63rd Ordinary Session; 24th October-13th November 2018
Madam Chairperson, Honourable Commissioners, State Party representatives and distinguished guests;
Since the last session of the ACHPR, a number of significant events have taken place in Kenya and Africa. We would like to bring to your attention human rights and governance issues that are of concern to us, and require the attention of the Commission.
- Independence of the African Commission on Human and People’s Rights (ACHPR)
The ACHPR has seen steady and swelling threats and attempts to undermine its credibility and independence by individual State parties. Executive council decision 1015 is an attempt to shove the primacy of the African charter as the establishing authority of the ACHPR through distortions.
Cognisant that interference with the mandate of the ACHPR represents a push against human rights and constitutes a violation of the African Charter, and the Constitutive Act of the AU; the Kenya Human Rights Commission urges all the Africa Union Member states to boldly reframe the narrative of the ACHPR and recognise and affirm its role as a monitoring mechanism of the member's states rather than a seemingly rogue organ of the African Union;
We call on the ACHPR to continue steadily to promote and protect the rights of all living on the African continent without discrimination, fear or favour and affirm itself a truly independent institution breathing life to the charter and a hub of accountability for human rights in Africa
- Independence of judicial mechanisms in Kenya
In Kenya, threats and attacks have been meted on the judiciary through I) a total disregard of court rulings, particularly those that have to do with state and state officers; of importance are a myriad of decisions for the commencement of the Public benefit organisations act of no 18 of 2013 which have been continually ignored ii) unfounded onslaught on judges and iii) heavy and arbitrary budget cuts. All these measures risk undermining the effectiveness and independence of the judiciary.
We implore the commission to urge Kenya to cease and desist from interfering with judicial independence and instead ensure thororugh implementation of judicial decisions and provide adequate funding for the judiciary to allow enhanced access to justice and furtherance of the rule of law in Kenya.
- Corruption in Kenya
The spate of corruption scandals in Kenya in the recent past has seen unprecedented plunder of public resources leading to a clawing back by the state on service delivery and the realisation of human rights. Large infrastructural projects, popularly touted as “flagship projects”, have been the main conduits through which Kenya has lost colossal amounts of money via corrupt dealings and procurement processes. In an attempt to deliver on his political promises, the president recently ordered the arrest and investigation of persons alleged to be involved in graft. While we applaud the political will on this matter, we continue to reiterate the fact that such actions do not only show an outlier of his delivery but also present the need for Kenya to reflect on implementing the existing policies and legislation to win the fight against corruption.
Given the African Union theme 2018 and the fact that corruption has been a major handicap in the efforts to realise human rights, we call upon the Commission to:
- strongly pronounce itself on the issue of corruption and the duty of member states to deliberately address corruption alongside other key governance issues, pursuant to their obligations to fulfil human rights;
- encourage the Government of Kenya to fully implement and domesticate the AU Convention on Preventing & Combating Corruption for the benefit of Kenya’s development;
- encourage the government to translate the President’s pledge on fighting corruption into a comprehensive and objective process based on citizen participation, the rule of law and our Constitution’s standards on leadership and integrity. The fight against corruption must be shielded against any possible accusations of political bias.
- Electoral Justice
Electoral process in Kenya, has often times been marred by massive irregularities and illegalities. celebrates its victor elites .The process oftentimes fails to respond adequately to the victims of electoral violence thus resulting in an accumulated human rights situation. This has deepened impunity and access to justice in Kenya . Following the setting up of a Truth Justice and Reconciliation Commission (TJRC), victims shared their experiences upon which succinct recommendations were set out. The violations of 2007/8 elections violence are well captured in the post-election report famously known as the Waki report. Disappointingly, Kenya is yet to implement the recommendations laid out by the TJRC and the Waki report. Additionally, the 2013, and most recently 2017 general elections, are a testament that recommendations and reports to the government are often ignored. Instead what we see are reconciliation of the elites thereby achieving calm without justice. We reiterate that electoral justice must prevail for the people of Kenya to have meaningful enjoyment of human rights and democracy for all.
We encourage the commission to follow up on the promises made by the Kenyan government for justice for victims of election violence. We continue to call on Kenya to create mechanisms for access to justice for victims of sexual violence perpetrated by state actors in times of conflict whose struggle for justice has been long, daunting and their right to justice ignored for decades. We further beseech the ACHPR to call on Kenya to initiate an accountability process for the 2017 elections.
- Constitutional Reforms
The Constitution of Kenya (2010) continues to be widely celebrated. However, most of the provisions that provide for the protection and participation of marginalised groups as well as structure of government have been subject of debate and contestation including recent calls for their striking off through a referendum. This selective implementation of the constitution continues to set a bad trend and ultimately reflects poorly on our government. The current push for amendments is in bad faith for a constitution that has been in force for barely 10 years.
We encourage the ACHPR to:
- urge Kenya to focus on constitutional implementation and strongly caution it against unwarranted and self-serving amendments that compromise enjoyment of human rights for political expediency. We further call on Kenya to learn from progressive milestones in terms of inclusion, respect for the rule of law and protection of marginalised groups in other African states; and
- impress upon Kenya to fully ratify the Maputo Protocol without any reservations by the year 2020 so that Women and girls can fully enjoy their rights.
In Conclusion, the KHRC notes that the statements made during the ordinary sessions such as this one, will be mere acts to practice one’s oratory prowess before a congregation unless the commission and its commissioners stand up to defend the institutional and functional independence. We join our colleagues in declaring that this ACHPR of ours shall be totally independent.