THE FOURTH STATE OF HUMAN RIGHTS REPORT

POST PROMULGATION 2010 – 2014

uman Rights H THE ELUSIVE MIRAGE? National Commission on Human Rights Commission National Kenya

1 ONTENTS

C 2.1.1.8 Legal Aid In Kenya 39

FOREWORD 6 2.1.1.9 Transitional Justice 42

ACKNOWLEDGEMENTS 8 2.1.1.10 The Criminal Justice Sector 44

ACRONYMS AND ABBREVIATIONS 9 2.1.1.11 Witness Protection 54

EXECUTIVE SUMMARY 14 2.1.2 Right To Life 57

2.1.2.1 The Legal Framework 57

CHAPTER ONE 16 2.1.2.2 Emerging Issues That Affect Realization Of The Right To Life 59

1.1 The Political And Socio-Economic Context 16 2.1.3 Freedom Of Information, Expression And Media 62

1.2 Reforms Under The New Constitution 21 2.1.4 Freedom Of Association 70

1.2.1 National Values And Principles Of Governance 21 2.1.5 Freedom Of Assembly, Demonstration, Picketing And Petition 71

1.2.2 Devolution 23 2.1.6 Protection Of Human Rights Defenders 72

2.1.7 National Security 75

2.1.8 Transnational Crimes 83 CHAPTER TWO 25

2.1.9 Corruption 89 2.0 The State Of 25

2.2 Economic, Social And Cultural Rights 93 2.1 Civil And Political Rights 26

2.2.1 The Right To Clean Water And Sanitation 94 2.1.1 Access To Justice 26 Kenya National Commission on Human Rights 2.2.2 Right To Adequate Food 99 2.1.1.1 Judiciary 27

2.2.3 Right To Education 105 2.1.1.2 Independence Of The Judiciary 27

2.2.3.2 Challenges In Realization Of The Right To Education 114 2.1.1.3 Judicial Reform 28

2.2.4 Right To Health 114 2.1.1.4 The Judicial Service Commission And Its Reform. 31

2.2.5 Right To Housing 123 2.1.1.5 Reforms Guided By The Judicial Transformation Framework 32

2.2.6 Land 127

2.1.1.6 Development Of The Judiciary Training Institute 36 on Human Rights Commission National Kenya

2.2.7 Right To Fair Labour Practices 132 2 2.1.1.7 Judges And Magistrates’ Vetting 38 3 2.2.8 Right To Social Security 137 2.3 Group Rights 141 Transnational Crimes 177

2.3.1 Rights Of Women 141 Right To Life 178

2.3.1.1 The 143 Freedom Of Expression, Information And Media 178

2.3.1.2 Discrimination Of Women By Law 147 Freedom Of Association 179

2.3.1.3 Violence Against Women 148 Right To Food 179

2.3.1.4 Changing The Status Quo 151 Right To Health 179

2.3.2 Rights Of The Child 159 Right To Housing 180

2.3.2.1 Child Abuse 161 Right To Land 180

2.3.2.2 Access To Justice 161 Right To Fair Labour Practices 181

2.3.2.3 Rights Of Intersex Children 163 Group Rights 181

2.3.2.4 Child Trafficking 163 Rights Of Persons With Disability (Pwd) 181

2.3.3 Rights Of Indigenous Persons 164 Rights Of The Child 181

2.3.4 Persons With Disabilities 165 Rights Of Indigenous People (Ips) 182

2.3.4.1 Awareness Raising 167 ANNEX 1 : 2.3.4.3 Legal Capacity For Pwds 168 International Human Rights Treaty Of Which Kenya Is A State Party 184

Kenya National Commission on Human Rights 2.3.4.4 Access To Justice 169 International Humanitarian Law 188 2.3.5 Rights Of Gender Minorities 169 Refugees And Stateless Persons 190 2.3.6 Rights Of Sexual Minorities 170 African Union Treaties, Conventions, Protocols, And Charters 190

CHAPTER THREE 173 ANNEX 2 : 3.0 Conclusions And Recommendations 173 National Laws On Human Rights 192 Civil And Political Rights 177 Kenya National Commission on Human Rights Commission National Kenya

Criminal Justice Sector 177 ANNEX 3: 4 5 Transitional Justice 177 National Policies On Human Rights 195 OREWORD CKNOWLEDGEMENTS

FThe promulgation of the Constitution of Kenya AThe Kenya National Commission on Human To our readers, we hope that you gain 2010 marked a significant milestone in the The Kenyan Constitution has been acclaimed Rights (KNCHR) greatly acknowledges and something enduring from this report. We quest for recognition of human rights in the and acknowledged as both progressive and appreciates the efforts of all the individuals, also hope that the report goes a long way in country. In comparison with the independence exemplary by the international community. groups, institutions and organizations that were providing solutions necessary for the respect, constitution, the 2010 version was subjected However, the country still faces challenges in involved in the preparation and compilation promotion and protection of human rights in to a referendum vote; therefore according the its effective implementation. The aspirations of of this report. Kenya. people of Kenya its authorship and ownership. the people of Kenya at its inception have largely It reiterates the provisions of international and also remained unmet. This has been caused by The concept for the publication was developed regional instruments applicable to the country; a political, economic and social environment by a dedicated team of the Commission. A thereby consolidating the otherwise several that is not conducive for the actualisation of special word of appreciation is due to the norms and standards that have long served as human rights. Commission staff at both the Head Office a reference point for human rights. and the Regional Offices who have, over the The period under review has seen great last four years, relentlessly worked towards The Kenya National Commission on Human efforts by the political class in absconding the full implementation of the mandate Rights (KNCHR) has since its inception in 2003 their constitutionally enshrined obligations, of the Commission as envisaged under worked tirelessly to promote the realization particularly those relating to international law. the Constitution and the KNCHR Act. The of human rights. The 2010 Constitution also There was an increase in actions that violated contribution of staff towards the compilation of enhanced the status of the Commission human rights in anti-terrorism activities, this report is duly acknowledged. through its re-establishment as a constitutional determination of salaries and benefits of body/institution under Article 59 which parliamentarians and former members of the provides for the Kenya National Human Rights executive and lack of accountability under and Equality Commission (KNHREC). This the Rome Statute. Business entities have also was further restructured by Parliament into undermined human rights in their pursuit of three commissions, namely KNCHR, National profit generation. An important illustration of Gender and Equality Commission (NGEC) and this has especially been witnessed in the mining the Commission on Administrative Justice industry. Additionally, public appreciation and (Ombudsman/CAJ). Together the three work support of human rights has continued to erode, to promote human rights, advance gender and particularly with regards to efforts of curbing other equalities and address maladministration, the rising cases of insecurity in the country. This respectively. Further, the CoK provided for a is also true of the public’s perception of human robust Bill of Rights in Chapter 4, which acts rights defenders work to ensure the respect of

Kenya National Commission on Human Rights as the key guide in ensuring the realization of guaranteed rights. human rights for all. Through the publication of this report, KNCHR The fourth State of Human Rights report is the is focused on calling on all Kenyans to reflect on first by KNCHR under the current constitutional the spirit of the Constitution and the ambitions dispensation. KNCHR therefore analyses the of the country at the time of its adoption, and operationalization of the Constitution and its the progress achieved so far. The Commission impact on the lives of mwananchi.2 Having expects that the commencement of this been in operation for over four years now, the discussion will yield progressive strategies time is ripe for assessment of its successes and to steer the country back to the envisioned shortcomings. In remaining alive to the fact that direction. enshrinement of rights is merely contributory Kenya National Commission on Human Rights Commission National Kenya to their realisation, this report interrogates the Kagwiria Mbogori factors that have promoted and hindered the Chairperson 6 enjoyment of rights. 7

2 Citizen KNHREC Kenya National Human Rights and Equality Commission CRONYMS AND KODI Kenya Open Data Initiative KTN Kenya Television Network A KUPPET Kenya Union of Post Primary Education Teachers ABBREVIATIONS LGBT Lesbians, Gays, Bisexual and Transgender LGBTI Lesbians, Gays, Bisexual, Transgender and Intersex ACHPR African Commission on Human and Peoples’ Rights MMR Maternal Mortality Rate AFC Agricultural Finance Corporation MTP Mid-Term Plan AIDS Acquired Immuno-deficiency Syndrome MUHURI Muslims for Human Rights AMISOM African Union Mission in Somalia NAAIAP National Accelerated Agricultural Input Access Programme Art. Article NALEAP National Legal Aid and Awareness Programme ARV Antiretroviral NCIC National Cohesion and Integration Commission ASAL Arid and Semi-Arid Land NCPB National Cereals and Produce Board CRC Convention on the Rights of the Child NGEC National Gender and Equality Commission CRPD Convention on the Rights of Persons with Disability NGO Non-Governmental organization CSO Civil Society Organization NHIF National Hospital Insurance Fund CT-OVC Cash Transfer to Orphans and Vulnerable Children NIS National Intelligence Service CT-PWSD Cash Transfer to Persons with Severe Disabilities No. Number EACC Ethics and Anti-Corruption Commission NPSC National Police Service Commission FGM/C Female Genital Mutilation/Cutting NSSF National Social Security Fund GCN Girl Child Network ODPP Office of the Director of Public Prosecutions GDP Gross Domestic Product OP-CT Cash Transfer to Older Persons HIV Human Immuno-deficiency Virus PASUNE Paralegal Support Network HRD Human Rights Defender PBO Public Benefits Organization HRW PEP Post Exposure Prophylaxis ICC International Criminal Court PIC Parliamentary Investment Committee ICCPR International Covenant on Civil and Political Rights PPIP-WS Pro-poor Implementation for Water Supply and Sanitation ICESCR International Covenant on Economic, Social and Cultural Rights PWDs Persons with Disability IMLU Independent Medico-Legal Unit RRI Rapid Results Initiative Kenya National Commission on Human Rights IMR Infant Mortality Rate SND Strategies for Northern Development IOM International Organization for Migration STI Sexually Transmitted Infection IPOA Independent Policing Oversight Authority TI Transparency International JMVB Judges and Magistrates Vetting Board TJRC Truth, Justice and Reconciliation Commission JSC Judicial Service Commission TNA JTI Judicial Training Institute UDHR Universal Declaration on Human Rights KDF UN KDHS Kenya Health and Demographic Survey UNCRC United Nations Convention on the Rights of the Child KEJUDE Kenyans for Justice and Development UNCRPD United Nations Convention on the Rights of Persons with Disability

Kg Kilogram UNTOC United Nations Convention against Transnational Organized Crime on Human Rights Commission National Kenya KICA Kenya Information and Communication (Amendment) Bill URP United Republican Party 8 9 KNBS Kenya National Bureau of Statistics US United States KNCHR Kenya National Commission on Human Rights XECUTIVE SUMMARY

EThe Kenya National Commission on Human rights have been addressed under the report Rights is mandated under Section 8 of the with regard to their scope, substance, legal and KNCHR Act, 2011 (Revised 2012) to act as the policy basis. An assessment of the progress principal state agency in the promotion and made so far in realization of the rights is protection of human rights. In discharging this provided in this report. hapter 1 function, the Commission is required to ensure observance of human rights in all spheres The report is divided into 3 chapters; the first THE FOURTH STATE OF of life in the Republic of Kenya. Moreover, chapter, consists of an introductory part that C HUMAN RIGHTS REPORT the Commission is required to perform any provides an overview of the political, social other function that will assist fulfilment of its and economic context in Kenya against the mandate. To this end, the Commission prepares backdrop of the country’s development occasional reports on various human rights blueprint, Vision 2030. Chapter 1 also provides aspects. These reports assist to assess the state the legal and policy framework obtaining in of human rights in Kenya. Kenya for the observance of human rights. The chapter looks at the institutions, organizations This report, The State of Human Rights Report and individuals who play a critical role in in Kenya 2011-2014, reviews the human rights protecting and promoting human rights situation in Kenya over a four year period- including human rights defenders, non- January 2011 to March, 2014. The report analyses governmental organizations and key players in and documents implementation of human the human rights agenda. The second chapter, rights as envisaged under the Constitution over titled ‘The State of Human Rights in Kenya’, the stated period. Specifically, the report points is the backbone of this report. This chapter out success that was achieved during the said analyses and discusses each right, giving the period in the implementation and respect for attendant success and challenges that have human rights. In addition, the report critically been witnessed in enforcement while chapter evaluates the challenges that have impeded 3 draws the findings from it into actionable full implementation and realization of human recommendations. rights. In conclusion, it is worth noting that this The report utilizes the three classifications of report has benefited greatly from the input human rights namely civil and political rights, and comments of both internal and external

Kenya National Commission on Human Rights socio-economic rights and group rights. Under peer review. The report bears witness to the civil and political rights, the principle of public developing clamour for the respect of human participation, the rights to political participation rights in Kenya and the steps taken towards and to access justice are analysed. The analysis achieving a nation respectful of human rights. of socio-economic rights focuses on the rights It is our hope that the report will become to education, health, water and sanitation, an effective resource in the promotion and environment, housing and social security. Lastly, protection of human rights in Kenya. the section on group rights focus on special interest groups such as women, children, the elderly, marginalized communities and persons living with disability. The 3 classifications of Kenya National Commission on Human Rights Commission National Kenya

10 11 1.1 THE AND Smokin Wanjala, Prof. J.B Ojwang, Njoki Ndung’u, Having come into office after the promulgation POLITICAL Mohamed Ibrahim and Philip Tunoi. of the Constitution of Kenya (2010), the Jubilee SOCIO-ECONOMIC CONTEXT administration is expected to fully implement the Meanwhile, police reforms geared to give impetus Constitution and operationalize devolution through to the new constitutional dispensation were also political, policy, financial and legal support. During the review period, political developments proposed by the Judicial Service Commission initiated during the same period. Parliament passed 2 in Kenya largely focused on the implementation (JSC) in its report of October 2012, there has been two critical statutes, the National Police Service The Economy of the new constitution, reforms in the judiciary, little concrete movement towards the actual Act and the National Police Service Commission the cases at the International Criminal Court (ICC) setting up of the Division. At the point of writing Act, both of 2011. The Acts brought the Kenya Freedom is said to be the engine that drives involving President Kenyatta, his deputy and 4 this report, the charges against the President had Police and the Administration Police under a single sustainable economic growth and provides others, and the general elections held on the 4th also been dropped and only 2 accused persons command structure. The National Police Service increased access to prosperity for all people of March, 2013. In the run up to the 2013 election remain: the Deputy President, Hon. William Samoei Commission Act establishes an independent as everywhere. Economic freedom is essentially following the indictment of The President and his Ruto and Joshua Sang, a radio journalist. Kenya’s its membership includes IG and his two deputies) about ensuring human rights. Strengthening and running mate, the ICC process was used to mobilize commitment to the ICC and to justice for the National Police Service Commission whose expanding it guarantees an individual’s natural support for the two as they depicted themselves victims of the 2007 post-election violence has mandate includes, police recruitment, training, right to achieve his or her goals and then own as the victims and targets by their political rivals. however been put to question. The ICC prosecutor and disciplinary proceedings. In November 2011, the value of what they create. A good economy Having assumed office the indictment of the two has often lamented of Kenya’s failure to adhere to Parliament enacted the Independent Policing will see to it that citizens have access to basic was challenged on the basis that there was no its obligations under the Rome Statute. Oversight Authority (IPOA) Act to promote human rights such as housing, access to medical evidence to support the cases. accountability and civilian oversight over police services, experience the availability of social The promulgation of the Constitution ushered conduct. amenities, education and improved standards of Attempts to remit the cases to Kenya were in a transformational legal document this living. In fact, Nobel laureate economist who has frustrated by the provisions of the Rome Statute. notwithstanding the Executive persisted in acting Part of the legacy of colonization is the made considerable contributions to development Eventually the President was discharged. On in contravention rather than in compliance. For Ethnicisation of the Country. This is particularly economics, Amartya Sen, once noted that numerous occasions, Parliament debated the ICC Example in 2011, former President so in the political realm, where political parties “Development consists of the removal of various issue and passed a resolution for Kenya to withdraw attempted to appoint the Chief Justice, the and coalitions are formed along ethnic groupings. types of unfreedoms that leave people with little from the Rome Statute. Moreover, the government Attorney General and the Director of Public Since the advent of multi-party politics, Kenyan choice and little opportunity for exercising their engaged in the famous ‘shuttle diplomacy’ that Prosecution without due process as had been elections have been divisive and heavily contested. reasoned legacy.” saw the then Vice President Kalonzo Musyoka envisaged under the Constitution. An ensuing It is documented that the violence in 2007 was visit 4 African nations to marshal support for the uproar spearheaded by civil society culminated triggered by the dispute over the results of the People crave liberation from poverty, and they withdrawal of the cases from the ICC. The country in court proceedings that challenged the move presidential election. The Constitution, therefore hunger for the dignity of free will. By reducing 3 also enlisted the assistance of the African Union to on constitutional grounds. Subsequently, the addresses the issue of management of elections barriers to these fundamental human rights, mobilise other African nations to withdraw from President withdrew the appointments to allow due and election disputes. Though less controversial forces of economic freedom create a framework the Rome Statute if ICC proceedings against the process envisaged under the Constitution to be than the 2007 elections, the 2013 post-election in which people fulfil their dreams of success. In President were not halted. Nonetheless, the ICC followed. period momentarily witnessed some political other words, the greater the economic freedom cases proceeded. tensions after the legality of the presidential in a nation, the easier for its people to work, save, The Judicial Service Commission (JSC) election outcome was challenged at the Supreme consume, and ultimately live their lives in dignity

Kenya National Commission on Human Rights During the review period, the charges against interviewed candidates and finally recommended Court by former Prime Minister, Hon. .5 and peace.7 A nation therefore enhances the former Police Boss Major General Mohammed for the President’s appointment, nominees for rights of its citizens. Kenya has the largest and Hussein Ali and former Minister Henry Kosgey, 2 the positions of Chief Justice and Deputy Chief The Supreme Court ruled that the elections had most diverse economy in East Africa, with an 4 of the 6 Kenyans accused for bearing the greatest Justice. Dr. and Nancy Baraza been conducted freely and fairly, paving way for average annual growth rate of over 5% for nearly responsibility for the 2007 post-election violence, were then appointed to the respective positions inauguration of the President-elect and his deputy a decade.8 The Human Development Index of 2014 were dismissed on 23rd January, 2012. The case in the newly established . on the 9th of April, 2013. The two are at the helm against another accused, former Head of Public Similarly, the process of recruiting the other judges 2013-2017 available at http://www.mwakilishi.com/ of the government of the day under the umbrella content/articles/2013/02/03/viewdownload-the- Service, Francis Muthaura, was terminated on of the Supreme Court was conducted by the of Jubilee Alliance which comprises The National full-harmonized-jubilee-coalition-manifesto.html the 18th of March, 2013 on the grounds that the JSC and eventually saw the appointment of Dr. (accessed 6 June 2015). Alliance (TNA) of the President and the United prosecution lacked sufficient evidence to proceed. Republican Party (URP) of the Deputy President,. 7 See Anthony B. Kim, The Link Between Economic 2 Judicial Service Commission, Report of the Additionally, there were proposals made in 2012 to Together, they are guided by the Jubilee manifesto Freedom and Human Rights, 2007 available at http:// Committee of the Judicial Service Commission on the www.heritage.org/research/reports/2007/09/the- establish an International Crimes Division in the High Establishment of an International Crimes Division in which has three key pillars; economy (uchumi), link-between-economic-freedom-and-human-rights on Human Rights Commission National Kenya Court in order to deal with cases of International The of Kenya, 2012 6 openness (uwazi) and unity (umoja). 8 See Finland’s Country Strategy for Development Crimes committed by Kenyans. However, over 3 Muslims for Human Rights (MUHURI) & 2 others vs Cooperation with Kenya 2013 – 2016 at http://formin. Attorney General & 2 others [2011 eKLR] 5 K Wambua Waiting in the Dark: Kenyan Voices After 12 one and a half years since the International Crimes finland.fi/public/default.aspx?contentid=274548&no 13 4 See http://www.hrw.org/world-report-2012/world- 2013 Elections (2014) 11 deid=49540&contentlan=1&culture=fi-FI (accessed 6 Division (ICD) in the High Court of Kenya was first report-2012-kenya (accessed 6 June 2015). 6 See The Harmonized Jubilee Coalition Manifesto June 2015). ranks Kenya highest in the East Africa region. The growth in the country’s tourism sector. Socially, the holders. Article 10 further states that the national power. Kenya has 47 county governments which country’s entrepreneurship and human capital give country remains divided along ethnic and political values and principles of governance therein must are in control of development, resources and it huge potential for further growth, job creation lines. Sufficient national healing and reconciliation be applied in interpretation of the Constitution programmes at the county level. The counties have and poverty reduction. During the review period, has not been realized following the 2007 post- or any other law and in the implementation of authority to levy some taxes and rates and may Kenya’s oil and mineral prospects increased with election crisis and the 2013 elections. Efforts to public policy. These values and principles have also receive grants from the national government.17 the discovery of oil deposits in Turkana. There were address inequalities and marginalization of both a direct link to human rights because adherence Counties are entitled to not less than 15% of the further discoveries of coal and limestone in Kitui communities and regions are still insufficient. Wide to them enhances the enjoyment of rights and national revenue for the implementation of county and iron ore in Taita Taveta and Kwale Counties. disparities exist in terms of access to basic services fundamental freedoms. This premise is supported governments’ development agenda.18 Additionally, Though the country’s general poverty rate has such as health, water and education across the by various international instruments, for instance, article 174 of the Constitution lists the objects of declined slowly over the years, significant inequality geographical regions of Kenya.13 These concerns General Comment No. 12 on the Right to Food,15 devolution to include: Fostering of national unity in wealth distribution persists.9 Kenya remains a prompted the government to create the National which states inter alia, that good governance is by recognizing diversity, Promoting democratic highly unequal society by income, gender and Cohesion and Integration Commission (NCIC) in essential to the realization of all human rights and accountable exercise of power, Giving powers geographical location. Poverty is highest in the 2008 which is mandated to lead the country in including the elimination of poverty and ensuring of self-governance to the people and enhance arid and semi-arid areas that cover about 80% of addressing ethnic discrimination, negative ethnicity, a satisfactory livelihood for all. Clearly, the weight the participation of the people in the exercise of the land area and are inhabited by approximately perceptions of discrimination, and unequal and significance that our national values and the powers of the state and in making decisions 20% of the population.10 distribution of resources and opportunities. Youth principles of governance possess cannot be affecting them, Recognize the right of communities (18 –34 year olds) who form 35% of the Kenyan Rapid population growth further complicated population have the highest unemployment rate National Values and Principles of governance. by high unemployment rates especially among of 67%. Over one million young people enter into Article 10 (2) the national values and principles of governance include :– the youth is another major challenge the country the labour market annually without any skills some a) Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and faces. More than 70% of Kenya’s population is having either dropped out of school or completed participation of the people; below the age of 30 whereas the population under school and not enrolled in any college. A further b) Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination the age of 14 is 43%. During the review period, the 155,000 join the labour market annually after and protection of the marginalized; economy registered improved performance with completing training in TVET or at the university. c) Good governance, integrity, transparency and accountability; and an annual growth of 4.6% in 2012 compared to A total of over 1.3 million new employment places d) Sustainable development 4.4% in 2011. This performance suggests that the have to be created annually to meet this demand. economy has continued to weather the challenges It is also noted that, the skills acquired by the of high international oil prices, drought conditions college and university graduates often do not meet gainsaid. However, the reality is that they have not to manage their own affairs and to further their experienced in the Horn of Africa and weak global the expectation of employers. There is therefore been respected and observed to the standards development and Protection and promotion of performance in 2011. Kenya’s GDP per capita urgent need for the Government to strengthen outlined in the Constitution. The immediate rights of the marginalized and minority groups.19 increased by 1.7%; from Kenya shillings 38, 956 and scale up successful measures targeting quality result of this has been rampant corruption in the To ensure a stable and elaborate process of in 2011 to Kenya shillings 39, 621 and 40, 345 in skill development and employment creation for the public and private sectors, blatant impunity and entrenching devolution in Kenya, the Transition 2012 and 2013 respectively.11 However, this growth youth.14 inadequate public participation in important policy Authority20 was established as a statutory was lower than the 3.7% registered in 2010, but and decision making processes. The absence of a commission, to facilitate effective allocation of marginally above the 1.5% growth in 2011. 1.2 THE national framework to guide public participation16 functions and utilization of resources by counties. REFORMS UNDER in governance aggravates this state of affairs. Kenya National Commission on Human Rights Kenya’s low per capita income and growth are NEW CONSTITUTION Devolution has ensured that regions that have linked to structural bottlenecks in the labour 1.2.2 Devolution historically been marginalized are able to market, especially the high share of informal sector accelerate their development and prosperity. jobs and unemployment. In 2013, the GDP grew by 1.2.1 National Values and Granted, devolution is envisaged to promote 5.7% which was an increase from the 4.6% posted The Constitution establishes a devolved system equitable sharing of national resources, but its Principles of Governance of government through the creation of two in 2012.12 Fears that the 2013 elections would slow implementation has not been without challenges. growth in the economy did not materialize. In levels of government: the national and county The national values and principles of governance 17 Articles 209 (3) and 202 (2) of the Constitution of 2014, the country posted a slight improvement governments, with legislative and executive in Article 10 of the Constitution are binding on Kenya, respectively in economic growth at the rate of 5.8%. However, all state organs, state officers, public officers and 15 Available at http://www.ohchr.org/Documents/ 18 Article 203 (2) of the Constitution of Kenya increased terror attacks in recent years have stifled all persons – therefore, all duty bearers and right Publications/FactSheet34en.pdf (accessed 31 May 19 See Article 174 of the Constitution. It lists 9 objects of 2015). Devolution. 13 Friedrich-Ebert Stiftung Regional Disparities and 9 As above. 16 Report of the Conference on Development of a 20 The Transition Authority was established under

Marginalization in Kenya (2012) available at http:// on Human Rights Commission National Kenya Framework on Public Participation (2012) highlights the Transition to Devolved Government Act (No. 10 As above. library.fes.de/pdf-files/bueros/kenia/09859.pdf the absence and need for a framework for public 1 of 2012). Section 37 of the Act provides that the 11 Kenya National Bureau of Statistics Economic Survey (accessed 6 June 2015). participation. The report is available at http://www. Authority shall be dissolved three years after the (2014) 33. 14 14 See the Kenya Country Report 2014 for the 2014 cickenya.org/index.php/reports/other-reports/item/ first general elections under the Constitution or 15 12 See http://www.worldbank.org/en/country/kenya Ministerial Conference on Youth Employment, 2014 download/265_28d8a5c7e5a331f06187c083672d9aa6 upon the full transition to county governments, (accessed 6 June 2015). page 3 (accessed 6 June 2015). whichever is the earlier. As highlighted by the Controller of Budget, county County governments still face capacity challenges, governments have low absorption rates for the especially human resource, which has had an funds allocated from the national government and adverse effect on efficacy in public service some are collecting lower revenues in comparison delivery. This is further exacerbated by the to their predecessor local governments.21 Some absence of a human rights-based framework for county governments are culpable for wastefully county governments to utilize as a guideline in spending financial resources as evidenced in their implementation of their functions as outlined in frequent domestic and international travels, by Schedule IV of the Constitution. Consequently, particularly Members of County Assemblies and there has been concern that there is need to the County Executives in some instances.22 refocus energy towards continued realization hapter 2 of human rights and fundamental freedoms in 21County Governments Budgets Implementation THE FOURTH STATE OF Review Report Half Year FY 2014’15, February counties in line with devolution. 2015. See also http://www.nation.co.ke/counties/ HUMAN RIGHTS REPORT Counties-Revenue-Collection-Controller-of-Budget- C Report/-/1107872/2624238/-/imcn24/-/index.html (accessed 6 June 2015). 22 Ibid.See also http://mobile.nation.co.ke/ news/County-leaders-burn-millions-in-joy- travels/-/1950946/2163000/-/format/xhtml/- /9t6u8dz/-/index.html (accessed 6 June 2015). Kenya National Commission on Human Rights Kenya National Commission on Human Rights Commission National Kenya

16 17 2.0 THE OF of appropriate services to help the police, the Constitution, the judiciary has played an important STATE HUMAN judiciary and other government institutions to role in implementation of the Constitution by RIGHTS IN KENYA communicate with persons with psychosocial rendering opinions and guidance on various disabilities and the deaf.27 Courts do not provide provisions of the Constitution. for sign language interpreters for the deaf nor Human rights are said to be those entitlements that 2.1 CIVIL AND braille facilities for the blind. The key barriers to Independence of the judiciary has been bolstered accrue to an individual by virtue of being human. effective access to justice by people with disability further with increased transparency in the These rights are interdependent, indivisible, POLITICAL RIGHTS include: unavailability of community support, appointment of judges, now carried out by the universal and interrelated. These rights have been inaccessibility to information, social risk factors, President on the recommendation of the Judicial classified into different categories. These are Civil negative attitudes and assumptions that persons Service Commission. Approval of the National and Political rights and Economic social and cultural 2.1.1 Access to Justice with disability cannot make decisions.28 Assembly is now sought in the appointment of the rights. Civil and political rights are often referred Chief Justice and the Deputy Chief Justice. Judges to as first generation rights since they involve the Access to justice is a broad concept that has 2.1.1.1 Judiciary are secure from arbitrary removal from office, as the relationship between political and individual. These international recognition as laid out in several same can only be effected on the basis of mental or rights encompass the participation of people in international instruments such as International physical incapacity hindering performance; breach The judiciary is one of the three co-equal arms of the political process and recognizes the inherent Covenant on Civil and Political Rights (ICCPR) of code of conduct; bankruptcy; incompetence government. Its chief mission is to resolve disputes powers that people have to determine their form and a plethora of other instruments comprising or gross misconduct or misbehaviour. Even so, in a just manner with a view to protecting the of governance. declarations, principles, rules, recommendations and it is only the Judicial Service Commission (JSC) rights and liberties of all, thereby facilitating the guidelines that bolster the international human rights that can recommend the process of removal of edifice24. These instruments provide for the right to attainment of the rule of law ideal. It performs this Economic social and cultural rights are often taken a judge.32 These provisions allow for the judiciary function by providing independent, accessible and to be the second generation rights and involve the legal representation as a minimum core right under to remain independent of external pressures, responsive for the resolution of disputes.29 The interaction of individuals with their human and the due process of law. Article 2 of the Constitution especially political interference in the past has judicial system is established under Chapter 10 of personal development. These rights are geared of Kenya transposes the concept of access to justice compromised the bench. towards improving the social status of an individual as rationalized by the international instruments to the Constitution. Article 15930 vests the exercise of judicial powers in the courts and tribunals and and ensure that basic essentials associated with the Kenyan jurisdiction. Further, under Article 48, In discharging the mandate bestowed upon it sets out principles guiding the exercise of these proper living are accorded to individuals. These the Constitution provides for access to justice for by the Constitution, the judiciary has played an powers.31 Among others, the principles include rights include the right to healthcare, the right to all persons, thereby imposing an obligation on the oversight role with respect to governance and administration of justice without undue regard work, the right to social security, food, water and judiciary for realization of this right. accountability which has in turn shaped the human to procedural technicalities and protection and sanitation and the right to shelter. These rights rights discourse and practice in Kenya. require progressive realization towards their In the review period, infrastructural progress has promotion of the purposes and principles of the implementation. been made with the construction and establishment Constitution. of new courts and recruitment of additional 2.1.1.3 Judicial Reform There is yet another generation of rights often magistrates and judges25. There is continued need 2.1.1.2 Independence of the referred to as third generation rights or group to build the capacity of Kenyans to claim justice by The first responses to the challenges the judiciary rights. These rights accrue to vulnerable groups raising awareness levels on rights as ignorance and Judiciary faced in delivering access to justice sought to such as children, women, youths, persons with limited understanding on rights remains a major confront integrity deficits, plug staffing gaps,

23 improve physical infrastructure and eradicate case Kenya National Commission on Human Rights disabilities and the elderly. For the observance obstacle to accessing justice especially among the Article 160 of the Constitution establishes the 26 backlog. The judiciary also undertook to increase of these rights though, there is corresponding indigent, vulnerable and uneducated people. independence of the judiciary, subject only to the the accessibility of courts and the expeditious duty to ensure that the set rights are respected, Being a signatory to the UN Convention on the control and direction of the Constitution itself handling of cases to address backlog. It sought protected and promoted. As such, the law Rights of Persons with Disability, Kenya is obliged and the law. This gives the judiciary autonomy in to ensure it was well-equipped and accessible to provides for mechanisms of ensuring compliance to similarly ensure effective access to justice for conducting its affairs whilst safeguarding it from the public. A Rapid Results Initiative (RRI) was and promotion of these rights by creating duties persons with disability (PWDs) on equal basis with external interference. With further provisions commenced by recruiting a large number of new to individuals. The result is that the government others. PWDs continue to face several challenges vested in the High Court authority to hear judges and magistrates. The enactment of the is obligated to respect rights of individuals and in accessing justice, with obstacles such as any questions relating to interpretation of the ensure that they are enjoyed without limitation. inaccessibility and lack of legal capacity pervading Constitution of Kenya prompted the development Similarly, citizens are required to take steps to the justice system. KNCHR has noted the absence 27 P Kameri-Mbote & M Akech (n 18 above) 36. of critical legislation and administrative measures 28 As above. ensure that they do not violate the rights of others. that have significantly enhanced the integrity, 24 International Convention on Economic, Social and 29 The Judiciary Transformation Framework 2012 - efficiency and transparency of the judiciary; The duty requires parties to refrain from acting in a Cultural Rights, Convention on the Elimination of All 2016 available at http://www.judiciary.go.ke/portal/ Kenya National Commission on Human Rights Commission National Kenya way that deprives people of the guaranteed right. Forms of Discrimination Against Women, Convention portal/assets/downloads/reports/Judiciary%27s%20 transforming it into an independent establishment on the Rights of the Child. Tranformation%20Framework-fv.pdf (accessed 7 June capable of effectively administering justice, 2015). 18 23 Morris K. Mbondenyi and John Osogo Ambani. The 25 P Kameri-Mbote & M Akech Kenya Justice Sector and 32 Article 168(2) provides that the JSC can initiate the 19 New Constitution of Kenya: Principles, Law and the Rule of Law (2011) 1. 30 The Constitution of Kenya (2010) process acting on its own motion or on the petition Human Rights, 2011 26 As above. 31 Article 159 (2) of the Constitution of any person. checking impunity, upholding and enforcing the backlog revealed that files recorded as pending been appointed in December, 2010. The roles of the to enhance access to and expedite delivery of Bill of Rights. Based on the recommendations were no longer active and could be closed. commission include review and recommendations justice. Positive outcomes from implementation of of the Taskforce on Judicial Reforms Report of Although the backlog in the Environment and for conditions of service, discipline of judicial the framework include an increase in the number July 2010,33 transformation of the judiciary has Land Division was estimated at 5,000, a baseline officers and staff, programming education and of judicial officers to enhance timely access to seen the establishment of a supreme court, re- survey established that 16,907 new cases had been training of judges and judicial officers, and justice; and the building of new courts to reduce establishment of the Judicial Service Commission, filed between the years 2000 and 2011. Within advising the national government on effective distance to courts. The number of court stations restructuring of procedures for appointment, 100 days, this backlog had been reduced by 3,419 administration of justice. The oversight role of the has also continuously received a boost. In 2011, 4 removal and vetting of judges and magistrates in cases.35 In the Commercial and Admiralty Division JSC is however limited by the administration of the High Court stations and 2 Magistrate Courts were the transitional period, and revised remuneration, where a baseline survey surfaced 29,000 cases, Judiciary Fund38. added to the existing ones. benefits packages and increased allocation to meet 27,000 cases were removed from the backlog. the judicial budget and handing down important There were similar initiatives in the Constitutional, In response to the shortage of judicial staff, the In rural areas, access to justice has been decisions on electoral processes that helped Human Rights and Judicial Review, Criminal and Judicial Service Commission embarked on an accelerated by introduction of mobile courts in an successfully steer an otherwise perilous transition. Family Divisions. Out of the 58,800 cases captured aggressive recruitment programme in the reporting effort to increase the judiciary’s reach to people In this regards, five groups of cases are important: as backlog in these courts, 31,260 were disposed of period. 109 magistrates were recruited, 278 already in remote areas. An effective system has been the election date decision; the integrity decision; in just 100 days. In the Constitutional and Human in service and 12 kadhis were promoted. An further established to provide information on the electoral boundaries matter; the presidential Rights Division, a baseline survey surfaced 6,000 additional 36 judges were hired for the High Court, courts’ jurisdiction, fees and calendar; a litigant’s election petition; and the 188 election petitions files and within 100 days, a total of 590 cases had 12 for the Industrial Court and 15 for the Land and charter has been drawn and the costs of accessing relating to counties and the national legislature. been cleared. Despite these elaborate and timely Environment Court.39 These 63 additional judges judicial services reduced. Other strategies taken to All which have served to rebrand the judiciary and efforts, the judiciary is still mired with challenges36 increased the accessibility and efficiency of the transform the judiciary include an effort to make improve public confidence in its ability to dispense and a shortfall in court stations and judicial officers. High Court, bringing the total number of High Court courts less intimidating by establishing a customer justice. Frustration from the political class in the form judges to 112. 7 High Court judges were elevated to care desk at every court station. The Judiciary of budget cuts and reduced public confidence, the Court of Appeal after successful interviews by Transformation Secretariat, in conjunction with Judicial reforms have resulted in initiation of particularly in the aftermath of the Supreme Court the JSC. As provided by Section 7 of the Judicial the Judiciary Training Institute, offered specialized administrative and judicial processes over the past decision in the presidential election petition,37 are Service Act, 83 legal researchers were appointed customer service skills training to 108 members of year to conclude cases that have clogged the courts some of the challenges that the judiciary has to to provide judicial support. However, only 63 took staff who had been designated to run customer for years. An initial analysis of the case backlog contend with. up their appointment. A further 85 researchers are care desks between 17th and 22nd September, 2013.41 found that two-thirds of the cases consisted of expected to be hired. traffic-related matters whose prosecution the 2.1.1.4 The Judicial Service The Judiciary Transformation Framework also police had abandoned. To address this, four Chief On the 9th May, 2012, the Judicial Service acknowledges the complementary role of Magistrates were posted to conclude these cases Commission and its reform. Commission appointed a committee whose alternative justice systems to which many Kenyans by closing files, asking the police to withdraw them mandate included examining the modalities of turn to. Indeed, the Constitution urges the judiciary for want of prosecution or sending them to trial.34 The Judicial Service Commission (JSC) is establishing an International Crimes Division to promote the usage of such systems so long as established under Article 171 of the Constitution. It of the High Court for post-election cases and they are not repugnant to justice and morality. In Table 2.1: The number of cases across all courts in is constituted by 11 members, the initial team having expanding jurisdiction of the Division to also response to this call, JTI partnered with Usalama deal with international and transnational crime. Forum to organize a workshop to explore ‘The Role Court Cases lodged Cases finalized Cases pending The jurisdiction of the Division shall include post- of Councils of Elders in Promoting Access to Justice Kenya National Commission on Human Rights Magistrates’ Courts 390,023 368,700 496,382 election violence crimes, , in Isiolo County.’ The workshop, which was held genocide, war crimes, human trafficking and between June 24 and 26, 2013, brought together High Court 37,954 51,604 299,472 organized crime.40 stakeholders working on promoting alternative justice systems from different government and Court of Appeal 833 822 6,707 2.1.1.5 Reforms guided by non-government organizations.42 Supreme Court 17 8 9 the Judicial Transformation Massive investment in growing technological, TOTAL 428,827 421,134 802,570 Framework organizational, institutional and human resource 35 (n 27 above) 31. capabilities have raised efficiency in the July 2011 – June 2012 36 Justice on Trial as Case Backlog Returns to judiciary. Other key reform measures include The judiciary, through the Judiciary Transformation In the High Court, an initial audit of the case Haunt the Judiciary www.standardmedia.co.ke/ the establishment of the National Council on the article/2000102645/justice-on-trial-as-case-backlog- Framework 2012-2016, put in place various strategies Administration of Justice, which creates returns-to-haunt-the-judiciary (accessed 19 January on Human Rights Commission National Kenya 33 Ouko Report (2010) 2014). 38 Fund for administrative expenses 34 Judiciary of Kenya State of the Judiciary Report of 37 Petition no. 5 of 2013 http://www.judiciary.go.ke/ 41 Judiciary of Kenya State of Judiciary Report of 20 2011 – 2012 available at http://judiciary.go.ke/portal/ portal/assets/files/Adverts/Petition%20No.%205%20 39 Judiciary of Kenya (n 27 above). 2012-2013 http://www.kenyalaw.org/kl/fileadmin/ 21 assets/files/Reports/State%20of%20Judiciary%20 of%202013%20%20Judgement.pdf (accessed 7 June 40 United Nations Human Rights Council Universal SoJA_2012-2013.pdf (accessed 7 June 2015). 2011-2012.pdf (accessed 7 June 2015). 2015). Periodic Review: National Mid Term Report (2012)18. 42 Judiciary of Kenya (n 35 above) 54. Table 2.2: Previously stalled court construction progress in 2012/1343 a unified justice sector that serves the people while A retreat was held to enable them interrogate upholding the values of collective responsibility, their role and develop a clear mind-set that would County Court Station Status interdependence, service, constitutionalism and enable them to successfully fulfil their mandate mutual accountability. Section 35 of the Judicial within the judiciary.45 Kiambu Gatundu Law Courts Completed during the year Service Act, 2011, empowers the Council to formulate policies relating to the administration of justice; Through the JTI, all judges and magistrates serving Busia Busia High Court Completed during the year implement, monitor, evaluate and review strategies in all courts across the country undergo regular Bungoma Sirisia Law Courts Completed during the year for the administration of justice; facilitate the training in courses such as substantive law, advances establishment of Court Users Committees (CUCs) at in evidence and procedure, improvement of judicial Nakuru Naivasha Law Courts Completed during the year the county level; and mobilize resources for purposes skills, among others. In a bid to boost public of the efficient administration of justice. confidence, the judiciary has utilized the institute to Malindi Malindi High Court Completed during the year reinforce a change of culture through trainings. JTI Kisumu Kisumu High Court Ongoing 2.1.1.6 Development of the has also started a compulsory continuing judicial education program for all judges and magistrates. Migori Migori Law Courts Ongoing Judiciary Training Institute Under this program, all judicial officers will be required to attend at least one training each year Narok Narok Law Court Ongoing In line with the Judiciary Transformation Framework, to ensure they are updated on developments in law the Judiciary Training Institute (JTI) was established and judicial practice. The table below shows some in 2008 with the mandate of providing judicial of the trainings undertaken within the reporting Table 2.3: Schedule of mobile and traffic courts during the reporting period training for judges and magistrates. This mandate period. Through the Judicial Training Institute, is exercised by meeting the training, research and the judiciary is developing a sentencing and bail Station Mobile Court capacity development needs of judicial staff. This is handbook that will be made available to all judicial done through public lectures, research papers and officers.46 The handbook is expected to play a great publications targeting the staff.44 A case in point role in promoting uniformity in exercise of judicial Garissa Dadaab, Modogashe, Ijara, Bangale is when the JTI conducted induction programs for discretion on granting of bail, thereby enhancing the new legal researchers. access to justice. * Loitoktok

Kitui* Zombe Table 2.4: Induction workshops for new judicial staff between July 2012 and June 2013

Kabarnet East Pokot Training Activity Dates Wanguru* Karaba Induction for newly-appointed Resident July 30 - August 10, 2012 Homa Bay* Mbita Magistrates

Kenya National Commission on Human Rights Induction for newly appointed High Court September 18 - 23, 2012 * Faza Islands Judges

Induction for newly appointed Judges of Court Maralal Wamba December 3 - 7, 2012 of Appeal

Marsabit Laisamis/Merille Induction for Registrars, Law Clerks & Legal April 22 - 26, 2013 Researchers of the Supreme Court of Kenya Lodwar Lokichar, Lokitaung Induction for Drivers May 22 - 26, 2013 Isiolo Merti, Archers Post

Induction for Kadhis June 4 -9, 2013 Kapsabet* Songhor

Garsen Kipini Induction for Supply Chain Management Officers June 19 -23, 2013 Kenya National Commission on Human Rights Commission National Kenya

Kimilili* Kapsokwony 22 23 44 http://www.judiciary.go.ke/portal/judiciary-training- 45 Judiciary of Kenya (n 35 above) 108. 43 Republic of Kenya (n 27 above) 153. institute (accessed 31 May 2015). 46 Judiciary of Kenya (n 27 above). 2.1.1.7 Judges and transitional time lines have affected requirements issues of public interest. Though the framework is by court fees and procedures that historically of a thorough hearing. There has also been yet to be put in place, many paralegals in Kenya dragged on for long periods, thereby attracting Magistrates’ Vetting inadequate transparency in the vetting process, have stepped in to provide an important source of more costs to litigants. It was on this premise that with the public often kept in the dark about legal assistance that would otherwise lack due to efforts to establish a legal aid framework began In a move to effect relevant changes recommended hearings. On the other hand, where information the absence of a sufficient cadre of lawyers. Kenya in the 1980s. Since then, some success has been by the Task Force on Judicial Reforms, the judiciary on vetting sessions was available, members of the is home to several paralegal networks which have recorded such as the establishment of the Legal commenced a vetting process to determine public showed reluctance to offer information or received some legal training and work for free in Aid Steering Committee, the Paralegal Support the suitability of sitting judges and magistrates. raise complaints.50 The process is still on course many communities. The paralegals in Kenya spread Network (PASUNE), the National Legal Aid and There had been many complaints by the public and at the time of this report, the Board is vetting awareness of human rights and make referrals to Awareness Program (NALEAP) and the provision on corruption, bias and discrimination by judicial magistrates having finalized with the High Court, appropriate services. In a few cases, paralegals of legal aid by several civil society organizations. officers at all levels of the court hierarchy. The the Court of Appeal and Supreme Court judges serve as monitors for legal aid organizations, Kenya Judges and Magistrates Vetting Board sending them information collected from the Efforts to improve access to justice have (JMVB), was formed to purge the judiciary of 2.1.1.8 Legal Aid in Kenya grassroots level and submitting monthly reports.51 culminated in the Legal Aid Bill (2013). The Bill culpable judges and magistrates in a transitional The place of legal aid is well-anchored in the introduces various promising strides for the measure aimed at restoring public confidence in Constitution through various indirect provisions. establishment of a national legal aid framework. The Population of Kenyan remand prison the institution. However, the scope of this right can be viewed There is proposed a national legal aid service that facilities consist mainly of people are who through different prisms. Legal aid can be seen would establish and administer a national legal The JMVB was established by the Judges and have been arraigned before the court, through the lenses of access to justice, fair hearing, aid scheme and alternative dispute resolution. Magistrates Vetting Board Act of 2011 to vet the but keep having their cases postponed, fair administrative action, ensuring the rule of law The scheme is to be founded on the objects of suitability of all the judges and magistrates in for lack of legal representation. Many is upheld as well as ensuring equal rights between affordability, accessibility, sustainability, credibility, office on the effective date of the Constitution, to of these are people who would be out people. and accountability. The service would additionally continue to serve in accordance with the values on bond, if only they had the means to cater for the representation of successful and principles set out in the Constitution. Judges arrange for it. In the Coast, there are tens The Constitution of Kenya obliges the state to applicants, remuneration and reimbursement for and magistrates found unsuitable were dismissed. of thousands of so-called ‘squatters’ ensure access to justice for all persons and that if expenses of legal aid providers, and manage its This has enhanced integrity in the judiciary. who - in the worst case scenario - are any fee is payable, the state is to ensure that the own services and expenses from a legal aid fund. entitled to keep their land under ‘adverse fee is reasonable and does not impede access The Bill provides for the process of application The JMVB vetting process commenced on 23rd to justice.52 By this provision, the Constitution for legal aid, review and appeal of unsuccessful possession’ laws; but such people are February, 2012 with the most senior judge of the offers the opportunity to realize the expansive applications and withdrawal of legal aid. The regularly evicted by hirelings of land Court. It has carried out its work effectively albeit ideal of legal aid through inclusion of other types service would also play the critical role of creating with challenges. Judicial officers aggrieved by owners waving court orders legally of assistance. The Constitution goes further to awareness on rights through the publication of a the decisions of the board filed petitions in court obtained in a court action in which the address the need for legal aid by requiring accused legal aid guide biennially. The guide would contain despite non-existence of the right of appeal on ‘squatters’ had no representation. persons to be assigned advocates by the state if simple language, relevant legislation, regulations, the board’s findings47 . The Kenya Judges and substantial injustice would otherwise result, and to policies, directives and services available. The Bill To deal with the challenge of cost of accessing legal Magistrates Association took the JMVB to court be informed of this right promptly.53 further provides for accreditation of paralegals and services,there is a proposal to set up a national claiming unfair targeting of judicial officers who intermediary agencies offering legal aid services, legal aid scheme to be accessed by the indigent. were merely executing their functions.48 The Access to justice in Kenya is just emerging from the thereby providing structure to the sector that has In November 2007, the government appointed Kenya National Commission on Human Rights board itself also sought to suspend vetting of doldrums. From a historical perspective, Kenyans long served to bridge the gap in access to justice. the National Legal Aid (and Awareness) Steering judicial officers subject to complaints arising were not conversant with their basic rights, in turn Committee to oversee, coordinate, monitor and after the promulgation date of the Constitution affecting their ability to resort to the judicial system While the Bill heralds a new dawn for increased provide policy direction to the National Legal Aid and there were reports in some quarters that for dispute resolution. They alternatively looked access to justice, there are still a few concerns that (and Awareness) Program (NALEAP). Further sacked judicial officers continued to receive their to traditional or informal systems for recourse; need to be addressed before the Bill is enacted to this, the 2010 Report of the Task Force on pay even after their dismissal.49 Moreover, strict which did not have a clear institutional linkage with into law. Firstly, the creation of a centralized Judicial Reforms proposed that a policy and 47 Petition no. 13a of 2013 as consolidated with Petition the formal justice system, thereby occasioning national legal aid service at the capital city would legislative framework establishing a national legal no. 14 &15 of 2013 between Judges and Magistrates instances of non-conformity with human rights be sub-optimal, considering the benefits the Vetting Board& 2 others vs Centre for Human Rights aid system be adopted and implemented and that principles.54 Legal services have also long been proposed framework would yield if decentralized and Democracy and 11 others public interest litigation guidelines be adopted 48 ‘Vetting Board Says Finding Corrupt Judges a expensive for the larger population, compounded to each of the 47 counties. That the judiciary is not and implemented to facilitate access to justice on Headache’ Business Daily 26 August 2014 http://www. 51 P Kameri-Mbote & M Akech (n 18 above). accorded any discretion to order provision of legal businessdailyafrica.com/Vetting-board-says-finding- Judges’ http://m.news24.com/kenya/MyNews24/Rao- 52 Article 48 of the Constitution of Kenya (2010) aid services to deserving cases and litigants55 is corrupt-judges-a-headache/-/539546/2431914/- wants-JSC-to-stop-paying-sacked-judges-20140915 on Human Rights Commission National Kenya /11llye6/-/index.html (accessed 14 May 2015). (accessed 14 May 2015). Constitution petition no 64 53 Article 50(h) of the Constitution of Kenya (2010) 55 ‘Return Faulty Bill on Legal Aid to Constitution petition no 64 of 2014 the Kenya of 2014 the Kenya Magistrates & Judges Association 54 FIDA Kenya Traditional Justice Systems in Kenya: Draughtsmen’ Standard Digital News 12 24 Magistrates & Judges Association vs the Judges & vs the Judges & Magistrates Vetting Board & another A Study of Communities in the February 2014 www.standardmedia.co.ke/ 25 Magistrates Vetting Board & another eKLR 2014 eKLR 2014 (2007) fidakenya.org/sites/default/files/Traditional- article/2000104473/return-faulty-bill-on-legal-aid- 49 J Nyung’e ‘Rao Wants JSC to Stop Paying Sacked 50 See n 40 above. Justicefinal.pdf (accessed 15 May 2015). to draughtsmen?articleID=2000104473&story_ perhaps also a weakness in the Bill. Several clauses executions, illegal and irregular allocation of public 2.1.1.10 The Criminal Other issues that heightened confusion on the of the Bill require clarification. For instance, the Bill is land. It is critical to also note that close to 50% of scope of the right to bail include interpretation unclear on the time frame for feedback following an memoranda and statements received by the TJRC Justice Sector of Article 25 of the Constitution which provides application for legal aid. There is also need to clarify constituted claims on land. Land was identified as the right to a fair trial as one of the fundamental whether a beneficiary continues to enjoy support the single most important driver of ethnic tension Release on Bail /Bond Terms rights that may not be limited. In some instances, from the legal aid scheme during appeal process. and conflict in Kenya. this was perceived as according an absolute Since independence, bail and bond has often been entitlement to bail and bond to accused persons. It 2.1.1.9 Transitional justice The TJRC Report made broad findings of categories given at the discretion of the presiding judge or is however noteworthy that the Constitution does of human rights violations and proposed that magistrate. There are no set guidelines for the not mention the provisions on the entitlement to victims of the violations receive reparations. grant of bail or bond. This discretion has not bail and bond as a component of the right to fair Political interference and government laxity Recommendations of particular types of reparations been guided and in some cases has occasioned a trial under Article 50. The right to bail and bond to address past violations has often stalled to specifically identifiable victims falling under miscarriage of justice or has exposed the judiciary is provided under Article 49 as comprising part of transitional justice in Kenya. In order to address Section 6 (c) and (t) of the TJRC Act were made but to criticism. In the past it has been interpreted that the general rights of arrested persons. As such, this past violations, the government set up the Truth, the TJRC failed to operationalize the Reparations in discharging this function, courts have not been right can be subjected to limitation by statutes.59 Justice and Reconciliation Commission (TJRC) as Fund, instead recommending that it be established.57 considerate to the type of offence that a suspect These inconsistencies, coupled with the need to the principal truth-telling forum. Once established, The Commission admits to this in the report and has been charged with. The police have come out ensure uniform balancing of rights of accused however, the TJRC faced complex difficulties which recommends that an implementation committee criticizing the judiciary for what they termed as persons, victims of crimes and the general public, took up considerable amount of its valuable time oversees the reparations mechanism.58 Lack of lack of support since suspects considered to be necessitate clarity of practice. and eroded public confidence in the institution’s political goodwill, vested interests and proposed dangerous have been released. Moreover, there legitimacy and ability to perform its mandate. parliamentary amendments to the report which fail has been issues as to whether certain classes of To address these concerns, a task force to develop These included credibility challenges against to address the reparations mechanism as proposed offenders deserve bail or bond such as suspected bail and bond policy guidelines was appointed by the commission chair and litigation seeking his by Section 42 of the TJRC Act and the report terrorists, suspected murderers and also corrupt the Chief Justice towards the end of the period resignation or removal, which in turn sparked itself, have all conspired to stall implementation individuals. Additionally, the lack of laid down rules under review.60 The task force was charged with serious differences among the commissioners; of the TJRC recommendations. Lessons from on the grant of bail or bond has led to enormous the duty of developing guidelines that will enhance allegations of lack of transparency in recruitment Kenya’s transitional justice journey indicate that the inconsistencies in setting the bail conditions. In fairness and consistency in the administration of of staff and statement takers; and civil society concept and objectives are good, but the process of similar offences, it is possible to find that courts bail and bond in Kenya. The functions of the task criticism of the methodology adopted by the implementation is often compromised by political have given accused persons different amounts of force were to develop a national bail policy that will TJRC. All these dampened public support for the imperatives and the temptation to sidestep costly bail and this has not augured well with litigants and guide police and judicial officers on the application truth-seeking mechanism.56 reparations. The need to examine and learn from the accused persons. of laws that provide for bail and bond; and to make these lessons to avoid deferment of the objectives appropriate recommendations on legislative and The lack of political will continued to manifest itself of learning the truth and achieving community The Constitution under Article 49 (h) provides regulatory amendments necessary for addressing even after the commission wrapped up its work and reconciliation is self-evident. for a qualified right to bail and/or bond for all inconsistencies and enabling fair administration handed over its report to the State. Although the law suspects; even those accused of capital offences of bail and bond measures. Special attention is to setting up the Commission had provided that all its and other serious crimes, terrorism included. be paid to the reasonability of the bail terms, the recommendations would be implemented within a Administering this provision entails balancing the right to review bail terms, special consideration for stipulated timeline, the timelines were not complied rights of suspects to liberty and the presumption of the vulnerable, the participation of victims in the with. Amendments were instead proposed to the Kenya National Commission on Human Rights innocence with the rights of victims and the wider processes and particular attention to transnational Act to allow the debate of the recommendations public interest. In the period under review, Kenya offences. by Parliament. In December 2013, the National 57 TJRC Kenya Report of the Truth, Justice and Reconciliation Commission 4 (2013) 87 122. had not enacted policies to support the realization Assembly debated and passed an amendment to 58 TJRC (n 98 above) 71-82. Also see TJRC Kenya of this right as provided for under the Constitution. Sentencing Regime the Truth, Justice and Reconciliation Commission Report of the Truth, Justice and Reconciliation Thus, public concerns that the courts routinely Act, to effectively allow the National Assembly to Commission 1 (2013) 55 at paragraph 57: “The released suspects who were threatening victims Key element of the criminal justice system is consider the recommendations. Commission faithfully performed these functions. On identifying and specifying victims of violations, and their families were reported in some areas. In punishment. The sentencing policies therefore The key findings of the TJRC Report were that the the Commission has compiled and published in this the same vein, police officers and courts grappled seek to respond to crime in a number of ways; previous governments, from the colonial to the report a list of victims of various violations committed during its mandate period. The list contains the with questions as to what entailed compelling retributive, deterrent and rehabilitative. This has Kibaki administration in 2008, were responsible names of victims who submitted their cases to the reasons that warrant limitation of the constitutional not been well articulated in Kenya’s justice system for gross human rights violations including Commission and as such, it is not a complete list of all people who suffered violations during the right to bail and bond. This manifested in the massacres, torture, assassinations, extrajudicial 59 National Council on the Administration of Justice mandate period. In relation to determining ways and inconsistent manner in which both the police and means of redressing the suffering of victims, this Report of the Task Force to Develop Bail and Bond on Human Rights Commission National Kenya title=return-faulty-bill-on-legal-aid-to- report contains a catalogue of recommendations the courts interpreted compelling reasons from Policy Guidelines (2015). draughtsmen&pageNo=2 (accessed 15 May 2015). aimed at repairing the harm suffered by victims. circumstances of particular cases. 60 The Judiciary of Kenya Chief Justice Launches Bail 26 56 NPI-Africa & GPPAC.Transitional Justice in Kenya: A The Commission’s measures intended to ensure that and Bond Guidelines (2015) http://www.judiciary. 27 Historical Perspective and a Synopsis of a Troubled victims have a platform for non-retributive truth- go.ke/portal/blog/post/chief-justice--launches-bail- Truth Justice and Reconciliation Commission (2014). telling are discussed in detail in the next chapter.” and-bond-policy-guidelines (accessed 6 May 2015). and therefore there is need to develop sentencing and uniformity and promote proportionality in degrading clothing and bedding, lack of clean Access to basic amenities guidelines for definite and consistent mode in sentencing. The team was further expected to water, infectious diseases, imposed homosexuality sentencing. Sentencing has transformed from come up with a plan for suggested interventions and high levels of violence, among others. The The Prisons Act, Cap 90 Laws of Kenya, provides being very retributive to take up a more humane that will include educating and engaging members population in Kenya’s penal institutions ranges that a prisoner shall be supplied with prison approach.61 While judges and magistrates hold the of the public and other stakeholders on the from 50, 000 to as high as 60, 000 inmates, yet clothing and beddings which shall be for warmth discretion when it comes to sentencing, mitigation sentencing system and its effectiveness. the institutions’ holding capacity stands at 22, and health.69 However, in the review period, prison and other underlying issues have found a place 000. Kenya Prisons Service reported a total prison uniforms and beddings were in inadequate supply in our courts where they are considered before Rights of arrested persons and detainees population of 53,163 as of May 2014. Of these, in most prisons. In some facilities, mattresses were a sentence is passed. Ideally, a sentence in its approximately 36.5% were in pre-trial detention. stacked up in stores with prisoners unable to use application should act as a punishment, a deterrent The Constitution of Kenya (2010) heralded a More than 90% of the prison population was them due to prison congestion that had led to lack to future commission of crime, a form of treatment comprehensive Bill of Rights that, for the first time, male. The country’s 110 prisons had a designated of space to lay down the mattresses. This forced and as a measure of protection to the society. recognized the rights of arrested persons. Article capacity of 24,794 inmates. Nairobi’s Industrial inmates to share the available mattresses; one being Kenya has provisions for both mandatory and 51 of the Constitution is specific on the rights of Area Remand Prison, which holds prisoners yet to shared by up to three inmates at a time. In other discretionary sentencing. However, our courts have persons detained, held in custody or imprisoned. In be sentenced, has a designated capacity of 3,000 prisons, uniforms and beddings were too tattered been plagued with disparity and disproportionate April 2011, a task force to draft the Bill on the rights but was well over capacity for most of the year. to keep out the cold, yet some people were forced sentencing patterns. of persons detained, held in custody or imprisoned to sleep on the cold floor. This compromised the was gazetted and subsequently prepared the A 2009 prison assessment by the KNCHR health of inmates, exposing them to respiratory Substantial evidence indicates that gross Persons Deprived of Liberty Bill (2012). concluded that torture, degrading and inhuman infections and illnesses that could spill over to sentencing disparities exist among similarly situated treatment, unsanitary conditions, and extreme officers who come into direct contact with the individuals convicted of the same offences.62 The The Bill provides for humane treatment of persons overcrowding were endemic in prisons. Prison staff inmates. These included Kisii, Kericho and Kodiaga lack of sentencing guidelines in the period under detained, held in custody or imprisoned, and gives routinely beat and assault prisoners, disregarding prisons mainly because of the high population of review continued to propagate these disparities, effect to the provisions of international human their rights as protected by the Constitution and inmates. However, prisons such as Hola, Langata uncertainties and lack of uniformity in sentencing. rights instruments and rules on such persons. international human rights obligations.67 In the Women Prison, Kisumu Women prison and Malindi This has led to discrimination as offences are not Protection of Victims Bill was also prepared for period under review, KNCHR notes that reforms Women prison showed commendable cleanliness treated equally and the inverse is that individual the protection of rights and welfare of victims had been embraced in Kenya prisons. There was in cells and wards where inmates are held. offenders are also not treated equally. Additionally, of crime. Furthermore, efforts to review the laws remarked improved in sanitation, inmates’ welfare there is the right to have mitigating factors taken governing prisons and borstal institutions were including sanitation, meals and accommodation. A prisoner’s health is directly related to the overall into account. Mitigating factors are part and parcel stepped up, with the Kenya Prisons Service taking There was also remarkable improvement in the health status of a society. If the health of prisoners of rights that are guaranteed under the rights the lead in convening stakeholders into a working welfare of officers which included housing and is neglected, prison serves as a reservoir for to fair trial. As such failure by the courts to take group for the review of the Prisons Act64 and the fairly improved working conditions. However, the transmission of diseases to the general society when the mitigating factors into account amounts to Borstal Institutions Act.65 Realization of the much reforms were not uniform and the pace depended inmates come and leave. In spite of incarceration, a violation of rights of an accused person to a sought reforms in the sector has not however been mainly on respective prison management. prisoners retain their entitlement to a standard of fair trial as encapsulated under Article 50 of the without challenges; the first being lack of political medical care which is at least equivalent to that Constitution. goodwill. This saw the Persons Deprived of Liberty The government, human rights groups, civil society provided in the wider community.70 Part III of the Bill shelved for quite a while after the taskforce66 and international observers all noted that acts of Prisons Rules, as contained in Cap 90, focuses on Towards the end of the review period, on the forwarded it to the AG with no progress made torture and ill-treatment were seldom investigated provision of health services for inmates.

Kenya National Commission on Human Rights 23rd June 2014, the Chief Justice gazetted a task towards its enactment into law. The Bill was later and prosecuted, and that the perpetrators were force mandated to look into past sentencing revised in 2014 and brought before Parliament for either rarely convicted or were sentenced to lenient The rules require each prison to have a dispensary patterns with a view to improve dispensation of debate and subsequent adoption into law, later the penalties not commensurate to the grave nature of and the Director of Medical Services to assign a justice by the judiciary.63 The team was tasked same year. their crimes.68 Kenya has committed to implement medical officer to each prison. Besides providing to review past sentencing patterns, policies and the UN Standard Minimum Rules for the Treatment curative services, the medical officer is also outcomes and give recommendations on how to Conditions of Detention of Prisoners but domestic law and practice during required to advise prisons on preventive measures reduce unwarranted disparity, increase certainty the period under review failed to provide effective and how to deal with disease outbreaks and control The conditions of detention in Kenya (both in and comprehensive legislative, administrative, of vermin within prisons. In the review period, a 61 Kenya Law Resource Center Sentencing (2014) http://www.kenyalawresourcecenter.org/2011/07/ police custody and prisons) in the review period judicial and other protections necessary to prevent majority of prisons had a dispensary and a clinical sentencing.html (accessed 6 May 2015). continued to be harsh and life-threatening, acts of torture and ill-treatment. officer stationed in them – pointing to a slight 62 R Muthoga & R Bowman ‘Brief Survey of Sentencing particularly in relation to overcrowding, lack of improvement in the provision of healthcare in most Law and Its Practices in Kenya’ (2010) University of appropriate health services, insufficient food, prisons. Prisons that did not have a health facility California Press. on Human Rights Commission National Kenya 63 ‘Chief Justice Willy Mutunga Gazettes Sentencing 64 Cap 90, Laws of Kenya Taskforce’ Standard Digital 24 June 2014 http://www. 69 Cap 90 Laws of Kenya, Rules 46 and 47 28 standardmedia.co.ke/article/2000125888/chief- 65 Cap 92, Laws of Kenya 67 KNCHR A True Measure of Society: An Account of 70 A Coyle ‘A Human Rights Approach of Prison 29 justice-willy-mutunga-gazettes-sentencing-taskforce 66 Task force to draft the Bill on the Rights of person Status of Human Rights in Kenyan Prisons (2011). Management: A Handbook for Prison Staff’ (2002) (accessed on 30 May 2015). detained, held in custody or imprisoned 68 http://a5i.org/kenya/ (accessed on 6 May 2015). International Centre for Prison Studies. were in close proximity to a dispensary of a district Child offenders practice in prisons, thereby hampering provision the promulgation of the Constitution dragged on hospital where inmates could easily access medical of condoms to curb the spread of HIV/AIDS and for years with little or no progress made. By the end care, including emergency treatment. Kenya Equally bad are the conditions of detention for other sexually transmitted infections. This plight of the review period, various legislative processes, Prisons Service had begun employing medical child offenders which did not show any remarkable is aggravated by inadequate food, especially for among them review of the Prisons and Borstal officers within its ranks to boost availability of improvements in the reporting period. Child inmates requiring special nutrition like lactating Institutions Acts; the enactment of the Bill on the health personnel at station level. Despite all these offenders were still being cuffed while on transit to mothers and persons living with HIV. Inmates were Rights of Persons Deprived of Liberty and the efforts, overcrowding, unhygienic conditions, and court despite regulations prohibiting the practice. at times forced to trade sexual favours for food. review of the Probations Act had not materialized. inadequate medical treatment contributed to Mixing of children in custody with adult offenders prisoner deaths, with 187 prisoners reported to continued; the attendant risk of abuse of the Work environment for warders Small-paced strides in improving the conditions have died in 2011 alone – majority of them from children by the adult offenders notwithstanding. of detention could however be seen in the slight infections or other generally preventable causes.71 Some of the children ended up being used as drug Poor terms of service and conditions of work for increase in the supply and allocation of blankets traffickers. prison officers continued to impact negatively on and uniforms for both officers and inmates, Children accompanying mothers the performance of prison warders. Though the including the introduction of sweaters for inmates The country continued facing a challenge in government slightly improved remuneration, the in cold weather regions. Notwithstanding the The number of children accompanying mothers detention of girl offenders owing to the lack of officers felt it still inadequate to cater for their strides, there were disparities in allocation of the to prison was found to be between 600 and a detention facility to accommodate girls. Child needs in view of the rising cost of living that was blankets and clothing occasioned by inadequacy. 800 during the reporting period. As living offenders are held in Borstal institutions and only witnessed in the period under review. Housing Budgetary constraints continue to plague the conditions and environment of most prisons are two such institutions are available in the entire was cited as a big problem in the period, despite prison department slowing down the much deplorable, the children accompanying mothers country which only admit boys only. In many of the government efforts to upgrade living conditions needed reforms. An open door policy has been had to contend with these grim conditions in female prisons visited, there was a considerable for the officers. The state budgetary allocations to put in practice, opening up the prison facilities which their mothers live. The children are not number of girls below the apparent age of 18 the Prisons Service were not adequate to support to members of the public and well-wishers. accommodated separately from their mothers. years held together with older women. This was day to day operations of the institution while Rehabilitation of young offenders (and to some Day care services in prisons are not available, complicated by the fact that age assessment and simultaneously facilitating construction of new extent adult offenders) adopted contemporary limiting the amount of play and outdoor activity determination is a slow process since the approved housing units for officers. Prison warders could methods, including tapping into the entertainment that these children are exposed to. There were medical personnel are few and have a huge not rent houses outside the prison compound for industry.75 attempts however by the government, with the caseload to work on. In remand homes, children security reasons; yet what were available for their support of partners, to put up a day care centre for were being held for more than the required one dwelling in most towns were mabati (corrugated the children at Lang’ata and Kisii Women Prisons. month due to court processes taking longer. There sheet) structures that get either too cold or too hot 2.1.1.11 Witness Protection Unfortunately, other prisons accommodating was no form of formal education going on in child depending on the weather. In rural prisons, grass- children do not have these facilities.72 rehabilitation schools and remand homes. The thatched, mud-walled houses shared in most cases The Witness Protection Agency was established In prisons where children have to share wards practice in Remand homes has been to teach the by at least two families in one house characterized in 2008. Regulations to facilitate efficient and with their mothers, though not documented, there children life skills and general knowledge subjects accommodation facilities for prison officers and effective implementation of the agency’s mandate is a great risk of negative influence such as the except for those about to sit national exams, who their families. Fresh prison recruits who left college were gazetted in 2011 vide Legal Notice No.99 of children learning bad habits like foul language, are taken through guided revision for two or three for prison institutions were housed in unpartitioned 2011.76 The object of the agency is to establish a witness or experience sexual abuse and contract hours a day. This situation persisted within the halls, denying officers the right to privacy.. Some framework and procedures for providing special of communicable diseases. Equally bad are the reporting period, jeopardizing enjoyment of the of the prison houses lack electricity despite being protection to persons in possession of important Kenya National Commission on Human Rights conditions of detention for child offenders which right to quality education by children.73 located in the main prisons situated in our cities.74 information. The basis of protection is potential did not show any remarkable improvements in the Prison officers received a medical cover scheme risk or intimidation attendant on cooperation reporting period. Child offenders were still being Sexual assault in prison which allows them and their families receive both with the prosecution or other law enforcement cuffed while on transit to court despite regulations in and outpatient medical care at no individual agencies. The agency, which is housed within the prohibiting the practice. There was failure to In the period under review, it was established that cost. Construction of decent houses for officers Office of the President, has its board consisting of separate child and adult offenders; the attendant sexual assault was a big challenge in prisons, though had begun, though the units under construction senior government officials including the Attorney risk of abuse of the children by the adult offenders barely acknowledged by prison management. and those completed were inadequate to shelter General, the Head of the National Police Service notwithstanding. Some of the children ended up Death row inmates expressed concerns that stress all officers. being used as drug traffickers. in prison caused prisoners to engage in same sex 75 A group of young offenders from the Kamiti Youth relationships or to trade sexual favours, leading to Reform process Correctional and Training Center contested in a dance high rates of HIV infection as well as other sexually show, Sakata East Africa where they showcased their dancing skills alongside other youths from the transmitted infections. Prison management Kenya was slow in implementing recommendations region. This is the first time in history that inmates on Human Rights Commission National Kenya 71 http://www.state.gov/j/drl/rls/hrrpt refused to acknowledge cropping up of the towards the reform of places of detention. Legal were allowed to enter such competition or afforded a humanrightsreport/index.htm#wrapper (accessed 7 platform where they could share equal opportunities reforms expected to have been effected soon after 30 June 2015). 73 KNCHR Outcome Monitoring Report and with free society. This further enhanced the freedom of 31 72 KNCHR Inspection of Prisons Report 2010-2014 Outcome Journal for Rehabilitation School (2012) 74 KNCHR Inspection of Prisons Report 2010-2014 association and assembly for the youthful offenders. (Unpublished). (Unpublished). (Unpublished). 76 and the Head of the National Intelligence Service. particularly came into play when a witness in a Children’s Act (No. 8 of 2001) 2.1.2 Right to Life This top-level public servant composition of the Bungoma criminal trial was killed along with her board has led to intimidation of witnesses who three daughters barely after the accused had The right to life and survival for children is “All life has inestimable value. Even the weakest fear that rather than protecting them, the agency threatened her in open court. specifically recognized under Section 4(1) of the and most vulnerable, the sick, the old, the unborn might further jeopardize their security, particularly Children’s Act, which provides that every child shall and the poor, are masterpieces of God’s creation, in instances where they have evidence against the There were no deliberate attempts by the police, have an inherent right to life and it shall be the made in his own image, destined to live forever, and state.77 the Office of the Director of Public Prosecutions or responsibility of the government and the family to deserving of the utmost reverence and respect.” the courts to link up the witness to the agency. This ensure the survival and development of the child. (Pope Francis July 28, 2013). The agency has faced numerous challenges case is an unfortunate demonstration of insufficient since its inception in 2011, among them financial attention paid to witness safety by the courts and Sexual Offences Act of 2006 The Constitution guarantees the right to life and constraints. In 2012, it was allocated 196 million the police and consequently, failure to take action goes further to stipulate that nobody shall be shillings against the 450 million it had requested in by the said actors especially since the existence of The Act provides for the protection of life by deprived of his life except through the due process its budgetary proposals submitted to the National the agency is within their knowledge.82 The threat ensuring deterrent punishment to offenders found of the law. Treasury. Scarce resources meant that witnesses was made in open court but the magistrate went guilty of committing sexual offences such as were often asked to protect themselves. Funding ahead to release the accused person when the case attempted defilement, attempted rape, defilement, constraints had the agency ask witnesses to bear collapsed, without putting in place mechanisms to 2.1.2.1 The Legal rape, sodomy, and child sex tourism, among others, the cost and inconvenience of protective measures protect the witness and her family. Both the police Framework which affect the physical, psychological well-being by either changing their names, mobile numbers and the ODPP maintained that the witness had not of a person and their quality of life. or keeping a low profile.78 This led to the agency directly sought help or protection from their offices Termination of Pregnancy playing more of an advisory role than its majorly therefore there were under no obligation to initiate Anti-Counterfeit Act of 2008 protective role.79 In the year 2013/2014, the agency witness protection. The case also demonstrates The Constitution of Kenya had received more than 300 applications from that members of the public were not necessarily In as far it negatively impacted the right to life for witnesses seeking protection, yet it lacked the aware of the existence of the Witness Protection persons living with HIV, this legislation was found Article 26 of the Constitution provides protection funds to assist them all. It is not just witnesses who Agency which could have averted the murders had to be retrogressive by the High Court in the case to life of every human being in Kenya. This is a need protection, but also their families, meaning the witness reached out to the agency. Support of P.A.O and 2 others v The Attorney General.83 The basic right that is interdependent with other rights that the total figures of individuals needing help for witness protection in the country was partly court barred the government from implementing crucial for the preservation and enhancement from the agency were much higher than it could hampered by the ICC trials against top politicians provisions of the Anti-Counterfeit Act of 2008 of human life. In view of sanctity of life, the accommodate.80 who had been named as suspects. During the which would have affected access to affordable Constitution of Kenya has declared abortion illegal period under review, many inmates interviewed anti-retroviral drugs by defining generic medicines unless there is need for emergency treatment; Getting qualified staff was a challenge for the noted that they perceive the witness protection as counterfeits. In the ruling, Justice Mumbi Ngugi the life or health of the mother is in danger; or is agency, especially because witness protection program as lacking political support necessary stated, “The right to life, dignity and health of permitted by any other written law. Article 43(1) was a new concept in the country that are few to make it effective. They noted that the Witness people like the petitioners, who are infected with of the Constitution amplifies the right to life by individuals trained in witness protection. Besides, Protection Agency was a government body the HIV virus, cannot be secured by a vague guaranteeing the right to the highest attainable the agency also depended on meagre government which may make it lack impartiality especially on provison in a situation where those charged with standard of health, including reproductive health allocations for administrative costs, including politically linked cases. the responsibility of enforcement of the law may care. The Constitution further provides that a payment of salaries and execution of its mandate81. not have a clear understanding of the difference person should not be denied emergency medical Kenya National Commission on Human Rights Within the reporting period, which also served as Though the perception is not entirely factual, it between generic and counterfeit medicine.” care and in Article 53(1) (c), that all children, the agency’s initial five year period, there were is however worth taking note that for effective including children with disabilities, have the right coordination challenges between the agency witness protection in a sensible society, the State to basic nutrition, shelter and health care. 2.1.2.2 Emerging Issues and other criminal justice sector actors. This must have a stake in it for purposes of securing a conviction while offering protection to key 77 https://iwpr.net/global-voices/big-questions-about- Penal Code, Cap 63 Laws of Kenya that Affect Realization of witness-protection-kenya (accessed 5 May 2015). informants and witnesses. This is especially so the Right to Life 78 As above. because human rights violations especially those The right to life is protected under the Penal Code 79 Mabatuk V. ‘Witness Protection Agency assures of a gross nature need to be brought to the fore Witnesses of Safety’ Standard Digital News 7 June 2013 through criminalization of manslaughter, murder, by whistle blowers who may need protection. Extra-judicial Killings and Disappearances http://www.standardmedia.co.ke/article/2000085400/ suicide, infanticide and failure by any person witness-protection-agency-assures-witnesses-of-safety? Therefore, there is need to delink the WPA from articleID=2000085400&story_title=witness-protection- charged with the duty of providing for another the office of the president but still secure it within Since 2011, KNCHR in partnership with civil society agency-assures-witnesses-of-safety&pageNo=2 person the necessaries of life to so provide, thus (accessed 7 June 2015). the state probably under the ODPP or the Judiciary organizations (CSOs) has continued to receive occasioning the loss of life or health of that person. on Human Rights Commission National Kenya 80 See n 66 above. and ensure its autonomy. complaints of disappearances and extrajudicial 81 http://www.standardmedia.co.ke/article/2000085400/ 32 witness-protection-agency-assures-witnesses-of-safety? 83 Petition No. 409 of 2009 http://www.aidslawproject. 33 articleID=2000085400&story_title=witness-protection- org/2012/04/24/judgement-petition-no-409- agency-assures-witnesses-of-safety&pageNo=2 82 See n 66 above. of-2009/ (accessed 7 June 2015). killings. This has also been evident in media reports. From 2011 to 2014, KNCHR received a total of 55 a nutshell, the ruling is a positive development in openness within government is essential if the A case in point is the killing of Hassan Ali Guyo, a complaints on disappearances and extrajudicial Kenya’s judicial discourse and is reflective of policy goals of the freedom of information legislation are human rights defender in Northern Kenya, in August killings.88 This obtaining situation requires and practice in application of the death penalty. to be realised. Information then allows people to 2013. He was a Program Director at Strategies for collaborative intervention by all stakeholders in The death sentence was last applied in Kenya in scrutinize the actions of a government and is the Northern Development (SND) and was shot dead order to provide adequate policy measures to stop 1987.94 In 2009, incumbent President, Mwai Kibaki, basis for proper, informed debate of those actions. by an army officer as he documented the use of human rights violations. The situation is further commuted sentences of 4,000 convicts from It is with this concern that a government is vetted excessive force and other human rights violations worsened by laxity in prosecution of perpetrators death to life imprisonment. In 2014, two persons on the premise of how it facilitates and promotes against demonstrators in a joint operation of the of the alarming number of cases of unresolved under the death penalty petitioned the Supreme the openness of its operations, and the use and Kenyan Defence Forces and the National Police extrajudicial killings and enforced disappearances, Court on the unconstitutionality of the sentence expression of information among its citizens. Service. Senior government security officers some of which were documented in the KNCHR in Kenya.95 The case is ongoing and the Supreme had, in that same year, made several public report, The Cry of Blood.89 Court’s decision is poised to give direction on the Freedom of expression, media. announcements threatening or encouraging the application of the mandatory death sentence in use of lethal force by police officers. For example, Independent Medico-Legal Unit (IMLU), a non- Kenya. Statistics from the Prisons Service at the Long after the promulgation of the new in May 2013, Deputy President told government organization working on freedom time of publishing this report indicate that 2,122 constitution and efforts towards aligning the police to use maximum force while dealing with from torture, has filed cases at the East African inmates were on death row.96 existing laws with the new Constitution, to this criminal gangs. This was in reaction to spiralling Court of Justice90 and the African Commission91 in point, the State is yet to enact a legal framework insecurity reports in the media.84These kinds of view of the state’s failure to thoroughly, effectively 2.1.3 Freedom of that directly and holistically addresses the right to pronouncements and actions threaten both the and impartially investigate, document and redress access information. The review period is therefore right to life and the right to a fair trial. extrajudicial killings in the country. In a few Information, Expression not only highlighted by lack of such a framework, instances though, Kenyan courts have upheld the and Media but also marked with the use of laws that are Further in July 2013, Internal Security Cabinet right to life. In 2012 for example, KNCHR filed a out of tune with the spirit and letter of the new Secretary, Joseph ole Lenku, announced a petition in the High Court on constitution. Such laws, in a supplementary role, It is increasingly being recognised that states campaign to curb illegal gun use in Samburu of a father and his son in Kawangware. The court govern the collection, storage and disclosure are under an obligation to take practical steps – County following clashes with the police in 2012, issued judgment in 2014 and found that the two of public information. They include, Books and including through legislation, to give effect to during which locals stole police weapons. He had been extra judicially executed by the police Newspaper Act, Official Secrets Act of 1968, the right to freedom of information. This right publicly threatened that if residents failed to turn and awarded compensation to the widow of the Defamation Act, Disposal of Records Act of 1962, has been provided for under Article 35 (1) of the in all guns to the police within two weeks, the deceased.92 the Public Archives and Documentation Service Constitution which also binds Kenya to a series government would “use force and people would Act of 1966 and the Statistics Act of 2006. Of of international and regional legal instruments die.”85 On 14th April, 2013, a police officer shot Abolition of the death penalty these, the Defamation Act and the Official Secrecy including the International Covenant on Civil and and killed a well-known local community athlete Act remain the most restrictive laws in the access Political Rights and the African Charter on Human at a bus stop in Nairobi’s informal settlement of The government is yet to yield to calls by the of information and its freedom of expression. and Peoples’ Rights governing free expression. This Mathare. Independent Policing Oversight Authority UN Committee on ICCPR to abolish capital goes to say, information is not just a necessity for (IPOA) took up the case in August, but the officer punishment in promotion of the right to life. In this period, statues that have great bearing on people; it is an integral part of good governance had not been prosecuted by the year’s end.86 Additionally, the Court of Appeal recently held that the right to access of information were drafted - and a catalyst for democracy. Informing the In 2014, senior government officers87 issued ‘shoot capital punishment, stipulated in Section 204 of The Access to Information Bill, 2013 was forwarded public of their rights and promoting a culture of to kill orders’ to the police in the wake of rising the Penal Code, to be in contravention of the spirit to the Attorney General for publication to

Kenya National Commission on Human Rights 97 terrorist attacks and radicalization of youth in of the Constitution which provides protection from held that section 204 of the Penal Code (PC), to parliament and the Freedom of Information Bill, Mombasa and its neighbouring counties. torture, inhuman and degrading punishment.93 In the extent that it provided that the death penalty is 2012 has for some considerable length of time been the only sentence in respect to the crime of murder, pending in Parliament.98 Others were the Kenya 88 KNCHR A Country Under Siege: The State of Security is inconsistent with the letter and spirit of the 84 ‘Shoot to Kill Orders Issued against Gangs’ Daily in Kenya, An Occasional Report (2014) 40 http:// Constitution which makes no mandatory provision. Information and Communication (Amendment) Nation 10 May 2013 Retrieved from http://www.nation. knchr.org/Portals/0/CivilAndPoliticalReports/ It held that section 204 of the PC which provides Bill 2013 (KICA) and the Media Council Bill 2013. co.ke/News/Shoot-to-kill-order--issued-against- for a mandatory death sentence is antithetical to The%20State%20of%20Security%20in%20Kenya.pdf KICA bill and the Media Council Bill 2013 contained gangs/-/1056/1848806/-/v2s41fz/-/index.html (accessed 12 May 2015). constitutional provisions on protection against (accessed 12 May 2015). inhuman, or degrading punishment and treatment provisions that curtailed press freedom. KICA 89 Available at http://marsgroupkenya.org/ and fair trial. 85 ‘Don’t Expand Police Powers’ Human Rights Watch pdfs/2009/03/KNCHR_crimes-against-humanity- sought to provide for the body that is free of Kenya News 12 September 2013 http://www.hrw.org/ 94 KNCHR Abolition of the Death Penalty in extra-judicial-killings-by-kenyapolice- exposed.pdf external influence and that will set broadcasting news/2013/09/12/kenya-don-t-expand-police-powers (accessed 13 May 2015). Kenya (2007) http://knchr.org/Portals/0/ (accessed 12 May 2015). CivilAndPoliticalReports/PP2%20-%20Abolition%20 90 Reference no. 3 of 2010 97 According to Commission of Implementation of the 86 ‘Why Police Shot Kenneth Kimani Thrice on the of%20the%20death%20penalty%20-%20final.pdf Constitution (CIC) bill tracker as can be accessed Head’ The Standard Newspaper 11 May 2013 http:// 91 Communication no. 381 of 2010 (accessed 6 May 2015). at http://www.cickenya.org/index.php/legislation/

www.standardmedia.co.ke/article/2000083341/ 92 L Mureu & J Kabaya ‘KNCHR Successfully Defends 95 ‘Eyes on Supreme Court as Death Penalty Case Set item/333-the-access-to-information-bill-2013#. on Human Rights Commission National Kenya why-police-shot-kenneth-kimani-thrice-in-the-head a Widow in Extra-Judicial Killing Court Case’ to Kick Off’ Standard Digital 18 June 2014 http://www. VboGun0reSo (accessed 13 May 2015). KNCHR News 7 August 2014 http://www.knchr.org/ standardmedia.co.ke/article/2000125125/eyes-on- 98 Kenya Law Reports. The emerging jurisprudence on 34 87 Permanent Secretary for Defence, Mutea Iringo; KNCHRsuccessfullydefendswidowinextrajudicialcourtcase. supreme-court-as-death-penalty-case-set-to-kick-off the right of access to information in Kenya. http:// 35 Inspector General of Police, David Kimaiyo; Coast aspx (accessed 12 May 2015). (accessed 14 May 2015). kenyalaw.org/kl/index.php?id=1904 (accessed 31 May County Commissioner, Nelson Marwa 93 In David Njoroge Macharia v. Republic, the court 96 See the annexes section 2015). media standards, and regulate and monitor advocacy of hatred. Accusations of hate speech being the police and government officials. It is compliance with those standards. The Bill further were particularly widespread compared to the rate however a sigh of relief to note that the number March 2011 – Juma Kwayera, a political writer sought to provide for a complaints and regulatory of convictions for the offence which was minimal. of attacks and threats against the press declined with the Standard Newspaper received a phone oversight body mechanism over broadcasting This is in part attributable to the fact that the compared with the last elections, with 14 cases call from a man who stated in Swahili: “We have media standards. It however proposed to provide elements of the offence of hate speech and that of reported by early March 2013104.There were also come to a point where we can no longer tolerate the government with powers such as empowering ethnic or racial contempt100 are difficult to discern. reports by journalists that government officials your work. If you think you are man enough, the Communications and Multimedia Appeals With the 2013 general elections looming and the pressured them to avoid certain topics or stories we are going to show you that we have killed Tribunal to impose fines on media houses of up to fear of inciting remarks rife, the National Steering or intimidated them upon reading critical work more serious people than you. We are going to 20 million shillings and of up to 500,000 shillings Committee on Media Monitoring to monitor hate in print. All news media continued to report on a shoot you. We do not care if the police would be to individual journalists adjudged to have violated speech was set up, particularly speeches during wide variety of political and social issues, and most there. We have even robbed in the past and so the Act – heavy fines that are rather seen as political meetings and social media. Several political newspapers published opinion pieces criticizing getting rid of you is nothing to us. The police will discouraging other than enforcing; recommend leaders, musicians and social activists were caught the government. There were however reports be helpless when we come for you. You cannot deregistration of a journalist; make any order in the dragnet101. The state also issued warnings to that the media intentionally avoided reporting on do what you have been doing and expect us to on freedom of expression; seize property; and the foreign press to avoid incendiary reporting. stories that might incite violence during or after keep quiet.” Juma had received similar calls prior revoke the accreditation of media agencies and In March 2013, Ministry of Information official, the the March 4 general elections, for fear of a repeat to this one, one of which was an invitation to journalists. Pursuant to the Bill, appointments to director of information Joseph Owiti threatened to of the postelection violence of 2007-2008. coffee that he turned down. the Communications Authority of Kenya could deport foreign journalists who did not have proper also be influenced by the President and the accreditation, despite the fact that authority over Defamation is still criminalized under the Communications Cabinet Secretary. The authority accreditation rests with the independent Media Defamation Act. The Act does not grant any December 2011 – Robert Wanyonyi, a journalist has also been given power to dictate the quantity Council, not the Information Ministry. privileges to individuals105 apart from judges and working with the Standard Media Group of local content radio and television broadcasters Parliament officials. The president is considered received a phone call in response to his story on can have.99 Despite the expansive freedom of expression and of immune from the provisions of the Act by virtue a scuffle between the police and local villagers the press as enshrined in the new constitution, the of Article 143 of the Constitution. However, these in Sirisia Village over an attempted robbery at The Media Council Bill also proposed the creation period was marred with incidents of intimidation102, privileges have raised concern on their legality Namang’ofulo Coffee Factory. The villagers killed of a Media Council and Complaints Commission threats, arbitrary confinement and even killing considering the African Union resolution 169 of two suspects, and in a violent confrontation with powers to prohibit media content perceived (albeit rare)103 of journalists with most perpetrators 2010 calling for the repeal of the defamation laws. with the police, four villagers were killed. The to be prejudicial to public or national interest; This in recognition of the fact that there is need interviewees in his news feature alluded that a 100 As provided for by the National Cohesion and prescribe standards for journalists; and develop Integration Act No. 12 of 2008 for public officials to tolerate criticism. As such, senior district official was behind the attempted and regulate ethical and disciplinary standards 101 In July 2012, Three Kenyan musicians, Kamande wa courts continue to award public officials exorbitant robbery. The caller stated: “We will kill you and for journalists, media practitioners and media Kioi, Muigai Wa Njoroge and John DeMathew were amounts in damages over the prescribed see whether KTN will bury you.” taken to court to answer charges that their songs 106 enterprises. Subsequently, Kenya’s journalist were intended to cause hatred and hostility between maximum fines for civil defamation . This trend associations and media houses filed a petition in Kenya’s Kikuyu and Luo ethnic groups. If convicted, has a deterrent effect on the exercise of freedom the musicians could have been imprisoned for up to January 2013 – Photographer Dennis Okeyo and court to challenge constitutionality of the Bill and of expression by journalists. three years and face fines of about $12,000. On Sep cameraman John Otanga, both from the Nation obtained an injunction on 31st January 2014, halting 2012, Ferdinand Waititu, an assistant minister in the Media Group, reported to the Media Council progress on the Bill for the period of time legal water ministry, was charged with hate speech and inciting violence and suspended from his that they were attacked by members questions raised on it received adjudication. post. This follows a speech he made against ethnic of the General Service Unit while covering Kenya National Commission on Human Rights Maasais that led to the killing of at least two people. He became the second minister after Chirau Ali politically motivated clashes in Nairobi’s Kibera The restrictive Bills were passed by parliament Mwakwere (whose case was thrown out of court after neighbourhood. Although Okeyo showed the without amendments that had been agreed he made a public apology.) to be suspended over allegations of inciting violence. 104 . 2014. Kenya: Freedom of the officers his press credentials, they beat them up upon between the Parliamentary Committee on 102 Robert Wanyonyi, a journalist with a local TV station, press. https://freedomhouse.org/report/freedom- with clubs and took Okeyo’s camera memory Energy, Communication, and Information and press/2014/kenya#.VchNYn0reSp (accessed 7 July received death threats over footage that was aired card and 2,000 shillings. press organizations including the Kenya Editors’ on the station showing a pregnant woman giving 2015). birth on the floor at Bungoma District Hospital as 105 Journalists continue to be charged with “sedition” Guild and the Kenya Correspondents Association. nurses on duty looked on and at one point slapped or “seditious libel” under Sections 194 and 196 of the Implementation of these statutes will reverse gains her. Also, On April 5, 2012, Osinde Obare, a reporter Penal Code. March 2013 – Joseph Owiti, Ministry of made on freedom of expression and independence for the private daily The Standard, and David Musindi, 106 In CC No. 542/2007, politician Koigi Wamwere a journalist for Radio Citizen, received threats from Information Director of Information, warned in of media from state interference. The review sued The Standard and a journalist, and Waweru J.’s stories on a police raid on a market in the western 2011 judgment punished an insincere media house a press conference that foreign journalists may period also witnessed a delicate balance between Kenyan town of Kitale. The market had allegedly been apology with a Kshs 3.5m award. Meanwhile, Meru selling fake maize seeds, according to news reports. be deported if they did not have appropriate the freedom of expression and its abuse through elder Phineas Nyagah sued politician Gitobu Imanyara 103 Nairobi, April 1, 2013 - A correspondent for The Star – Civil Suit No. 697/2009 – seeking defamation, accreditation to work in the country. These on Human Rights Commission National Kenya propaganda, incitement, hate speech and daily newspaper who was Investigating fertilizer compensatory and exemplary damages, and costs comments were perceived as an attempt to scandal was found dead Sunday morning in his house with interest. In 2013, Odunga J. dismissed all pleas 36 99 http://www.mwakilishi.com/content/ in the coastal city of Mombasa. A housemate found because the appellant failed to link the offending harass the international media. 37 articles/2013/12/16/controversial-kenya-media-bill- reporter Bernard Wesonga with blood on his nose words in The Star to himself, thereby missing out on signed-into-law.html (accessed 31 May 2015). and mouth at around 11:30 a.m. a possible Kshs 3m award. Freedom of Information specific legislative requirements that include, for September 2013 – Robert Wanyonyi, received 2013 – Paul Gitau of Mediamax claimed to have example, seeking the views of the public when phone calls threatening to “send him to the been threatened by owners of a villa in Malindi An individual is only able to enjoy the right to preparing the fiscal strategy papers and the grave” over an exposé he conducted on neglect on which he had written a story that potentially information when they are free to access relevant budget processes. and physical abuse of an expectant mother at illegal activities were being carried out in the villa. information. As such, access to information is Bungoma District Hospital. the practical implementation of the right to 2.1.4 Freedom of information. The review of this right therefore October 2013 - Former Inspector General of 2013 – David Wainaina, a freelancer with The Star elicits evidence based analysis of the State’s Association Police, David Kimaiyo, threatened to arrest Newspaper, reported that he was threatened response in facilitating access, use and sharing journalists John-Allan Namu and Mohammed by local residents believed to be government of information. In light of this, about 39 percent The Constitution under article 36 provides for Ali, who conducted an exposé on looting and supporters in Thika and Gatundu; who told him of Kenyans accessed the internet in 2013. Kenya freedom of formation, membership or participation disarray among security forces during the to stop writing stories on the ICC cases because is the leader in usage in East Africa and boasts in any association. Membership to an association Westgate Mall attack that occurred on 21st they were not favourable to President Kenyatta. a thriving online community, including a series of cannot be compelled on an individual or group. September 2014. critical blogs. Due to lack of infrastructure and Despite the foregoing, there have been threats to 2013 - Walter Barasa of Mediamax reported electricity, internet availability is still limited in rural this right, particularly concerning different sectors that community members in Eldoret threatened 2013 - The National Steering Committee on Media areas, though expanding mobile-phone usage has of the work force in Kenya, including Civil Society Monitoring/National Cohesion and Integration him after he published stories on the ICC. He increased access107. Organizations through the proposed amendments stated that they accused him of writing stories Commission team identified six bloggers for use of to the Public Benefits Organizations Act (PBO) that would be used as evidence against Deputy hate speech. One of them, Robert Alai, was arrested On July 8 2011, President Mwai Kibaki launched 2013, although the PBO Act itself continues to President, William Ruto. in March 2013 and charged with hate speech. the Kenya Open Data Initiative (KODI); the first suffer delay in commencement. The proposed in sub-Saharan Africa and the second on the amendments are to the effect that all organizations 2013 - The National Dialogue and Reconciliation February 2013 – Sammy Jakaa received a text continent coming after Morocco, which had registered under the Non-Governmental Monitoring Project reported that government message threatening his life after he exposed made key government data freely available to the Organizations Act would be re-registered under officials often intimidated journalists reporting graft by Kenyan security agents in the Kenya- public through a single online portal. The initiative the PBO Act. on the security sector. For example, national border town of Malaba. has been widely acclaimed globally as one of security was used as a basis to pressure the most significant steps taken by the nation The amendments do away with the possession journalists reporting on alleged corruption at the March 2013 – Lucas Ngasike and Rashid Ekeno to improve governance and implement the new of a certificate of registration as conclusive Port of Mombasa and on the military intervention of Standard Group Media received death threats Constitution’s provisions on access to information. proof of registration and give leeway for periodic in Somalia. for exposing a food aid scandal perpetrated by As of November 2011, there were close to 390 imposition of terms and conditions for grant local officials in the western, drought-ridden datasets that had been uploaded to the site, of certificates, permits of operation and public Turkana district. with a plan in place to upload more data over benefits organization status. These provisions 19th April 2013 - Mohammed Ali and John-Allan the years. 108 KODI has however faced numerous render registration uncertain and easily retractable. Namu, journalists working with the Standard September 2013 – Jonathan Mutiso, a cameraman challenges, key among them being low awareness Funding to a PBO is proposed to be made through Group Media, were threatened after they with Kenya Broadcasting Corporation was on KODI among most Kenyans and the reluctance a federation as opposed to an individual member prepared and aired an exposé on the death of assaulted by guards at the Machakos courthouse of key informants from government ministries to organization. Moreover, a PBO would not receive former Minister for Internal Security, Professor for filming their attack on an escaped suspect. release data – an attitude that stems from the more than 15% of its total funding from external , in which they intimated that the Kenya National Commission on Human Rights He was forced to erase the footage. long established culture of government secrecy donors, unless a higher percentage is approved by death occurred under suspicious circumstances. reinforced by the Official Secrets Act of 1992 which the Cabinet Secretary in whose sole discretion the 2013 - Freedom House reported that at least 28 is still operational. decision lies. This would result in severe reduction June 2013 – Justin Bundi, Clerk of the National journalists were threatened or attacked during in funding to PBOs as it restricts the amount of Assembly, ordered journalists to vacate the the year, largely by local officials and police in Section 96 of the County Governments Act, 2012 funding receivable, and the channel through which media center at the National Assembly building connection with coverage of corruption. Nearly provides for the right of every citizen in the county it is received. It further contravenes international and stated that they could only make a press half of all cases were reported in the western to access information. Subsection 4 of the same norms on funding from international sources as an coverage of Parliament when invited. However, region of the country. provision enjoins county governments to enact important component of freedom of association. , Speaker of the National Assembly legislation to facilitate access to information. The amendments also accord the Cabinet later denied the restriction and stated that the Source: Kenya Policy Brief, HRW, Freedom House Pursuant to this, County Governments have come Secretary wide discretion that may be open government would locate an alternative space Towards the end of this review period, the up with legislation for public participation with to abuse and subjective decision-making. The in the building for the press. There was no new government also attempted to interfere with restrictive environment created for the operations accommodation announced for journalists but freedom of the media when it introduced a clause 107 Freedom House. 2014. Freedom of the press. https:// on Human Rights Commission National Kenya freedomhouse.org/report/freedom-press/2014/ of civil society organizations in the draft law is they continued to attend parliamentary sessions. in the the Security Laws Ammendment Act (SLAA) kenya#.VchNYn0reSp (accessed 7 July 2015). likely to result in shut down or relocation of many 38 Journalists viewed the attempted closure as that would have muzzled free speech and freedom 108 http://siteresources.worldbank.org/INTAFRICA/ 39 PBOs. Consequently, many Kenyans, especially orchestrated to intimidate them. of information. Resources/AHF-information-to-improve-value-for- money-in-health.pdf (accessed 7 June 2015). those in marginalized areas, who solely depend on PBOs to provide services such as education, 2.1.6 Protection of Human This was on the basis of the cases against September 2013 – Maina Kiai, a human rights health, food and water, will bear the repercussions both individuals that were pending before the defender and UN Special Rapporteur on the of the harsh law. Rights Defenders ICC for charges of crimes against humanity rights to freedom of assembly and association, allegedly committed during the 2007/08 post- spoke out on hate speech against him by social election violence. The High Court ruled that media bloggers linked to the presidency and 2.1.5 Freedom of assembly, HRDs face various threats in the exercise of their it did not have jurisdiction to decide on the threats to his life by a group known as Nyaribo duties. The threats are more prevalent for those matter but proceeded to award hefty costs of Support Group. demonstration, picketing working on issues touching on good governance 70 million shillings against the petitioners. 2013 – Peace Brigades International meeting and accountability such as ethics and integrity; and petition with an HRD in Nakuru was interrupted when anti-corruption; democracy; Kenyan cases at HRDs are also often under surveillance of they discovered an intruder hiding and watching the International Criminal Court; truth, justice through a window. The right to assembly, demonstration, picketing government or companies’ agents, which forms and reconciliation; legislative restrictions; anti- and petition is significant in the protection the basis of other threats. This compounds the January 2014 – Amina Mohammed, a community/ terrorism; security and land. HRDs are also often and promotion of human rights. This has been likelihood of attacks on HRDs and in some cases, gender activist and member of Bunge la under surveillance, which forms the basis of threats anchored under Article 37 of the Constitution. It even their families. These attacks and harassment Wamama Mashinani (Women’s Parliament at to their rights.110 Several activities of HRDs are the Grassroots) had her house broken into. She is on the foundation of the right of each individual take several forms such as physical, verbal and vulnerable to criminalisation. Most common among also received death threats for her defence of a to express their opinion that this right is exercised, even sexual violence. Women HRDs are especially victim of sexual assault. them are peaceful protests that are often outlawed facilitating expression of collective views and susceptible to sexual harassment especially in prior to or during their occurrence. Defamation February 2014 – Emily Kwamboka, a grassroots thereby, political opinions. In so doing, the principle police stations, and rape.113 Verbal attacks including is also used as a basis for resort to criminal activist from Mathare and founding member of democracy is realised. The right also anchors death threats occur in some cases as a result of proceedings against HRDs. Criminalization and of Sauti Yetu (Our Voice) Political Debates the protection of human rights by Human Rights direct confrontation but often happen through Programme was threatened at gun point to stop defamation have the result of discouraging further Defenders (HRDs) through advocacy. social media posts and text messages. Physical her human rights activities or otherwise get HRD activities due to fear or loss of credibility that attacks are often committed in the streets, in the killed. leads to disassociation of donors, partners and The Constitution guarantees this right free from homes of HRDs, and in police stations following stakeholders. It also has negative impacts on the February 2014 – Muchangi Nyaga, a human rights violence or armed resistance of any nature. arrest. They sometimes result in death. defender and co-ordinator of Ghetto Green safety of HRDs and their families due to reprisals However, in the period under review, the right was Foundation, a youth empowerment intiative from the community and security agents.111 violated in several instances through criminalization based at Huruma Slums in Nairobi, had his home broken into by police officers and his property of protests, illegal use of force, mass arrests and ransacked. The cash record and minutes record Arbitrary arrest is yet another common threat November 2012 – Omkiya Omtatah Okoiti, killings. An additional deterrent are the heavy books of his organization were taken. He was facing HRDs. The arrests often lead to long periods human rights activist and director of Kenyans bail terms that courts are issuing when HRDs are then detained for days and physically assaulted. for Justice and Development (KEJUDE) Trust, of incarceration, as bail and bond terms are often The past killings of university students (University charged in court. This has led to many Human was assaulted in Nairobi where he lost six teeth, too high for some HRDs to meet. Like defamation, of Nairobi and Egerton University) while suffered injuries to his face and the back of his Rights Defenders being reluctant to participate in conducting peaceful demonstrations illustrated arrests have similar effect of discouraging head. The attackers demanded that he withdraws this right as they cannot raise the bail terms set the use of live bullets by police a matter that continued activities due to the inconvenience, a case he had filed demanding accountability in by court. The United Nation Declaration on Human further violates human rights. financial and emotional strain of a court trial.112 In the procurement of biometric voter registration Rights Defenders109 anchors this right under Article kits due to alleged corruption in the process. exercise of the right to institute court proceedings 5 and the state is required to take steps to ensure in public interest, HRDs have also been ordered Source: Kenya Policy Brief, March 2015 and ISHR that this right is observed. May 2013 – Lydia Mukami and other leaders of Kenya National Commission on Human Rights to pay hefty suit costs that have served to derail the Mwea Foundation, an NGO working on land UPR Briefing Paper, EHAHRDP website them. An example is recorded below. rights, received death threats and their rice paddies and maize farms were torched. 30th March 2013 – A demonstration against the August 2013 – Hassan Ali Guyo was shot by 2.1.7 National security Supreme Court ruling on the presidential election an army officer as he documented the use petition in which it ruled that the elections were of excessive force, including tear gas and live free and fair, was interrupted by the use of live In 2012, civil society organizations filed a case bullets, against demonstrators in Moyale. During the review period, there were steps taken ammunition by police officers. Two protestors in the High Court in public interest, challenging to reform the Kenya Police. Notably, these steps were killed and at least eleven others injured. the eligibility to contest elections of then September 2013 – Peter Wanyama Wanyonyi, were set in motion by the Constitution. In 2012, the presidential candidate, and a human rights lawyer, was murdered following National Police Service Commission (NPSC) and the 14th May 2013 – A protest against purported his running mate, William Ruto. several death threats in the preceding months increase in salaries of parliamentarians, dubbed due to his involvement in several human rights Independent Policing Oversight Authority (IPOA) ‘Occupy Parliament’, was halted by the use of cases. were established as government bodies reporting tear gas to disperse protesters, of whom 17 were to Parliament in a bid to improve accountability and

arrested. on Human Rights Commission National Kenya 110 Peace Brigades International This is Kenya: Local transparency of police operations. IPOA has since Perspectives on the Protection of Human Rights been involved in holding police officers accountable Defenders (2013) 9. 40 109 The United Nations Declaration of Human Rights for respect of human rights in the execution of 41 Defenders General Assembly Resolution A/ 111 Peace Brigades International (n 93 above) 12. their duties. The Commission has also set in motion RES/53/144, adopted in 1998. 112 Peace Brigades International (n 93 above) 13. 113 Peace Brigades International (n 93 above) 14. procedures for vetting of police officers, effectively reference for the police officers with the minimum in Nairobi,119 Mombasa,120 Lamu,121 Garissa122 and attack left in its wake many unanswered questions kick starting reforms in the police. A statement salary being proposed at 35 000 Kenya shillings. 116 Mandera.123 Livestock has been lost in numbers. including widespread allegations of looting by released by the chair of the NPSC on 13th March, In the sixth chapter of the report, it was noted that Lives have also been lost. On 21st September, 2013, KDF soldiers, poor coordination and outright 2013 indicates completion of the third phase of the police lack enough vehicles and equipment to carry the Westgate Mall in Nairobi was attacked by hostilities between the various security agencies vetting process where 166 officers drawn from the out their functions hence becoming ineffective in gunmen from the Al Shabaab militant group and involved in the rescue operation, and reports that Kenya Police and Administration Police in the ranks their duties. 117 According to the report, insufficient massacred an estimated 67 people while more prior warning of the attack issued by the National of Senior Assistant and Assistant Commissioners fuel is allocated for the running of the vehicles, than 100 were injured and property worth millions Intelligence Service (NIS) had not been heeded. of Police were vetted.114 which is said to be approximately 10 to 15 litres per lost. Subsequently, a parliamentary committee The military together with security heads however vehicle per day, which hardly has any impact on was formed to inquire into the mall attack.124 The dismissed these reports, terming them inaccurate.125 The enjoyment of Human Rights is pegged on operations. There is also a lack of an appropriate 119 In Nairobi, the September 2013 Westgate Mall attack Meanwhile, the parliamentary committee report on security issues. In a more secure country, there is policy, which can be applied in determining the claimed the lives of 67 people and left over 100 the attack was published but no concrete steps people injured and millions of property destroyed. the possibility of much more respect to human right vehicles for the relevant policing area with a On Monday, 24 October 2011, a grenade was hurled have been taken to address the concerns raised rights. Additionally citizens who are secure can view to ensuring effectiveness.118 in a bar in Nairobi which left one person dead and therein. The spate of suspected terror attacks exercise their freedoms and rights without fear. more than 20 people wounded. On 10th March 2012, continued after the Westgate raid. On the 2nd of six were killed and over sixty were injured after four This therefore calls for the involvement of security Community policing strategies introduced almost grenades were thrown into a Machakos bus station January 2014, 3 attackers hurled a grenade into the agencies in creating an enabling environment for a decade ago to enhance public confidence, but in Nairobi. On 4th May 2014, on the Thika Highway, Tandoori Bar in Mombasa, wounding 10 people. On terrorists exploded homemade bombs on two th the enjoyment of Human Rights. which have produced little success, are also set to commuter buses nearly simultaneously and about a the 4 of March that same year, 2 gunmen stormed become more effective once the reforms take hold. kilometre apart. According to reports, at least three a church during a Sunday service, killing 3 people people were killed and at least sixty-two others The Constitution recognizes this fact and anchors In October 2013, the government introduced the injured. and wounding several others. the same under Article 238 (2) (b) requiring Nyumba Kumi Initiative as a means of strengthening 120 On Tuesday, 15 May 2012, three hand grenades were national security organs to observe Human Rights community policing. Under this initiative, members hurled at the Bella Vista nightclub in Mombasa, killing In August 2012, a series of ethnic clashes between one and leaving five others injured. On Sunday, 24 and law as a principle in carrying out its functions. of a neighborhood are expected to know at least June 2012, another grenade attack was reported the Orma and Pokomo tribes of Tana River District Plagued by years of manpower and training 10 of their neighbours. The initiative would ensure at a Jericho beer garden in Mishomoroni, Kisauni resulted in the deaths of at least 52 people. 126This deficiencies, malignant corruption, nepotism restructuring of villages under a village elder Constituency in Mombasa. The bar was packed was followed by another ethnic clash that left 118 with patrons who had gathered to watch the UEFA and lack of resources, the police has long been to 10 units with a clear leadership structure for European Championships 2012 football match people dead and more than 13,500 displaced and in the public eye for poor service delivery. Police the security of households concerned. To fully between England and Italy. The grenade killed one another more than 30,000 people affected by the person on the spot while two more succumbed morale as a result of poor pay, deplorable living implement the reforms underway, the government to injuries while receiving treatment at the Coast ethno-political clashes. Over 50% of the 13,500 and working conditions and an unsympathetic should ensure that budgets and funding for the General Hospital. 30 more were injured, including a were children, the rest being women and the suspect who was alleged to be part of the attackers. public (which finds it hard to appreciate some of various projects are adequate, released on time elderly. Similarly, on the 9th January 2013, 11 people 121 On 16th June 2014, at least 48 people were killed the good work of the police) have been challenges and that the reforms remain sensitive to gender when suspected Al Shabaab militants from Somalia were killed in fresh fighting when suspected to efficient and effective police performance. and minority concerns. stormed into Lamu and launched a major assault on a Pokomo raiders attacked Nduru village, killing 6 police station, hotels and government offices. Around Police reforms which the Ministry of Interior and Ormas. Villagers countered the attackers and killed 50 heavily armed gunmen drove into the town of Coordination of National Government estimates The police reforms notwithstanding, Kenya Mpeketoni, near the coastal island and popular tourist 2 raiders on the spot, and 2 more as they pursued will cost over Kenya shillings 80 billion over a three- witnessed a surge in the levels of crime and resort of Lamu, killing more than 50 people. them. Another assailant died from injuries while year period will address these challenges through insecurity during the review period. Notably, the 122 On 1st July 2012, masked gunmen simultaneously fleeing. attacked two churches (the Central Catholic proper remuneration and housing, refurbishment biggest challenge during this period was terrorism. Cathedral and AIC churches) in Garissa, located

Kenya National Commission on Human Rights of police stations, purchase of new equipment and Other challenges included inter-community approximately 140 kilometers from the Somali border. Incidences of extrajudicial killings have been The assailants killed seventeen people and left fifty vehicles, upgrading communication equipment conflicts, extra-judicial killings and banditry. There injured. On 30th September 2012, two police officers recorded in Kenya. Most of these killings took and skills training. The Ransley recommended that has been an increase in the number of internally were shot dead while patrolling along Ngamia Road place in Mombasa and Nairobi. In 2012, Sheikh in Garissa. On 4th January 2013, two people were there is need for a standardized curriculum on displaced persons especially after terror attacks killed and seven wounded in a grenade attack at Aboud Rogo, a cleric on the US and UN sanctions the training of service personnel with the training Dagahale area in Garissa. On 16th January 2013, list for providing “financial, material, logistical or facilities being expanded and upgraded in order to suspected Islamic militants shot dead five people and technical support to Al-Shabaab” was killed in injured three others at a restaurant in Garissa. meet the training needs of the service.115 The report the streets. In October 2013, Sheikh Ibrahim Omar 123 On the evening of 9th January 2013, two grenades also called on the government to improve terms of 116 Ibid see page 130 were thrown into the World Food Programme (WFP) was also shot dead in Mombasa after allegations 117 As above. See page 157 compound in Mandera Town but no casualties were 114 http://www.npsc.go.ke/index.php/ reported. In late 2014, two attacks believed to have 118 Supra note 103. The report details in the Sixth into the Westgate terrorist attack, and other terror npsc-on-the-press/109-statement-by- Chapter the extent to which the service has been been carried out by Al Shabaab killed 64 persons in the-chairman-of-the-national-police- Mandera County. On 22nd November 2014, gunmen attacks in Mandera in North-Eastern and KilIfi in the depleted of resources and manpower. It lists the coastal region, 2013 service-commission-mr-johnston-kavuludi-on-the- various types of equipment that the service has and attacked a bus traveling from Mandera to Nairobi, th progress-of-the-vetting-exercise-for-senior-assistant- the required amount which shows a huge deficit killing 28 persons; mostly teachers and government 125 See the Daily Nation, October 29 2013 on Human Rights Commission National Kenya commissioners-and-assistant-commissioners-of- in both manpower and equipment. It recommends workers heading to Nairobi for the December 126 Kenya National Commission on Human Rights 29 police-on-thursday-13th-march-2014-at-skypark-plaza that the government to pump in more money to the holidays. Days of Terror in the Delta: KNCHR Account into the 42 (accessed 31 May 2015). service in order to ensure that there is availability 124 Kenya National Assembly, Report of the Joint Atrocities at Tana Delta (2012) http://www.knchr.org/ 43 115 The Report of the National Taskforce on Police of more efficient equipment and manpower to Committee on Administration and National Security; Portals/0/Reports/29_Days_Of_Terror_Delta.pdf Reforms, 2009. See page 109-113 effectively run the service. and Defence and Foreign Relations on the Inquiry (accessed 7 June 2015). of involvement in the Westgate Mall bombing. Police were also involved in a number of human Table 2.5: Number of persons killed due to Lack of proper data on extrajudicial killings has rights violations including arbitrary arrests and insecurity in the country, 2010-2014132 challenged documentation of the full magnitude of harassing of hawkers and traders. In the year 2012, the problem. According to a report by Muslims for the police were accused of subjecting more than Human Rights (MUHURI), a Kenyan police officer 1,000 ethnic Somalis to torture, rape and arbitrary Area of Security Concern Total No. between 2010 and 2014 once told a detainee: “We are tired of taking you arrests. The alleged abuses were in apparent Total no. of deaths resulting from gunshots 1,894 to the court. Next time, we will finish you off in the response to grenade attacks in Nairobi. Moreover,

127 field.” Kenyan authorities forcibly relocated a number of Total no. of deaths due to ethnic clashes 574 Somali refugees to camps in north-eastern Kenya. The Director of Public Prosecutions formed a task Police responded with similar abuses against Total no. of deaths from armed robberies 260 force to look into the controversial killing of Sheikh residents of the surrounding villages following Total no. of deaths from terror attacks 277 Aboud Rogo. The taskforce gave its report in 2013 a grenade attack in Mandera in September 2012 which stated that the killers of the late cleric could and a gun attack in Garissa in October 2012. The Total no. of police killed 91 not be identified. Its members were however quick government also increased its hostile rhetoric to condemn forced disappearances of youth and against Somali refugees in 2013, calling for the Total no. of people displaced 180,300 called on the government to form a public inquest refugee camps to be closed and for Somalis to Total no. of livestock stolen or killed 3,682 into the murder of Aboud Rogo.128 return to Somalia, despite the ongoing conflict and insecurity in Somalia. Total no. of houses burnt due to ethnic clashes 845 The police came under heavy criticism for the rise of insecurity. Corruption was singled out as There were also cases of cattle rustling which the leading cause. In 2013, a survey conducted by saw a number of persons killed, especially among existing for a period of time and acting in concert Transparency International (TI) showed that most the Pokot, Samburu and Turkana communities. In 2.1.8 Transnational Crimes with the aim of committing one or more serious Kenyans regard the police as the most corrupt November 2012, a series of ethnic clashes between crimes or offences established in accordance with body in the country.129 In the reporting period, the the Samburu and Turkana tribes of Kenya’s Samburu Over the past 30 years, transnational organized this convention, in order to obtain, directly or government arrested and charged some officers County resulted in the deaths of at least 46 people crime has transformed and expanded as a result indirectly a financial or other material benefit.” with various offences, including corruption. including police officers sent to quell the violence. of globalization which has enabled infiltration of However, according to the Human Rights Watch Over 40 Kenya police officers and reservists were the global market with illicit products and services. Kenya has ratified UNTOC and in the reporting Report of 2013, police corruption is endemic and killed in the Suguta Valley near Baragoi while on In addition, technological advancements have period, saw an increase in the incidence of police officers are rarely arrested and prosecuted a mission to recover stolen cattle. In April of 2013, brought with them unprecedented opportunities transnational crimes. This was coupled with for the vice.130 Police have often been accused of a spate of criminal attacks in Bungoma and Busia for the organized criminal groups to further violations of human rights by state and non- favouring the wealthy in the country. According Counties left more than 15 people killed in horrific their criminal activities.133 This has resulted in state actors. In addition, Kenya has enacted the to the same report, the police often employ manner and at least 150 injured by indescribable transnational criminal activities posing a serious Prevention of Terrorism Act (No. 30 of 2012), the unqualified candidates with political connections gang-like criminals. Bungoma County recorded a threat for national law enforcement and judicial Proceeds of Crime and Anti-Money Laundering or those who have paid bribes. death toll of at least 8 people with Kibabii, Kikwechi institutions. Act (Cap 59B) and the Prevention of Organized and Mukwa villages being heavily affected. Crime Act (Cap 59), among other Acts which form States have recognized the negative impact posed the basis of Kenya’s national legal framework to

Kenya National Commission on Human Rights A number of groups associated the attacks with by transnational organized crime on security and counter organized crime. politics, although this was never confirmed by the socio-economic aspects of life, consequently police. At the time of reporting, no single person ratifying the United Nations Convention against Terrorism had been brought to book on the vicious killings.131 Transnational Organized Crime (UNTOC), its Police too have fallen victim to crime in the line additional protocols and related conventions to The Al-Qaeda bomb attack in Kenya in 1998 127 MUHURI We are Tired of Taking You to the Courts: Human Rights Abuses by Kenya’s Anti-Terrorism of duty. The table below highlights the number comprehensively provide for a legal framework ushered a new era of security concerns in Kenya Police Unit (2013). of persons killed due to insecurity in the country to fight transnational organized crime. UNTOC in linked to the perceived interaction of domestic and 128 Report on the Murder of Aboud Rogo Mohammed between 2010 and 2014. Notably, police officers Article 2 (a) defines an organized criminal group to transnational expressions of militant Islam.134 Since and Other Acts of Criminalities (2013). This report was presented to the DPP by the Multi-Agency Task were also died in the line of duty. mean “a structured group of three or more persons then, terrorism remains a major threat to Kenya’s Force on the murder of Aboud Rogo Mohammed and national security interests. This threat is further other acts of criminalities that followed the murder. precipitated by the incursion of Kenya Defence 129 Transparency International Survey on Corruption Forces (KDF) into Somalia in Operation ‘Linda (2013) http://www.tikenya.org/index.php/press- on Human Rights Commission National Kenya releases/242-kenya-ranks-poorly-in-the-corruption- 132 Kenya National Commission on Human Rights A Nchi’ of 2011 which was met by strong resentment perception-index-2013 (accessed 6 May 2015). Country under Siege: The State of Security in Kenya and subsequent terror attacks in Kenya by Al- 44 130 Human Rights Watch World Report (2013) https:// 2010-2014, An Occasional Report (2014). 45 www.hrw.org/world-report/2013 (accessed 6 May 131 Safer World Rapid Conflict and Security Analysis 133 R Letschert & J Van Dijk (eds) The New Faces of 134 J Haynes ‘Islamic Militancy in East Africa’ (2005) 26 2015). Report: Bungoma County (2013). Victimhood (2010). 8 Third World Quarterly 1321-1339. Shaabab.135 The incursion by Kenya as a State was Drug Trafficking destination country for men, women and children Piracy met with criticism, resulting in KDF formally joining who are subjected to forced labour and sex the African Union Mission in Somalia (AMISOM) During the reporting period, a number of Kenya’s exploitation. Women, gay and bisexual men are Piracy in the Indian Ocean has waned in the last in February of 2012 after the UN Security Council top politicians, high ranking public officials and lured into the Middle East with promises of jobs couple of years due to international interventions passed Resolution 2036.136 prominent businessmen were adversely mentioned only to be forced into prostitution and other forms from developed countries. The proliferation in investigations on drug trafficking. These of sexual exploitation.144 of pirate attacks in Kenyan waters had been During the reporting period, Kenya passed the included Harun Mwau, William Kabogo, Ali Hassan attributed to Somalia’s instability149 which gave rise Prevention of Terrorism Act (2012). The Act was Joho, Gideon Mbuvi, among others.140 Though Kenya is on the tier 2 watch list because it has not to a high proportion of pirates in the Indian Ocean enacted to provide measures for the detection they did not face criminal charges following the fully complied with the minimum standards for and the Gulf of Aden. Piracy proceeds have had and prevention of terrorist activities; to amend investigations, their alleged involvement in the the elimination of trafficking, though significant direct benefit in Kenya through the influx of piracy the Extradition (Commonwealth Countries) Act illicit drug trade is an indicator of the gravity of efforts to do so have been made as highlighted money in the property market, and indirect costs and the Extradition (Contiguous and Foreign drug trafficking in Kenya and the influence of its by its ratification of the UNTOC and the Protocol to the shipping industry, tourism, consumer price Countries) Act and for connected purposes.137 This proceeds in political processes. to Prevent, Suppress and Punish Trafficking levels and foreign investment which far outweigh enactment was in response to the increase in the in Persons. Nationally, Kenya has enacted the the direct benefits.150 number of terror attacks in Kenya. Drug trafficking is closely related to institutional Counter-Trafficking in Persons Act, 2012. Though decay and the erosion of state legitimacy caused hardly used by prosecutors, the Sexual Offences International law provides the legal framework for In the fight against terrorism and radicalization by the erosion of the rule of law and democratic Act also prescribes penalties that are stringent the offence of piracy under the United National in Kenya, security agencies including the military processes as evidenced by studies from Mexico to prevent trafficking in persons. International Convention on the Law of the Sea, the Convention have faced serious allegations of gross violation and Colombia, among other South American Organization for Migration (IOM) assisted the Kenya on the Suppression of Unlawful Acts against of human rights. Examples of violations include countries.141 In addition, drug trafficking and its Association of Private Employment Agencies to Maritime Navigation, the International Convention alleged extra-judicial killings of Muslim clerics, for impact poses a threat to human security in Kenya develop a recruitment code of conduct to prevent for the Safety of Life at Sea, the Code of Conduct instance, of Sheikh Mohammed Kassim, Sheikh though this causal relationship is rarely debated in trafficking.145 This code of conduct is also not Concerning the Repression of Piracy and the Samir Khan,138 and the ill treatment and torture the public domain. The threat to human security by adhered to, hence the continued trafficking of Djibouti Code of Conduct, and the International of terror suspects, their associates and family drugs has a negative impact on the enjoyment of persons. Ship and Port Security Code. National legal members. Outgoing Executive Director of Muslims human rights and freedoms, particularly the right framework provides for piracy as a crime in the for Human Rights, Hussein Khalid, added that to human dignity.142 The growing trend of trafficking in persons as a result Merchant Shipping Act (Cap 389). The Act defines the Anti-terrorism Police Unit and other security of inaction by security agencies despite existence more comprehensively and extensively the offence agencies allegedly maintained a hit list of Muslims The Criminal Procedure Code, the Penal Code, the of a legislative framework has been blamed on of piracy and extends the jurisdiction of Kenyan suspected of terrorist ties.139 Proceeds of Crime and Anti-Money Laundering rampant corruption and lack of specialized training courts to try piracy committed by non-nationals.151 Act, the Dangerous Drugs Act and the Prevention and equipment to detect, investigate and the vice The offence of piracy is defined in the Merchant KNCHR documented serious violations of human of Organized Crime Act, among others, provide in Kenya. Trafficking in persons is a violation of Shipping Act, Section 369 (1) as: rights during Operation Usalama Watch in parts sufficient legal framework to fight drug trafficking rights to freedom and security of the person, and 1. An act of violence or detention or any act of of Nairobi, following the Westgate Mall attack. in Kenya. Nonetheless, enforcement remains the freedom from slavery, servitude and forced depredation committed for private ends by The operation targeted the Somali community an issue; inadequate funding, poor cooperation labour. Notable examples of trafficking in human the crew or the passengers of a private ship or based on inaccurate profiling of Somalis as the among States and deficiency of anti-trafficking cases during the reporting period were those of a private aircraft and directed – only perpetrators of terror attacks in Kenya. This expertise hinder efforts to curb drug trafficking in Salma Noor146, Asha Ali147 and Gladys Wanjiru.148 • against another ship or aircraft, or against

Kenya National Commission on Human Rights set a bad precedence in the fight against terrorism Kenya.143 persons or property on board such ship or because in violating human rights of suspects, aircraft; or the state weakens the importance of the rule of Trafficking in Persons 144 http://www.state.gov/j/tip/rls/tiprpt/ • against a ship, aircraft, persons or property in law which is a key pillar for democracy and good countries/2013/215492.htm (accessed 30 May 2015). a place outside the jurisdiction of any State; governance. Kenya is on the tier 2 watch list with regard to 145 ‘Experts Welcome Counter-Trafficking Law’ IRIN 2. Any voluntary act of participation in the News 8 December 2010 http://www.irinnews.org/ trafficking in persons, and is a source, transit and report/91317/kenya-experts-welcome-counter- operation of a ship or of an aircraft with trafficking-law (accessed 30 May 2015). 135 CL Mwazinge ‘Legal Responses to Terrorism: Case knowledge of facts making it a pirate ship or 140 The Kenya Police Interim Report on Drug Trafficking 146 http://thewip.net/2011/07/12/pursuit-of-greener- Study in the Republic of Kenya’ (2012) Naval Post Investigations (2011). aircraft; or Graduate School. pastures-in-saudi-arabia-spells-doom-for-kenyan- 141 S Moritz ‘The Impact of Drug Trafficking on Informal immigrants/ (accessed 30 May 2015). 136 http://amisom-au.org/kenya-kdf/ (accessed 7 May Security Actors in Kenya’ (2014) 49 3 Africa Spectrum 149 R Mutoka ‘Assessing Current Trends and Efforts to 2015). 147 J Kiarie ‘Tears as Kenyans Suffer in Slavery 55- 81 in Saudi Arabia’ Standard Digital News 11 Combat Piracy: A Case Study on Kenya’ (2013) 46 1 & 137 Prevention of Terrorism Act No. 30 of 2012 142 B Ayodele Drug Lords, Cartels and Trafficking as a September 2011 http://www.standardmedia.co.ke/ 2 Case Western Reserve Journal of International Law.

138 http://allafrica.com/stories/201407282837.html; Security Threat in Africa (2011). article/2000042568/tears-as-kenyans-suffer-in- 150 Institute for Security Studies The Pest of Piracy: A on Human Rights Commission National Kenya http://www.irinnews.org/report/100412/gunned- 143 D Jorgic ‘East Africa Seeks Help to Stem Surge in slavery-in-saudi-arabia (accessed 31 May 2015). Prospective Partner for Peace (2012). down-in-mombasa-the-clerics-that-have-died Heroin Smuggling: UN’ Reuters News 11 August 2014 148 ‘Save Kenyans Abroad from Slavery’ Standard Digital 151 PM Wambua ‘The Jurisdiction Challenges to the 46 (accessed 31 May 2015). http://www.reuters.com/article/2014/08/11/us-africa- News 4 September 2011 http://www.standardmedia. Prosecution of Piracy Cases in Kenya: Mixed Fortunes 47 139 US Department of State Country Reports on Human drugs-idUSKBN0GB1J220140811 (accessed 30 May co.ke/article/2000042114/save-kenyans-abroad-from- for a Perfect Model in the Global War against Piracy’ Rights Practices for 2013 (2013). 2015). slavery (accessed 31 May 2015). (2012) World Maritime University J Marit Affairs. 3. Any act of inciting or of intentionally facilitating security and a persistent challenge to our law Locally, most Kenyans believe that the nation’s relating to the medical cover scheme for civil an act described in paragraph a or b enforcement agencies, particularly with regard to corruption levels are high. In 2012, the Ethics and servants. Alleged irregularities included payments drug trafficking and trafficking in persons. There is Anti-Corruption Commission (EACC) conducted made to ghost clinics, unprocedural selection of Section 371 of the Merchant Shipping Act further urgent need to step up efforts in reduction of these a national survey on corruption and ethics which clinics and creation of an unapproved unit at the provides that any persons who commit any act of crimes as their direct and indirect victims suffer showed that 67.7% of Kenyans perceived corruption NHIF. The scandal was subjected to a probe by the piracy in territorial waters commits an act of armed gross violation of human rights and subsequent to be rampant while 60% of respondents indicated Health Parliamentary Committee. Investigations robbery against ships and shall be liable upon miscarriage of justice. that service seekers were likely to experience are still ongoing. conviction to imprisonment for life.152 corruption in various ministries.159 67% deemed the 2.1.9 Corruption police to be most corrupt.160 During the 2012/2013 The saga relating to Anglo Leasing scandal Kenya’s first ever piracy trial occurred when financial year, the EACC recovered through court continued to unravel during this reporting period. Hassan M. Ahmed and nine others153 were handed proceedings and out of court settlements, illegally The Attorney General enlisted the help of the Swiss A critical analysis of corruption reflects the impact over to the Kenyan authorities to stand trial acquired public assets valued at approximately Government to investigate the matter. To date, that this vice has on Human rights. It has been pursuant to agreements between Kenya and the Kenya shillings 567,408,217. The Commission no one has ever been found guilty in relation to noted that ‘from this perspective, it is often taken European Union, the United Kingdom and the averted the loss of approximately 55 billion the saga. Investigations into yet another scandal, for granted that corruption “violates” human rights. United States.154 Other piracy cases were instituted shillings worth of public funds through various the maize scandal, were also launched in this When people make this claim, they have a range of during the reporting period. These were: R v interventions. period.161The scandal which occurred in 2009 issues in mind. They mean that, when corruption is Abdirahman Isse Mohamud and 3 others155 and R led to the crippling of the National Cereals and widespread, people do not have access to justice, v Abdiaziz Abdullahi & 23 others.156 The UN Office In October 2012, allegations surfaced that top Produce Board (NCPB). At that time, Kenya was are not secure and cannot protect their livelihoods. Counter-Piracy Program built a court in Mombasa Foreign Affairs ministry officials ignored land facing hunger and starvation. The parliamentary Court officials and the police pay more heed to with contributions from Australia, Canada, E.U, offered by Japan that could have saved the Public Investment Committee (PIC) recommended bribes than to law. Hospitals do not heal people and the United States in 2010 to handle country loss of 1.1 billion shillings. The scandal that the Ethics and Anti-Corruption Commission because the medical staff give better treatment to maritime piracy cases. This resulted in Kenya led to the resignation of the then Foreign Affairs investigate Dubai and I & M banks for their role in patients who pay backhanders or because clinics taking up the largest number of maritime piracy Minister, Moses Wetangula. In October 2010, the the scandal. PIC tabled a report in Parliament that lack supplies due to corrupt public contracting cases in the region. Department of Defence uncovered a bribery claimed the 2 banks, “in apparent collusion” with procedures. Poor families cannot feed themselves scandal implicating senior Kenya Defence Force M/s Erad Supplies and General Contracts Limited, because social security programmes are corrupt or In Republic v Hassan Jama Haleys alias officers on a 1.6 billion shilling purchase deal of sought to defraud the government. The PIC cited distorted to support a patronage network. Schools Hassan Jamal and five others (2010), the court armoured personnel carriers from a South African loss of funds held by the two banks subject to an cannot offer their students a sound education commented that piracy trials have presented a company, OTT Technologies (Pty) Ltd. The then attachment proceeding by Erad, amounting to because the education budget has been looted unique challenge to the Kenyan legal system. The Minister of Defence Yusuf Haji retired several high 314 million shillings, of which 29 million consisted and as a result teachers cannot be paid and Court of Appeal ruled that Kenyan courts have the ranking officers accused of taking bribes by OTT of legal fees, costs of any auctioned property and books cannot be purchased. Farmers and market jurisdiction over cases involving persons suspected Technologies (Pty) Ltd and the matter was referred loss of profits as a result of grounding of NCPB’s sellers cannot earn a living because police take a of international piracy. This decision overruled to Parliament for further investigations in 2011. operations. cut of their produce and sales. In numerous ways an earlier one from the High Court in Mombasa like these, corruption encourages discrimination, which determined that Kenya lacks jurisdiction to A report on military modernization programmes deprives vulnerable people of income, and 161 This was a scandal that became public in January hear and determine international piracy cases. The by the Departmental Committee on Defence and prevents people from fulfilling their political, civil, 2009 over the sale of imported maize. In late 2008, Court of Appeal decision was significant in light Foreign Relations in September 2012 would later the ban on importation of maize was lifted by the social, cultural and economic rights.’157 government to allow capable businessmen to import Kenya National Commission on Human Rights of Kenya’s geopolitical importance at the coast of establish irregular procurement of Puma M26 maize to supplement the local produce that was short Indian Ocean which experiences significant piracy armoured carriers that violated multiple sections of the minimum required to satisfy the local market. Kenya scores poorly on corruption as evidenced by incidences. of the Public Procurement Act 2005. The report At that time, the country faced hunger and starvation. Transparency International’s Corruption Perception The following events might have taken place during noted that OTT Technologies (Pty) Ltd’s business the scandal: Index and the World Bank’s Governance Indicators. Transnational crimes in Kenya are interrelated. partners in Kenya had been identified by the US Briefcase millers, existing only on paper, some of whom In 2010, Kenya was position 154 out of 178 countries were defunct at the time when the scandal unfolded, This adds to the complexity of the fight against Government for involvement in international crimes ranked. In 2011, the country was ranked 154 out were awarded large quantities of maize by the them. They remain a serious threat to our national and drugs smuggling and recommended that OTT Strategic Grain Reserve (SGR). They accomplished of the 182 countries assessed by Transparency this by inflating their milling per-hour capacity and Technologies (Pty) Ltd be barred from doing any International. In 2012, Kenya was ranked position having 4 Permanent Secretaries approve them; 152 http://www.loc.gov/lawweb/servlet/lloc_news?disp3_ further business with the Government of Kenya. The briefcase millers and local businesses that were l205403381_text (accessed 31 May 2015). 139 out of the 174 countries and in 2013, position In 2012, the National Hospital Insurance Fund either awarded quotas by the SGR or awarded import 153 CA 198 -207/2008 136 out of 177 countries assessed.158 permits by the NCPBK (National Cereals and Produce (NHIF) was also rocked with a corruption scandal Board of Kenya) respectively might have also re- 154 J A Roach ‘Countering Piracy Off Somalia: 157 International Council on Human Rights, Corruption International Law and International Institutions’ directed the bags of maize outside the country to and Human Rights: Making the Connection 2009 avoid price controls stated by the government and on Human Rights Commission National Kenya (2010) 104 3 The American Journal of International accessible on http://www.u4.no/recommended- releases/242-kenya-ranks-poorly-in-the-corruption- Law 397 – 416 perception-index-2013 (accessed 31 May 2015). thus make bigger profits; reading/corruption-and-human-rights-making-the- Some of the maize imported in 2009 by local businesses 48 155 Cr No. 72/2011 connection/downloadasset/2329 159 Ethics And Corruption Commission Annual Report was certified unfit for human consumption and might 49 156 Cr No. 2006/2011 http://www.unicri.it/topics/piracy/ 158 Transparency International Corruption Perception 2012/2014 (2015) 41 42. have been released into the market after directions of database/ (accessed 31 May 2015). Index (2013) http://www.tikenya.org/index.php/press- 160 As above. senior government officials. Yet another corruption scandal was revealed in the with Art. 20(5) and 21(2) of theConstitution which As it stands, the right to water and sanitation is a significant impact on health. Both water and Parliamentary Accounts Committee (PAC) report provides that the rights are subject to progressive yet to be realized fully. This has led to security sanitation facilities should be of good quality and of 2013 where senior government officials were realization requiring the State to take legislative, breaches especially among communities living in safe for use. The term ‘safety’ connotes freedom alleged to have used a secret account at National policy and other measures, including the setting the arid and semi-arid regions. The non-realisation from micro-organisms, chemical substances and Bank of Kenya to siphon billions in taxpayers’ of standards, to achieve the progressive realization of right to water has impacted negatively on the radiological hazards that constitute a threat to money. According to the report, senior Internal of the rights guaranteed under article 43. On two right to education, health and food. For example, in a person’s health.170 Sanitation facilities must Security ministry officials used a secret account at different occasions, the court pronounced itself the pastoralist communities, girls have been forced be well constructed to ensure physical health, the bank to siphon billions of money from public on this issue noting that right to housing is, by to drop out of school in order to fetch water.166 This hygiene and safe accessibility to all. It is estimated coffers in the run-up to the 2013 General Election. consensus, amenable to progressive realization.163 is largely due to cultural perceptions on the role that 69% of Kenyans do not have access to The money disappeared into a slush fund whose The High Court however found the courage to say: of the girl-child. Moreover, areas that lack water improved sanitation services. The low rates of purpose remains unknown. A previous report “…the argument that social economic rights and clean sanitation are prone to water borne access to water and sanitation services translate on government spending for the year 2012 had cannot be claimed at this point, two years after diseases such as cholera and typhoid. Kenya being into social costs and economic inefficiencies also unearthed the existence of a secret account the promulgation of the Constitution also ignores a country dependent on rain-fed agriculture has that have far reaching implications on human at National Bank where 2.8 billion shillings was the fact that no provision of the Constitution is been impacted negatively by the ongoing climate development. Poor sanitation services translate wired and spent on items marked as ‘confidential’. intended to wait until the State feels it is ready changes. As a result, more Kenyans are being into high incidence of water-borne diseases that The report pointed an accusing finger at former to meet constitutional obligations. Article 21 exposed to the risk of hunger. Kenya is already one subsequently cost Kenya about USD $324 million accounting officers in the security docket at the and 43 require that there should be ‘progressive of the countries experiencing severe water shortage annually. 171This amounts to approximately 0.9% of Office of the President. The parliamentary Public realization’ of social economic rights implying that in Africa and access to water and sanitation is our GDP annually. Water and sanitation services Accounts Committee’s audit report for the year the State must begin to take steps, and I might likely to become further constrained owing to the should be accessible to every person including ended June 2013 said that former Head of Civil add, be seen to take steps towards realization of increasing population growth, economic expansion persons with disabilities and the elderly. Physical Service, Francis Kimemia, and the then Permanent these rights. 164 and changes in rainfall patterns.167 accessibility within, or in the immediate vicinity of Secretary for Internal Security, Mutea Iringo, were the household, educational institutions, workplace, the accounting officers at the material time.162 And on a different occasion it said: Water is a basic commodity that is crucial to the or health institutions is imperative. According to “…three years after the promulgation of the sustenance of human life but remains inaccessible WHO, water sources should be within 100 metres Constitution the right to adequate housing cannot to a majority of Kenyans. Water supply to each of the home and collection time should not exceed be aspirational and merely speculative.165 person must be continuous and in sufficient quantity 30 minutes. This is not reflective of the situation 2.2 ECONOMIC, SOCIAL for personal and domestic use.168 According to the in the country. In arid and semi-arid areas, people 2.2.1 The Right to Clean World Health Organization (WHO), an individual travel more than 20 kilometres and at times remain AND CULTURAL RIGHTS needs between 50 - 100 litres of water per day at the water sources overnight due to scarcity. Water and Sanitation to meet their most basic needs. In Kenya, this has Incidences of human-wildlife conflict at water not yet been achieved. It is estimated that 41% of points have been noted with fatalities.172 Socio-economic rights are part of the so called The right to water is anchored in the Constitution the country population lacks access to improved second generation of human rights, as established of Kenya under Article 43 (1) (d). Being a socio- water supply.169 17% of this population comes from According to WHO, water should be affordable in the International Covenant on Economic, economic right, it requires the state to undertake the urban areas while 48% is in rural areas. Quality to all persons irrespective of economic status. Social and Cultural Rights. They include the right measures towards its full realization. The right of water, whether for drinking, domestic purposes, Unfortunately this has not been the case in Kenya. to housing, the right to work, the right to social entitles everyone to sufficient qualities of safe food production or recreational purposes has People living in the urban informal settlements pay Kenya National Commission on Human Rights security, the right to health and the right to water water and sanitation services that are affordable, 166 M Mwendwa ‘Pastoralist Communities Call for more for water. For example, a 20-litre jerry can and food. Since independence, socio economic accessible, and culturally acceptable and which Peace’ African Woman and Child Feature Service 19 of water costs between 30-100 Kenya shillings.173 August 2014 http://awcfs.org/kw/article/pastoralist- rights were taken to be alternative rights. are delivered in a participatory, accountable and All these challenges exist despite clear laws and communities-call-peace/ (accessed 8 June 2015). However on the advent of the new constitutional non-discriminatory manner. Sadly though, Kenya See also OCHA Pastoralists Living on The Edge OF regulations governing the water sector. dispensation, socio-economic rights have been suffers from poor sanitation and insufficient water Existence in Kenya 19 August 2008 http://ochaonline. un.org/kenya (accessed 8 June 2015). anchored under Article 43. These include right sources. However, the Vision 2030 agenda seeks 167 J Parry, D Echeverria, J Dekens & J Maitima 170 Committee on Economic, Social and Cultural Rights to adequate standard of health, accessible and to ensure that water becomes accessible to all ‘Climate Risks, Vulnerability and Governance General Comment 15: The Right to Water (Twenty- ninth session, 2003), U.N. Doc. E/C.12/2002/11 adequate housing, adequate food, clean and Kenyans while at the same time ensuring improved in Kenya: A Review’ (2012) UNDP http://www. preventionweb.net/files/globalplatform/entry_bg_ (2002), reprinted in compilation of General safe water, social security and education. Other sanitation. paper~keynaclimaterisksvulnerabilityandgovernance Comments and General Recommendations adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/ provisions relate to property rights, labour relations’ inkenyaareviewiisdundpjan13.pdf (accessed 8 June 2015). GEN/1/Rev.6 at 105 (2003). rights and environmental rights under Art. 40, 168 J Parry, D Echeverria, J Dekens & J Maitima (n 144 163 Mitubell Welfare Society v AG [2013] eKLR above). 171 As above. 41 and 42 respectively. These provisions are read 164 Ibid 169 UNDP & Republic of Kenya ‘Kenya National Human 172 http://www.nrt-kenya-comms.org/monitoring/ on Human Rights Commission National Kenya 165 Satrose Ayuma v Registered Trustees of the Development Report’ (2013) Climate Change conflict (accessed 8 June 2015). 162 See http://www.ipsos.co.ke/NEWBASE_EXPORTS/ Kenya Railways Staff Retirement Benefits Scheme and Human Development: Harnessing Emerging 173 Centre on Housing Rights and Evictions Rapid 50 Banking/141205_Business%20Daily_1,2_8d0f4.xml [2013] eKLR - See more at: http://kenyalaw.org/ Opportunities http://www.ke.undp.org/content/dam/ Assessment of the Water and Sanitation Situation 51 (accessed 31 May 2015). The link provides adequate kenyalawblog/gender-rights-and-wrongs-critique-of- kenya/docs/SPAU/KNHD%20Report%202013.pdf within Informal Settlements in Nairobi (2008) www. information relating to the PAC report on the same. the-supreme-court-decision/#sthash.B3HZXUH8.dpuf (accessed 8 June 2015). cohre.org/water (accessed 8 June 2015). The Water Act, No.8 of 2002, provides for the toilet was set to increase from 30% to 50%, while Table 2.6: The current status of access to water and sanitation in the country management, conservation, use and control in rural areas; access to sanitation facilities was to to physical and economic access is physical of water resources and for the acquisition and increase from 5% to 8%.176 Drinking water source % of dwellings Number of dwellings regulation of the right to use water. It also provides Piped 30.4 500,826 for the regulation and management of water Some significant initiatives to improve accessibility, supply and sewage services. particularly in arid areas and areas with great Vendors 11.02 181,345 lack, included completion of the Maruba Dam Boreholes 3.90 64,174 The right to water and sanitation is formally in Machakos with water storage capacity of 2.4 Yard well (protected) 3.47 57,108 recognized in a number of key policies developed million cubic meters and treatment capacity of Stream/river/lake 3.21 52,781 in the spirit of introducing water sector reforms. 5,000 million cubic meters, serving a population Spring 2.22 36,539 These include the National Water Resources of 100,000 people.177 In Nairobi, Sasumua Dam was Management Strategy (2005-2008) for the rehabilitated, restoring 16 million cubic meters of Yard well (unprotected) 2.07 34,106 management of water resources in the country; water and substantially reducing water shortage in the National Water Services Strategy (2007-2015) Nairobi. In Nakuru, Olbanita Water Project has been Source: Majidata 2012 aimed at offering sustainable access to safe water completed, reducing stress associated with the and basic sanitation to all; the Water Services search for water among the residents of the area 2.2.2 Right to Adequate availability of adequate food at the national and Regulatory Board Tariff Guidelines and Model and its surroundings. Further, the Kisumu Water local level. Ensuring physical availability in turn (2007), whose goal is to establish tariffs that Supply Project that aimed at doubling the supply Food entails putting in place sustainable production balance commercial, social and ecological interests of water to Kisumu residents was completed. In and procurement methods for current and future and the Pro-Poor Implementation Plan for Water addition, 900 small dams and water pans have The human right to adequate food has been generations. Physical accessibility requires that Supply and Sanitation (PPIP – WSS) 2007 aimed at been constructed mainly in ASAL areas, resulting recognized in different international instruments, adequate food be available to every man, woman up-scaling and fast-tracking actions for water and in supplementary water storage of 17 million cubic most notably: the Universal Declaration of Human and child, including those with medical problems, sanitation coverage by concentrating on low cost meters.178 Rights (UDHR); the International Covenant on and physical or mental limitations. Economic technology and settlements of the urban poor.174 In Economic, Social and Cultural Rights (ICESCR); accessibility requires that the financial cost of order to realize the right to water, the state must More than 100 boreholes were drilled and equipped the Convention on the Elimination of All Forms acquiring adequate food be not too high as to take certain steps as outlined in Article 12 [1] of the in 2010, enabling 300,000 more people to access of Discrimination against Women (CEDAW); jeopardize the realization of other rights. This International Covenant on Economic, Social and clean water in various parts of the country. Four and the Convention on the Rights of the Child extends from the individual level to the national Cultural rights (ICESCR) that: “Each state party medium sized multi-purpose dams – Kiserian in (CRC).180 Pursuant to Article 11.1 of the ICESCR, level. The right to food and the principles of should ensure that people can enjoy sufficient, Kajiado, Umma in Kitui, Chemasusu in Koibatek State parties recognize “the right of everyone to equality and non-discrimination require specific safe, accessible and affordable water, without and Badassa in Marsabit – are under construction. an adequate standard of living for himself and attention to be paid to different individuals and discrimination”. State parties should formally Construction of a further 16 medium sized dams is his family, including adequate food, clothing and groups of individuals in society, particularly those recognize the right within their national legislation, planned under the MTP 2 with a storage capacity housing, and to the continuous improvement of in vulnerable situations. This is due to the fact that and provide policies and regulations to fulfil their of 405 million cubic meters. Four other large living conditions”, while pursuant to Article 11.2 the vast majority of people suffering from hunger essential human rights obligations. dams were also planned to be completed by 2015 they recognize that more immediate and urgent and malnutrition are the poor and marginalized, as a long-term goal. This will have an additional steps may be needed to attain “the fundamental 181 who are struggling to survive in rural areas. In 2012, the government planned to increase capacity of 2.8 million cubic meters.179 right to freedom from hunger and malnutrition.”

Kenya National Commission on Human Rights access to safe water and sanitation in both rural The human right to adequate food is of crucial The right to adequate food imposes three types and urban areas beyond present levels. In its first importance for the enjoyment of all rights. The of obligations, some levels of obligations are Medium Term Plan (MTP) report of 2012/2013,175 right to adequate food is realized when every of immediate nature, while other measures are the government set a target to increase access man, woman and child, alone or in communion more of a long term character. The obligations to to piped water to urban dwellers from 60% to with others, has physical and economic access respect, to protect and to fulfil. The obligation to 75% and increase access to water from treated at all times to adequate food or means for its fulfil incorporates both an obligation to facilitate water sources for rural dwellers from 40% to procurement. and an obligation to provide.182 The obligation 60%. Moreover, access to sanitation for urban to respect the right to adequate food requires households with individual or shared access to It is important at this point to emphasize the elements of the right to food: that food must be States not to take any measures that result in 176 As above. 174 Water Services Regulatory Board (WASREB) Tariff available, accessible and adequate. A prerequisite preventing access to right to adequate food. The Guidelines and Model (2007) www.endwater/povert. 177 Government of the Republic of obligation to protect requires measures by the First Medium-Term Plan 2008-2012 Transforming org (accessed 8 June 2015). 180 L Knuth & M Vidar Constitutional and Legal on Human Rights Commission National Kenya Kenya: Pathway to Devolution, Socio-economic State to ensure that enterprises or individuals do 175 Government of the Republic of Kenya Vision 2030 Protection of the Right to Food around the World Development, Equity and National Unity (2012) (2011) www.fao.org/rightofood/ (accessed 8 June not deprive individuals of their access to adequate Second Medium-Term Plan 2013-2017 Transforming http://www.vision2030.go.ke (accessed 8 June 2015). 52 Kenya: Pathway to Devolution, Socio-economic 2015). 53 Development, Equity and National Unity (2013) 178 As above. 181 Committee on Economic, Social and Cultural Rights 182 Committee on Economic, Social and Cultural Rights: http://www.vision2030.go.ke (accessed 8 June 2015). 179 As above. General Comment No.11 General Comment No 12. food. The obligation to fulfil means the State times; and protecting vulnerable populations using Vitamin A supplements to children below 5 years During the period under review, food imports have must proactively engage in activities intended to innovative and cost - effective safety nets linked of age.190 The initiative raised a total of 1 billion been on the increase, currently accounting for strengthen people’s access to and utilization of to long-term development. The policy has been shillings, i.e. 700 million in cash and 300 million in about 28% of goods imported into the country. resources and means to ensure their livelihood, framed in line with the Constitution which states kind. The drought further complicated the situation This indicates that the country’s domestic food including food security. 183 that “every person has the right to be free from in the north region of Kenya where people resorted availability is being eroded. The prices of food hunger, and to have adequate food of acceptable to roasting and eating dogs,191 wild fruit and roots and other essential commodities including maize The Context in Kenya quality”.186 The policy further observes that Kenya of trees192 as their way of overcoming severe flour (the staple food), milk, bread and vegetables supports the progressive realization of the right hunger and starvation. The insufficient collective increased throughout the year, largely as a result In Kenya, it is estimated that 13 million out of to adequate food, in the context of national food action by the government to focus on early action, of levying value added tax (VAT - 16%) on food a population of 43.5 million persons which security. mitigation, and building long-term resilience of commodities. This has pushed up the cost of living, constitutes 30% of the country’s population, people living in drought-affected areas, and over making life unbearable for the poor and vulnerable. are undernourished.184 Although some slight Kenya has taken positive steps towards investing short-term symptomatic relief, largely facilitated Recent demonstrations such as those experienced improvements towards food security in Kenya can more into agricultural development under the the occurrence of this increasingly deteriorating in April 2011, riots and protests (Unga Revolution) be observed, the achievement of food security has Ministry of Agriculture, Livestock and Fisheries. The situation. triggered by high food prices in Kenya are a remained largely an unmet objective and a key State also successfully prioritized Development pointer to the increasing public awareness that the challenge to the government of Kenya. Several food Expenditure over Recurrent Expenditure. However, Extreme hunger is inextricably linked to the failures government has a heavy responsibility at hand and security-related policies developed in the country this still falls short of the Maputo Declaration within governmental institutions like Kenya Meat needs to take action towards enhancing access to have been met with limited implementation, thus recommendation that the minimum budgetary Commission (KMC) and Agricultural Finance food. producing limited outcomes. Food insecurity or allocation to agricultural development be Corporation (AFC). Corrupt officials who, through the lack of access to adequate food of acceptable maintained at 10% of total budget. In the financial cartels, manipulate the amount paid to farmers Kenya has made significant strides in improving quality, by all and at all times, has been one of the year 2013-2014, Kenya allocated only 2.4% of its that sell their livestock to them incapacitate KMC. agricultural productivity by increasing access challenges facing many counties, particularly in the budget to the core ministry dealing with agricultural On the other hand, the AFC suffers from lack to credit, market information systems, strong arid and semi-arid regions, mainly due to the high development; the Ministry of Agriculture, Livestock of sufficient extension officers to carry out its agro-dealer networks and use of inputs. This rates of poverty. Severity of famine and drought and Fisheries.187 functions at grassroots level. There is also the over- has been attributed to the establishment of the has increased during the past three years due to reliance on maize and potatoes for food security, National Accelerated Agricultural Input Access limited rainfall as well as a number of underlying The prevalence of malnutrition, though on a slight which are especially vulnerable to environmental Programme (NAAIAP), which mainly focuses structural problems. These include the high level decreasing trend since 2010, is still high, standing vagaries. Kenyan farmers have been resistant to on providing eligible smallholder farmers with of inequality, exclusion of the poor and vulnerable at about 30% of the population and indicates that shift their focus from the cultivation of maize and improved seeds and fertilizer in order to lift them groups from the social, economic and political on average, three out of every ten Kenyans are food potatoes to indigenous crops because the latter are out of subsistence farming and promote market- spheres, widespread corruption and lack of insecure.188 Food inadequacy is high in the country not considered commercially viable, the seeds are led agriculture. Through the program, farmers are investment in sustainable agriculture.185 and over 43 % of the Kenyan population consumes not readily available and generally because most given a Kilimo Plus starter kit comprising of 10 less than the recommended 2,250 kilocalories per free government advisory services on agriculture kilograms (kg) of certified maize seed, 50kg of Ostensibly, past and present agricultural policies day and nearly 30% of Kenyan children are classified focus on maize, wheat and potatoes.193 base fertilizer, and 50kg of top dressing fertilizer. have attempted to promote increased domestic as undernourished, and micronutrient deficient.189 Currently, about 70 % of farmers use fertilizer and 190 Kenya Red Cross Society Final Comprehensive food production. Currently, in seeking to provide The drought experienced in 2011 touched many Report on Kenyans for Kenya Food Security Projects 74 % use certified seeds, mainly of maize. However, the right to food, the government has passed Kenyans and led to a nationwide fundraising (2011) http://kenyaredcross.org/PDF/K4K/K4K%20 3.5 million smallholder farmers still work without Final%20Report.pdf (accessed 8 June 2015). Kenya National Commission on Human Rights the Agriculture, Livestock, Fisheries and Food campaign, commonly known as the Kenyans for basic agricultural inputs. This has further been 191 See the story of Akai Ekomua who revealed that Authority Act (2013), the Crops Development Act Kenya Initiative. The initiative was launched on 27th her reason for slaughtering the dogs, whose meat crippled by unavailability of adequate information (2012), the Agricultural and Livestock Research July, 2011 with the aim of achieving the following: she also shared with her starving neighbours, was on the right type of farm inputs to use and the to contain hunger and avoid breaking the law by Act (2012) and the National Food and Nutrition screening for acute malnutrition and treatment; stealing a goat from her neighbour. She had already appropriate time of application, high cost of key Policy. This policy aims at achieving good nutrition supplementary feeding for pregnant women, lost three children to the famine. http://www. inputs such as seeds, pesticides, fertilizer, drugs for the optimum health of all Kenyans; increasing lactating mothers and the elderly; and providing standardmedia.co.ke/article/2000103430/famine- and vaccines, and poor quality of inputs. drives-woman-and-her-children-to-feed-on-dogs the quantity and quality of food that is available, (accessed 8 June 2015). 186 Article 43 (1) of the Constitution of Kenya accessible and affordable to all Kenyans at all 192 F Njuguna ‘Kenyan Bishop Says Hungry Turkana 187 Institute of Economic Affairs Budget 2013/14: The People Eating Tree Roots, Dog Meat’ CatholicPhilly. 2.2.3 Right to Education 183 Committee on Economic, Social and Cultural Rights: Onset of the Devolved Government and the Hurdles com 12 February 2014 http://catholicphilly. General Comment No 12. Ahead (2013) http://www.ieakenya.or.ke/publications/ com/2014/02/news/world-news/kenyan-bishop-says- The right to education is one of the fundamental 184 FAO (The) State of Food Insecurity in the World: doc_download/27f7-budget-guide-2013-14 (accessed hungry-turkana-people-eating-tree-roots-dog-meat/ Addressing Food Insecurity in Protracted Crisis (2012) 8 June 2015). (accessed 8 June 2015). human rights that is anchored in international,

www.fao.org/rightofood/ (accessed 8 June 2015). 188 FAO. The State of Food Insecurity in the World: 193 Kenya Movement of Catholic Professionals (KMCP) regional and also the national laws and policies of on Human Rights Commission National Kenya Strengthening the Enabling Environment for 185 RAPDA & FIAN International Kenya’s Hunger Crisis – Paxromana An Account of Kenya Human Rights Kenya. Education is a major driver of the economy The Result of Right to Food Violations (2010) http:// Food Security and Nutrition (2014) www.fao.org/ Status: Holding the Kenyan Government Accountable 54 www.fian.org/resources/documents/others/kenyas- rightofood/ (accessed 8 June 2015). to the Promises it has Made to Uphold Human Rights 55 hunger-crisis-the-result-of-right-to-food-violations/ 189 FAO The Constitutional and Legal Protection of the of its Citizenry (2014) http://www.icmicamiic.org/ Jointly_submitted_stakeholder_Report.pdf (accessed pdf (accessed 8 June 2015). Right to Food around the World (2011). attachments/article/8294/KMCP_Paxromana_UPR_ 8 June 2015). and is thus accorded great importance, both Articles 28 and 29 recognizes the right of children digital technology within the reach of every locally and internationally. Various international to education and provides that education of the Kenyan child; and regional instruments have elaborated on the child shall be directed towards: The Constitution of Kenya • A Sessional Paper on Science, Technology normative content of the right to education. In the and Innovation that provides the policy Universal Declaration of Human Rights (UDHR), the a. The development of the child’s personality, Like the Declaration, the Kenyan Constitution framework for the acquisition, development right to education is recognized as a fundamental talents and mental and physical abilities to has various provisions that relate to the right to and promotion of science, technology and right under Article 26. The Article indicates that their fullest potential; education. The right to education is also among innovation for national transformation to a everyone has a right to education and further the rights stated under the extensive Bill of knowledge economy; that elementary education shall be compulsory b. The development of respect for human Rights enshrined in the Constitution. Although for every child while technical and professional rights and fundamental freedoms, and for the Constitution must be read as a whole, for the • The National Special Needs Education education shall be made available to all. Education the principles enshrined in the Charter of the purposes of this report, the following provisions Policy Framework which was designed by should also promote understanding, tolerance and United Nations; have been spelt out: the Ministry of Education in 2009 addresses friendship among all nations, racial and religious some of the critical issues which determine groups. c. The development of respect for the child’s • Article 43 (1) (f): Every person has the right delivery of quality and relevant education to parents, his or her own cultural identity, to education; learners with special needs. It also addresses Article 13 of the International Covenant on Economic language and values, for the national values of • Article 53: Every child has the right to free and issues of equity and improvement of learning Social and Cultural Rights (ICESCR) stipulates the the country in which the child is living, for the compulsory basic education; environments in all schools. This ensures obligations of state parties when it comes to the country from which he or she may originate, and • Article 54 (1) (b): A person with any disability that inclusive education is a reality and fulfilment of their responsibilities under the right for civilizations different from his or her own; is entitled to access educational institutions consequently improves the participation and to education. Education shall be directed to the and facilities for persons with disabilities involvement of people with special needs in full development of the human personality and the d. The preparation of the child for responsible life that are integrated into society to the extent national development in general. sense of its dignity, and shall strengthen the respect in a free society, in the spirit of understanding, compatible with the interests of the person; for human rights and fundamental freedoms. State peace, tolerance, equality of sexes, and • Article 55 (a): The State shall take measures, Enacted Laws: parties have committed to ensure that: friendship among all peoples, ethnic, including affirmative action programmes, national and religious groups and persons of to ensure that the youth access relevant • The Basic Education Act (No. 14 of 2013) has a. Primary education shall be compulsory and indigenous origin; education and training; been passed into law to regulate the provision available free to all. Secondary education in • Article 56 (b): The State shall put in place of basic education and adult basic education its different forms, including technical and e. The development of respect for the natural affirmative action programmes designed in the country. The law also clarifies the role vocational secondary education, shall be environment. to ensure that minorities and marginalized of the government, both at the national and made generally available and accessible to all groups are provided special opportunities in county level with regard to education as by every appropriate means, and in particular educational and economic fields. provided for in the Fourth Schedule of the by the progressive introduction of free Regional and National Provisions/Legal Constitution. Further, Adult and Continuing education; Instruments on the Right to Education The government has formulated various policies Education (ACE) are now included in the and enacted legislation in recent years to guide the Basic Education Act (No. 14 of 2013); b. Higher education shall be made equally The Pretoria Declaration on Economic, Social and provision of education at the different levels in the accessible to all, on the basis of capacity, by Cultural Rights in Africa (2004) was adopted at country. These frameworks reflect the aspirations • The Universities Act (No. 42 of 2012) has laid

Kenya National Commission on Human Rights every appropriate means, and in particular by a seminar in Pretoria, South Africa, in September of the Constitution of Kenya as follows: down the framework for higher education the progressive introduction of free education; 2004 at which representatives of the African reforms which includes the incorporation of Commission on Human and People’s Rights, 12 The policies developed: private universities into the selection body c. Fundamental education shall be encouraged African states, national human rights institutions that will in future select state-funded students or intensified as far as possible for those and NGOs participated. The Declaration was • The Policy Framework for Education to both public and private universities. persons who have not received or completed adopted by the Commission at its 36th session and Training, formulated in 2012, guides the whole period of their primary education; in December 2004. Among other provisions, reforms in the education sector. The policy‘s Still on a policy level, 2.3 billion shillings has been Article 3 provided that: “States are therefore called recommendations, which cut across the provided for the school feeding programme and d. The development of a system of schools at all upon to address, with all appropriate measures, entire education sector, have largely been 400 million for sanitary towels to ensure that levels shall be actively pursued; an adequate their obligations in relation to the full realization implemented through the development no child misses out on school due to hunger fellowship system shall be established, and the of economic, social and cultural rights as well as of strategies to address such issues as or menstruation. To improve the quality and material conditions of teaching staff shall be tackling the following constraints: institutional reforms, the management and accessibility of education to all school-going Kenya National Commission on Human Rights Commission National Kenya continuously improved. financing of education, the curriculum, children, a comprehensive e-learning program 56 Illiteracy and lack of awareness...... ” teacher education, teacher development and remains priority policy to the government. As 57 The Convention on the Rights of the Child under management, and strategies that would bring such, a total of 17.4 billion shillings has been set aside for e-learning, including laptops for children, The prevalence of out-of-school children is reaching the 2.5 million adolescent girls that are public schools in other regions. Facilities in public capacity building for teachers and rolling out of accelerated by incidences of children who are unable in dire need of sanitary towels in both primary schools are another major challenge to quality computer laboratories for class 4 to class 8 across to access education due to extra fees, levies and and secondary schools stands at an estimate of of education. The supporting infrastructure is all schools in the country. Policy measures have also charges in public schools despite articulation of basic 2.4 billion shillings a year. In contrast, the amount insufficient; classrooms, textbooks and exercise been taken to improve availability of opportunities education as free and compulsory under Article 53(1) allocated in 2011/2012 was a paltry 300 million books are inadequate to serve the large population for education. To this end, the government has (b) of the Constitution and the Basic Education Act shillings, falling short by nearly 2 billion shillings. of pupils. supported the construction and rehabilitation of (2013). This has particularly affected children from The budgetary allocation for this program in the existing facilities, including provision of boarding poor backgrounds who perform well but are unable 2013/2014 budget was reduced by 99 million Persons with Disability and mobile schools to pastoralist communities. to transit from primary to secondary education shillings to stand at 201 million. This means that because of inability to raise the required fees. It has only 568,925 adolescent girls in primary education Public education is also characterized by lack of 2.2.3.1 Status of the Right been reported that for a Form One student to access benefit from the program. The national program sufficient, adequate, accessible and quality special a national public secondary school, he or she has for the provision of sanitary pads continues to schools or schools that can integrate children to to pay school fees in the average of 60,000 Kenya be unavailable to all the deserving and poorest with special needs. Educational facilities do not Free Primary Education shillings annually196, an amount that is very high for sections of the community.198 adequately cater for children with disabilities the 50% of the entire Kenyan population that lives in terms of teachers trained on special needs below the poverty line.197 Poverty aside, the quality of education offered has education and learning materials used by special Before the advent of the Free Primary Education itself been deemed to infringe access to education. children. Most of the educational facilities offering (FPE) program, a large number of children could The high number of out-of-school children in Kenya According to a study by Uwezo, a national NGO, a free primary education are also not easily accessible not access education due to the high costs is a pointer to denial of the right to education. typical Standard 8 pupil could not perform basic to learners with physical disabilities. In response involved. The government in 2003 introduced There is quite a good number of children in the mathematics meant for Standard 3.199 This brings to these challenges, the government launched a free primary education in public schools. However, streets and informal settlements that have no into question the quality of education in Kenya and Special Needs Education (SNE) Policy Framework according to the International Regional Information access to education. Other children are unable to in particular, with regard to teacher attendance, that addresses government’s intention to work with Network (2003), public primary schools’ resources access primary education due to negative cultural quality of delivery, implementation of school stakeholders to transition to an inclusive education have been overstretched by the increased number practices. In communities like the Samburu, curriculum and syllabus, and the assessment of approach in line with the aspiration of the Jomtien of enrolled pupils in schools which has caused the Turkana, Pokot and other pastoralist communities, students. Though the Ministry of Education is Declaration, education for all by 2015.202 Though level of performance to decline though access to practices such as female genital mutilation (FGM) mandated to monitor the quality of education the plight of children with special needs is also free primary education has increased significantly and early marriages are a serious hindrance to offered in schools including the implementation of addressed in the Basic Education Act, integration since 2003. education for girls. the school curriculum, there is lack of effective and of children with special needs into the regular regular monitoring.200 Consequently, low learning school system is still a challenge at both primary Though education receives the highest budgetary Besides negative cultural practices, a national outcomes increasingly typifies public education. and secondary school level. Transition levels for allocation in the country in terms of percentage, research conducted by Girl Child Network (GCN) A number of factors have contributed to the children with special needs to the secondary school there is concern that approximately 90% of the established that the participation of the girl child poor quality of education in public schools. is equally a challenge as these children are required allocated budget goes to recurrent expenditure. in education is greatly hindered by the difficulty These include shortage of teachers201 and poor to attain the same pass marks as other children, In 2011/2012, the recurrent budgetary expenditure involved in managing menstruation. Indeed, it facilities in public schools. There are remarkable their unique circumstances notwithstanding. was estimated to stand at 149 billion shillings emerged that a girl would miss school for an imbalances in the distribution of available teachers. while only 7 billion shillings went to development average of 3 to 5 days a month due to lack of Schools in the arid and semi-arid areas normally Access to education is not always inclusive. budgetary expenditure.194 Kenya National Commission on Human Rights sanitary towels; cumulatively resulting into missing have high teacher-to-pupil ratios as opposed to Persons with disability have had a major challenge 12 to 15 days a term and a total of 39 to 45 days a accessing equal opportunities in the Kenyan There are several barriers to access to free and 198 Even though the state did at some point partner year. In response thereto, the State introduced the education sector despite national commitment to compulsory basic education in Kenya. These with Royal Media under the Inua Dada Campaign National Schools Sanitary Towel Program in 2011 to, which was launched by the First Lady, the Ministry of provide equal access to education in international include low teacher to student ratio, the shortage among other things, deal with gender disparities in Education and Citizen TV in Marigat, Baringo County and regional instruments, the Constitution and of teachers due to the massive enrolment of pupils, to complement the National Schools Sanitary Towel education and particularly girl child education in Program for an increased budgetary allocation to other national laws. insufficient learning facilities, and poor learning ASAL and other marginalized regions. It has been the program, not all schools in the country have environment particularly in arid and semi-arid areas benefitted. established that the budgetary allocation required The World Disability Report of 2011 indicated that and urban slums. Further, it is estimated that there 199 J Mugo, A Kaburu, C Limboro & A Kimutai persons with disability constituted 15% of the are approximately over one million children who Programme at KIE’ 8 May 2012 http://www.education. Are Our Children Learning? - Annual Learning go.ke/ShowPage.aspx?departm%20ent=1&id=1168 Assessment Report Kenya (2011) http://www. world’s population. In Kenya, this group makes up are still out-of-school, the majority of whom are in (accessed 19 March 2014). uwezo.net/wp-content/uploads/2012/08/KE_2011_ 4.6% of the population or 1.7 million people. ASAL areas, pockets of poverty and urban slums.195 196 N M Kiveu & J Mayio ‘The Impact of Cost Sharing AnnualAssessmentReport.pdf (accessed 8 June 2015). on Internal Efficiency of Public Secondary Schools in on Human Rights Commission National Kenya 194 Kenya National Bureau of Statistics Economic Survey Ndivisi Division, Bungoma District Kenya’ (2009) 4 5 200 As above. (2012) 43. Educational Research and Review 272-284. 201 The 2013 MTP progress report indicated that only 58 195 Ministry of Education ‘Talking Notes by the Minister 197 UNICEF Kenya statistics of 27 December 2013 http:// 21,400 primary school teachers and 600 post primary 59 for Education Hon. Mutula Kilonzo EGH,EBS www.unicef.org/infobycountry/kenya_statistics.html teachers had been recruited against a target of 202 Ministry of Education The National Special Needs during the National Launch of the Sanitary Towels (accessed 8 June 2015). 28,000 in the MTP 1 period. Education Policy Framework 2009 (2009). A report by the KNCHR in 2014203 indicated that review, there have been frequent teacher strikes illness. policies, provision of technical support at all levels, there are 3,464 schools for special needs in the leading to reduced learning time. Adding to this monitoring quality and standards in the provision country, 2,713 of which are integrated institutions grave concern is still the shortage of teachers Under the ICESCR, each state party is obligated to of health services, provision of guidelines on health while 751 are special needs schools. Out of this throughout the country as reported by the take steps, individually and through international services tariffs and conducting studies required for number, there are 17 secondary schools in the Teachers Service Commission (TSC). assistance and cooperation, towards the full administrative or management purposes. country for persons with disabilities including 10 realization of the rights recognized therein, such for those with hearing impairments, 3 for those Cost of Education: The government has subsidized as the right to health. It is impermissible for a Health Care Financing with physical disabilities and 4 for the visually secondary education. It is paying 10,000 shillings government to take retrogressive measures in impaired. These numbers disabilities to secondary for each student enrolled in public secondary relation to the right to health, such as might be Increasing allocation of resources to the health schools. A survey report published in 2008 by the schools. However, the cost of school fees for implied in the lowering of the percentage of sector is critical to the achievement of sustained Kenya National Bureau clearly show that there is secondary schools and tertiary institutions is still the health budget as compared to the overall social and economic development. Ideally, national severe limitation of facilities for effective transition prohibitive. It is not affordable to most people.205 government budget. In addition, the ICESCR budgetary allocations are the conventional of people with of Statistics indicated that 67% Access and Transition: There is disparity in the outlines several core obligations for governments expression of government’s commitment to of PWDs attained primary educations, 19% number of learners that enroll in primary school which define “minimum essential levels” of rights address the social and economic challenges facing secondary education and only 2% attained tertiary through the free primary education initiative and that are not subject to progressive realization but its people. education204. those that end up in university. This is indicative which must realized immediately and at all times. of the existence of challenges in accessing Article 43 of the Constitution provides that every The budgetary allocation to the health sector for Access to Secondary and Higher Education education.206 person has the right to the highest attainable financial year 2010/11 was a total of 45.7 billion In the past decade, the level of enrolment in standard of health, which includes the right to shillings of government resources, representing primary schools has increased while the transition Quality of Education: Though increased enrolment reproductive health care services. It further outlines 6.5% of the total estimated government budget to secondary schools has remained significantly facilitated by the free primary education program that a person shall not be denied emergency for that financial year and 1.5% of the Gross low. 2009 World Bank statistics indicated that the is commendable, the quality of the education medical treatment and that the State shall provide Domestic Product (GDP). Resources allocated to transition was at 50%. Although there has been an offered is wanting. In 2014, Elimu Yetu Coalition appropriate social security for persons who are the health sector increased nominally in the years increase in the transition rate over the years, the reported of poor performance of children in public unable to financially support themselves and their that followed.210 When compared to the 2010/11 numbers remain relatively low. There are about primary schools.207 dependents. fiscal year, the health budget for 2011/12 increased 26,000 public primary schools against only about from 45.7 billion to 49.7 billion shillings; an increase 6,500 public secondary schools. 2.2.4 Right to Health The Kenya Health Policy 2012-2030208 provides of approximately 4 billion that translates to an guidance to the health sector in terms of identifying 8.8% improvement211 while the health budget in The government has made tremendous progress and outlining the requisite activities towards the 2012/13 increased by 16.9% to reach 85 billion Kenya is a state party to the Convention on the in providing universal access to secondary achievement of government’s health goals. The shillings. The additional resources were used to Rights of the Child (CRC), the International education. To ease the financial burden shouldered policy is aligned to Kenya’s Vision 2030 (Kenya’s fund employment of 5,200 health workers and 915 Covenant on Economic, Social and Cultural Rights by many households with secondary school-going national development agenda), the Constitution doctors, and implementation of the second phase (ICESCR), the Convention on the Elimination of All children, the budgetary allocation for free tuition of Kenya and global health commitments (e.g. of allowances for health workers.212 Forms of Discrimination against Women (CEDAW), in secondary schools was increased by 33 % to the Millennium Development Goals).The policy and the African Charter on Human and Peoples’ 28.2 billion shillings in the 2014/2015 fiscal budget. also provides an institutional framework that Despite increments to the health budget over the Rights as well as other human rights treaties that This development will hopefully see secondary specifies the new institutional and management years, the allocations have still been way below the recognize the right to health. Kenya National Commission on Human Rights education truly free within the next three years. arrangements required under the devolved target of 15 % of national budget as anticipated by system of health care. The policy acknowledges the Abuja Declaration. Cognizant of States’ different levels of resources, the need for new governance and management 2.2.3.2 Challenges in the ICESCR provides that the rights guaranteed arrangements at both levels of government and by it, including the right to health, are subject to Realization of the Right to outlines governance objectives.209 “progressive realization,” meaning that a State 210 S Sealy and K Rosbach Estimated Government Education should “take steps to the maximum of its available Spending 2010/11: Kenya Health Sector Budget Provision of health care in Kenya is a devolved Analysis (2010) http://www.gtzkenyahealth.com/ resources” to achieve full realization of these rights. function to be executed by the county governments blog3/wp-content/uploads/2010/07/Health-Budget- Frequent Teacher Strikes: Over the period under States are obligated to work towards conditions Analysis_FINAL.pdf (accessed 8 June 2015). in line with the provisions of the fourth schedule of that would ensure access for all to receive medical 211 European Commission & Australian Development 203 Kenya National Commission on Human Rights From the Constitution. At the national level, the Ministry Cooperation Falling Behind the Promise: Analysis of services and medical attention in the event of Norm to Practice: A status Report on Implementation of Health is responsible for development of national the Health Sector Budget for FY 2011/2012 (2012). of the Rights of Persons Living with Disabilities in http://www.health.go.ke/websitedocs/HRH%20 205 Elimu Yetu Coalition ‘The Poor Status of the Kenya (2014) 9 http://knchr.org/Portals/0/Reports/ 208 Ministry of Medical Services & Ministry of Public REPORTS/Position_Paper_3_-_HRH_Budget_ on Human Rights Commission National Kenya Disability%20Report.pdf (accessed 14 May 2015). Education Sector’ Press Release 11 February 2014 Health and Sanitation The Kenya Health Policy 2012 Analysis_2011-2012_eds.pdf (accessed 8 June 2015). http://www.elimuyetu.net/sites/default/files/ – 2030 (2012) http://countryoffice.unfpa.org/kenya/ 204 KNBS, Kenya National Survey for Persons with PRESS%20STATEMENT.pdf (accessed 14 May 2015) 212 KPMG Budget Brief: Kenya 2012 (2012) http:// 60 Disabilities Report (2008) pg. 15 available at http:// drive/FinalKenyaHealthPolicyBook.pdf (accessed 8 www.kpmg.com/eastafrica/en/IssuesAndInsights/ 61 statistics.knbs.or.ke/nada/index.php/catalog/35 206 As above. June 2015). ArticlesPublications/Documents/KPMG_Kenya_ (accessed 30 July 2015) 207 As above. 209 As above. Budget_Brief_2012.pdf (accessed 8 June 2015). improvement in the Infant Mortality Rate (IMR) from 77 to 52 per 1000 live births while the Under Access to Health Care Five Mortality Rate improved to 74 from 115 per The proportion of women meeting the Abortion 1000 live births. However, the neonatal mortality recommended number of antenatal care visits of Access to basic health care in Kenya is a challenge rate only reduced marginally from 33 to 31 per 4 and above declined from 64% in 1993 to 52% in Article 26(4) of the constitution expressly permits to majority of the people, particularly the low 1000 live births and contributed to 42% of the 2003 and to 47% in 2008/9, while the proportion abortion in cases of emergency, when the life or income earners. The National Hospital Insurance under-five child deaths compared to 29% in 2003 receiving skilled care during delivery declined from health or pregnant woman is at risk, or if permitted Fund (NHIF) only covers a small percentage of (KDHS).216 45% in 1998 to 42% in 2003. Skilled attendance at by any other law. Kenyans, leaving the majority vulnerable and highly birth increased to 44% in 2008/9. dependent on their resources to finance their health Despite renewed focus and recent progress in child Before the promulgation of the Constitution the care needs. Overall health insurance coverage survival, achieving the Millennium Development According to a public inquiry conducted by the Penal code223 outlawed abortion224Section 240 levels for formal and informal sector populations Goal targets for under-five mortality (33/1000) Kenya National Commission on Human Rights made provision for the protection of a person who have reached 4.5 million people (11% of the Kenyan and infant mortality (26/1000) by 2015 will be a (KNCHR), only a small fraction of performs a surgical procedure in good faith and population). While the coverage is high for the challenge unless neonatal care, which is closely (7.3%)do not receive the simplest form of antenatal with reasonable care and skill for the benefit of formal sector (98%), coverage of the informal linked to maternal care, receives more attention. No care. However, less than half of the women make the preserving the life of the mother or that of the sector which accounts for over 80% of Kenya’s doubt, skilled birth attendance is vital in protecting the four antenatal visits recommended by WHO unborn child having regard to the patients state at workforce has proven to be more challenging, and the health of new-borns as the majority of pre- and only 7.3% have their first antenatal visit in the the time and the circumstances of the case. remains low at 16% of this population group.213 natal deaths occur during labour and delivery first trimester.220 Despite the noted improvement or within the first 48 hours of delivery.217 Yet in therefore, antenatal services still fail to meet Despite the express provision in the constitution Health Care Workforce spite of the foregoing, maternal care indicators expected quality and standards. the penal code has not been amended to align have stagnated in terms of deliveries by skilled it with the constitutional provision; whereas the Kenya is one of the countries identified by the attendants (increased slightly from 40 to 42%) and Emergency Obstetric Care constitutional provisions are supreme to the World Health Organization (WHO) as having a institutional deliveries (increased slightly from 40.1 Acts of parliament no such declaration has been “critical shortage” of health care workers. The to 43%). Facilities in rural areas are not well equipped to rendered by the courts. The right to abortion in WHO has set a minimum threshold of 23 doctors, handle emergency deliveries.221 Women who need Kenya remains uncertain given that the provisions nurses and midwives per population of 10,000 as Maternal Mortality C-sections in small facilities died, in some cases of the penal code and the constitution are not in the prerequisite for delivery of essential child and together with their babies, if they could not be tandem this has had a negative effect in ensuring maternal health services. In contrast, Kenya’s most Maternal Mortality Rate (MMR) in Kenya has transferred in good time to larger facilities. Among the fulfillment and exercise of these rights by recent ratio stands at 13 health care workers per remained unacceptably high at 488 maternal the facilities that offer normal delivery services, citizens. 10,000 people.214 This shortage is markedly worse deaths per 100,000 live births (with some regions only half of them are equipped with additional in rural areas where the situation is compounded by reporting MMRs of 1,000/100,000 live births) in supplies to treat common complications.222 According to the constitution of World Health frequent health care worker strikes over increased 2008/9, which is an increase from 414/100,000 Organization, Reproductive health “is a state of pay and opposition to devolution and management in 2003, and an improvement from 590/100,000 complete physical, Mental and Social wellbeing of the health sector by county governments.215 in 1998.218 Most maternal deaths are due to causes 220 KNCHR Realizing Sexual and Reproductive Health and not merely the absence of disease or infirmity, directly related to pregnancy and childbirth, unsafe Rights in Kenya: A Myth or Reality? (2012) http:// in all matters relating to the reproductive health www.knchr.org/LinkClick.aspx?fileticket=BHq38ZX-qE Child Mortality abortion and obstetric complications such as c%3d&tabid=99&portalid=0&mid=477 (accessed 8 system and to its functions and processes.....’’225

Kenya National Commission on Human Rights severe bleeding, infection, hypertensive disorders, June 2015). The Kenya Demographic Health Survey (KDHS) and obstructed labour. Evidence suggests that 221 Echoka e etal, Existence and functionality of Kenya was a colony of the Britain and only attained emergency obstetric care services at district level in 2008/09 in comparison to the 2003 KDHS, shows maternal morbidity, which is comparatively higher Kenya: theoretical coverage versus reality: Among its independence in 1963; it inherited a vast majority than maternal mortality, continues to receive less the 40 facilities assessed, 29 were government of Laws from Britain.226 Kenya is a common law 213 Health Finance & Governance (HF&G) Case Study: owned, seven were private and four were voluntary Kenya National Hospital Insurance Fund (NHIF) attention than the latter. Yet for every woman who organisations. The ratio of EmOC facilities to jurisdiction and therefore there is a reliance on the Premium Collection for the Informal Sector (2014) dies, another 20-30 women suffer serious injury or population size was met (6.2/500,000), compared http://healthmarketinnovations.org/sites/default/ to the recommended 5/500,000. However, using disability.219 223 Penal Code, Chapter 63 Laws of Kenya files/Case%20Study%20Kenya%20National%20 the strict WHO definition, none of the facilities met Hospital%20Insurance%20Fund%20(NHIF).pdf the EmOC requirements, since assisted delivery, by 224 See Section 158 and 159 of the Penal Code, Chapter (accessed 8 June 2015). 216 UNDP Reduce Child Mortality: Where We Are? (2013) 63 Laws of Kenya http://www.ke.undp.org/content/kenya/en/home/ vacuum or forceps was not provided in any facility.

214 World Health Organization (WHO) Global Atlas mdgoverview/overview/mdg4.html (accessed 8 June Rural-urban inequities in geographical distribution 225 of Health Work Force (2010) http://www.who. 2015). of facilities were observed. The facilities were not 226 See Section 3(c) of the Judicature Act Chapter 8 int/workforcealliance/knowledge/resources/ providing sufficient life-saving care as measured Laws of Kenya (This clause is famously referred to as hrhglobalatlas/en/ (accessed 8 June 2015). 217 http://www.who.int/bulletin/ by caesarean section rates, which were below volumes/87/2/08-050963/en/ (accessed 8 June the reception clause the section provides.’’...... subject recommended levels (3.7% in 2008 and 4.5% in on Human Rights Commission National Kenya 215 M Wanda ‘Health workers in Many Kenyan Clinics 2015). thereto and so far as those written laws do not Brave Community Health Care Alone’ Frontline 2009). The rates were lower in the rural than in urban extend or apply the substance of the common law the Health Workers.org 17 November 2014) http:// 218 As above. areas (2.1% vs. 6.8%; p < 0.001 ) in 2008 and (2.7% doctrine of equity and statutes of general application 62 frontlinehealthworkers.org/health-workers-in-many- 219 United Nations Population Fund (UNFPA) Maternal vs. 7.7%; p < 0.001) in 2009. Available on http://www. applicable in England in force in England on 12th 63 kenyan-clinics-brave-community-health-care-alone/ Health: Overview (2015) http://www.unfpa.org/ ncbi.nlm.nih.gov/pubmed/23522087 August 1897 and procedure and practice observed in (accessed 8 June 2015). maternal-health (accessed 8 June 2015). 222 KNCHR (n 195 above) 46. courts of justice on the date...... ’’ doctrine of stare decisis and precedence by courts with unwanted pregnancies are likely to have an in the realization of this right has been shaped by rates. For instance, the average price of property in in deciding similar matters. abortion regardless of whether the abortion is diverse factors including social-political, economic Nairobi’s up-market suburbs shot up by 29 % from R v Bourne 227extended the defence of therapeutic permitted under the law. It can be argued that and policy dynamics. Some level of success has an average of 15.7 million shillings in 2006 to 20.2 exception beyond the narrow confines of domestic laws are a great determinant as to been achieved but considerable challenges still million in 2012. Inextricably linked to the right to immediate necessity to save the life of the whether women will have safe or unsafe abortions. exist. housing is the sanitation of the dwellings. In 2011, pregnant woman and embraced a broader and The place of laws should be to facilitate women the government was accused of failure to enforce holistic notion of what constituted saving the life of access their reproductive health rights and choices Kenya has achieved great milestones in an effort to existing laws and standards of sanitation in slums a pregnant woman by treating not just the physical but should not fetter this right, the law has a role in realize the right to housing especially in the MTP 1 and informal settlements.240 Selective application of but also her mental health, as experienced by her, ensuring the abortions that would otherwise been period, including the following: sanitation laws and standards has left many people as an integral part of determining the threat posed unsafe are safe. without access to toilets and private washing to the life of the pregnant woman. • Drafting of the Housing Bill, 2011 which facilities. The lack of access to sanitation facilities RJ Cook et al232, postulates that a women’s ability seeks to facilitate the provision of decent in the immediate household vicinity, combined Foetal life cannot be protected in isolation from the to access safe abortion is affected by the domestic and affordable housing to all Kenyans; with an absence of effective police presence in the constitutional and human rights of the pregnant laws and how those laws are interpreted and • 991 civil servants housing units have been slums and settlements, placed women at risk of woman including the right to life guaranteed by administered in practice and how the healthcare constructed in Nairobi while 222 units are sexual violence particularly at night.241 Once again Article 6 of the Covenant on Civil and Political provider perceives the laws. The net effect of this under construction; in 2011, the government through the state owned Rights, and the right to health guaranteed under is that women will not be able to access especially Kenya Railways Corporation, issued a 30 day notice • 900 units were constructed in Kibera under Article 12 of the Covenant on Economic, Social and where the health care professionals and women the Slum Upgrading program; of eviction to the more than 50,000 people living Cultural Rights. do not understand the vaguely worded legal along the railway line. The corporation attributed provisions.233 • 81 constituency Appropriate Building and this to an upgrading project. Even though the so- The Committee on Economic, Social and Cultural Technologies (ABTs) centres have been called upgrade did not take place, the government established and operationalized; Rights in General comment No. 14 has elaborated Unsafe abortions in Kenya are estimated to cause never provided alternative measures to resettle the right to health as encapsulated in article 12 35-50%234 of all maternal deaths; these rates are • The Kenya Informal Settlements Improvement these people or any form of compensation. of ICESCR to include the right to maternal, child, extremely high when compared with the global Project (KISIP) has commenced; reproductive health and has asked states to estimates of abortion-related maternal deaths Similarly, in July of 2011, the Nairobi City Council • Construction of markets in Nyeri and Kisumu 235 improve maternal and reproductive health services which stand at 13%. The lack of abortion services and installation of high mast floodlighting bulldozers destroyed more than 100 homes and including access to family planning, pre and post in Kenya, coupled with a strict legal regime, has structures has been completed. 470 market stalls in Kabete.242 In the process, a 74 natal care, and emergency obstetric care228. driven those seeking to procure abortion to resort year old man was shot dead at close range. The to crude and unsafe methods, which in several year also witnessed plans to evict thousands of The African Charter on Human and Peoples Right cases has led to death236 and in other cases The housing sector has over the years been people from the Mau Forest complex. Although guarantees the right to health, in interpreting permanent damage to the uterus.237 struggling to accommodate the housing demands this was done in a properly planned government Article 16 of the Charter229 held inter alia that the of a rising population, especially in the urban areas. procedure, a number of evictees from the Mau right to health is crucial to the realisation of other 2.2.5 Right to Housing Rapid urbanization (at about 4.2% in the last Forest remained in makeshift settlements.243 fundamental rights and freedoms and includes census report )and ethnic violence displacements the right of all to health facilities, as well as access (especially the 2008 post elections violence that The rise in informal settlement coupled by The right to housing is anchored as a socio- to goods and services, without discrimination of left over 600,000 people displaced and over the government’s inability to build additional economic right under Article 43(1) (b) of the Kenya National Commission on Human Rights any kind230. According to G. Sedgh et al231, Women 70,000 houses destroyed) have made the situation households has continuously exposed people Constitution. The Constitution foresees that every worse. It is estimated that out of a total of 150,000 to perennial danger. For example, in September 227 (1938)3 ALL ER 615 Kenyan should be able to acquire affordable housing units required in urban areas every year, 2012, more than 100 people died after a petrol 228 ESCR Committee General Comment No. 14 housing which must also be available. Vision 2030 only an estimated 35,000 units are produced.238 The pipeline exploded in Sinai informal settlement. 229 See Article 16 of the African Charter on Human and recognizes the right to housing as one of the Peoples Rights Available on http://www.humanrights. shortage of housing for low income households, The fire spread quickly as a result of the housing fundamental rights under the social pillar. Progress se/wp-content/uploads/2012/01/African-Charter- especially in the urban areas, is acute with an congestion in the area coupled with poor building on-Human-and-Peoples-Rights.pdf which provides that every individual shall have the right to enjoy the 232 RJ Cook, BM Dickens and M Fathalla Reproductive estimated 20%, or 6000 units, being produced to materials and lack of access to road for emergency best attainable state of physical and mental health. Health and Human Rights: Integrating Medicine, cater for low income residents.239 States parties to the present Charter shall take the Ethics and Law Oxford University Press(2003)345 240 The State of the Worlds Human Rights Report 2011 (2010) 195. necessary measures to protect the health of their 233 See( note 7 above) people and to ensure that they receive medical The price of housing in Kenya has also shot up, 241 As above. attention when they are sick 234 IPAS A National Assessment of the Magnitude and Consequences of Unsafe Abortion in Kenya negatively impacting the right to housing as very 242 Amnesty International (n 203 above) 196. 230 See the decision in Purohit and Moore v. The (2004). https://www.guttmacher.org/pubs/IB_ few people can afford houses at the current market 243 These evictees were part of the group that was Gambia. Communication No. 241/2001, Sixteenth UnsafeAbortionKenya.pdf (accessed 8 June 2015). evicted in 2009 from the Mau Forest following a on Human Rights Commission National Kenya Activity report 2002-2003, Annex VII. Available on 238 Government of Kenya First Annual Progress Report 235 As above. directive from the government. The government had http://www.escr-net.org/docs/i/401249 on the Implementation of the First Medium Term Plan in fact set up a task force under the Office of Prime 64 231 G. Sedgh et al ’índuced Abortion. Incidence and 236 About 2600 women die each year in Kenya due to (2008-2012) of Kenya Vision 2030. The report was Minister on the conservation of the Mau Forests 65 Trends Worldwide from 1995 to 2008(2012)379 unsafe abortion. See n 197 above. released in 2010. Complex. The report was adopted by Parliament and Lancet 625 237 KNCHR (n 195 above). 239 Government of Kenya (n 201 above) 128. it called for removal of all inhabitants of the complex. services.244 To date, there is an ongoing case on building in Kisii collapsed. There were no casualties community, did not enjoy their rights to freedom of highlighted the dangers of uncontrolled land the compensation of the victims of the horrific in the incident but residents blamed the developer information as pertains the project plans, therefore subdivision, in efforts to promote commercial fire.245 The same year witnessed mass demolition for hurried construction. In June 2012, at least there was lack or minimal public participation investment on farm land. It stated that there is of houses and forced evictions in at least five areas four people were killed after a building collapsed and inadequate compensation to deserving an absence of uniformity and coordination in the mostly in the informal settlement areas. As a result, in Mlolongo area. In 2013, a 5-storey building in dispossessed proprietors. development of the real estate sector, resulting in thousands have been rendered homeless. Kisumu collapsed killing 7 people and causing a rise in costs of services and facilities in residential serious injuries to over 10 others. In 2013, the Maasai community in Narasha, Olkaria areas. Similarly, the Kenya Airports Authority conducted region of their ancestral land were dispossessed forced evictions in the Kyang’ombe settlement 2.2.6 Land in 2013.250 In 2012, residents of Kibera slum were The research also concluded that the lack of area along International Airport. also unsatisfied with the compensation activities coordination has also led to poor domestic waste This was done despite a court order prohibiting the of the Kenya Railways Corporation. This followed disposal due to poor sewerage systems and an The Constitution dedicates an entire chapter evictions pending the outcome of a case;246 even the unveiling of a project by the latter of the inadequacy of piped water. Disposal of solid wastes to land policy and governance. This intentional after the High Court had ruled in three separate construction of a railway line along the railway in the research area as an illustration is carried emphasis is premised on the role that land issues cases that year that the right to housing includes a reserve in the slum area. The encroachment on out in open air sites with little or no provision for have played in several injustices dating back to legal prohibition against forced evictions.247 Also in the reserve and ultimate claims for compensation protection of the surrounding soil and water from the colonial period. The Kenyan public has a large 2013, the government forcefully evicted scores of by residents, following the commencement of the contamination. Pollution of surface water from sense of injustice emanating particularly in take- people in Mukuru Kwa Njenga slums in which three project, resulted in a court case. In this case, the surface run off carrying sewage matter, garbage, over of individual and community land; benefit people lost their lives. In August of the same year, court permitted the project to progress albeit with sediment from homes, construction sites and from settlement schemes; forceful eviction and over 70 families were forcibly evicted from the adequate and prompt compensation to deserving waste matter are emptied in river channels. land grabbing – all these aggravated by corruption Kiamaiko informal settlement despite existence of individuals.251 and malpractice that have also played significant court case challenging ownership of the land. Moreover, another effect of land conversion is the roles in land woes. To put the land problem into To date, the government has not published national Evictions not only threaten the right to own and obvious depletion of vegetation cover resulting in perspective, 50% of arable land in Kenya is owned guidelines on forceful evictions that it pledged in acquire property but also threaten several other deforestation. This is occasioned by the top soils by only 20% of the population while 13% of Kenyans 2006. human rights such as: right to security252, socio- eroding and contributing to siltation and ultimate are landless and 67% own less than an acre per economic rights253 and human dignity254 among blockage of drains. This in turn contributes to person.248 It emerged, in the review period, that most others. flooding, particularly during the long and short contractors were subverting the law and rainy seasons. The doctrine of sanctity of title is well provided for constructing substandard buildings in order to The Land Act No. 6 of 2012 provides for compulsory within the Kenyan legislative framework. The right meet housing demand. Consequently, some of acquisition of land by government and further, for This is in spite of the Constitutional provision under to acquire or own property is provided by Article the substandard constructions often collapsed prompt compensation to all affected persons. The Article 60 that provides for the sustainable and 40 of the Constitution. Article 60 outlines equitable and killed innocent Kenyans. The standards for Land Registration Act No. 3 of 2012 limits the proof productive management of resources, conservation access to land, security of land rights, transparent construction are never always met, leading to of title to the Certificate of Title. In John Gitonga and protection of ecologically sensitive areas as and cost effective administration of land and Kenyans falling victims to accidents caused by Gachuhi and 4 others vs. Commissioner of Lands principles of land policy.256 encouragement to settle land disputes through poorly constructed buildings. In June 2011, a and 5 others (2013) Eklr, the courts also reiterated local community initiatives, as the principles in the building in Embakasi collapsed killing 2 people the right to compensation in the case relating to Environmental rights are human rights on the use and management of land. Article 67 further while in September of the same year, a building compulsory acquisition for construction of the basis of Article 42 of the Constitution. Both this provides for the whose Kenya National Commission on Human Rights in Mathare collapsed. In May of 2012 a one-story Nairobi Southern by-pass. Article and the Environmental Management and key role is the management and administration of Coordination Act 1998 provide for the right to 244 Amnesty International (n 203 above) 203. public land in Kenya. Another study255 conducted in Karuri Town Council a clean and healthy environment. The Act also 245 Gidion Mbuvi Kioko alias Sonko vs. Attorney General establishes an authority257 whose core function is & another petition No. 223 of 2011. This case is Land rights have and continue to face potential 250 IWGIA, Up in smoke? Maasai rights in the Olkaria consolidated with petition No. 207 of 2012. In the Geothermal area, Kenya, November 2013 to establish and review land use guidelines, identify violation in the implementation of Kenya’s Vision cases the victims are seeking close to 25 billion 251 Kepha Omondi Onjuro & others v Attorney General & projects and programmes on which environmental shillings as compensation from the government. 2030. A report249 prepared by Kituo Cha Sheria 5 others [2015] eKLR audit/monitoring must be conducted. 246 June Seventeenth Enterprises Ltd vs. Kenya Airports outlines challenges in the implementation of the 252 As evictions tend to be violent in nature, with Authority & 5 others, Petition No. 356 of 2013 LAPSSET project. The report states that residents destruction to property and injury to human beings available at www.kenyalawreports.org. In this case, and animals. The aforementioned study also found that land the petitioner is suing on behalf of 223 people who of , particularly the Aweer (Boni) were evicted from the area; Amnesty International 253 They result in the inadequate or lack of access to use had negative impacts on the availability of food, health care, clean and safe water, adequate The State of the Worlds Human Rights Report 2011 248 S Gatimu ‘The Role of Land Issues in Kenya’s Rising water, where boreholes have been resorted to as (above) 203 Cases of Insecurity – Lamu Violence’ ISS Africa - sanitation and education, particularly during the periods of displacement. 247 Susan Waithera & 4 others Vs. the Town Clerk, News and Analysis 20 August 2014 http://www. on Human Rights Commission National Kenya Nairobi City Council and 2 others, 2011, eKLR; Satrose issafrica.org/iss-today/the-role-of-land-issues-in- 254 Displaced persons are often subjected to deplorable 256 Others include: elimination of gender discrimination Ayuma & 11 others vs. Registered Trustees of the kenyas-risinginsecurity (accessed 8 June 2015). living conditions. in legislation, custom and practices, as principles of 66 Kenya Railways Staff Retirements Benefits Scheme & 249 Kituo Cha Sheria, Baseline Survey on Human Rights 255 Aggrey Daniel Maina Thuo Ph.D, Impacts of land policy. 67 3 others, Petition No. 65 of 2010. All these cases are violations along the LAPSSET Corridor: A case study Urbanization on Land Use Planning, Livelihood and 257 National Environmental Management Authority available at www.kenyalawreport.org of Lamu Environment in the Nairobi Rural-Urban Fringe, Kenya (NEMA) the predominant domestic water source due to historical land injustices. These recommendations its functions at the referendum that preceded the to honour a salary increment agreement of 46% and scarcity of surface water. In addition, food security have yet to be implemented. coming into force of the Constitution. 23% housing allowance reached in April 2013. The has similarly been negatively impacted upon due It is feared that this situation will continue if the 2.2.7 Right to Fair Labour strike was ended with the government promising to the conversion of agricultural land to residential government fails to address land injustices, conduct to pay all the allowances. 11,000 employees of the land. Moreover, there is further restriction on investigations and remedy land-related violence Practices Nairobi County Government planned a strike to agricultural activities due to the uncoordinated and protect local communities from investors and demand implementation of collective bargaining land use that leaves few scattered parcels and Kenyan elite, especially in areas where natural The Kenya National Bureau of Statistics (KNBS) agreement signed in 2012. The strike was however general decline in the productivity of farm land. resources have been discovered. recorded an inflation rate of 4.1% in 2010, 14% in suspended by the Industrial Court in September Disgruntlement resulting from land issues have 2011, 9.4% in 2012 and 5.7% in 2013. The number 2013. also often occasioned violence and disruptions in The implementation of the recommendations of of people engaged in both formal and informal Kenya. A 2012 study by the National Crime Research the TJRC have further been delayed by wrangles employment sectors in 2012 was 12.8 million, and Another issue that affected the labour sector Centre identifies land as a major contributory between the National Land Commission and the rose to 13.5% in 2013. The gross domestic product was the minimum wage. On May 1 2013, President factor to induction of youth to organized criminal Ministry of land. A survey258 conducted between in 2012 was 4.6% and increased to 4.7% in 2013. The Kenyatta announced that the national minimum gangs like the outlawed Sabaot Land Defence April and May 2014259 illustrates that 93% of the domestic economy was recorded at 5.8% in 2010, wage would increase by 14%. The announcement Force, and Mombasa Republican Council. sample group of 809 respondents sourced from dropped to 4.4% in 2011, rose to 4.6% in 2012, and was met by criticism from the Federation of Kenya 27 counties had not interacted with the National rose again to 4.7% in 2013.262However, even with the Employers which lamented that the wages were The Truth Justice and Reconciliation Commission Land Commission. Only 32% of the respondents growth in the economy, the World Bank reported becoming too high in relation to the costs of doing (TJRC) presented its report to the president in were aware of the mandate of the Commission. that each year 800,000 persons entered the job business. On the contrary however, the cost of 2013. The report highlighted the illegal acquisition Moreover, centralization of the commission does market competing for 50,000 jobs.263 living still outpaced the increased wages during of foreign funded settlement schemes aimed at not promote awareness and access to its services. the review period. The law puts the minimum wage benefitting persons displaced in the colonial era The Constitution accords workers with the right to for a general labourer at 9,780 shillings ($113) per and other land such as Karura and Ngong forests. The differences between the two agencies fair remuneration, reasonable working conditions, month; 11,085 ($128) to 15,064 shillings ($174) per Illegal takeover of individual and community land took various forms within the period, including: right to go on strike, among others. Despite these month for machine operators; and an average of by public and private institutions, illegal hiving of issuance and renewal of land leases; management provisions, labour relations have been a topical issue 13,674 shillings ($158) per month for urban skilled public and trust lands, preference to members of private land; appointment of Registrar of Title in the period under review. The Ministry of Labour workers. The lowest agricultural minimum wage of certain communities for resettlement, forceful Deeds; ownership and use of assets; and claims reported that there were 17 strikes in the private for unskilled employees was increased to 4,854 resettlement outside community homeland, of differential budgetary allocation.260 These sector, in which 4,694 workers were involved and shillings ($56) per month, excluding housing forceful eviction and land grabbing by government challenges hinder Kenyans from benefitting 51,588 work hours lost in 2012. Most prominent of allowance. Due to the insufficiency of the minimum officials. The report stated that injustices had a from the intended functions of the commission, industrial action issues has been the remuneration wage, focus should be directed towards provision greater prominence in the Coastal region resulting particularly, the conclusion of a national land policy, (of workers under the Central Organization of of a living wage in its stead. in its under-development and the prolonged lack formulation and implementation of a programme Trade Unions, teachers, lecturers, medical service of address of landlessness in the country has been for the registration of titles, research on land and providers, domestic workers, among others) and The review period also saw a sharp increase in a major cause of violence. the use of natural resources, investigations on poor working conditions. reporting of cases of abuse of migrant workers, land injustices and assessment of tax on land and particularly those in the Gulf countries. This The commission proceeded to recommend that premiums on immovable property, and land use In June 2013, the Kenya National Union of Teachers resulted in a temporary ban of recruitment of survey, demarcation and registration of public planning.261Hindering the access of these services (KNUT)264 and the Kenya Union of Post-Primary workers to the region to allow for auditing of

Kenya National Commission on Human Rights land, and design be carried out by the ministry to the Kenyan people is a violation of the will of the Education Teachers (KUPPET)265 went on strike employment agencies. The agencies had been responsible for land or other appropriate ministry, people in the establishment of the commission and following failed negotiations on payment of accused of negligence in the protection of migrant adjudication and registration of land at the allowances claimed to have been agreed in 1997. workers. The plight of migrant workers illustrates 258 Land Development and Governance Institute Coast and the rest of the country, investigation Land Reforms Implementation: An Analysis of This led to closure of schools, firing of some violation of several fundamental rights, particularly of all alleged illegally or irregularly acquired Citizens Perception of the Relations between the teachers and threats of no pay for time spent on those prohibiting torture and cruel, inhuman and National Land Commission and Ministry of Lands 14th land, development and maintenance of a Scorecard Report (2014) http://www.ldgi.org/index. strike. The strike later ended with an agreement on degrading treatment, slavery and servitude, the computerized inventory of all land, formulation and php/media-centre/reports-and-publications/48-ldgi- pay of commuter allowance and hire of 10,000 new right to respect and protection of human dignity, 14th-scorecard-citizens-perception-of-the-relations- implementation of strict guidelines on maximum between-the-nlc-and-the-mol/file (accessed 8 June teachers. and fair working conditions. In extreme cases, acreage of private land, to be undertaken by the 2015). mistreatment of migrant workers is a violation of National Land Commission. Both the ministry and 259 This period is indicative of the perceptions of In July 2013 nurses at the Kenyatta National Hospital the right to life.266 citizens within the review period. the commission were tasked to jointly design and went on strike accusing their management of failing 260 K Musa ‘The National Land Commission Now implement measures to revoke illegally obtained An explanation for the influx of migrant workers Takes Supremacy Row to Court’ Standard Digital 262 KNBS Economic Survey (2014). on Human Rights Commission National Kenya titles and restore public easements. Moreover, News 4 April 2014 http://www.standardmedia.co.ke/ article/2000108568/national-land-commission-now- 263 World Bank Kenya Economic Update: Kenya at Work an implementation mechanism together with (2012). 266 Human Rights Watch On the Margins of Profit: 68 takes-supremacy-row-to-court (accessed 8 June Rights at Risk in the Global Economy 20 3 (2008) 69 the commission were to provide reparations for 2015). 264 with approximately 200,000 members http://www.hrw.org/reports/2008/bhr0208/ 261 Article 67 265 With approximately 50,000 members bhr0208web.pdf (accessed 8 June 2015). into countries in the Gulf is the superficially They are denied freedom of association, and Covenant rights273. Social Security refers to a formal attractive entrenchment of the Bedouin principle in some cases subjected to sexual harassment system or arrangement concerned with protection of kafala in employment contracts of prospective by employers.271 Below are some documented against socially recognized conditions. The most Elements of the right to social security migrant workers. The principle is a code of accounts of infringement of the right to fair labour comprehensive attempt to conceptualize social hospitality that calls for families to treat travelling practices during the period under review. security is the International Labour Organization The key principles underlying the right to social strangers as one of their own. Reality however (ILO) Convention No. 102, that is, ILO Social security include: comprehensiveness, universality, points to abuse of the principle by employers in Security (Minimum Standards) that provides for adequacy and appropriateness, respect for ways such as withholding of wages, confiscation of 2011 - Carol Wangui forced her deportation the right to social security to include among others equality and Respect for Procedural Rights276. passports and subjecting workers to long working back to Kenya after three weeks of torture. the right to security regarding old age, health care, The Special Rapporteur has set out an elaborate She was nursing serious back injuries and had 267 274 hours in sub-standard or unsafe conditions. stitches following abuse by her employer. She and the determinants of health , sickness benefits, frame work for social protection, identifying best Other violations have included physical abuse, complained of working under very harsh condi- unemployment benefits, employment-relatedpractices. Her approach involves the application of sexual violence, and cruelty. Moreover, migrant tions and general mistreatment. Her employer injury benefits (workers’ compensation), family the central human rights principles of the human workers execute their duties in an environment never paid her. and child support, disability benefits (general), rights framework – equality and non-discrimination

268 devoid of labour laws for migrants. 2011 - Makuu Morocha’s family lost touch with survivors and orphans, and maternity benefits, (including accessibility, adaptability, acceptability, her after she left Kenya. The agent who helped including: prenatal, child birth and post-natal care adequacy and the incorporation of the gender Unreasonable working conditions have also been her secure employment claimed not to know of and hospital care. perspective), participation, transparency and an epidemic domestically. Workers in the flower her contacts and whereabouts. accountability to the design, implementation, industry have been subjected to exploitation due 2011 - Bahati Ramadhan Bahati had not re- A number of international conventions, especially monitoring and evaluation of social protection to poverty and vulnerability. Common forms of ceived a salary for the previous one and a half conceived in the aftermath of World War II do systems.277 exploitation include low wages, lack of protection years and was neither allowed to return home. provide important standards and benchmarks for from repetitive strain injuries and toxic pesticides, She reported being subjected to severe physi- the interrogation of the state of social security. The Availability: State should ensure that the right to cal abuse. rigorous schedules especially in peak seasons, right to social security is contained in article 9 of social security is available and in place to ensure sexual harassment of female workers in most 2011 - Amina Jundo complained that she was the International Covenant on Economic, Social that benefits are provided for the relevant social instances, and inadequacy of benefits such as unwell and was not receiving any medical treat- and Cultural Rights (ICESCR). article 5(e)(iv) of risks and contingencies. The schemes should ment or salary for the previous six months. maternity cover and childcare allowances.269 A study the Convention on the Elimination of All Forms of also be sustainable, including those concerning conducted on flower farms in Timau, Imenti North 2011 - Binti Saidi ceased communicating upon Racial Discrimination (CERD), articles 11(1)(e) and provision of pensions, in order to ensure that in 2011 illustrated that 95.2% of workers did not use arrival in Saudi Arabia. Efforts to have her 14(2)(c) of the Convention on the Elimination of All the right can be realized for present and future protective equipment as they were unavailable. agent intervene proved futile. Forms of Discrimination Against Women , article generations. Pre-placement medical examination had only 26 of the Convention on the Rights of the Child 2011 - Ushi Hussein complained of being very been carried out on 21.5% of workers. Respiratory sick and extremely overworked since October (CRC) and article 28 of the Convention on the Social risks and contingencies: The social tract problems affected 42.5%, gastrointestinal 2010. Her pleas to be deported failed and she Rights of people with disability (CRPD). security system should provide for the coverage problems affected 16.7%, malaria affected 14.8%, was being held incommunicado in Tabouk, of the following nine principal branches of Jeddah, since June 2011. pneumonia affected 8.9%, skin problems affected The UN Committee has stated that implementing social security278. Health care, Sickness, Old age, 6.5%, and eye problems affected 2.4% while 6.5% the right to social security requires that a system Unemployment, Employment injury, Family and Source272 of workers had suffered injuries and accidents.270 be established under domestic law, and that child support, Maternity, Disability and Survivors public authorities must take responsibility for and orphans.

Kenya National Commission on Human Rights Despite the enactment of the Employment Act 2.2.8 Right to Social the effective administration of the system. This 2007 and stipulation of labour rights under the Security requires that a country must, within its maximum Adequacy: Benefits, whether in cash or in kind, Constitution, domestic workers are another of available resources, ensure access to a social must be adequate in amount and duration in order least protected worker groups. Most still lack security scheme that provides a minimum essential that everyone may realize his or her rights to family The right to social security is of central importance employment contracts and earn low salaries. level of benefits to all individuals and families protection and assistance, an adequate standard in guaranteeing human dignity for all persons that will enable them to acquire at least essential of living and adequate access to health care. The 267 Brian Ngugi ‘Kenyan Government Moves to when they are faced with circumstances that Combat Migrant Worker Abuse in the Gulf’ Equal health care, basic shelter and housing, water and adequacy criteria should be monitored regularly Times 13 October 2014 http://www.equaltimes.org/ deprive them of their capacity to fully realize their kenyan-government-moves-to-combat?lang=en#. sanitation, foodstuffs, and the most basic forms of to ensure that beneficiaries are able to afford the VS01VuPohhV (accessed 8 June 2015). education as a matter of priority.275 271 S Grumiau ‘Spotlight Interview with Albert Njeru 276 Sandra Liebenberg, ‘Social Security as a Human 268 As above. (KUDHEIHA – Kenya)’ International Trade Union Right,’ Training Module 11, in Section 5 of Circle 269 Ethical Trading Initiative The Flower Industry (2011) Confederation 29 January 2010 http://www.ituc- of Rights, A Training Resource available at www1. http://www.ethicaltrade.org/in-action/issues/the- csi.org/spotlight-interview-with-albert?lang=en 273 General Comment No. 19: The right to social umn.edu/humanrts/edumat/IHRIP/circle/modules/ security (art. 9) module11b.htm. flower-industry (accessed 8 June 2015). (accessed 8 June 2015). on Human Rights Commission National Kenya 270 W Ayieko ‘Determinants of Common Health 272 http://www.standardmedia.co.ke/ 274 UN Independent Expert: “Social pensions are critical 277 Magdalena Sepúlveda and Carly Nyst 2012, The Problems among Flower Farm Workers in Timau, article/2000042568/tears-as-kenyans-suffer-in- to human rights” Human Rights Approach to Social Protection 70 Imenti North District’ (2011) , slavery-in-saudi-arabia?articleID=2000042568&sto 275 UN Committee on Economic, Social and Cultural 278 Articles 71 and 72 of ILO Convention 102 (1952) on 71 School of Public Health http://sphun.uonbi.ac.ke/ ry_title=tears-as-kenyans-suffer-in-slavery-in-saudi- Rights (CESCR), General Comment No. 19: The right Social Security (Minimum Standards) set out similar node/189 (accessed 8 June 2015). arabia&pageNo=3 to social security requirements. goods and services they require to realize their or financial policy282. The constitutional right to have been reserved for women as a way of Covenant rights. social security, in both the wide and narrow sense, increasing the number of women in decision- Coverage: All persons should be covered by the is closely interlinked with other social protection making positions. Gender equality issues have also Challenges to Gender Equality and Empowerment social security system, especially individuals rights. These include the right to the highest been prioritized in the Medium Term Plan I and belonging to the most disadvantaged and attainable standard of health, such as the right to Medium Term Plan II of the Kenya Vision 2030. The The Critical targets of attaining Gender equality in marginalized groups, without discrimination on healthcare services. It also includes the rights to government has also included gender targets in any country have been summarized and articulated any of the grounds prohibited under article 28 of equality and freedom from discrimination, human the performance contracts to mainstream gender by many Scholars as follows: the Constitution of Kenya279. dignity, freedom of movement and residence, concerns within the public sector. Freedom from Violence for women and girls. The reasonable working conditions, fair administrative levels of violence against women has reached Eligibility: Qualifying conditions for benefits must actions, access to justice, and the resolution of The Kenyan Constitution 2010, MDG’s and Building alarming promotion with one in three women be reasonable, proportionate and transparent. The disputes in a fair manner and through public up of Beijing + efforts have also contributed to experiencing some physical or sexual violence withdrawal, reduction or suspension of benefits hearing before a court or independent and galvanizing resources for Gender Equality and worldwide. should be circumscribed, based on grounds impartial tribunal or body. Women’s Empowerment in Kenya. Even though that are reasonable, subject to due process, and It is clear that the Government and its partners women form a majority of the Kenya’s population Equality in capabilities provided for in national law.280 have implemented various interventions to ensure play an active role in the development of the that the poor are cushioned while those who society, Kenya remains a very patriarchal society, Access to opportunities and resources. This means Affordability: If a social security scheme requires are financially able contribute to medical and and the male dominance still prevails in many recognizing, reducing and redistributing the contributions, those contributions should be retirement schemes as well as social security aspects of life. This situation has been reinforced by burden of unpaid care work; ensuring equal access stipulated in advance. The direct and indirect schemes. However the social security sub-sector the social-cultural factors and the women continue to assets and resources such as education, land costs and charges associated with making faces several challenges that include low effective to be marginalized and discriminated. However, and finance; equal pay and working conditions; contributions must be affordable for all, and must coverage; limited range, scope, and adequacy Kenya has gone steps ahead in instituting new and guaranteeing sexual and reproductive health not compromise the realization of other Covenant of benefits; limited funding; mismanagement of laws and policies that are continually redressing and rights. rights. resources, and poor record keeping.283 the situation. The MDGs for instance are a blue print agreed to by all the world’s countries and all Equality in agency, voice, participation and full Participation and information: Beneficiaries of the world’s leading development institutions. The leadership across the full range of decision making social security schemes must be able to participate Scandals at NHIF have seen its former CEO goals establish measurable and universally agreed arenas in public and private institutions in the administration of the social security and four other executives charged in court objectives for eradicating extreme poverty, hunger Safety and security of women and girls from all with fraud. Investigations indicated that 121 system281. The system should be established and expanding educational opportunities to all forms of violence, human rights, including sexual million shillings was allocated to non-existent under national law and ensure the right of clinics of Meridian Medical Centre and Clinix children. and reproductive rights, education, land rights, individuals and organizations to seek, receive Health Care. equal pay, recognition of unpaid care and all the and impart information on all social security The goals aim at preventing deadly diseases rights and opportunities to which she is entitled. entitlements in a clear and transparent manner as well as reducing child mortality. They also Despite initiatives put in place to accelerate Gender and institutional framework regulating pension promote Gender Equality, ensuring Environmental Equality, women in Kenya are still faced with a wide schemes must guarantee accessible mechanisms sustainability and developing a global partnership gap between the genders which emanates from a for accountability. 2.3 GROUP RIGHTS for development among other development strong paternal system as well as traditions and imperatives. Inclusion within the MDG framework societal norms of the past. Kenya National Commission on Human Rights Social protection in Kenya is implemented in three 2.3.1 Rights of Women has been important in highlighting gender fold: social assistance, social security and health inequality. The year 2015, the world marks 20 years Harmful cultural practices such as Female Genital insurance. All those are regulated and provided for since the Beijing declaration on gender equality. Mutilation (FGM)/Cutting, early child marriages, Gender equality and empowerment of women has under a plethora of laws- the Retirement Benefits After the 20 years of intense lobbying for women child trafficking are rampant in some counties. been in Kenya’s policy-making mainstream for a Act, 1997, the Retirement Benefits (Amendment) rights, there is a feeling of disenfranchisement As a result many girls miss or are forced to drop long time. This has led to numerous policy initiatives Act, 1998, the National Social Security Fund Act, with the slow pace of progress. Although MDG out school. , early marriages and forced marriages being implemented such as the establishment of a the National Health Insurance Fund Act and 3 recognizes the crucial role that economic continue to plague young girls Some parts of the Women Enterprise Funds (WEF) and 30% Pubic the Pensions Act. In interpreting social security and political participation, play in women’s Country have also for long been marginalized Procurement Preferences and Reservations for aspects, it should be borne in mind that social empowerment, agriculture and the proportion of by successive Kenyan governments in terms Women, Youth and Persons living with Disabilities security should be treated as a social good, and seats held by women, there are no firm targets and of development, hence the poor infrastructure (PWDs) among other interventions so as to ensure not primarily as a mere instrument of economic a scarcity of data in these areas suggest that these including roads, few schools, limited and ill socio-economic empowerment of women. Within 279 Constitution of Kenya 2010 aspects of women’s empowerment are not seen as equipped health facilities, insecurity, poverty(lack the public sector, one third of all appointments on Human Rights Commission National Kenya 280 General Comment No. 19: The right to social political priorities by governments and Countries of livelihood opportunities), environment security (art. 9) including Kenya. degradation, drought, lack of water supply, among 72 281 Articles 71 and 72 of ILO Convention 102 (1952) on 282 General Comment No. 19: The Right To Social 73 Social Security (Minimum Standards) set out similar Security (Art. 9) others. Despite the various progressive pieces requirements. 283 Kenya National Social Protection Policy of legislation enacted in the recent past, the and discriminations suffered in a male-dominated of it states that national values and principles Kenyan society is still predominantly patriarchal, society. The weak structural framework has of governance include human dignity, equity, and women are consistently marginalized and further allowed the application of harmful cultural social justice, inclusiveness, equality, human f. Public service discriminated at family, community and societal practices such as female genital mutilation/cutting rights, non-discrimination and protection of the level. The Constitution of Kenya’s Bill of Rights (FGM/C), early marriages, widow cleansing, forced marginalized. These values are echoed in Article 27 The values and principles of public service under guarantees every person, regardless of gender, evictions, widow inheritance and discriminatory of the Constitution which is central to safeguarding Article 232 (1) (i) (i) of the Constitution include the equal rights and freedoms. In spite of this, the property inheritance practices which prevent women’s rights as it provides for equality and provision of adequate and equal opportunities for Kenyan society is still grappling with entitlement women from inheriting property, in turn increasing freedom from discrimination. However, the aims appointment, training and advancement of women of women to enjoy certain rights. The Constitution their vulnerability to abuse. of this Article have not sufficiently come to at all levels of the service. further introduced reforms in other areas that fruition in letter and spirit. The continued delay predominantly affected women’s lives including a. Protection from Harmful cultural practices in implementation of the principle285 that no more g. Recognition of international human rights electoral reforms and an expanded Bill of Rights than two-thirds of the members of elective or instruments and law in the constitution of that provides for economic and socio-cultural Article 2(4) states that any law, including customary appointive bodies should be of the same gender Kenya rights of individuals and also affirms the rights of law, which is inconsistent to the Constitution, is is a case in point. vulnerable groups, including women and children. void to the extent of the inconsistency and any act There is recognition of international human rights According to the 2009 census, women constitute or omission in contravention of the Constitution e. Recognition of the rights of special or instruments and law in the Constitution of Kenya. 51.4% of the population. is invalid. This provision protects women from vulnerable groups Under Article 2(5) of the Constitution, the general harmful cultural practices such as FGM/C, early rules of international law form part of the laws 2.3.1.1 The Constitution of marriages, widow cleansing, forced evictions, Constitutional provisions under this part elaborate of Kenya. Article 2(6) further provides that any widow inheritance and dispossession of land. certain rights to ensure that groups which are treaty or convention ratified by Kenya forms part Kenya vulnerable or are faced with unique circumstances of the law of Kenya. The recognition of ratified b. Citizenship are able to access their rights and fundamental international laws as part of Kenyan law allows The following is a review of the Articles of the freedoms. Women stand to gain from the women to demand for their rights as provided in Constitution that safeguard the rights of women Article 14(1) of the Constitution ensures that provisions. such treaties and conventions. with a view to reducing their vulnerability to human Kenyan women will be able to pass on citizenship rights violations. to their children, whether or not they are married Article 260 confirms that women fall under this The Protocol to the African Charter on Human and to Kenyans. category as they have suffered historical injustices Peoples’ Rights on the Rights of Women in Africa The Constitution of Kenya was promulgated on the through laws or practices that are discriminatory (the Maputo Protocol) is one such treaty. In similar 27th of August 2010, after two decades of struggle c. Identification of women as a vulnerable on the basis of sex, marital status, pregnancy and vein is the Convention on the Elimination of All for constitutional reform. The Constitution is group culture, among others. As a marginalized group, Forms of Discrimination against Women (CEDAW) deemed to be a progressive document that will cure under Article 56, women will benefit from the which obligates the government to refrain from the many historical injustices coming after decades The Constitution in Article 21(3) recognizes that State’s obligation to put in place affirmative action acts of discrimination against women and work of poor governance. It has introduced reforms in women may fall into the category of vulnerable programs that will encourage female participation proactively to modify social and cultural conduct different areas that affect Kenyans’ lives, including groups within the society. It places a duty on all in governance; provide special opportunities in of men and women in order to eliminate prejudices reforms in key institutions such as the judiciary and State organs and public officers to address the educational and economic fields; and ensure in customs and practices. The International the police. It has brought reforms to the land and needs of vulnerable groups within the society. access to employment, water, health services and Covenant on Economic Social and Cultural Rights

Kenya National Commission on Human Rights electoral frameworks, as well as expanded the Bill infrastructure. (ICESCR), under Article 3, provides that “States of Rights which provides for economic and socio- d. Equality and freedom from discrimination should ensure the equal right of women and cultural rights. Further, it introduces safeguards for Further, pursuant to Article 100, Parliament is men to the enjoyment of all economic, social and the rights of vulnerable groups such as women, The Constitution in Article 260 defines affirmative under obligation to enact legislation that promotes cultural rights.” children, older members of the society, persons action as any measure designed to overcome or the representation of women in Parliament and with disability and marginalized and minority ameliorate (improve) inequity (unfairness, injustice, elimination of gender discrimination through Despite the new constitutional dispensation above, groups.284 inequality or imbalance) or systemic denial or national laws, customs and practices related to women’s social and economic status continues infringement of a right or fundamental freedom. land. Under Article 60, the Constitution provides to be largely defined by customary rules that However, contrary to the presence of the Article 27 (6) tasks the State to take legislative that land in Kenya shall be held, used and managed are deeply rooted in practices of diverse Kenyan empowering law, women still suffer human rights and other measures, including affirmative action in a manner that is equitable, efficient, productive communities. Most of these communities have violations due to a weak structural framework programmes and policies designed to redress and sustainable, and in accordance with the relegated women to an inferior position. The that does not adequately address the inequity any disadvantage suffered by individuals or stated principles, including elimination of gender causes of women’s subordination and unequal Kenya National Commission on Human Rights Commission National Kenya groups because of past discrimination. Article discrimination in law, customs and practices relations are themselves attributable to history, 284 FIDA Advancing Women’s Rights in Kenya (2013) 6 10 of the Constitution deals with national values related to land and property in land. religions, culture, legal systems, political institutions 74 http://fidakenya.org/wp-content/uploads/2013/07/ 75 Women-Rights-Handbook.pdf (accessed 8 June and principles of governance; Sub-article (2) (b) and social attitudes which have legitimized male 2015). 285 Pursuant to Article 27(8) of the Constitution dominance over property and women. this Article’s provisions. death. deliberate transmission of HIV and other sexually 2.3.1.2 Discrimination of Women by Law transmitted diseases. The centrality of customary law in defining 2.3.1.3 Violence against b. Early Marriages f. Sexual harassment women’s rights, and especially land rights, has led to discriminatory practices against women in the Women Early marriages are often linked to FGM/C. Girls When a person in authority uses their position area of ownership, access and control of land and under the age of eighteen years are often forced to coerce another person to have sexual contact other property. Women’s access to land according The Declaration on the Elimination of Violence into early marriage after completing rites of against their will, that person in authority is guilty to African customs is dictated by male members against Women (1993)287 recognizes that passage to ‘adulthood.’ These marriages happen of sexual harassment. The offence attracts a of the family. This is exacerbated by the fact violence against women is a manifestation of the before the girls’ bodies are mature for reproduction jail term of 3 years or more or a fine of 100,000 that customary law is fluid, flexible and dynamic historically unequal power relations between men and are a violation of the Children’s Act (2001) shillings or both. – rendering itself to gross manipulation by those and women which have led to domination over which criminalizes subjection of a person under in dominant positions such as men. The inherent and discrimination against women by men. This the age of eighteen to marriage.288 g. Trafficking in persons superiority of men is further strengthened by has hindered the full advancement of women. legislation discriminating women. An example is Violence against women is one of the crucial social c. Wife Inheritance and Cleansing Trafficking in persons refers to the recruitment, Section 32 of the Law of Succession Act. mechanisms by which women are forced into transportation, transfer, harbouring or receipt of subordinate positions compared with men. Wife inheritance and cleansing rituals have resulted persons by means of threat or use of force or other The Law of Succession Act (1981) is the piece of in several human rights violations against women. forms of coercion, abduction, fraud, deception, legislation that governs the division of property Violence against women has negative impacts on Women who undergo the practice are subjected abuse of power or of a position of vulnerability to after one’s death in Kenya. To a large extent, the women as it results in the violation of rights and to unprotected sexual acts which destroy their achieve the consent of a person having control over Act provides for the equal inheritance of property fundamental freedoms of women and is an obstacle physical integrity and dignity and expose them another person for the purpose of exploitation. between women and men and defines “child” to the achievement of equality, development and to infection of HIV and other sexually transmitted It may also involve the giving or receiving of without any discrimination on grounds of gender peace. Further, it subordinates women to men diseases as well as unwanted pregnancies. payments or benefits to achieve similar consent. in so far as property control and management in through perpetuation of harmful cultural practices Children born of wife inheritance unions also suffer Exploitation includes, at a minimum, the Kenya is concerned. However, Section 32 of the such as female genital mutilation/cutting, wife neglect by their biological fathers; as culturally, the prostitution of others or other forms of sexual Act excludes the application of its provisions to inheritance, early marriage, widow cleansing and inherited widow is supposed to take care of them exploitation, forced labour or services, slavery certain pastoralist districts within the country and domestic violence – all which rob women of their single-handedly. or practices similar to slavery, servitude or permits the application of customary laws to these psychological and physical health, and integrity. the removal of organs. Kenya is identified as a districts on matters of succession. The exclusion of d. Widow Eviction growing source, transit and destination country the law of succession to these areas, at least on Causes of violence against women can be cultural, for trafficking of women and girls.289 Women who paper, amounts to legitimization of discriminatory economic or legal. However, the underlying cause Widow eviction occurs when a widow is forcibly have been trafficked to Middle East countries as customary practices in the specified districts. In of all violence – physical, sexual and psychological removed from her matrimonial home. Widow domestic workers have often been abused or kept practice, the courts have held that the section violence occurring in the family including battering, eviction is an abuse of human rights as it in confinement, with their identification documents cannot be used to enforce cultural discrimination sexual exploitation, sexual abuse of children, deprives women of land ownership rights, the confiscated and in some instances murdered. against women on property rights when the dowry related violence, marital rape, female right to accessible and adequate housing, and to Constitution and binding international human genital mutilation/cutting and other traditional reasonable standards of living. 2.3.1.4 Changing the rights instruments forbid the discrimination.286 practices harmful to women, non-spousal violence Kenya National Commission on Human Rights and violence related to exploitation – is archaic e. Domestic Violence Status Quo As illustrated by the foregoing, the constitutional customs and the historically weaker economic framework creates room for strategic litigation; bargaining position of women which puts them at Domestic violence in Kenya takes the form of A state cannot be said to be democratic when more affording an opportunity to enhance jurisprudence a disadvantage. A synopsis of common types of physical assault, emotional abuse and threats of than half of its population is denied its fundamental on the rights of women in relation to land. With violence against women in Kenya follows. violence, sexual violence and distress. The abuse rights and freedoms. Under-recognition and Article 60(1) (f) of the Constitution which is largely carried out by husbands and parents. undervaluation of the contribution of women to requires that land be held, used and managed in a. Female Genital Mutilation/Cutting Physical, sexual and psychological violence nation building ought to cease; first, by dispelling accordance with the principle of eliminating gender occurring within the community include rape, traditional beliefs and myths as to gender roles discrimination in law, customs and practices, it is FGM/C is recognized internationally as a violation sexual abuse, sexual harassment and intimidation and the status of women in Kenyan society. To possible to develop extensive jurisprudence on of the human rights of girls and women as it at work and in educational institutions, trafficking tackle the underlying causes of discrimination, the rights of women in relation to land. So far violates a woman’s rights to health, security and in women and forced prostitution. There are the Government of Kenya must prioritize gender however, not much attention has developed from physical integrity, the right to be free from torture different forms of sexual violence that target equality and proactively demonstrate its will Kenya National Commission on Human Rights Commission National Kenya and cruel and inhumane or degrading treatment women including rape, attempted rape, sexual and commitment towards elevating the status 286 Re Estate of Lerionka Ole Ntutu (Deceased) [2008] and the right to life when the procedure results in assault, defilement, gang rape, indecent acts, sexual of women in the country. There is need for more 76 eKLR http://kenyalaw.org/Downloads_FreeCases/ 77 SUCCESION_CAUSE_No_1263%20OF%202000.pdf 287 http://www.un.org/documents/ga/res/48/a48r104. harassment, exploitation, forced prostitution and 289 http://www.state.gov/j/tip/rls/tiprpt/ (accessed 7 June 2015). htm (accessed 8 June 2015). 288 Section 14 countries/2013/215492.htm (accessed 8 June 2015). legislation and for community education that conditions; iii. Social assistance – Abused women are hosted emphasizes that women’s rights are human rights 4. The Act is gender neutral, thus men and in shelters, provided financial assistance and discriminating any one gender is a violation of b. Legislative framework on the Right to Health boys can be victims and females can be and provided opportunities for economic human rights in general. perpetrators; empowerment. Women are also provided Several laws have been enacted that prohibit 5. The Act establishes minimum sentences for psychosocial support; Highlighted below are specific implementation sexual and gender based violence and further some of the most serious sexual offences measures taken in the period under review to put in place mechanisms to protect women and iv. Civic engagement – Civil society organizations enforce the constitutional rights of women. punish offenders in line with Article 50(8) of the Following enactment of the Sexual Offences Act, have engaged with police, military, public Constitution which provides for protection of a task force to oversee implementation of the administration and county civil servants to a. Right to health witnesses or vulnerable persons; Article 50(9) Act was established by the Attorney General on enhance their capacity to assist sexual and which protects the rights and welfare of victims 16th March, 2007. The task force has achieved the gender based violence survivors; Article 43(1) of the Constitution safeguards the of offences; and Article 43(1) (a) which safeguards following milestones: economic and social rights of women and provides reproductive health rights of women. Relevant v. Constitutional and legislative reforms – Civil that every person has the right to the highest laws are highlighted below. 1. Development of Sexual Offences Regulations; society has engaged key stakeholders in the attainable standard of health which includes the The Sexual Offences Act (2006) 2. Development of a national policy framework development of legislation that enhances right to access health care services, including The Office of the President, through the then on the Act; survivors’ access to justice. Laws that have reproductive health care. Obtaining from this Ministry of Provincial Administration and Internal 3. Public awareness and outreach programs; been developed with contribution of civil premise, the country has put in place various Security, incorporated the Sexual Offences Act 4. Setting up of gender desks by the police society include the Sexual Offences Act, the legislative and policy measures relevant to health provisions in the induction curriculum offered to department across police stations in Kenya; Children Act, the Constitution of Kenya, and concerns of women in gender based violence and chiefs and assistant chiefs.290 As a result of this, 5. Incorporation of the Sexual Offences Act the Prohibition of Female Genital Mutilation HIV & AIDS. These include: chiefs and assistant chiefs have been trained on provisions in the induction curriculum of Act. Further, due to civil society pressure, the the offences and evidentiary requirements under chiefs and assistant chiefs; government has signed and ratified treaties 1. The Constitution of Kenya (2010) which is the Sexual Offences Act. The Department of 6. Revision of the prosecutor’s manual on sexual and optional protocols such as the Maputo based on the principles of equality, social Public Prosecutions has conducted specialized violence; Protocol whose provisions significantly justice and non-discrimination; training for state counsel and police prosecutors. 7. Development of a gender training manual in protect women. 2. The Sexual Offences Act (2006) which It has further revised the police training manual conjunction with FIDA Kenya; prohibits various forms of sexual offences in order to improve police education related to 8. Development of the National Guidelines for Prohibition of Female Genital Mutilation Act committed against men and women; implementation of the Sexual Offences Act. The the Management of Sexual Violence and of (2011) 3. The Counter-Trafficking in Persons Act (2011) Ministry of Medical Services has also developed post rape care form which prevents, suppresses and punishes the National Guidelines for the Management of The Female Genital Mutilation Act makes it trafficking in persons, especially women and Sexual Violence and post rape Care form. The To further support the objectives of the Sexual illegal to practice female circumcision; procure children; Ministry of Public Health and Sanitation, Division Offences Act, civil society organizations at the the services of a circumciser; or send somebody 4. The Prohibition of Female Genital Mutilation of Reproductive Health has built the capacity national level and grass roots level have stepped out of the country to undergo female genital Act (2011) which outlaws FGM to safeguard of 50 assault forensic examiners to give expert in to fill the gap of assisting victims of sexual and mutilation. Offenders under this Act will serve up against the violations of a person’s mental and testimony in court. Support to SGBV survivors and gender based violence to receive assistance and to 7 years in prison and be liable for payment of physical integrity through the practice; access to justice are being offered by the National access justice. The assistance provided includes: fines of up to 500,000 shillings. Further, a person

Kenya National Commission on Human Rights 5. The National Commission on Gender and Police Service. will be liable to a sentence of life imprisonment Equality Commission Act (2010) which is a i. Legal representation – Provision of legal for causing a death in the process of carrying out vehicle for enhancing gender equality; This Act introduced the following reforms in the services to survivors of sexual and gender FGM/C. In addition, providing premises for the 6. The government has also redrafted and prosecution of sexual and gender based crimes based violence. This involves providing legal purposes of carrying out FGM/C, possession of redefined through the Constitution, gender and protection of victims: advice to clients and filing of court cases on tools associated with FGM/C or failure to report responsive laws including the Protection 1. The Sexual Offences Act consolidated and behalf of survivors; an incident of FGM/C within one’s knowledge Against Domestic Violence Bill (2013), the revised provisions relating to sexual and are also punishable by law. The Act provides for Marriage Act (2014), and the Matrimonial gender based violence which were previously ii. Community awareness programs – These have the constitution of an implementation board to Property Act (2013); contained in various laws; been done through community trainings and coordinate implementation of activities of the Act. 7. With the support of development partners, 2. Sexual crimes are no longer categorized as media coverage. The main aim is to enhance the government has also established the crimes against morality, but as crimes of awareness of the nature, manifestation, The HIV & AIDS Prevention and Control Act Gender Based Violence Information System violence; dynamics and impact of sexual and gender

(2006) on Human Rights Commission National Kenya and Gender Based Violence Recovery Centres. 3. The Act created new crimes such as sexual based violence with the aim of influencing 78 assault, gang rape, child trafficking, intentional public opinion and perceptions; The objective of the Act is to provide measures 79 transmissions of HIV and other life threatening for the prevention, management and control of 290 FIDA (n 232 above) 25. HIV and AIDS. The Act creates public awareness of the same gender. Further, in relation to principles possible to apply it in practice. However, a policy NGEC have been at the forefront of vindicating on causes, modes of transmission, consequences of devolved government and representation in proposition is necessary on legislative and other women’s rights during the period under review. and means of prevention and control of HIV and county assemblies, the same two-thirds principle is measures that will complement those already e. Treaty Monitoring and Research AIDS. It protects the rights of the infected and echoed under Articles 175(c), 177(1) (b) and 197(1) in place to enhance representation of women in affected and outlaws discrimination in all its forms of the Constitution. decision making. In monitoring government compliance with against persons living with HIV and AIDS or those Already, Article 97(1) (b) provides that 47 elective international instruments affecting the rights of perceived to have HIV/AIDS. According to the 2009 census, women constitute seats in the National Assembly shall be reserved women, civil society organizations have undertaken 51.4% of the population and 47% of the registered for women; Article 98(1) (b) reserves 16 seats research and prepared shadow reports of findings Counter-Trafficking in Persons Act (2010) voters in Kenya. This numerical strength is however in the Senate for women members who shall be to provide information on the status of women’s not reflected in women representation in public life nominated by political parties. Article 98 further rights. Give details, country report to CEDAW. This Act prevents, suppresses and punishes generally, and Parliament, in particular. ensures that seats in the Senate are reserved for African commission have we engaged on women’s trafficking in persons, especially women and youth and persons with disability and that the rights. NGEC have been very active at the African children, and creates various offences aimed at From the first post-independence Parliament up to seats are equally filled by men and women. Article COMMISSION WE CAN GET INFO from them on eliminating sexual exploitation. the 10th Parliament which was elected in 2007, less 100 places responsibility on Parliament to promote this and generally on the status of women than 50 women had been elected to Parliament the representation of women in Parliament by a. Medical Support for Gender Based Violence compared to 1,806 men. These numbers have enacting legislation to safeguard that right. 2.3.2 Rights of the Child Victims increased marginally from zero to 9.8 % women representation in 2007. During the 2013 elections, c. Family The Children Act293 of 2001 defines a child as any During the review period, survivors of gender 16 women and 274 men were elected to the National person under the age of eighteen years; the Act based violence were provided with comprehensive Assembly.291 A further 47 women were elected as Article 45(3) protects women’s rights in a marriage however makes a distinction between a child and medical examination and treatment by key County Women Representatives who also sit in by providing that parties to a marriage are entitled a child of tender years and defines the latter as a institutions such as Gender Violence Recovery the National Assembly while 5 were nominated to equal rights at the time of the marriage, child under the age of ten years. Centers established by the Division of Public from special interest groups, making a total of 68 during the marriage and at the dissolution of the Health under the then Ministry of Public Health and women in the National Assembly. This represents marriage. Article 53(1) (e) ensures that parental Article 53 of the Constitution of Kenya specifically Sanitation within hospitals in Nairobi, Coast, Rift 19% of the membership of the National Assembly. responsibility is shared between parents, regardless acknowledges children as a special interest Valley and Nyanza regions. The services included No women were elected as governors or senators. of marital status. Further, under Article 68 (c) group that requires special protection. Kenya is provision of post exposure prophylaxis (PEP) and All the 18 women in the senate were nominated (iii) of the Constitution, Parliament is entrusted a signatory to various international and regional emergency contraceptives – Postinor, Euvax and pursuant to the provisions of the Constitution. The to enact legislation to regulate the recognition instruments for the protection and promotion of ARVs; laboratory tests (pregnancy, HIV/AIDS, high women senators make up 27% of the Senate. and protection of matrimonial property and in the rights of the child. With respect to international vaginal swab, hepatitis urinalysis, liver function, In the Executive arm of government, the Cabinet particular, the matrimonial home, during and on instruments, Kenya has ratified the Convention on STDs); reproductive health care including family is composed of 18 cabinet secretaries; 6 of whom termination of the marriage. The legislation has the Rights of the Child (CRC), and regionally, the planning option; clinical and forensic examinations; are women. This is the highest number of women already been enacted.292 country has ratified the African Covenant on the and treatment of physical injuries. There was also to sit in the Cabinet in Kenyan history. Kenya’s Rights and Welfare of the Child (ACRWC) under psychosocial support for survivors as well as performance with regard to women representation d. Establishment of the Kenya National the aegis of the African Union (AU) and pursuant training and capacity building of key stakeholders in Parliament is however still below par, even Commission on Human Rights and the to the African Charter. Both the Convention on to carry out interventions on behalf of victims of in comparison to neighbouring East African Gender and Equality Commission the Rights of the Child and the African Charter on Kenya National Commission on Human Rights sexual and gender-based violence. countries. Rwanda’s Parliament has 56% women the Rights and Welfare of the Child are applicable representation, the highest in the region. Article 59 of the Constitution established the to Kenya as part of the domestic law by virtue of b. Representation follows with 36% representation. Uganda has 35% Kenya National Human Rights and Equality Article 2(5) and (6) of the Constitution. On the and Burundi, 30%. Kenya, therefore, ranks last. Commissions whose core function is to promote Optional Protocols to the UNCRC, the state signed The Constitution enables women to actively In the 47 County Assemblies, women won 82 out of respect for human rights and develop a culture of the Optional Protocol on the Sale of Children, Child participate in the political space by increasing 1,450 seats in the 2013 elections. This represents 5% human rights in the Republic and, under Article Prostitution and Child Pornography in 2008 but women representation. Article 27(8) of the of the total number of seats. An additional number 59(2) (b), promote gender equality and equity and is yet to ratify it. Also not ratified but crucial for Constitution obliges the state to put in place of 680 women were nominated in order to meet to coordinate and facilitate gender mainstreaming enforcement of child rights is the third Optional legislative and other measures to implement the the two-thirds principle pursuant to the provisions in national development. Article 59(3) gives every Protocol on a communications procedure. principle that no more than two-thirds of members of Article 177 of the Constitution. This goes to show person the right to complain to the Commission, of elective or appointive bodies shall be of the that where the Constitution prescribes a formula alleging that a right or fundamental freedom in the The Children’s Act seeks to domesticate the same gender. This is further emphasized in Article for implementing the two-thirds formula, it is Bill of Rights has been denied, violated or infringed, provisions of the CRC and provides a framework on Human Rights Commission National Kenya 81(b), which provides that the electoral system shall or is being threatened. Both the KNCHR and the 291 H Owino ‘The Winning Formula for Two-thirds for protection of children in Kenya. Since comply with the principle that not more than two- Gender Rule is Beckoning’ Kenyan Woman 1 April 80 2015 http://awcfs.org/kw/article/the-winning-formula- 292 Matrimonial Property Act No. 49 of 2013 and the 293 http://www.kenyalaw.org:8181/exist/kenyalex/ 81 thirds of members of elective public office shall be for-two-thirds-gender-rule-is-beckoning/ (accessed land laws; Land Act (2012) and Land Registration Act actview.xql?actid=CAP.%20141 (accessed 7 June 8 June 2015). (2012) 2015). promulgation of the Constitution, there have been services for children in Malindi, Mombasa, Garrisa, Kenyan government’s priorities. of a child is either male or female, which in itself is attempts to amend the Act through the Child and Eldoret. In 2013, four additional centres were To access their rights, children are thus often discriminatory as it fails to cater for children born Amendment Bill. Before then, the amendment of built in Siaya, Kakamega, Nairobi, and Nakuru.301 required to obtain legal advice at their own cost. with both male and female genitalia. Petition no. the Children’s Act (2001) has been ongoing since The government also approved the National Plan This contravenes provisions of the Children’s Act306 266/13 at the Constitutional and Human Rights 2006 and has not yet been completed. There have of Action against Sexual Exploitation of Children which place the government under obligation to Division of the High Court challenged this position also been proposals to enact a Child Justice Bill in Kenya in the same year. However, the plan was “take steps with a view to progressively achieve when a baby (Baby A) who had been born at which seeks, among other things, to raise the age not accompanied with a corresponding budget.302 the full realization of the rights of the child.” In a Kenyatta National Hospital could not be registered of criminal responsibility of a child from 8 years to State where legal aid is not an operationalized right due to the restriction of definition of sex to the 12 years in line with international standards. 2.3.2.2 Access to Justice and where there is no public defender system, it male and female genders only. One of the orders The Children’s Act incorporates 4 general principles is incumbent upon relevant bodies to develop a that were issued in the petition was a directive to which underlie the child rights framework set out in comprehensive system that can facilitate access to the Registrar of Births and Deaths to register Baby Access to justice revolves around the ease with the CRC. The four principles are the best interest of legal advice for children. A as an intersex.312 which ordinary citizens are able to make use of the child;294non-discrimination and equal treatment; the laws, legal procedures and legal institutions to the right to life, survival295 and development; and Children come into conflict with the law and because resolve their problems in general and particularly 2.3.2.4 Child Trafficking respect for the views of the child.296 of their status cannot be treated like adults; these to secure their rights. Human rights would be futile children are entitled to the protection of their rights without an effective means of seeking redress for Despite the gazettement of the Counter Trafficking Despite the obtaining legal framework on the rights as outlined in human rights law.307 Remanding of their breach. Some of the essential components in Persons Act in 2012, the US State Department of the child, the actual situation on the ground in children, the right to legal representation,308 the of access to justice include: laws that are fair places Kenya on tier 2 watch list of countries with respect to the promotion, protection and fulfilment age of criminal responsibility309 and the lack of and accessible to the citizens in their form and numbers of child trafficking. Law enforcement of the rights of children in Kenya is wanting. legislative framework for diversion310 have been language; the availability of a variety of easily agencies are still not well-versed with the provisions identified as the key challenges to access to justice accessible and effective mechanisms for resolving of the law; thereby impeding enforcement. The by children. 2.3.2.1 Child Abuse disputes that are adequately resourced and media has brought attention to the issue of child organized; simple and affordable procedures for trafficking by highlighting some cases, though Cases of child abuse in the country are still rampant achieving justice; fairness in the results of dispute 2.3.2.3 Rights of Intersex there have been charges filed under Penal Code due to lack of effective implementation of the resolution processes; and knowledge on the part Children offences such as child stealing as opposed to existing legislation.297 Children in Kenya continue to of citizens to enable them easily use the law and trafficking in persons. face violations related to child abuse such as forced legal institutions.303 The intersex have finally been defined and early marriages, female genital mutilation and protected under the Persons Deprived of Liberty 2.3.3 Rights of Indigenous child labour. Notwithstanding the strict sanctions The Children’s Act304 guarantees the right to due Act311 of Kenya. Previously, Kenyan laws have been provided for under the Sexual Offences Act,298 process for children in conflict with the law. These Persons silent on intersex persons/children. Whereas the Prohibition of Female Genital Mutilation Act299 and include the child’s right to prompt and direct Registration of Births and Deaths Act prescribed the Penal Code, 300abuses against children have notification of the charges, the right to legal Article 260 of the Constitution does not particulars for registration to mean the name, continued unabated. During the review period, representation provided by the government (if define indigenous people; it however defines sex, date and nationality of the parents; the term the government established child protection the child is unable to obtain such representation), “marginalized community” to include, inter alia, “sex” had neither been defined in the Act nor in centres that provide counselling and reintegration the right to a prompt determination of the case, an indigenous community that has retained and the Interpretation and General Provisions Act the right to free assistance by a court interpreter maintained a traditional lifestyle and livelihood Kenya National Commission on Human Rights (Cap 2, Laws of Kenya). Form 1 of the Register 294 The Children’s Act provides that ‘’the best interest where necessary, and the right to appeal against a based on hunter or gatherer economy, or pastoral of the child shall be the primary consideration in all of Births in the Schedule to the Registration of actions concerning children, whether undertaken by decision of a lower court. In relation to the right to persons and communities, whether they are Births and Deaths Act only indicates that the sex public or private welfare institutions, courts of law, legal representation, it is noteworthy that although nomadic or settled, and who, because of their administrative authorities or legislative bodies.’’ the government has published a legal aid bill,305 306 Section 3 of the Children’s Act (2001) relative geographic isolation, have experienced 295 Articles 26, 43 and 53 of the Constitution of Kenya an institutionalized legal aid scheme, not only for 307 CRC, ACRWC, Constitution of Kenya and the only marginal participation in integrated social and provide the basis for the enjoyment of rights to life, Children’s Act survival and development as articulated by Section children but also for the general Kenyan populace, economic life of Kenya as a whole. 4(1) of the Children’s Act. 308 Children in conflict with the law are not is largely non-existent and still ranks low in the automatically entitled to legal representation; it 296 See Section 4(4) of the Children’s Act and Article 12 is hoped that the Legal Aid Bill will address this The Article also defines marginalized group to of the Convention on the Rights of the Child 301 http://www.dol.gov/ilab/reports/child-labor/kenya. concern. htm (accessed 7 June 2015). mean a group of people who, because of laws or 297 https://www.crowdrise.com/ 309 The age of criminal responsibility in Kenya is africachildabuseprevention (accessed 7 June 2015). 302 As above. 8 years. It needs to be brought in line with the practices before, on, or after the effective date of 298 http://www.kenyalaw.org:8181/exist/kenyalex/ 303 See the Draft National Policy and Action Plan internationally accepted age of 12 years. the 2010 Constitution, are disadvantaged because actview.xql?actid=CAP.%2062A (accessed 7 June on Human Rights whose purpose is to give effect 310 Diversion is an important mechanism of dealing with of discrimination on one of the grounds stated in on Human Rights Commission National Kenya 2015). to the Bill of Rights contained in the Constitution children in conflict with the law; there is however, no 299 Child marriages and female genital mutilation (FGM) by providing a comprehensive framework that framework for the exercise of this mechanism. elaborates broad human rights principles. 312 Baby ‘A’ (Suing through the Mother E A) & another 82 are especially prevalent in North Eastern, Eastern and 311 “intersex” means a person certified by a competent v Attorney General & 6 others [2014] eKLR http:// 83 Rift Valley regions if the country. 304 Section 186 of the Children’s Act medical practitioner to have both male and female kenyalaw.org/caselaw/cases/view/104234/ (accessed 300 Cap 63 Laws of Kenya 305 Legal Aid Bill (2012) reproductive organ. 7 June 2015). Article 27(4). community land case,314 also a decision on the first State Report under the UNCRPD also raised rights of indigenous people, has equally not been Though the law prohibits discrimination against concern on awareness raising.317 The committee The concepts of minorities, marginalized implemented. persons with physical or mental disabilities in requested the state to indicate whether there had groups and indigenous people have been used employment, education, access to health care, or been awareness raising, trainings and campaigns interchangeably by several actors. Kenya is a 2.3.4 Persons with the provision of other state services; however, the on disability in civil service, schools, media, and signatory to the African Charter on Human and state has not effectively enforced these provisions. cultural and religious-run institutions and initiatives People’s Rights whose implementing mechanism, Disabilities While the law provides that persons with disabilities aimed at general public, including the private the working group on indigenous populations/ should have access to public buildings, and some sector.318 communities (WGIP), suggests a criterion for The Constitution of Kenya (2010) protects the buildings in major cities have had wheelchair ramps identification of communities and groups in Africa rights of persons with disabilities (PWDs) in installed and elevators and restrooms modified, the 2.3.4.2 Accessibility as indigenous which applies to many indigenous Article 54. It provides that PWDs are entitled government did not vigorously enforce this law in communities in Kenya. Indigenous people face to be treated with dignity and respect; to have the review period. Consequently, new constructions A monitoring assessment of both private and numerous challenges in Kenya related to land access to education; access to all places, public often did not include accommodations for persons public buildings was done in 12 counties in Kenya ownership, access to education, water, healthcare, transportation and information; they are entitled with disabilities. Government buildings in rural during the review period. It revealed that physical political representation and the right to practice to use sign language, braille and other appropriate areas are also generally not accessible to persons accessibility for persons with disabilities is still their culture, among others. means of communication. In Article 54(2), the with disabilities. lacking. Accessibility to transport and information state is tasked to ensure the progressive realization and communication by PWDs is also inadequate. Article 56 of the Constitution obligates the of the principle that at least 5% of the members In October 2011, KNCHR commenced the The PWD Act gave a grace period within which state to provide for adequate representation of in elective and appointive bodies are PWDs. This monitoring of the implementation of UNCRPD all proprietors of public service vehicles should “marginalized groups” in all levels of government, principle is also provided for in the Employment in Kenya. This was after the Attorney General make them accessible to PWDs which will expire in execute affirmative action on behalf of these and Labour Relations Acts and the Persons with designated the commission as the independent December 2015 and yet accessibility remains a big groups, and promote the use of indigenous Disabilities Act. Section 13 of the Persons with monitoring body in line with Article 33 of the challenge.319 Though the monitoring assessment languages and the free expression of traditional Disabilities Act creates a 5% reservation of all UNCRPD.315 The period covered by the monitoring report revealed that a few health facilities had cultures. In furtherance to this and other casual, emergency and contractual positions in was between 2011 and 2013. KNCHR released the made relevant improvements and adjustments to constitutional requirements, Parliament has employment in the public and private sectors for monitoring report in July 2014 which made several their buildings; several more, including buildings enacted the National Land Commission Act (2012), persons with disabilities. The Constitution also findings on the implementation of the rights of that house national and county government the Land Registration Act (2012) and the Land prohibits any form of discrimination against all PWDs and is the basis of the following observations offices, courts, hotels, public toilets and police Act (2012). The Community Land Bill is still in persons including persons with disabilities in any on specific rights. stations, among others, do not comply with draft form and has not been tabled in Parliament. setting. This is provided for under Article 27 (4) of current accessibility standards as provided for in The National Land Policy of 2009 recognizes the the Constitution of Kenya. 2.3.4.1 Awareness Raising the Constitution, the UNCRPD and the Persons vulnerability of minority and marginalized groups with Disabilities Act. It was noted with concern and provides for collective land rights and a de- Kenya ratified the UN Convention on the Rights of Persons with disabilities continue to face stigma that even houses of persons with disabilities were centralized land governance structure. Persons with Disabilities (UNCRPD) in 2008. The in the society. This is mostly due to the society also inaccessible.320 UNCRPD is a progressive and ground-breaking lacking awareness on the rights of PWDs despite Even as the above measures can deemed to be treaty that provides protection for the rights of government policy on mainstreaming disability in CRPD also raised concerns on accessibility. It protective of minority rights, recommendations of PWDs. This convention is part of Kenyan law by dint all ministries. There have been limited opportunities tasked the State to provide concrete information Kenya National Commission on Human Rights the African Commission on Human and People’s of Article 2 (6) of the Constitution of Kenya which to promote positive perception and awareness of on outcomes of the implementation of a Rights (ACHPR) on the Endorois community land makes part of Kenyan law all international treaties PWDs’ contribution to society. It is also important comprehensive legal and policy framework case313 have not yet been implemented. The Ogiek and conventions ratified by Kenya. The National to note that some persons with disabilities have on accessibility, including information on the Council for Persons with Disabilities (NCPWD) not been aggressive to participate in public life. accessibility to health care facilities.321 313 Communication 276/2003.The African Commission initiated revision of the PWD Act in the period recommended that the Respondent State: (a) The findings of a KNCHR survey indicated that under review. The Act is still currently undergoing Recognize rights of ownership to the Endorois and many persons with disabilities were not aware of restitute Endorois ancestral land. (b) Ensure that evaluation geared to bring it to conformity with the Endorois community has unrestricted access to their rights including the various legislations put 317 Committee on the Rights of Persons with Disabilities the Constitution and the UNCRPD. List of Issues in relation to the Initial Report of Kenya Lake Bogoria and surrounding sites for religious and in place to protect and promote their rights.316 cultural rights and for grazing their cattle. (c) Pay (2015) available at http://tbinternet.ohchr.org/_ adequate compensation to the community for all 314 Application No. 006/2012. The provisional measures The Committee on the Rights of Persons with layouts/treatybodyexternal/Download.aspx?symbolno =CRPD%2fC%2fKEN%2fQ%2f1&Lang=en the loss suffered. (d) Pay royalties to the Endorois are as follows: 1) The state immediately reinstates Disabilities (CRPD) while considering Kenya’s from existing economic activities and ensure that the restrictions it had imposed on land transactions (accessed 5 May 2015). they benefit from employment possibilities within in the Mau Forest Complex and refrains from any act 318 Committee on the Rights of Persons with Disabilities the reserve. (e) Grant registration to the Endorois or thing that would or might irreparably prejudice 315 KNCHR From Norm to Practice: A Status Report on (n 260 above) 2 at Paragraph 7 on Human Rights Commission National Kenya the Implementation of the Rights of Persons with Welfare Committee. (f) Engage in dialogue with the main application before the Court until the final 319 KNCHR (n 258 above) 30. the complainants for the effective implementation determination of the said application; 2) The state Disabilities in Kenya (2014) 1 available at http://knchr. 84 of these recommendations. (g) Report on the reports to the Court within a period of fifteen (15) org/Portals/0/Reports/Disability%20Report.pdf 320 As above. 85 implementation of these recommendations within days from the date of receipt hereof, on the measures (accessed 5 May 2015). 321 Committee on the Rights of Persons with Disabilities three months from the date of notification. taken to implement this Order. 316 KNCHR (n 258 above) 21-24. (n 260 above) 2. in ways that PWDs can understand such as in transsexuals.”326 A transgender Kenyan also sued st braille and sign language. The key barriers to the Kenya National Examination Council (KNEC) 21 June, 2013, Mombasa – “A member effective access to justice by people with disability for refusing to recognize her gender identity on of our community was slashed with 2.3.4.3 Legal Capacity for include: unavailability of community support, her school records. The council had previously a machete/’panga’ several times inaccessibility to information, social risk factors, registered her as a male but she had taken steps to especially around the neck /throat PWDs negative attitudes and assumptions that persons change her gender to female.327 area. His attacker later threw him out with disability are incapable of making their own of a moving vehicle and left him for Persons with certain disabilities in Kenya lack decisions.324 2.3.6 Rights of Sexual the dead. Fortunately he was rescued legal capacity. This is more so for those with and taken to hospital. He has received psychosocial and mental disabilities. There is no 2.3.5 Rights of Gender Minorities medical attention and continues to formal guardianship for PWDS in the country yet recover.” PWDs still do not make decisions about their lives. Minorities Same-sex relationships are punishable with up st th The persons taking care of them end up making to 14 years imprisonment in Kenya. According 21 - 27 June, 2013, Kisumu – “There decisions for them including on what to eat, wear, Transsexual persons live in an environment to a recent, Pew Poll, 88% of Kenyans feel that have been reports of intimidation and where to live, what recreational activities to do and characterized by stigma, gross human rights abuse homosexuality is “morally unacceptable.”328 Since beating of persons perceived to be gay who to associate with.322 and violations propagated both by state and non- the passage of the Ugandan anti-homosexuality by vigilante groups. These incidents state actors. Additionally, there exists a myriad law in 2014, LGBT Kenyans have been fearful that haven’t been reported to the police Article 27 (1) of the Constitution of Kenya provides of misconceptions about transsexual people. similar legislation could be introduced in Kenya.329 since it is known that even the police for equality before the law, the right to equal Transsexual persons are commonly confused for Members of Parliament have in fact formed a in the area fear these vigilante gangs.” protection and equal benefit of the law for all homosexuals (gays and lesbians). Trans-sexuality caucus to fight homosexuality and to assess why persons. Article 12 of UNCRPD also provides for is an issue of one’s gender identity and gender the Attorney General has not engaged in more Despite the fact that the members of the LGBTI 330 the right to legal capacity for PWDs. These two expression, and has been designated as a medical aggressive prosecutions under the Penal Code. community have reported these attacks to the provisions are yet to be implemented in Kenya. The condition not characterized by sexuality or sexual Although there are active LGBT organizations in police, there has been reluctance to investigate right to make a decision is the bedrock of the other orientation. This group is often confused with the country, they often face harassment by the and bring to book the assailants who are known to rights. It signifies the dignity of an individual before people having intersex conditions. Transsexuals police and the government. the victims in most cases. the law. Legal capacity enables an individual to are a minority and are a vulnerable group because make transactions as a person in law. It enables the they face discrimination, are a non-dominant Security organs have often used arbitrary arrests From the standpoint of the right to freedom of person to own property, contract marriage, and group having no interest in the running of the as a means of intimidating those suspected to association, the Non-Governmental Organizations carry out civic duties like participating in elections. state, are a statistical minority and are at a higher profess homosexuality. This goes against freedom Coordination Board refused to register the National Its utility to PWDs therefore cannot be gainsaid. risk of poverty and social exclusion, among others. of association and expression as protected under Gay and Lesbian Human Rights Commission of They face discrimination in accessing services the Constitution and the various international Kenya. The Board claimed that the name of the 2.3.4.4 Access to Justice such as medical services, change of names, and human rights instruments that Kenya is party to. organization was unacceptable, adding that it recruitment into employment. They are also not Society has also been at the forefront of seeking would be illegal to register it because the Kenyan spared violence by state (including police officers out LGBT with the aim of evicting them from the Article 48 of the Constitution provides for access Penal Code criminalizes gay and lesbian liaisons. and health workers) and non-state actors. community, even to the extent of maiming, harming to justice by all persons. Article 13 of the UNCRPD This goes against Article 36 of the Constitution of and injuring LGBT. Some voices of the LGBT on also obliges state parties to ensure effective access Kenya which provides that every person has the Kenya National Commission on Human Rights Within the period under review, there were these violations are captured below. to justice for PWDs on equal basis with others. right to the freedom of association, which includes deliberate attempts by transsexual people to seek Despite these provisions, persons with disabilities the right to form, join or participate in activities. legal redress where the state had propagated 326 http://genderidentitywatch.com/2013/12/10/ continue to face a lot of challenges in accessing Despite Article 36, conceptions of morality have discrimination against them. The courts widely transgender-education-and-advocacy-kenya/ justice and are faced with numerous obstacles (accessed 5 May 2015). served as a justification to limit fundamental interpreted rights in favour of transsexual groups such as inaccessibility and lack of legal capacity. 327 The court had granted Audrey Mbugua victory in rights. This kind of limitation further contravenes and individuals.325 The Transgender Education and her suit by the time of publishing this report. See KNCHR has noted that there are no appropriate Article 22 of the ICCPR, to which Kenya is party. Advocacy group sued the government for refusing the report here http://www.advocate.com/politics/ services to help the police, the judiciary and other transgender/2014/10/09/kenyan-trans-woman-wins- The Article is categorical that any restrictions to to register the group as an international NGO. government institutions to communicate with recognition-landmark-victory (accessed 31 May 2015). the right to freedom of association must be limited It accused the NGO Council of discrimination persons having psychosocial disabilities and the 328 http://www.humanrightsfirst.org/sites/default/files/ to cases where it is absolutely necessary, taking and “escalating an internalized stigma amongst HRF-HRC-Africa-Report.pdf (accessed 7 June 2015). deaf.323 Court proceedings are not communicated into consideration the principles of a democratic 329 There have been several attempts to introduce 324 As above. anti-gay legislations in Kenya, the efforts have not society.

322 KNCHR Briefing Paper on Legal Capacity for Persons 325 The High Court in HCCC 705/2007, Richard Muasya borne any fruits since the draft Bill was rejected by on Human Rights Commission National Kenya with Disability (2011) 82 http://knchr.org/Portals/0/ v the AG, CGP and two others held that the rights the Legal Affairs Committee on the account that Violations levelled on the LGBT are not limited to GroupRightsReports/Briefing%20Paper%20on%20 of Richard Muasya, an intersex person, had been there are sufficient laws to counter the issue of security and the freedom of association. There 86 Legal%20Capacity-Disability%20Rights.pdf (accessed discriminated on the basis of sex and that his right homosexuality. 87 5 May 2015). to protection from inhuman treatment had been 330 Homosexuality is outlawed under the Kenyan Penal have also been infringements on the group’s right 323 KNCHR (n 265 above) 36. violated by prison officials. Code, specifically Section 162. to access the highest attainable standard of health. standard of health for all. Perhaps encouraging Often times, they face ridicule from health workers though, agents of the state have publicly taken who expose them to the community. They are cognizance of the obligation of the state to fulfil sometimes denied treatment under the pretext of the rights of all, including sexual minorities. On more genuine and deserving cases. Stigma and the 3rd July, 2013, Deputy President William Ruto discrimination by health care givers has been a stated the following: considerable barrier to the access and uptake of sexual and reproductive health information and “Although Kenya has diverse religious and cultural services in general and STI and HIV services in positions, the government has an obligation to particular among sexual minority persons. This kind provide inclusive and effective services to all hapter 3 of discrimination has far-reaching ramifications including sex workers, people who use drugs, men THE FOURTH STATE OF on the psychological well-being of the victims, who have sex with men and people in prisons.”331 putting to jeopardy their mental health as well. It is C HUMAN RIGHTS REPORT inapposite to the exercise of the rights enshrined in 331 http://www.unaids.org/en/resources/presscentre/ the Constitution and the attainment of the highest featurestories/2013/july/20130703kenyavisit/ (accessed 7 June 2015). Kenya National Commission on Human Rights Kenya National Commission on Human Rights Commission National Kenya

88 89 3.0 AND The state has shown little commitment in of reported cases of torture have not been mortality. The funding to the health sector did not CONCLUSIONS implementation of the recommendations made undertaken satisfactorily especially as it relates however, increase significantly. Challenges that the RECOMMENDATIONS to it by international treaty body mechanisms complaints emanating from places of detention sector has faced is the constant strikes by health and has further demonstrated its reluctance to the problem has been aggravated by the high cost care workers over delayed payment, poor working sign and accede to the optional protocols to most and the difficulty in accessing the P3 forms. Due conditions and other factors have negatively In the period under review there were wide ranging of the treaties that Kenya has ratified, this stand to increased terror attacks witnessed in the period contributed to the slow pace of progress in the achievements in the passage and adoption of was by Kenya rejecting all recommendations on under review there were reports of ethnic profiling sector. legislative and policy framework; this was given ratification of optional protocols made to it during and torture by security officers undertaking the impetus to by the passage of the constitution the universal periodic review. The action by the operation, these claims were not investigated Education sector in general recorded a slight of Kenya in 2010332 which among other things state has had a negative effect in the enjoyment further blotting the human rights record of the improvement with more children enrolling in required passage of various pieces of legislations of rights by citizens since it denies them an state. primary school and attaining basic education, and attendant policies in order to give effect to the opportunity to file the complaints before treaty the transition of children from primary school to various provisions of the constitution. body mechanisms after exhausting all the local Whereas the Commission appreciates the need secondary school improved with a slight increase in remedies available. to deal with terror and terrorism brought about the completion rate at secondary level. Challenges Various policies such as the Vision 2030 and in by extremism, such efforts must be carried out continued plaguing the sector including industrial particular the second medium term plan were In respect to the right to life, Kenya has demonstrated in strict compliances with the constitution and strikes and low/delayed funding among others, aligned to the constitution. Whereas there that it’s a prolife state by making a provision in the international human rights law. resulting in the low quality of education. was success in putting in place of policy and constitution inter alia that everyone has the right legislative framework not so much progress was to life and that such life begins at conception and Access to justice slightly improved in the reporting Whereas the provision of water and sanitation is a achieved in terms of citizens being able to enjoy that the life of a person may be deprived to the period this can largely be attributed to increased function of the county governments as provided the rights guaranteed in the constitution to the extent authorized by the constitution or any other personnel in the judiciary and the increased for under the constitution access to water and greatest extent possible; this status could be written law. The commission appreciates that in confidence in the judicial system due to the vetting sanitation is still an aspirational right. Most county attributed to the lack of political will to ensure the period under review the state has not executed of the judicial officers. There is however, more that governments have not prioritized the provision that the aspirations articulated in constitution and any of the persons facing death penalty. Rather needs to be done such as the passage into law of of water and sanitation and in instances in which legislative instruments was achieved. KNCHR is concerned that the state has not moved the Small Claims Court Act and The Legal Aid Bill it has been prioritized the budget for water and from a dejure moratorium to committing the death among other measures. sanitation is lumped together with sanitation The human rights Policy and action plan has been sentences to life imprisonment in line with its getting the least. This has led to many citizens pending since its completion in 2010, despite the international commitments. Not much progress was made in respect to defecating in open areas posing a serious health fact that the development of the action plan was Transitional Justice, despite the fact that the Truth risk therefore breaching their right to dignity. a joint initiative between the state and non-state The space of Civil society in the period under Justice and Reconciliation report was made public. actors there has been delay on the part of the review continued to shrink with the state coming Very little progress in terms of implementation has Finally the state has made tremendous steps in state to enact it. The effect of the HRPAP has had up with measures that have been interpreted as been made by the state therefore raising serious the area of business and human rights by putting a negative effect in that whereas there is a blue those aiming at limiting the operation/s of civil questions as to the it’s commitment to ensuring in place robust legal framework to protect local print for development there is no blue print that society organizations in the country. This action that past injustices are redressed. communities at the same time ensuring the would set out the human rights priorities for state has had the effect of undermining the important businesses operate in a favourable environment; with the aim of making Kenya a human rights state work of Civil society organizations and making the The constitution of Kenya 2010 made economic, the state only needs to ensure that the laws as

Kenya National Commission on Human Rights In theory the civil political rights have been operating environment for Civil society difficult. social and cultural rights to be an integral part of enacted are adhered to by all. expanded since the constitution guarantees these Coupled with the challenges faced by Civil society its expansive bill of rights, the Vision 2030 is also rights but in practice there have been instances that organizations human rights defenders faced strong on these rights under its economic and Despite the protection of children, women, are indicative that the state through its agents has increased state reprisals with some of them losing social pillars. It is important to note the constitution persons with disabilities, ethnic minorities, gender consistently breached these rights. The conduct life and some being tried in courts of law. The in schedule 4 gave most functions related to minorities and sexual minorities as special interest by the state and its agencies actually allude to the challenges has been that the state does not seem ECOSOC rights to the county governments. groups in the constitution, they still continue to fact that these rights are shrinking a case in point to understand the role of human rights defenders. be excluded from processes both by the national is the fact that the state has responded to peaceful Cases of violation of the rights of human rights Whereas ECOSOC are to be progressively realized and county governments Whereas there has been demonstrations with brutality in breach of Article defenders reported by human rights defenders subject to the maximum available resources great attempts at including these groups in all processes 37 of the Constitution and other international are hardly investigated fully by the state despite strides have been made in the areas of health ,they continue to face marginalization due to their instruments and conventions that the state is a overwhelming evidence to support conviction of especially in terms of reduction of maternal vulnerabilities brought about by exclusivity of the party to. the perpetrators mortality due to efforts to achieve Millennium programmes designed for their benefit. Kenya National Commission on Human Rights Commission National Kenya development goals and Vision 2030; the efforts 90 The enactment of prevention of torture legislation by the first lady (Beyond Zero Campaign) has also 91 has taken inordinately long, the investigation contributed to the reduction of Maternal and infant 332 See schedule 5 of the Constitution of Kenya CIVIL AND POLITICAL regulation in areas including but not limited to ECONOMIC, SOCIAL AND Transnational Crimes decriminalization of defamation, safeguarding RIGHTS media freedoms and internet freedoms. CULTURAL RIGHTS 1. Enforcement of anti-trafficking law to Criminal Justice Sector prosecute and convict trafficking offences, 2. Develop a policy and law as the basis for the Right to Food and punish trafficking offenders, including protection of whistle-blowers. 1. The Witness Protection Agency (WPA) government officials suspected of involvement 1. The government should implement the twin- needs to be delinked from the Office of the in human trafficking. 3. There is need for urgent review of the Media track approach that addresses the immediate President. The composition of its board ought Council of Kenya Act, Books and Newspaper and underlying causes of food insecurity and to be revised to include non-state actors. 2. Provide regular and relevant training Registration Act, Defamation Act, Kenya malnutrition. This involves combining immediate particularly to law enforcement officials, on Broadcasting Corporation Act, Preservation hunger relief interventions with long-term actions 2. The State needs to provide adequate funding identifying and responding to trafficking of Public Security Act, among others, to make for sustainable growth, especially in agriculture to the WPA to enhance its efficiency and crimes and increase protective services them compliant with the Constitution. and the rural economy. proper dispensation of its mandate. available to adult trafficking victims, 2. The government should promote the particularly those identified in and returned 4. The government should increase awareness advancement of food production technology 3. There is need for proper coordination of the from the Middle East. on the KODI platform. and undertake stringent measures to promote criminal justice actors (the Police, Office the transfer, adaptation and dissemination of of the Director of Public Prosecutions and 3. Establish an official procedural guideline for 5. Kenya should pass Access to Information Bill appropriate food production technology for the the Judiciary) and the WPA for effective law enforcement officials to refer trafficking (2012) and the Data Protection Bill (2012) and benefit of communities. implementation of its mandate. victims for assistance (psychosocial repeal the Official Secrets Act, Defamation assistance). Act and Preservation of Public Security Act. Right to Health 4. The WPA needs to embark on public awareness campaigns to sensitize members 4. Be more stringent in enforcing oversight of 6. The KODI needs to be frequently updated and 1. Increase the number and strengthen the role of of the public on its existence and mandate. and accountability on overseas recruitment more data sets included. community health workers, including providing agencies in Kenya and prosecute and revoke them with basic supplies, transportation where Transitional Justice the licenses of recruitment agencies found to 7. Ensure that internet freedom is safeguarded needed, and compensation for their services. be perpetrating trafficking. and develop policies on the use of the internet. 1. With the TJRC having submitted its report, Such policies should balance between the 2. Strengthen the referral system, by measures need to be taken to implement the 5. Establish the board of trustees to oversee the need to curb incitement to hatred as well as strengthening coordination between facilities. report’s recomendations. National Assistance Trust Fund for Victims of protect freedom of expression and the right Trafficking and allocate money to endow this to privacy. 3. Prioritize the completion and implementation 2. Priority should be given to the establishment fund and also launch and implement a national of the National Social Health Insurance Fund of the reparation mechanism, identification plan of action. Freedom of Association to improve access to maternal and child health of victims and the implementation of the care. reparations. Right to Life 1. The PBO Act needs to be given a commencement date immediately for CSOs 4. With regard to obstetric care, increase the

Kenya National Commission on Human Rights 3. Priority areas for intervention by government 1. The state should ensure investigations on cases and the public to benefit from its provisions. number of health care facilities that offer include land, elimination of corruption and of extrajudicial killing and disappearances However, amendments should not be made emergency obstetric care, increase the government waste, human rights protection, are concluded in a timely manner and the to the Act to introduce funding restrictions number of midwives and develop guidelines resource management and distribution, and perpetrators prosecuted. and it should be ensured that registration on the management of obstructed labour. immediate attention to vulnerable groups. requirements do not infringe on freedoms Also subsidize routine obstetric fistula repairs 2. The state should review application of the such as association and assembly. CSOs in provincial and district hospitals and provide 4. There is need for Kenya to address questions death sentence in Kenya with the aim of should also be encouraged to voluntarily free fistula surgeries for needy patients. relating to socio-economic and legal-historical abolishing the same. migrate to the PBO Act regime. distributive justice such as poverty, inequality 5. Increase the budget allocation for health in and marginalization which tends to obscure Freedom of Expression, Information and Media line with the Abuja Declaration. any real success that may be achieved by the TJRC report in the long term. 1. Kenya needs to extend an invitation to the 6. Fast track the implementation of universal Kenya National Commission on Human Rights Commission National Kenya Special Rapporteur on Freedom of Expression insurance coverage. 92 and Access to Information to undertake 93 a mission with a view to reviewing media Right to Housing 6. Devise and plan strategies to efficiently Rights of women 2. It is recommended that the state focuses address the issue of malnutrition in children. 1. Implement the National Policy on Housing. on promotion and implementation of The Government of Kenya should take the following the principles of universal design and 7. Provide sanitary towels to school girls who priority actions to achieve gender equality: 2. Empower county governments to ensure that reasonable accommodation; that all buildings, have reached puberty to ensure that their 1. Develop approaches for participatory and buildings under construction are properly transportation networks, information and participation in school and social activities is experiential training and capacity building in supervised to ensure that the rights of tenants communication should be designed to be not disrupted due to menstruation. gender, femininities and masculinities; are protected. accessible to all from the onset. Rights of Indigenous People (IPs) 2. Strengthen political commitment to women 3. Invest in enabling policies and plans to involve 3. It is recommended that Kenya reviews and leadership; slum dwellers in development of decent amends its laws to provide for legal capacity 1. The state should implement the decision housing. This calls for proper stakeholder for persons with disability in keeping with the of the African Commission on Human and 3. Review the country’s gender policy framework consultation to ensure that the needs of the Constitution and the UNCRPD. People’s Rights in the Endorois case and other and action plan; beneficiaries are properly looked into. The on- related cases. going slum upgrading projects need to be as 4. The state should ensure that there is effective 4. Allocate adequate human and financial inclusive as possible. accommodation for PWDs in government 2. The state should ratify ILO Convention No. 169 resources for implementing the gender policy institutions including provision of sign to further promote and protect the rights of and action plan; 4. Ensure compliance with court orders especially language interpreters, information in braille indigenous people. on the prohibition of forced evictions in the and assistants to support PWDs when they 5. Establish one-stop centres to provide country and publish the National Guidelines seek services. 3. The state should put in place a legislative comprehensive services to survivors of gender on Forced Evictions. framework that will give effect to the UN based violence; Rights of the Child Guiding Principles on Business and Human Right to Land Rights. 6. Strengthen technical working groups on 1. Fully implement the prohibition of Female gender based violence and HIV & AIDS; 1. Land issues need to be addressed Genital Mutilation Act (No. 32 of 2011). 4. The state should provide security to indigenous comprehensively, conclusively and communities and conduct disarmament in 7. Strengthen provision of medical interventions meaningfully. 2. Fully implement the Sexual Offences Act accordance to human rights principles. for gender based violence survivors; and (2003) which provides a comprehensive 2. The NLC should be facilitated to carry out its framework for the protection of women and 8. Strengthen the legal and justice systems for mandate effectively. There is also need for girls from Sexual and Gender-Based Violence reclamation of women’s rights. civic education on the commission’s mandate (SGBV). to increase its engagement with the public. 3. Implement affirmative action on the basis 3. Review and harmonize conflicting sections of sex/gender through such processes as of Land Acts and have them conform to the admission of females in public universities and Constitution. institutions of higher learning at a lower grade

Kenya National Commission on Human Rights as compared to their male counterparts. Right to Fair Labour Practices 4. Take measures to comply with the decision Due to the insufficiency of the minimum wage, of the African Commission in respect to the focus should be directed towards provision of a Nubian children case. living wage in its stead. 5. Increase the budget allocated to healthcare services, intensify efforts to train and educate GROUP RIGHTS health care staff, and also continuously strive to provide better health facilities. Take all the necessary steps to reduce teenage pregnancy Rights of Persons with Disability (PWD) by educating teenagers and their parents Kenya National Commission on Human Rights Commission National Kenya on early pregnancies and also by properly 1. The government should organize and execute implementing the Sexual Offences Act. 94 public awareness raising forums on the rights 95 of PWDs. All Human nnexes THE FOURTH STATE OF Beings are born A HUMAN RIGHTS REPORT free and equal in Dignity and Rights Kenya National Commission on Human Rights Kenya National Commission on Human Rights Commission National Kenya

96 97 International Convention on the Rights of Persons with Disabilities. ANNEX 1 : INTERNATIONAL HUMAN RIGHTS 12.05.2008 TREATIES OF WHICH KENYA IS A STATE PARTY 184 New York, International Convention for the Protection of All Persons from Signature 6.02. 2007 Enforced Disappearance. United Nations Charter 16th December 1963 1967 Protocol on Convention Relating to the Status of Refugees Accession 13.11.1981 Universal Declaration of Human Rights (UDHR) UN Convention Against Corruption Ratification 9.12. 2003 International Covenant on Civil and Political Rights (ICCPR) Accession 23.03.1976. OAU Convention Governing Specific Aspects of Refugee Problems Accession 23.06.1992 International Covenant on Economic, Social, and Cultural Rights in Africa Accession 01.05.1972 (ICESCR). International Convention for the Protection of All Persons from Signature 6.02.2007 International Convention on the Eliminations of all of Discrimination Enforced Disappearance. New York, 20 December 2006 Accession 09.03.1984 Against Women (CEDAW) The Protocol to the African Charter on Human and Peoples’ Rights Signature 17.12. 2003 on the Rights of Women in Africa African Charter on Human and Peoples’ Rights (ACPHR). Accession 23.01.1992 The Protocol to the African Charter on Human and Peoples Rights International Convention on the Elimination of all Forms of Racial Accession 13.09. 2001 on the Establishment of an African Court on Human and Peoples Accession 04.02.2004 Discrimination (CERD); Rights International Convention of the Rights of the Child (CRC) Ratification 30.07.1990 OAU Convention on Preventing and Combating Corruption Accession 03.02. 2007 International Convention against Torture and Other Cruel, Inhuman, Accession 21.02.1997 International Convention on the Suppression and Punishment of or Degrading Treatment or Punishment. New York, Signature-1.05. 1974 the Crime of . Optional Protocol on the Involvement of Children in Armed Conflict Ratification 28.01.2002 International Convention against Apartheid in Sports. New York, 10 Signature- 16.05.1986 December 1985 Optional Protocol to Convention on the Rights of the Child on Pros- Signature 08.09.2000 titution and Pornography

African Charter on the Rights and Welfare of the Child Accession 23.10.1992 International Humanitarian Law Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Ratification 4.02. 2004 Rights

Title of Treaty Date of Ratification/Accession ILO Convention 138 on Employment Age Ratification 09.04.1979

ILO Convention No. 182 Concerning the Prohibition and Immediate Ratification 07.05.2001 Kenya National Commission on Human Rights Action for the Elimination of the Worst Forms of Child Labour Convention on the non-applicability of statutory limita- 1 tions to war crimes and crimes against humanity. New Accession -1st May 1972 Protocol to Prevent, Suppress and Punish Trafficking in Persons, York, 26 November 1968 especially Women and Children (supplementing the United Nations Accession 05.01.2005 Convention against Trans-national Organized Crime) Geneva Convention for the Amelioration of the Con- International Convention on the Rights of the Child. Ratification 30.7.1990 2 dition of the Wounded and Sick Armed Forces in the Accession -20th September 1966 Field, Geneva, 12th August 1949 Amendment to article 43 (2) of the Convention on the Rights of Acceptance 12.02. 2003 the Child. Geneva Convention for the Amelioration of the Condi- Optional Protocol to the Convention on the Rights of the Child on 3 tion of Wounded, Sick and Shipwrecked Members of Accession -20th September 1966 Ratification- 28.01. 2001 the involvement of children in armed conflict. Armed Forces at Sea, Geneva. 12th August 1949

Optional Protocol to the Convention on the Rights of the Child on on Human Rights Commission National Kenya Signature 8.09.2000 the Sale of Children, Child Prostitution, and Child Pornography. Geneva Convention Relative to the Treatment of Pris- 4 Accession- 20th September 1966 98 oners of War, Geneva, 12th August 1949 99 African Union Treaties, Conventions, Protocols, and Geneva Convention Relative to the Protection of Civil- 5 Accession -20th September 1966 ian Persons in time of War, Geneva. 12th August 1949 Charters

Protocol Additional to the Geneva Conventions of 12th 6 August 1949 and Relating to the Protection of Victims Accession -23rd February 1999 No. Title of Treaty Date of Ratification/Accession of International Armed Conflicts. Geneva, 1977

Constitutive Act of the African Union. Lome 11th July Protocol Additional to the Geneva Conventions of 12th 1 Ratification 4th July 2001 7 August 1949 and Relating to the Protection of Victims Accession- 23rd February 1999 2000. of Non-International Armed Conflicts., Geneva 1977

Geneva Convention Relative to the Treatment of Pris- Protocol on the Amendment to the Constitutive Act of 8 Accession -20th September 1966 2 Ratification 22nd May 2007 oners of War. Geneva, 12th August 1949. the African Union. Maputo, 11th July 2003

International Convention for the Protection of New 9 Accession -13th May 1999 Varieties of Plants. 1961. Revised Geneva, 1991. Protocol to the Court of Justice of the African Union. 3 Signature 17th December 2003 Maputo, 11th July 2003.

Protocol Relating to the Establishment of the Peace and 4 Security Council of the African Union. Durban, 9th Octo- Ratification 9th December 2006 Refugees and Stateless Persons ber 2002.

No. Title Of Treaty Date of Ratification/Accession OAU Convention Governing the Specific Aspects of Ref- 5 Accession 4th February 1993 ugee Problems in Africa. 10thSeptember 1969

Convention relating to the Status of Refugees. Geneva, Accession Declaration 2. 28 July 1951 16th May 1966 Treaty Establishing the African Economic Community, 6 Ratification 18th June 1993 Abuja, 3rd June 1991. Convention on the non-applicability of statutory 5. limitations to war crimes and crimes against humanity, Accession 1st May,1972 Kenya National Commission on Human Rights New York, 26 November 1968 Protocol to the Treaty Establishing the African Economic 7 Community relating to the Pan-African Parliament. Sirte, Ratification 19th December 2003 Protocol relating to the Status of Refugees. New York, 2nd March 2001. 6. Accession 31st November 1981 31 January 1967

Convention Governing the Specific Aspects of Refu- 7. gee Problems in Africa. Addis Ababa, 10th September Ratification -23rd June 1992 1969. Kenya National Commission on Human Rights Commission National Kenya

100 101 ANNEX 2 : NATIONAL LAWS ON HUMAN RIGHTS ANNEX 3 : NATIONAL POLICIES ON HUMAN RIGHTS

The Constitution of Kenya, 2010 National Policy and Action Plan on Human Rights , 2013

The Children Act, 2001 The Policy Framework for education and Training in Kenya , 2013

Kenya Information Act, 2013 The National Special needs education policy, 2009

The Media Council Act, 2013 The Kenya Health Policy, 2012

The Kenya Citizenship Act, 2011 Vision 2030

The Kenya Citizens and Foreign nationals management Act, 2011 National Housing Policy, 2004

The Refugee Act, 2012 The Social assistance Policy, 2013

The Political Parties Act, 2011 The National Land Policy, 2009

The prohibition of Female Genital Mutilation Act, 2011 The National Children policy, 2010

The Ratification of Treaties Act, 2013 The National Disability Policy , 2007

The Judicial Services Act, 2011

The Victims Protection Act, 2014

The Marriage Act, 2014 The Prevention, Protection and Assistance to internally Disciplined and Affected Communities Act, 2012 The Social Assistance Act, 2013

The National Police Service Act, 2011

The Kenya national Commission Human Rights Act, 2011

National Police Service Commission Act, 2011

Independent Police Oversight Authority Act, 2011

Persons Deprived of Liberty Act, 2014

The Leadership and Integrity Act, 2012

Ethics and Integrity Act, 2012

The Water Act, 2012

The Basic Education Act, 2013 Kenya National Commission on Human Rights The technical Vocational and Education Training Act, 2013

The Teachers Services Commission Act, 2012

The Universities Act, 2012

Persons with Disabilities Act, 2003

The Land Act, 2012

The Land registration Act, 2012

The National Land Commission Act, 2012

Matrimonial property Act, 2014

Counter Trafficking in persons Act, 2010 on Human Rights Commission National Kenya

Sexual offences Act, 2006 102 103 National gender and equality Commission Act, 2011 To deny people their Human Rights is to challenge their very humanity

Nelson Mandela Kenya National Commission on Human Rights

104