corporations respect human rights, act responsibly, and contribute positively to the communities in which they operate. Compliance with the Constitution of Kenya and the National Act Plan on Business and Human Rights is central.

Moreover, the Royal Family must come clean on its involvement in conservation activities in Kenya. Conservation efforts in Kenya, while important, should not harm local communities and dispossess them from their land and livelihoods. The British Monarchy's involvement in conservation initiatives should ensure the protection of community rights and land ownership and not perpetuate further new models and forms of colonisation.

The British government must do more to combat climate and its catastrophic impacts. The British government must fulfill its obligations to combating climate change by cutting its emissions, providing resources for adaptation and loss and damage for frontline countries such as Kenya and ensuring fairness and justice in the carbon credit markets.

Finally, as many countries shift to economic priorities, there is a dire need to continue supporting good governance and human rights interventions (both within the civil society and government, especially the Constitutional Commissions and Independent Offices) while openly holding the State to account for its human rights transgressions.

1. Involvement of all the Victims Groups and other key actors

Due to the very diverse and complex nature of issues, survivors and actors involved, the  British High Commission must work with the necessary civil society and academic  groups to ensure that all the conversations and resolutions before, during and after the King’s visit are inclusive and conclusive.  Having worked with many impacted groups and concerned partners, we are yet to receive information on how these engagements are happening.

Finally, we recommend King Charles to visit some of the affected communities for firsthand engagements and experiences.  For the colonial, the Ngelani Community under the

Muindi Mbingu Foundation in Machakos county and Mau Mau groups in Kiambu or Nyeri counties would be illustrative.

For the post-colonial and corporate related injustices; the Kakuzi communities in Murang’a county and women workers within tea farms in Kericho county would offer great insights.  Within good time, the counties within Northern Kenya and part of the Coastal region would have provided depressing encounters of the endless effects of colonial marginalization and securitization.

IN CONCLUSION:

The KHRC is committed to fostering dialogue and civic engagement around these critical transitional justice and current issues. In the spirit of truth, reconciliation, and justice, we will continue undertaking advocacy initiatives on the British atrocities committed in Kenya and beyond.

We therefore call on the British government to effectively act on the above issues and recommendations, acknowledge its historical responsibilities and collaborate with Kenya to address these pressing concerns.

The government of Kenya must also meet its obligations to protect human rights for all people. Notably, the implementation for the TJRC report and the Constitution of Kenya are critical. This may explain why the TJRC report recommended that the Kenyan government considers entering negotiations with the British government with a view to seeking compensation for victims of atrocities and injustices committed during the colonial period by the agents of the colonial administration[13].

We hope President Ruto will prioritize this in his meetings with the visiting King.  We shall never relent until justice for all victims and families is fully served.

May Justice be our Shield and Defender. ALUTA CONTINUA.

SIGNED

Davis Malombe, Executive Director, KHRC.

Davinder Lamba, Chairperson of the Board, KHRC.

[1] https://www.gov.uk/government/news/statement-to-parliament-on-settlement-of-mau-mau-claims;

[2] https://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/454-mau-mau-case-dealing-with-past-colonial-injustices.html

[3] https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation#:~:text=(a)%20Equal%20and%20effective%20access,concerning%20violations%20and%20reparation%20mechanisms;

[4] This email address is being protected from spambots. You need JavaScript enabled to view it.|4451e285b28c4e6a28b108dbd605100d|b3fa4bb6819447a29d53ca99f217caa1|0|0|638339089457090217|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0=|3000|||&sdata=+v9NDoAnq+8wqoKiSspowLcBdP8Q+Yk7ydrjuN0Oaus=&reserved=0">https://nation.africa/kenya/kenya-60/from-spies-to-field-marshals-celebrating-brave-women-of-kenya-s-independence-struggle-4268548

[5] REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION IN KENYA,  Volume I-Nairobi, 2012;  page vii);

[6]https://www.google.com/search?q=TJRC+REPORTS+IN+KENYA&rlz=1C1GCEU_enKE1022KE1023&oq=TJRC+REPORTS+IN+KENYA&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIICAEQABgWGB4yCggCEAAYhgMYigUyCggDEAAYhgMYigUyCggEEAAYhgMYigXSAQg1MTc2ajBqN6gCALACAA&sourceid=chrome&ie=UTF-8;

[7] See “The Origins of the Land Question: Political Question” under Section 25 of the  Sessional Paper No. 3 of 2009 on  National Land Policy.

[8] Under international human rights law, victims of  gross violation of international human rights and humanitarian law (whether by states, corporates or individuals  have a right to remedy). See the  UN Basic Principles on the Right to Remedy….; UN Guiding Principles on Business and Human Rights among others.

[9] See “True cost of our tea: Sexual abuse on Kenyan tea farms revealed” in  https://www.bbc.com/news/uk-64662056;

[10] The British government was to apologize for all the injustices and gross human rights violations committed by the colonial administration between 1895 to 1963. In the context of our petition, this should be for all the violations committed from 1895 to date.  The Presidents apologies were for all the violations committed during the TJRC’s mandate (December 12, 1963 to February 28, 2008). The CJ’s was for the judiciary to apologize to the people of Kenya for failing to address impunity effectively and perform its role of deterrence against human rights violations committed over the same period between December 1963 to February 2008.  For details; see Truth, Justice and Reconciliation Commission Report; Kenya, 2012; p. 9

[11]This email address is being protected from spambots. You need JavaScript enabled to view it.|4451e285b28c4e6a28b108dbd605100d|b3fa4bb6819447a29d53ca99f217caa1|0|0|638339089456933974|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0=|3000|||&sdata=jkkLpXV/K0EGp7lBYVJB6HzJLRsZ5JR4xhtbG8ymvKQ=&reserved=0">https://www.ijmonitor.org/2015/04/kenyan-president-and-chief-justice-apologize-for-past-injustices/; This email address is being protected from spambots. You need JavaScript enabled to view it.|4451e285b28c4e6a28b108dbd605100d|b3fa4bb6819447a29d53ca99f217caa1|0|0|638339089456933974|Unknown|TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0=|3000|||&sdata=W/d1DSpNJ7IK/70JdmnEb3ttRSRqCFRw+eIHcNkwPjE=&reserved=0">https://www.ictj.org/news/kenyatta-apology-actions-needed

[12] It is important to indicate the funds allocated within the out of court settlement in London case were not adequate and KHRC had to put in more resources. Based on this, the actual costs incurred in this situation plus inflation can provide better basis for the future.

[13] Truth, Justice and Reconciliation Commission Report; Kenya, 2012; p. 9

These bonds included, among others, a debut US$2 billion Eurobond in 2014—the largest in SubSaharan Africa at the time—where, of the proceeds, US$600 million were used to repay a syndicated loan contracted in 2012. The remaining funds were to substitute for domestic financing of energy and infrastructure projects.

Through an access-to-information request, we asked Treasury CS to provide information on sovereign bond holding, treaties, contracts, and financing agreements the government had entered with other states, international financial institutions, and international corporations. The period covered the Jubilee regime's first and second terms, which witnessed the highest borrowing levels.

According to the report of the Auditor General on June 24, 2014, the money received from the sale of Kenya’s first international bond, Sh176 billion, was deposited in an offshore account, breaching the Constitution. Ever since, several bonds were issued, including a Sh60 billion infrastructure one in 2020.

When we made this request, a total of Sh128.6 billion (Sh1,285,720 million) was paid towards the domestic debt maturities in the financial year 2021/22. The payment of the principal of external debt amounted to Sh184 billion (Sh184,536 million), comprising bilateral, multilateral, and commercial loans.

Around that time, the Treasury’s annual public debt report for 2021-2022 showed Kenya’s major external creditors were the International Development Association, International Sovereign Bond Holders, and China. External debt service paid to multilateral creditors was Sh51 billion (Sh51,005 million), bilateral creditors Sh101.9 billion (Sh101,931 million), and commercial creditors Sh151.8 billion (Sh151,825 million).

Still, the government contracted 15 external loans in 2021-2022, with a value of Sh221.5 billion (Sh221,531 million). Eleven were multilateral lenders, and four were bilateral lenders.

Kenyans were only made aware of these substantial borrowings through media reports, despite them directly impacting their lives. The specifics of what these loans would do and how they would be repaid were not immediately clear.

Our request for information about the significant historical borrowings should have been straightforward, but it proved quite the opposite. Then Treasury CS, Ukur Yatani, was legally obligated to provide us with the requested information, according to the Public Finance Management Act and Procurement Act that demand proactive disclosure. However, he refused to disclose this crucial information, intensifying suspicions surrounding Kenya's agreements with foreign states and financial institutions.

Kenyans pay these debts through heavy taxation at a time when the cost of living is over the roof. But the lack of transparency leaves us in the dark about what exactly we are paying for.

On April 21, 2022, we filed suit against the National Treasury CS and the Attorney-General (AG). Our prayers were simple: let the CS show us the contracts of Kenya’s debt and sovereign bonds acquired in the last nine years. Failing to show us the contracts will mean that Kenyans will never know whether the Jubilee regime complied with the constitution in public borrowing.

On October 19, 2023, the court will commence proceedings to hear the case, marking a pivotal moment that could establish a significant precedent about the right to access information. It could also set precedence on accountability and transparency in public borrowing. We hope a decision on this case will be reached soon.

In our petition, we ask the court to compel the office of the CS of the National Treasury or any other responsible state and public office to give us the contracts for the bonds Kenya floated. Additionally, we seek the court's declaration that Yatani's refusal to provide the contracts constitutes a violation of the law and is, therefore, unconstitutional. This is based on the premise that every person has a fundamental right to access information held by the State.

The reason for disclosing information is to ensure Kenyans are well-informed about the government's actions. This information allows people to make informed decisions and participate effectively in public matters.

Ends…

Signed

• Kenya Human Rights Commission (KHRC)
• Wanjiru Gikonyo

Immediately after Ruto’s irregular and illegal directive, bulldozers descended on houses in Athi River on October 14. The demolitions and evictions occurred four days after the court said East African Portland Cement Company (EAPCC) owned the disputed land—and did not in any way approve evictions and demolitions. Hundreds of Kenyans wanted the court to validate their title deeds—but a decision was made in favor of EAPCC.

A case of Illegal, irregular, forceful, and arbitrary evictions

Kenya Human Rights Commission (KHRC) and Mazingira Institute (Mazingira) strongly condemn the ongoing eviction because of their illegal, irregular, forceful, and arbitrary nature. They contradict the international, regional, and national governance and human rights frameworks.

To begin with, the United Nations Guidelines on Evictions, together with Section 152E of the Land Laws (Amendment) Act, 2016, stipulates evictions cannot be conducted subject to the issuance of a three-month notice. It must be in writing, in a national and official language, and be published in at least two daily newspapers of nationwide circulation. Eviction cannot happen if this notice is not displayed in less than five strategic locations within the occupied land.

Nationally, the right to shelter and housing, as enshrined in Article 43 of the Constitution, was grossly infringed.

Further, Section 152G (1) of the Land Laws (Amendment) Act, 2017, stipulates the following mandatory procedures with which every eviction must comply:

1. Be preceded by the proper identification of those taking part in the eviction or demolitions;
2. be preceded by the presentation of the formal authorizations for the action;
3. where groups of people are involved, government officials or their representatives to be present during an eviction;
4. Be carried out in a manner that respects the dignity, right to life, and security of those affected;
5. Include special measures to ensure effective protection for groups and people who are vulnerable, such as women, children, the elderly, and persons with disabilities;
6. Include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction;
7. Include mechanisms to protect property and possessions left behind involuntarily from destruction;
8. Respect the principles of necessity and proportionality during the use of force; and
9. Give the affected persons the first priority to demolish and salvage their property.

However, what we have witnessed is a stark contradiction to these regulations. Evictions started merely four days following the court's verdict. This hasty action prompts the question: why the rush, especially when the EAPCC had a full 90 days to take appropriate measures per the law?

Irregular acquisition and subdivision

While there were irregularities over how the land was acquired, questions abound about how the parcel changed hands from EAPCC to private entities. This speaks of fraud within the land departments in the county and national government.

Our demands

We now demand:

1. The immediate halt to the ongoing demolitions and evictions in Athi River. The government must engage in a meaningful and compassionate dialogue with the affected residents.
2. The government must ensure that international human rights standards, including those related to forced evictions, are strictly adhered to during removals, respecting the dignity and well-being of all individuals and communities involved.
3. The government must provide humanitarian assistance, including shelter, food, and clothing, to the victims of these evictions, especially vulnerable groups such as women, children, and older people.
4. Authorities must investigate the circumstances surrounding these evictions and acquisitions, hold those responsible accountable,.
5. Ensure adequate psychosocial support and effective remedies for the victims.

Our immediate action is to go to court with a view to:

1. Hold perpetrators of these frauds and human rights violations to account.
2. Stop the evictions and seek remedies for the victims.

To this effect, we are calling upon and advancing partnerships with the impacted individuals and groups.

Signed:

1. Kenya Human Rights Commission (KHRC)
2. Mazingira Institute

As Kenyans continue to grapple with the burden of taxation, a sense of frustration and bewilderment prevails, and many are asking themselves: when will the cycle of ever-increasing taxation come to an end? The Kenya Kwanza government is considering more statutory deductions, taxes, and levies through the National Health Insurance Fund (NHIF) under the Social Health Insurance Bill, 2023. The proposal to have a mandatory 2.75 percent monthly contribution from employees' basic salaries for the health scheme is excessive and will further strain the taxpayer. Okoa Ochumi coalition survey, done between May 19 - June 6, showed 77 percent of Kenyans do not support the proposed NHIF deductions.

Furthermore, another proposal involves implementing an unemployment tax. Ikolomani MP Benard Shinali has introduced the Unemployment Insurance Bill, 2023, which suggests that employees contribute one percent of their income, with a corresponding one percent contribution from employers, directed towards the Unemployment Insurance Fund.

Don’t forget that the National Social Security Fund (NSSF) rose to Sh1,700 from Sh1,080 early this year.

And just in June, this regime introduced a 1.5 percent housing levy. Many of us recall how this administration initially presented this tax as a voluntary contribution scheme, where employees would contribute three percent to the housing fund, matched by an equal amount from their employers. The government assured Kenyans that after 15 years, we would own a home, and if we didn't wish to purchase a house, we could access our contributions after seven years. However, the government later reversed course without consultation, despite 92 percent of Kenyans rejecting the proposal, according to data from Okoa Ochumi. It transformed what was supposed to be a voluntary contribution into a mandatory tax begging whether Kenyans’ views matter in government decision-making processes.

Unprecedented taxes!

There is a pattern here: More taxation lurks in the shadows whenever President William Ruto initiates a financial action. Given the unmistakable track record of this administration's insatiable appetite for imposing overt and concealed levies, we are merely witnessing the tip of the iceberg, and without vigilance, a substantial portion, if not direct and covert taxes could siphon off the majority, of our earnings. For instance, we have increased rates on certain goods, exemptions for others, a zero rating for some supplies and a new deadline for remitting the tax. Notably, the government doubled the VAT on petroleum products from 8% to 16%. Also, the government is mulling over increasing VAT to 18% to align with other rates of countries within the East African Community (EAC) in the Draft Medium Term Debt Management Strategy for FY 2024/25 and 2026/27. Currently, super petrol retails at KES 211.64 per liter within Nairobi. A further increase in VAT to 18% will raise the price of the commodity to KES 215.87, considering the current EPRA-approved prices.

Stop double taxation!

Currently, Kenyans are facing the issue of double taxation due to recent changes in tax regulations. Starting from July 1, this government began imposing taxes on professional club entrance and subscription fees, which an employer pays on behalf of its employees. Fees are deducted when calculating taxable income. It has resulted in a situation where the employer and the employee are burdened with the tax, leading to double taxation.

Additionally, the Kenya Kwanza government has expanded the range of taxable supplies to include compensation for loss. Under the Finance Act, a standard VAT rate is applied to insurance compensation related to taxable supplies, even when the rightful owner had already deducted input tax while purchasing the lost supplies. Taxing insurance compensation, which replaces lost value after a damaging event, amounts to another instance of double taxation.

Another concern for Kenyan taxpayers is the risk of being taxed by county and national governments for the same income. For instance, Nairobi County has proposed a tax of Sh10,000 per month for vehicles up to seven tons carrying construction materials in and out of the capital. Similarly, starting from January 1, 2024, vans, pick-ups, trucks, prime movers, trailers, and lorries will be required to pay an advance tax of Sh2,500 per ton of loading capacity or Sh5,000 per year, whichever is higher, as specified by the Finance Act.

Blatant abuse of sovereignty of the people

Under Article 1 of the constitution, sovereignty belongs to the people, and as such, all these taxes cannot be implemented without meaningful public input. However, we are all too aware of the interference of public participation in Kenya. It often seems like a mere checkbox process influenced by politics, making it an unreliable safeguard against punitive laws. For instance, despite 970 out of 1,080 petitions (90%) opposing additional taxation through the Finance Bill of 2023, lawmakers aligned with the regime rammed it through. The president used strong-arm tactics; warning MPs allied to the Kenya Kwanza political wing not to oppose the bill. Recently, the Senate and National Assembly allocated a few days for public participation in health-related bills, which was insufficient for the public to give meaningful input. Unfortunately, scenarios of this nature have become a trend, thus subverting the will of the people.

We need a national tax policy

The regime’s ability to impose excessive taxation has been facilitated by Kenya's absence of a comprehensive national tax policy, which would provide a systematic framework for developing and implementing tax-related laws, regulations, and guidelines. Currently, our tax system lacks predictability, which poses difficulties for both individuals and businesses, as it heavily relies on financial legislation introduced annually. To effectively tax sectors that are traditionally challenging to regulate, such as agriculture, the informal economy, and online businesses, there must be a well-defined framework to steer the taxation process.

More proposals

Instead of burdening Kenyans with punitive taxes, the government SHOULD broaden the tax base by focusing on previously untapped revenue sources that have a less detrimental impact on economic growth. One unexplored source in Kenya is the property taxes, which can be feasibly enforced. For instance, by updating the property valuation roll in Nairobi City County, it is anticipated that property tax collections will more than double the current rate of 36 percent.

The government MUST also address tax evasion by high-net-worth people, which reduces the tax base. This can be achieved by enacting appropriate legislation regarding cross-border transactions and financial transparency. It is estimated that the government has been losing an average of Sh40 billion annually due to illicit financial flows since 2011.

Additionally, tackling specific challenges in tax administration and enhancing efficiency and effectiveness necessitates digitization. Kenya can take a cue from Rwanda's experience, where an electronic billing system has nearly doubled Value Addition Tax (VAT) collections. Rwanda's electronic billing system provides real-time data and increasingly covers the informal sector, making tax collection more efficient.

Lastly, the government MUST urgently combat corruption and the misuse of public funds. Resources should be allocated to sectors that promise high returns, promote sustainable development, and enhance the welfare of citizens.

Signed by Okoa Uchumi members:

1. Kenya Human Rights Commission
2. Twaweza East Africa
3. Christian Aid
4. Transparency International-Kenya
5. Amnesty International
6. Centre for Fiscal Affairs
7. REMUSI Housing Cooperative Society
8. National Taxpayers Association
9. The Institute for Social Accountability
10. Social Justice Centre