KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR)
ANNUAL REPORT FOR THE
FINANCIAL YEAR 2007/2008 KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR)
TABLE OF CONTENTS
LIST OF ACRONYMS ______3 FOREWORD ______4 THE SECRETARY’S REPORT ______6 EXECUTIVE SUMMARY ______8 CHAPTER ONE______11 1.0 INTRODUCTION______11 1.1: Structure of the National Commission______11 1.2: Mandate and Powers of the Commission______12 1.3: Strategic priorities for 2007/2008______1 3 CHAPTER TWO: REVIEW OF PROGRESS ______15 2.0: COMPLAINTS AND INVESTIGATIONS PROGRAMME ______15 2.1: Background______1 5 2.2: Nature and distribution of complaints______1 5 2.3: Investigations______1 9 2.4: Closed complaint files______21 2.5: Achievements______23 2.6: Challenges______2 3 3.0: CAMPAIGNS AND ADVOCACY PROGRAMME ______24 3.1: Background______2 4 3.2: Activities implemented______2 4 3.3: Achievements______3 4 3.4: Key lessons and challenges______3 4 4.0: HUMAN RIGHTS EDUCATION AND CAPACITY BUILDING PROGRAMME ______36 4.1: Background______3 6 4.2: Activities undertaken______36 4.3: Achievements______37 4.4: Key lessons and challenges______3 7 5.0: RESEARCH, POLICY AND LEGISLATION PROGRAMME ______41 5.1: Background______41 5.2: Activities implemented______41 5.3: Achievements______48 5.5: Challenges______48 6.0: ECONOMIC, SOCIAL AND CULTURAL RIGHTS PROGRAMME ______49 6.1: Background______49 6.2: Activities implemented______49 6.3: Achievements______55 6.4: Challenges______56 7.0: OUTREACH PROGRAMME ______57 7.1: Background______57 7.2: Activities implemented______57 7.2.1: Wajir (Northern Kenya) Regional office______5 7 7.2.2: Kapenguria (North Rift) Regional office______5 9 7.3: Achievements of the outreach programme______5 8 8.0: CHAPTER THREE ______62 8.1: Overall Conclusions______62 8.2: Challenges in the reporting period______63 8.3: Key lessons learnt during the financial year______6 3
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) LIST OF ACRONYMS
ADR Alternative Dispute Resolution AU African Union CHRI Commonwealth Human Rights Initiative CIDA Canadian International Development Agency CSO Civil Society Organizations DCIO District Criminal Investigation Officer DFID Department for International Development ECK Electoral Commission of Kenya FY Financial Year GJLOS Governance Justice Law and Order Sector GTZ German Technical Cooperation HeRWAI Health Rights of Women Assessment Instrument HRBA Human Rights Based Approach IDPs Internally Displaced Persons IEC Information, Education and Communication IMTC International Mines Training College ISO International Organization for Standardization K-HURINET Kenya Human Rights Network KIM Kenya Institute of Management KNCHR Kenya National Commission on Human Rights MOJCA Ministry of Justice and Constitutional Affairs MOPA Movement for Political Accountability MTS 3 Medium Term strategy 3 NHRIs National Human Rights Institutions NTV Nation Television OCPD Officer Commanding Police Division OCS Officer Commanding Station ODM Orange democratic Movement OHCHR Office of the High Commissioner for Human Rights PCEA Presbyterian Church of Eastern Africa PEV Post-Election Violence PNU Party of National Unity RWI Raoul Wallenberg Institute SITAN Situation Analysis TJRC Truth Justice and Reconciliation Commission UN United Nations UNDEF United Nations Democracy Fund UNDOC United Nations Office on Drugs and Crime UNICEF United Nations Children’s Fund
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CHAIRPERSON’S FOREWORD
The period between July 2007 and June 2008 saw the country undergo one of the most hotly contested General Elections in Kenya’s history with the main contestants being the incumbent, PNU’s Mwai Kibaki and ODM’s Raila Odinga. The Kenya National Commission on Human Rights (KNCHR, referred to in this report as the Commission) monitored the election campaigns and found them highly ethnicized with various cases of hate speech, incitement to violence and ethnic hatred, including through the media. This finding caused the Commission to draft and propose the enactment of a Prohibition of Hate Speech and Incitement to Ethnic Hatred Bill.
Following the General Elections of December 2007, the Electoral Commission of Kenya (ECK) released the results that were immediately contested by the ODM. The situation was exacerbated by the hurried swearing in of president Kibaki on 30th December 2007. The country was immersed in violence of unprecedented magnitude and it became clear, going by the statement of the ECK Chairman that we could not conclusively tell whether it was Raila Odinga or Mwai Kibaki who had won the elections. Violence then ensued between those who opposed and those who supported the decision of ECK to announce Mwai Kibaki as the next President of Kenya.
Serious breaches of the rule of law and grave human rights violations, particularly of civil and political rights, were at a record high. These mainly took the form of open violence between supporters of Raila Odinga and those of Mwai Kibaki; police brutality against civilians protesting the election results with an apparent ‘shoot-to-kill’ policy against the protestors; violation of the rights to freedom of movement, peaceful assembly, personal security, massive forced displacement, and destruction of property; as well as killings that left an estimated 1,300 people dead. The emerging ethnic conflict resulted in more than 300,000 internally displaced persons (IDPs), many of whom still remain in camps for the displaced.
Thus the Commission, pursuant to its mandate under Section 16 of the KNCHR Act, spent the second half of the reporting year (from January 2008 to June 2008) investigating, documenting and reporting on the grave human rights violations occasioned by the post-election violence. The international community intervened in Kenya’s post-election violence to prevent the country from sinking into a full-fledged internal conflict. The AU’s Panel of Eminent Persons, led by the former UN Secretary General H.E. Koffi Annan, facilitated efforts towards peace-building and reconciliation that culminated in the signing of the National Accord and Reconciliation Act on
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4th March 2008. The National Accord provides for a power sharing arrangement between PNU and ODM and sets the stage for the implementation of various reforms including constitutional, electoral, institutional, land and other reforms that should address the root causes of the conflict and prevent the resurgence of such a conflict in the future.
Over the next year, the Commission will focus much of its efforts on monitoring the implementation of the National Accord and supporting initiatives for peace building, national reconciliation, and accountability for the perpetrators of the post-election violence.
Further, the Commission’s focus in the year under review was on investigating and documenting human rights violations and torture committed by both the military and the Sabaot Land Defense Forces during the Mt. Elgon Conflict. The Commission also commenced investigations into allegations of extra-judicial killings of Mungiki members by the police. The findings and reports of these two investigations will be released in the next reporting year.
Overall, this year remained challenging both for the Commission and for the country as a whole. It is our hope that the new coalition government shall keep its pledge to implement the National Accord and that the country will have a new Constitution and reformed institutions that embrace, promote and protect the human rights of all Kenyans to end the ingrained culture of impunity.
Internally, the Commission underwent a transition with the end of tenure of four Commissioners on 29th July 2007 – these are Commissioner Fatuma Ibrahim Ali; Commissioner Lawrence Mute; Commissioner Godana Doyo and Commissioner Tirop Kitur. These Commissioners were instrumental, as the founding Commissioners, in the operationalization of the Commission, including in laying the framework for the programmes that the Commission implemented. In November 2007, two Commissioners – Fatuma Ibrahim Ali and Lawrence Mute had their terms renewed for another 5 years and two new Commissioners – Fatuma Dullo and Dr. Samwel Tororei were appointed for a new five year term. Finally, as part of its efforts to increased accessibility to Kenyans, in particular in the most marginalized areas, the Commission opened a new office in Kapenguria to serve the residents of North Rift Region. One other regional office exists in Wajir to serve residents of Northern Kenya. The Commission prioritized the North Rift Region because it has undergone decades of marginalization, conflicts and human rights violations that needed to be redressed. This office will play a key role in addressing these unique human rights challenges.
Florence Simbiri-Jaoko CHAIRPERSON
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THE SECRETARY’S REPORT
This is the fifth Annual Report of the Kenya National Commission on Human Rights This report is prepared in partial fulfillment of the Commission’s statutory obligation under section 21(2) of its constitutive Act and covers its work for the period July 2007 to June 2008.
The Kenya National Commission on Human Rights is an independent National Human Rights Institution established by an Act of Parliament (KNCHR Act, 2002) and became operational in July 2003. Its core mandate is to further the protection and promotion of human rights in Kenya. The Commission succeeded the Standing Committee on Human Rights which was established in 1996 through Presidential Decree, and which lacked independence. The Commission envisions a strong and vibrant human rights culture founded on equality and social justice for all. Its mission is to contribute to the establishment of a society that respects human dignity, social justice and equal opportunity for all. The Commission believes in its independence, accessibility, humility, professionalism, gender equity, accountability, participation, equality and people-centeredness.
The Commission’s broad mandate is to act as a watch-dog over the Government in the area of human rights. This embraces all human rights - economic, social and cultural rights as well as civil and political rights. The commission also has the powers of a Court under section 19(1) to issue summons or other orders, question any person in respect of any subject matter under investigation by the Commission; and require any person to disclose any information within such person’s knowledge relevant to any investigation by the Commission. Under section 19 (2) of the KNCHR Act, the Commission also has powers to provide remedies where there is a human rights violation, including release of any unlawfully detained or restricted person; the payment of compensation; and any other lawful remedy or redress.
The Commission’s core functions (as set out in section 16 of the KNCHR Act) include investigations (on its own initiative or upon complaints made), assessing conditions under which inmates are held in prisons, informing and educating the public on human rights, recommending to Parliament effective measures to promote human rights, inculcating citizens awareness of their civic responsibilities and obligations, and ensuring governments’ compliance with international obligations under human rights treaties.
The Commission’s planning direction is focused on five strategic objectives as stipulated in the current Strategic Plan (2004-2009). These objectives include reduction of systemic human rights violations; leadership in framing and informing human rights discourse; increased opportunities for realization of economic and social rights; establishment of comprehensive human rights education systems; and establishment of institutional capacities to deliver effectively and efficiently on human rights. During the reporting period, the Commission implemented its mandate through the
Page 6 Working towards a strong and vibrant human rights culture founded on equality and social justice for all in Kenya. KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) following core programme areas: investigating complaints of human rights violations including providing redress; campaigns and advocacy on emerging human rights issues; research, policy and legislation to infuse human rights in law and policy; economic, social, cultural and human rights education; and capacity building for both state and non-state actors. These broad areas of work mean that the Commission is required and expected by Kenyans to address all human rights areas of concern. This has remained a challenge however, given the limited government funding and staffing limitations.
The Commission received a total of Ksh. 120,000,000 from the Government against a budget of Ksh. 370,241,152 for the 2007/2008 Financial Year. The deficit was mainly funded by the Governance, Justice, Law and Order Sector reform programme (GJLOS) basket funds and direct donors. Direct funding support was received from the Embassy of Switzerland, Canadian International Development Agency (CIDA), Trócaire, United Nations Development Programme (UNDP), United Nations Democracy Fund (UNDEF), German Technical Cooperation (GTZ), UN Office of the High Commissioner for Human Rights (OHCHR), Embassy of Finland, Royal Norwegian Embassy and the Department for International Development (DFID). The Commission acknowledges and appreciates the overwhelming support that it has received from development partners to enable it to implement its mandate. The Commission will in the coming year endeavor to seek additional funding from the Government, in particular, to enable it to build its human resource capacity and to increase its accessibility through the establishment of more regional offices.
This Annual Report elaborates on the work of the Commission as undertaken by the above named departments during the 2007/2008 Financial year, with core recommendations for achieving its core mandate of the promotion and protection of human rights in Kenya. However, given that the Commission dedicated most of its time in the reporting period to investigating the post-election violence, substantial work planned for the second half of the year was not undertaken. Over the coming year, the National Commission will realign its activities to meet the new challenges caused by the post-election violence.
I acknowledge with special thanks the support of the Government of Kenya and the Commission’s development partners during the period under review. I also wish to sincerely thank the Commission’s staff for their contribution during the year. Their dedication enables the Commission to commence investigations of the post-election violence. It is my desire that this task will be completed in the coming year.
Finally, I would like to thank the members of the public who entrusted us with valuable information that saw us compile the various human rights reports for action by the government.
Mohammed Konso Hallo SECRETARY TO THE COMMISISON
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) EXECUTIVE SUMMARY
The Kenya National Commission on Human Rights (KNCHR) is an independent National Human Rights Institution established by an Act of Parliament. Its core mandate is to further the protection and promotion of human rights in Kenya and to act as a watch-dog over the Government in the area of human rights. The KNCHR Act establishes the Commission as the Chief Government agency in all matters of human rights. During the reporting period, the Commission implemented its mandate through the implementation of activities in six core programmes: Complaints and Investigations, Campaigns and Advocacy, Human Rights Education and Capacity Building, Research, Policy and Legislation, Economic Social and Cultural Rights and Institutional Strengthening.
The Human Rights Education and Capacity Building Programme was able to build skills and raise awareness of human rights among various stakeholders including the public, grass roots community based organizations, law enforcement officers, and opinion leaders, as well as Government agencies and Ministries. This was undertaken through curriculum development, trainings, workshops, seminars and dissemination of targeted IEC materials. The Commission continues to receive requests from numerous Government institutions and training colleges to undertake capacity building trainings and human rights curriculum development to infuse human rights education as part of their core training programmes. By undertaking these initiatives, the Commission has created a closer working relationship with the Government such that the Commission is seen as a partner of the Government with a clear mandate, rather than an adversary, leading to a more positive reception of human rights within Government circles.
The Research, Policy and Legislation Programme prioritized working to implement the Commission’s advisory mandate by conducting research; issuing policy and advisory briefs on various human rights issues; and assisting the Government to fulfill its international obligations to report on the implementation of ratified human rights conventions. From the research conducted, the Commission worked with the Ministry of Education to draft a Special Needs Policy that would govern and regulate education for children with disabilities. Some of its advice around the issuance of Identity Cards led to practical reforms in the Ministry for Immigration as relates to the issuance of national identity cards. Parliamentarians continued to request the Commission to critique various Bills and to provide advice on necessary revisions to make them human rights compliant.
The ECOSOC Programme works towards enhancing the realization of socio-economic rights through various strategies, including investigating violations of economic, social and cultural rights as well as conducting research, publication and inquiries into systemic violations of those rights. Efforts of the ECOSOC Programme led to the coming together of the stakeholders
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) around Malindi’s salt industries (following the Public Inquiry conducted the previous year) who in turn developed a joint action plan to guide salt companies on how to observe the human rights of the community. The Commission also continued to release its series of publications entitled Living large, which triggered debate both within the government and the public on the extent to which Government resources are being wasted through corruption and unnecessary expenditure.
The Complaints and Investigations Programme continued with the routine screening of petitions and conducted investigations. including rapid responses to allegations of human rights abuses. Some of the core investigations conducted included investigations into allegations of torture by both the Military and the Sabaot Land Defense Forces (SLDF) in Mount Elgon and investigations into allegations of extra-judicial killings being conducted by the Police. Both large scale investigations were conducted in conjunction with the Campaigns and Advocacy Programme, which monitored and continued to profile the use of hate speech and the misuse of public resources during the 2007 election campaigns. It also profiled the human rights violations during arbitrary renditions in the fight against terrorism. The Commission as a whole was involved in conducting investigations into the post-election violence following the disputed 2007 General Election results.
The two regional offices raised the profile of the Commission in the North Rift and Northern Kenya regions. They not only managed to interact with the communities through outreach and public barazas, but also attended to complaints of the local people through human rights clinics, trainings and visits to places of detention. They also brought to the fore the unique human rights issues particular to these regions – these unique human rights issues form the basis upon which the programmatic work of these offices are drawn.
Some of the major challenges during the reporting period include the post-election violence that negatively affected the work of the Commission. The Commission was compelled to shift its focus and resources to address the emerging issues through investigations thereby leaving some of the planned activities unimplemented. Furthermore, funding from the Government remained low: as a result the Commission was unable to recruit an adequate number of staff to implement its planned activities. Limited funding also continues to hamper the extent to which the Commission is able to enhance its accessibility to Kenyans through the opening of more regional offices.
Some of the key lessons learned include the appreciation that partnership building is important to achieve the Commission’s set goals, including that of reaching out to more Kenyans in marginalized areas. The Commission has also learnt that support of key government institutions is crucial in the work the programmes undertake: these include the police and other key governmental institutions and Ministries. The Commission further recognizes that the
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) support of the Government is built once they are able to understand the Commission’s work and mandate and that these are not adversarial but complementary to the work they undertake as different arms of Government. At the same time, the Commission realizes that Government officers will observe human rights once they realize that human rights protection is the business of Government and that as Government officers, they are the core duty bearers of human rights protection. For this reason, the Commission will continue to build the capacity of Government officers on the human rights based approach through trainings and workshops.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR)
CHAPTER ONE
1.0 INTRODUCTION
1.1: Structure of the National Commission
The Kenya National Commission on Human Rights (hereinafter “the Commission” “or “the KNCHR)” is an independent National Human Rights Institution established by an Act of Parliament. Its core mandate is to further the protection and promotion of human rights in Kenya. Many countries in the world have similar bodies that are created as a strategy towards the better protection of human rights. It became operational in mid 2003 to succeed the Standing Committee on Human Rights, which was established in 1996 by presidential decree and which lacked in independence.
The Commission envisions a strong and vibrant human rights culture founded on equality and justice for all. The mission of the Commission is to contribute to the establishment of a society that respects human dignity, social justice and equality opportunity. The Commission believes in the following core values; independence, accessibility, humility, professional, gender, accountability, participation, equality and people-centeredness. These values are fully integrated in the Commission’s work.
The Commission consists of nine Commissioners and the Secretariat; the Commissioners are nominated by the National Assembly and appointed by the President and are engaged on a full time basis. Commissioners enjoy statutory security of tenure; they elect the chairperson and the Vice Chairperson amongst themselves. While the tenure for Commissioners is five years, the initial appointments were staggered over three, four and five years to give the Commission continuity. Below is the list of Commissioners that served during the current reporting period:
Commissioners Position Appointment Tenure ends Mr. Maina Kiai Chair July 2003 July 2008 Ms. Florence Simbiri- Vice Chair January 2007 January 2012 Jaoko Ms. Winfred O Commissioner January 2007 January 2012 Lichuma Mr. Hassan Omar Commissioner January 2007 January 2012 Hassan Ms. Wambui Kimathi Commissioner Reappointment – January 2012 January 2007 Ms Fatuma Ibrahim Ali Commissioner Re-appointment – November 2012
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) November 2007 Mr. Lawrence Mute Commissioner Re-appointment – November 2012 November 2007 Ms. Fatuma Dullo Commissioner November 2007 November 2012 Dr. Samuel Tororei Commissioner November 2007 November 2012 Mr. Mburu Gitu Secretary November 2003 November 2008
The secretariat is composed of the Secretary, who is appointed by the Commission and is its Chief Executive Officer, and members of staff. At the close of the reporting period, there were 40 members of staff. The Commission’s staff serves on renewable contracts. The Commission has an active internship programme that annually provides opportunities to 15-25 young professionals to intern with it.
The Commission enjoys independence: it is not subject to the authority or control of any person or authority in the performance of its functions. It values and strongly safeguards its independence. The Commission sets its own priorities, and determines how to use the resources allocated to it. It hires and manages its own staff. Operationally, the Commission works through the Ministry of Justice and Constitutional Affairs.
The formal relationship and interaction between the Commission and the Minister of Justice and Constitutional Affairs is mediated by the Act. The Commission is required to submit its annual estimates of expenditure to the Minister for approval (section 30 (3). Its annual and special reports are presented to the President and the National Assembly also through the Minister (section 21). The Commission may make regulations in the nature of subsidiary legislation with the approval of the Minister (section 35).
1.2: Mandate and Powers of the Commission
The Commission plays two key broad mandates. Firstly, the Commission acts as a watch-dog over the Government in the area of human rights. Secondly, it plays a key leadership role in moving the country towards becoming a human rights state.
The functions of the Commission are set out in section 16 of the Act. These are: a) To investigate, on its own initiative or upon a complaint made, the violation of any human rights; b) To visit prisons and other places of detention or related facilities to access and inspect the conditions under which inmates are held; c) To inform and educate the public about the human rights for the purposes of enhancing respect for human rights; d) To recommend to Parliament effective measures to promote human rights;
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) e) To formulate, implement and oversee programmes intended to inculcate citizens’ awareness of their civic responsibilities and appreciation of their rights and obligations; f) To act as the Chief Government agent in ensuring the Government’s compliance with its obligations under international treaties and conventions on human rights; g) To encourage the efforts of, and to cooperate with, the other institutions working in the field of human rights for the purpose of promoting and protecting human rights; h) To perform such other functions as the Commission may consider necessary for the promotion and protection of human rights.
The Commission is mandated to promote and protect all human rights – economic, social and cultural rights as well as civil and political rights.
The Commission has the power of court under section 19(1) to: a) Issue summons or other order requiring the attendance of any person before it, and the production of any document or record relevant to any investigation by the Commission; b) Question any person in respect of any subject matter under investigation to the Commission, and c) Require any person to disclose any information within such person’s knowledge, which is relevant to any investigation by the Commission.
The Commission has the power under section 19(2) of the Act to provide remedies where there is a human rights violation, including: a) The release of any unlawful detained or restricted person; b) The payment of compensation; and c) Any other lawful remedy or redress.
When carrying out an investigation, the Commission can: a) Summon and enforce the attendance of any person for examination; b) Require the production of any document; and c) Subject to the Official Secrets Act, requisition any public records or copies from any servant.
1.3: Strategic priorities for 2007/2008
The Commission’s mandate is realized through five strategic objectives which express the key results that the commission wishes to achieve in the period 2004-2009. These are: a) Reduction of systemic human rights violations; b) Leadership in framing and informing human rights discourse; c) Increased opportunities for the realization of economic, social and cultural rights; d) Establishment of comprehensive human rights education systems; and
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) e) Establishment of institutions capacities to deliver effectively and efficiently on human rights.
The Commission’s work is guided by its strategic plan for 2004-2009. In the reporting period, the strategic priorities of the Commission, which are described in detail in the work plan for July 1st 2007- June 2008, are: a) Investigating human rights complaints; b) Providing redress to victims of human rights violations; c) Follow-up on recommendations of the Malindi Public Inquiry Report; d) Undertaking campaigns and advocacy activities on transitional justice and negative ethnicity; e) Catalyzing reforms within the police force and prisons services; f) Reviewing bills and legislations to infuse them with human rights standards; g) Researching and writing a report assessing the Government’s performance in the area of human rights; h) Publishing a bi-annual journal on human rights; i) Ensuring compliance with international human rights obligations, including the submission of periodic reports to monitoring bodies; j) Provide leadership in developing the National Action Plan for Human Rights (NAP); k) Advancing the recognition and protection of economic, social and cultural rights; l) Advancing human rights education within the public service and private sector; m) Presenting Annual Human Rights and Democracy Awards to persons and institutions that have significantly advanced the human rights agenda; and n) Undertaking institutional strengthening; including work planning, recruitment of staff, and the strengthening of financial and accountability mechanisms.
The Commission is organized around six main programme areas as follows: Complaints and Investigations, Campaigns and Advocacy, Human rights Education, Research, Policy and Legislation, Economic, Social and Cultural Rights and Institutional Strengthening. In addition, it has two regional offices – the North Rift regional office based in Kapenguria and the Northern Kenya regional office based in Wajir.
The report will give full details of each programme under the headings of what was planned, achievements, challenges and reasons for the variance.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR)
CHAPTER TWO: REVIEW OF PROGRESS
2.0: COMPLAINTS AND INVESTIGATIONS PROGRAMME
2.1: Background
The Kenya National Commission on Human Rights is empowered under section 16(1) (a) “to investigate, on its own initiative or upon a complaint made by any person or group of persons, the violation of any human rights”. This mandate has been operationalized by the Commission’s Strategic Objective 1 on “Reduction of Systemic Human Rights Violations”. Towards this end, the department in the period under review worked towards achievement of the following objectives:
Objectives
• Establish an effective and efficient system of processing human rights complaints. • Set up a functional investigative department. • Develop effective gender analysis systems and ensure that gender disaggregated data is collected. • Develop effective and efficient human rights monitoring systems.
2.2: Nature and distribution of complaints
A review and analysis of the nature and distribution of complaints, below, indicated that Nairobi accounts for more than 55% of complaints received. This could be attributed to the fact that the Commission is located in Nairobi and is therefore readily accessible to complainants. The recurring high number of labor complaints has led to various initiatives including meetings with the Ministry of Labor and training of Labor Officers to inculcate in them human rights principles that will enable them resolve labor related complaints without the complaints being referred to the Commission. The impact of these initiatives will be evaluated in the next year. During the period under review, the Commission’s Nairobi office attended to 1,465 complainants, down from 2,580 complainants in the 2006/2007 period. The 56.7 per cent drop was largely because the Commission’s head office significantly scaled down its complaints- processing work in the few months before and after the December 27, 2007 General Elections. This was because the National Commission dedicated most of its human and other resources to monitoring political events leading to the 2007 General Election and to investigating the 2007 post-election violence.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) As regards gender disaggregation, out of the 1,465 complainants, women accounted for 17.5 per cent (257) while men took up 82.4 per cent (1208). The majority of the complainants (99.5 per cent) were adults. Children accounted for only 0.4 per cent (6). In respect of the geographical origin of the complainants, table 8 below shows that the bulk of the complainants came from Nairobi, while four (4) complainants reported their complaints from outside Kenya.
Table 1: The Geographical Distribution of Complainants Province Number Percentage (%) 1 Nairobi 820 55.97 2 Central 232 15.83 3 Rift Valley 122 8.32 4 Eastern 101 6.89 5 Nyanza 62 4.23 6 Coast 57 3.89 7 Western 53 3.61 8 North Eastern 14 0.95 9 Abroad 4 0.27 Total 1,465 99.96
The 1,465 complainants lodged 1,556 different reports of alleged human rights violations. The number of reports was higher than the number of complainants because some of the complainants interacted with the Commission on more than one occasion. For example, 222 complainants followed up on the complaints which they had lodged with the Commission in a previous reporting period, 1,333 reports were made by new complainants, while one (1) report was made by a complainant who the Commission had invited to a complaints conciliation meeting.
As regards the mode of reporting, of the 1,556 reports that were lodged with the Commission, five (5) were through fax, 17 were via e-mails, 54 were by telephone, 368 were via the post and, lastly, 1,112 complainants physically visited the Commission’s Nairobi office during the reporting period. It should be noted that 1,342 of the 1,555 reports were lodged by single complainants, 163 by represented complainants, 35 by joint complainants and 16 by organizations.
Labour related complaints, as table 9 below shows, were the largest single group of the complaints that the Commission received during the reporting period. This trend was also noted in all of the Commission’s past four annual reports. The Commission welcomes the recent enactment of a new set of labour laws, which took effect on 1st July 2008. However, the Commission is concerned that the Government has apparently not implemented some of the policies and administrative reforms, such as the need for a well-resourced and effective labour
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) department, which the Commission recommended in 2006 in the 6th edition of its Nguzo za Haki journal, whose theme was Labour and Human Rights. Many complainants continue to rate the efficiency and effectiveness of the labour department very poorly.
Table 2: A Sample of Nature of Violation and Admission Status of Received Complaints Admitted Not Petition Closed Pending Total admitted General1 Petition Admission General 1 Labour Rights 7 233 49 13 61 363 2 Land Rights 7 87 8 3 19 124 3 Police 21 12 21 19 18 73 Shootings 4 Administration 5 52 1 1 7 66 of Justice 5 Civil/Contract 0 48 4 1 8 61 ual matters 6 Inaction by 9 22 11 2 12 56 police 7 Criminal 1 40 4 2 2 49 matters 8 Complaints 0 30 7 4 2 43 against Lawyers 9 Corruption 0 32 2 0 3 37 10 Abuse of 1 11 6 0 7 25 office/Inaction 11 Discrimination 1 7 5 0 8 21 12 Torture 1 1 3 0 4 9 13 Others - - - - - 629 Total 88 958 203 37 270 1,556
The large number of cases not admitted is largely due to the fact that they do not fall within the mandate of the Commission. Many complaints do not fit the admissibility criteria set out for the admission of complaints. To address this, the Commission will focus on publicizing its mandate and admissibility criteria by disseminating IEC materials about the Commission at human rights clinics and through other avenues. Complaints that are not admitted are usually referred to relevant agencies and departments.
1 Petition Generals are temporary folders where complaints whose admissibility criteria are still being tested are filed.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Opened complaints files
The Commission opened thirteen (13) new complaint files during the reporting period, down from the 56 files opened during the 2006/2007 period. Files are usually opened for complaints that are admitted for investigation. These are usually matters that fall within the National Commission’s admissibility criteria either directly or indirectly or indirectly. They include allegations of torture or extra-judicial killings by the police.
As at the end of the reporting period, the Commission had 103 active files, 90 of which had been carried forward from previous years. The open files are listed in table 10 below.
Table 3: The opened complaints files Complaint No. Date Nature of Respondent Province Opened Violation 1 KNCHR/2007/11 30/7/07 Police Githurai Nairobi 2 07 5/7/07 shooting Kimbo Police Nairobi KNCHR/2007/11 Labour rights Post 08 Jojas & Usalama (K) Ltd 3 KNCHR/2007/1109 7/8/07 Inaction by Nandi Hills Rift Valley police Police Station 4 KNCHR/2007/11 16/8/07 Police Kamukunji Nairobi 10 shooting Police Station 5 KNCHR/2007/11 4/9/07 Labour rights - Nairobi 11 6 KNCHR/2007/11 18/9/07 Personal Karuri Police Central 12 liberty Station 7 KNCHR/2007/11 - Unlawful Embakasi Nairobi 13 detention by Police Station police 8 KNCHR/2007/11 24/9/07 Police Ruaraka Nairobi 14 shooting Police Post 9 KNCHR/2007/11 17/10/07 Children Ngakaari Eastern 15 rights Primary School 10 KNCHR/2007/11 17/10/07 Death in Central Police Nairobi 16 police custody Station 11 KNCHR/2007/11 7/11/07 Police Kayole Police Nairobi 17 shooting Station
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 12 KNCHR/2007/11 5/12/07 Death in Sultan Hamud Eastern 18 police custody Police Station Nairobi 13 21/1/08 Administratio Hon. Moody KNCHR/2008/01 n of Justice Awori
2.3: Investigations
Apart from conducting routine preliminary and further investigations (in Kisii, Kiserian, Naivasha, Malindi, Karatina, Mombasa and Mt Elgon) into individual admitted or petition general complaints, the Complaints and Investigation Programme conducted a number of rapid responses. These involved cases that required the urgent intervention of the Commission outside its normal chain of processing complaints.
Case Studies
Mr. George Nguchua reported to the Commission on August 24, 2007 that his son, Ibrahim Waiganjo, was among the ‘most wanted persons’ whose names were aired in the August 23, 2007 NTV news of 7:00 pm and 9:00 pm over their alleged involvement in the kidnapping of a two-year-old girl. Fearing that the police would kill his son extra-judicially if they caught him, the complainant sought the intervention of the Commission. A Commission team, together with the complainant, subsequently picked up the complainant’s son and his alleged accomplices at Mathare North Estate and safely took them to Buru Buru Police Station. Despite the hostility of the Buru Buru OCPD, Deputy DCIO and Deputy OCS because of the Commission’s intervention, the suspects were formally arrested and booked at the station under Occurrence Book No. 43/24/08/07.
Another form of rapid response that the Commission employed during the reporting period was the filing of habeas corpus (‘produce the body’) applications in court. This was mainly to ask the Government to produce persons who had disappeared in the hands of police officers. Table 11 below gives a summary of the two habeas corpus applications that the National Commission filed in High Court.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Table 4: Habeas Corpus Applications Complainant Date of Respondent Number of Status Disappearance Habeas Corpus Application 1 Janet 22/7/07 Kiamba 749 of 2007 Pending: The Wanjiku(representing District matter was Allan Kamau) Officer’s mentioned on Administration 9/4/08, 11/6/08 Police Officers and 25/6/08 2 Ann Nungari 22/7/07 Kiamba 750 of 2007 Pending: The (representing John District matter was Mwangi Kiruthi) Officer’s mentioned on Administration 9/4/08, 11/6/08 Police Officers and 25/6/08
The National Commission conducted investigations into allegations of widespread forced disappearances and extra-judicial killing of over 300 members of the illegal Mungiki sect by the police and subsequently released its investigation report entitled ‘The Cry of Blood Report on Extra-Judicial Killings and Disappearances’ to the public on September 23, 2008. The report was also forwarded to the Attorney General and other key government offices for appropriate action, since the report implicated members of the police force Kwe Kwe Squad/Operation in a number of forced disappearances and extra-judicial killings.
Sample of success stories
Table 12 below gives a sample of the successes that the Commission recorded during the reporting period.
Table 5: A Sample of Success Stories Complainant Respondent Nature of Type of Outcome Violation Intervention by KNCHR 1 Zablon Nyaga XXX Breach of Conciliation The parties signed a employment conciliation contract agreement in which the respondent agreed to pay the complainant KSh 140,000 in equal
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) monthly installments, with effect from 5/10/07
2 Domitila XXX Over 200-day Wrote a letter to The DDP ordered Mwikali detention at the the Director of the release of the Kawembe police station Public suspect on 4/1/0/07 Prosecutions 3 Stephen XXX Unfair arrest on Rapid response to The detainee was Kabui 21/11/07 and Umoja Chief’s released on 23/11/07 illegal Camp on 23/11/07 without charge, detention/extortion though the officers 4 Kenya XXX had allegedly Network of Rapid response on demanded KSh Grassroots Prolonged 27/6/08 50,000 from him in Organizations detention of 22 exchange for his mothers due to release. their inability to After meeting with settle maternity the hospital’s fees administrators, the 22 women were released on 27/6/08
2.4: Closed complaint files
During the reporting period, the Commission closed investigations on fourteen (14) files, compared to the 229 files that were closed in the 2006/2007 period. As table 13 below shows, some complaints files were closed because of the complainants’ failure to actively follow up on their complaints. Regulation 11(3) of the KNCHR Complaints Procedures Regulations of 2005 empowers the Commission to discontinue processing a matter where the complainant has failed or neglected to respond to communications from the Commission for over three months.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Table 6: The Closed Complaint Files. Complaint Complainan Date Nature of Date Reason No. t Opened Violation Closed 1 KNCHR/2007/ XXX 5/7/07 Labour rights 5/7/07 Successfully 1108 conciliated 2 KNCHR/2002/ XXX 20/11/0 Labour rights 29/10/0 Lack of follow up 555 2 7 by the complainant 3 KNCHR/2003/ XXX 15/12/0 Abuse of 16/11/0 Subsequent lack 666 3 office 7 of mandate 4 KNCHR/2007/ XXX - Unlawful 30/10/0 Detainee was 1113 detention 7 released 5 KNCHR/2003/ XXX 20/8/03 Death in 9/11/07 Inquest in court 633 police custody 6 KNCHR/2004/ XXX 24/5/04 Eviction 17/1/07 Lack of follow up 780 by the complainant 7 KNCHR/2004/ XXX 3/3/04 Torture by 9/1/07 Lack of evidence 731 police 8 KNCHR/2004/ XXX 12/11/0 Delayed 21/5/07 Lack of follow up 838 4 pensions by the complainant 9 KNCHR/2003/ XXX 26/9/03 Administratio 21/5/07 Complainant 650 n of Justice advised accordingly 10 KNCHR/2006/ XXX 16/5/06 Wrongful 21/5/07 Matter pending in 1028 death court 11 KNCHR/2004/ XXX 15/5/04 Police 5/11/07 Referred to the 775 harassment Complaints Hearing Panel 12 KNCHR/2004/ XXX 12/11/0 Freedom of 14/11/0 Referred to the 850 4 Expression 7 Complaints Hearing Panel 13 KNCHR/2006/ XXX 24/3/06 Police 9/11/07 Referred to the 972 shooting Complaints 14 KNCHR/2004/ XXX 19/10/0 5/11/07 Hearing Panel 1077 6 Police Referred to the shooting Complaints Hearing Panel
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2.5: Achievements
Outputs 1. Screened and processed 1,465 complaints and produced reports. 2. Opened 13 new files for investigations. 3. Conducted investigations on extra-judicial killings, including provision of information to the UN Special Rapporteur on Extra-Judicial killings. Report of the KNCHR investigations shared with the OHCHR and the UN Human Rights Council. 4. Closed 14 files.
2.6: Challenges
Apart from meeting the high expectation of complainants, a related challenge that the Commission faced is that many Kenyans are ignorant of its complaints admissibility criteria. As shown in table 2 above, 61.5 per cent of the 1,556 reports that the Commission received during the reporting period were rejected. To address these two challenges, during the reporting period the Commission, for example, published and began disseminating a bi-lingual (English and Kiswahili) popular version of its complaints procedures regulations. The Commission also hopes that the newly established Public Complaints Standing Committee and the Police Oversight Board will begin to address and resolve issues relating to complaints against police officers, other public officers and public institutions.
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3.0: CAMPAIGNS AND ADVOCACY PROGRAMME
3.1: Background
The Campaigns and Advocacy Programme seeks to monitor and catalyze reform of law enforcement institutions, such as the Police Force and the Prisons Service, pursuant to section 16 (1) (b) of the KNCHR Act. The Programme also works on activities aimed at addressing past historical injustices; infusing values of national integration; and consolidating political accountability among the political class.
Objectives During the period under review the Programme worked towards realization of the objective on “Reducing Systemic Human Rights Violations” under Strategic Objective 1 of the Strategic Plan. The Plan identifies systemic human rights violations as those embedded in the country’s institutional, legal and administrative systems and practices. In order to realize this objective in the year under review, the Programme worked towards delivery of the following outputs:
1. Initiating specific investigations on human rights concerns and violations including those faced by women and girls. 2. Providing prompt redress in situations of violations. 3. Initiating and coordinating campaigns on negative ethnicity including its impact on the rights of women and girls. 4. Contributing to establishment of an effective and responsive system for enforcement of human rights. 5. Coordinating partner involvement in targeted campaigns.
3.2: Activities implemented
1. Monitoring the 2007 Campaigns and General Elections The programme coordinated the efforts of the Commission in monitoring the hotly contested 2007 campaigns and the general elections. 21 monitors were hired to work with Commission staff to monitor the campaign activities of the main contesting parties, which were the ODM, PNU and ODM Kenya. In addition to monitoring the campaigns, the Commission was invited by political parties to monitor the nomination process for the various civic, parliamentary and presidential positions. During campaign monitoring, the Commission focused on hate speech, incitement to violence, misuse of state resources and violence. Over 90% of campaign events were monitored. Staff and monitors were deployed to 70 constituencies during the general election to monitor and document instances of electoral infractions as well as the conduct of the Electoral Commission of Kenya during the elections.
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The Commission produced the report “Still Behaving Badly” that details the misuse of state resources, participation of state officers in political campaigns, utterances that fell in the category of hate speech, as well as incitement and violence. It is useful to note is that during the implementation of this particular activity the public’s interest in monitoring political actors was heightened and there was an increase in the rate of reporting electoral complaints by the public to the Commission. The Commission made various recommendations relating to accountability for the violations witnessed, but in most cases no action was taken by relevant authorities. Despite the reluctance of relevant state agencies to take action against recalcitrant politicians, some were fined by the Electoral Commission for electoral infractions.
While the Commission’s election monitoring report was not fully implemented in the period immediately before the elections, it informed the proceedings of the Independent Electoral Review (Kriegler) Commission, which was mandated to look at the electoral management structure and processes. The report was further useful in informing part of the proceedings of the Commission of Inquiry into Post-Election Violence (the Waki Commission).
2. Campaign Against Arbitrary Renditions The Campaign against arbitrary renditions flowed from the 2006/2007 work plan and was informed by reports the Commission continued to receive of mass arrests, illegal incarceration and deportation of over 100 terrorism suspects by the police. The Commission, together with other partners, intensified the campaign against arbitrary renditions by monitoring and investigating reported violations of human rights by the police and other security agencies in the ongoing war against terrorism. During the review period, the Commission focused on strengthening the established working group on terrorism, which is composed of key stakeholders in the human rights field.
This focus is informed by the mandate of the Commission at section 16 (1) (g) of the KNCHR Act to “to encourage efforts of other institutions working in the field of human rights and co- operate with such other institutions for the purpose of promoting and protecting human rights in Kenya”. The remit of the working group was mainly to undertake joint research, advocacy and lobbying activities aimed at profiling the human rights abuses that occur as a consequence of the “war against terror”. Building from the first workshop that was held in May 2007, the Commission supported two workshops in Nairobi and facilitated the preparation of a joint work plan for the working group.
The Programme profiled arbitrary renditions as acts that promoted human rights violations, such as discrimination on the basis of religion and race, lack of protection under the law and disrespect for the rule of law. Further, the Programme was able to profile and demonstrate that the rendition of “terror suspects” to lawless Somalia and Ethiopia exposed them to the possibility of gross human rights violations.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 3. Advocacy for Truth Justice and Reconciliation Commission The activities relating to transitional justice which the Programme intended to undertake were not undertaken because of a policy decision to shift focus to sustaining pressure for the creation of a Truth Justice and Reconciliation Commission (TJRC). The Programme considered the creation of the TJRC instrumental to ensure redress for victims of past historical injustices who had been engaging with the Commission since it was established in 2003. Indeed, one of the outcomes of the National Dialogue and Reconciliation process was the agreement reached to form a TJRC. In April 2008, the Commission was invited by the Ministry of Justice and Constitutional Affairs to participate in a retreat to produce the first draft of a TJRC Bill. Shortly thereafter, a zero draft was circulated for comment. The Programme convened a multi- sectoral Taskforce on TJRC, comprised of the Commission and several civil society organizations, to lead the process of critiquing the Bill and making recommendations to strengthen it.
The Taskforce held a workshop to bring together several stakeholders in an attempt to foster better understanding of the draft and make recommendations for improvement. This was followed by a public forum at which members of the public were able to provide input into the debate. Following this, the task force organized a lunch for the Editors Guild to engage the media and inform it of its role in the TJRC process.
In the meantime, the Bill was formally published in the Kenya Gazette on 9th May 2008. The Programme then led the taskforce’s efforts to collate proposed amendments and prepared a memorandum and schedule of amendments and made a submission to the Parliamentary Committee on Legal Affairs and Administration of Justice.
4. The Campaign against Disappearances and Extra-Judicial Killings. Since its inception, the Commission has received and investigated complaints of extra-judicial killings and disappearances. In the last quarter of 2007 the Programme became concerned about the rise in cases of extra-judicial killings and disappearances. These occurred after the formation of a police squad mandated to eliminate members of the outlawed Mungiki sect. The Programme, in collaboration with the Complaints and Investigations Programme, commenced investigations into the matter and released a preliminary report indicating that the Kenya Police appeared to be complicit in the extra-judicial executions of a large number of Kenyan citizens, depositing their bodies in various mortuaries in the country, while leaving others to be devoured by wild animals or dumping them in various locations such as forests, desolate farms, rivers and dams.
The findings of the preliminary report were transmitted to the President of the Republic of Kenya and made available to all relevant Government departments with the recommendation that the concerned authorities act on its findings. The Police Commissioner dismissed the investigative findings as ‘highly irresponsible’ and challenged the Commission to ‘provide any
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) evidence to these rather infantile accusations’. Subsequently, the Kenya Police issued its official rejoinder to the Commission’s report. The Police rejoinder did not deny the the deaths but merely stated that inquest files had been opened.
This prompted the Commission to proceed with further investigations to complete the report and the ensuing findings confirmed the substance of the preliminary report and revealed egregious violations of the law and fundamental human rights by the Kenya police in dealing with suspected Mungiki members and other alleged criminal suspects. Fact finding missions were undertaken to mortuaries that included Nairobi City Mortuary, Naivasha District Hospital Mortuary, Nanyuki District Hospital Mortuary, Machakos District Hospital Mortuary, Nakuru Provincial Hospital Mortuary, Nakuru Municipal Mortuary, Nyeri Provincial Hospital Mortuary, Karatina District Hospital Mortuary, Murang’a District Hospital Mortuary and Kerugoya District Hospital Mortuary. Other visits were conducted in Ngong, Magadi, Kiserian, Kangundo, Karura, Kieni forest, Nanyuki, Suswa and Athi River after the Commission received information that dead bodies had been discovered.
The conclusion of the team was that extra-judicial executions and other brutal acts of extreme cruelty were being perpetrated by the Police against Mungiki adherents and that these acts may have been committed pursuant to an official policy sanctioned by the political leadership, the Police Commissioner and top police commanders. As if to affirm the findings of the Commission, on 20/9/07, the then Minister for Foreign Affairs Hon Raphael Tuju, participating in the “Louise Otieno Live” program on Citizen TV, was captured saying that “For the past few months, up to 400 people were killed because they were Mungiki followers”. The KNCHR secured the TV clip of Minister Tuju’s admission, which was transmitted live.
As at the end of the review period, investigations were still ongoing with a view to compile a final report on the matter and secure redress for victims of the killings. The Programme intends to use the final report to catalyze advocacy efforts for police reforms.
5. Investigations into human rights violations by security forces in Mount Elgon In April/May 2008, the Programme commenced investigations in Mount Elgon to determine the veracity of allegations of human rights abuses perpetrated by security forces against residents of the Mount Elgon area. The genesis of military involvement in provision of security in the area was as a result of gross human rights violations by militia groups in the area. During investigations into the allegations of rights violations by security forces, the Programme found that the illegal activities of the Sabaot Land Defence Forces (SLDF) had resulted in the deaths of more than 600 people, the decapitation of several individuals, mutilation, rape, extortion, looting and destruction of property.
Three missions were undertaken to the area, during which the Programme found that several civilians were displaced from their homes and many who remained lived in constant fear of
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) being killed or harassed by members of the group. The Programme found that residents of the area were unable to report the complaints to the police for fear of reprisals by the group. The Programme also found out that other militia groups such as the Political Revenge Movement and Mooreland Defense Force had been formed to counter the SLDF and their activities had also resulted in the loss of lives.
A special report on the findings, “The Mountain of Terror”, was prepared and released and meetings were held with the Parliamentary Committees on Security and Defense to share the Commission’s findings and to discuss the allegations. The programme also unsuccessfully sought to meet with the Attorney General to present the findings. The programme nevertheless sent his office copies of statements and other back up evidence of torture by the military. At the end of the reporting period, there were still violations occurring in the region.
6. Progress towards securing redress for victims of ethnic clashes Whereas the National Commission’s earlier focus was on internally displaced persons (IDPs) affected by political skirmishes and ethnic clashes, the focus shifted significantly following the massive displacements that followed the post-election violence. In this regard, the Commission has continued to monitor the ongoing ‘Operation Rudi Nyumbani’, which is aimed at facilitating the return of the IDPs to their homes. There have been many questions regarding whether the operation has been compliant with accepted international standards. Kenya does not have a formal policy on dealing with IDPs. As such, the resettlement programme lacked proper coordination and a significant number of IDPs complained of lack of consultation and proper facilitation. It would appear that the government’s main concern was to clear the IDPs from the major camps without due regard to the material conditions on the ground. As a result, many IDPs ended up in multiple transitory camps where they had little or no access to basic amenities and humanitarian assistance. Some IDPs fled after they were relocated, citing fresh attacks/threats. In the coming year, the programme plans to actively continue monitoring the developments in the resettlement exercise to ensure that it is conducted in accordance with human rights principles and standards.
The matrix below summarizes the achievements against the planned activities. A variance analysis is provided to explain instances where the actual output failed to co-relate with the expected output. Table 14 summarizes the performance of this programme.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Table 7: Achievements and Variances Activity Expected Output Actual Output Variance Analysis Advocacy for the Draft amended None There was little progress on enactment of the Prisons Act, Rules and this planned activity. There proposed amendments Force Standing Orders was a presentation on the to the Prisons Act and proposed amendments of its Rules Meetings with Kenya the Prison Act and rules and Law Reform the specific Commission and other recommendations on the stakeholders human rights component of Prisons reform to the Committee appointed by the Vice President to investigate the crisis in Kenyan prisons which led to a Warder’s strike in March (the Madoka Committee wherein KNCHR was represented). The Committee was keen to adopt the Commission’s recommendations. Engaging with the Draft amended Police None There was no progress on Kenya Law Reform Act, Rules and Force this activity largely due to Commission on Standing Orders the negative and insular amendments to the attitude of the Police. The Police Act, Rules, and Meetings with police Programme explored Force Standing Orders Kenya Law Reform alternative means of Commission and other engaging the police so as to stakeholders reduce mutual hostility and create the space for much needed constructive criticism. The engagement did not bear much fruit. Completion of research Draft research report Draft report produced on congestion in prisons Scheduled and Missions to various Visits to 3 prisons – unscheduled visits to prisons Kingongo (9/4/08), prisons and other places Isiolo (12/6/08) and of detention Bungoma (18/4/08 &
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Reports from Prison 29/6/08) visits 3 reports from the prison visits Participation in Undertaking various 1 staff and 1 national, regional and exposure visits commissioner visited international forums on Botswana and Lesotho penal reforms Reports from the on penal reforms exposure visits matters 2 reports from exposure visit Building human rights Trainings None capacity training for Training reports Visiting Justices Strengthening None coordination and linkages among the criminal justice agencies Conduct various Meetings initiatives geared Media advocacy towards building momentum for establishment of a police civilian oversight mechanism Scheduled and Investigation and Visited 26 police unscheduled monitoring inspection missions stations and 2 AP posts visits to police stations undertaken in various on the basis of received and places of detention police stations & complaints (Londiani, places of detention Kericho, Koru, Muhoroni, Manga, Migori, Elburgon, Reports from Prison Olenguruone, Molo, visits Bungoma & Kuresoi, Nanyuki, Makongeni, Depot, Shauri Moyo, Buruburu, Kayole, Soweto, Huruma AP Post, Umoja AP Post, Kamukunji, Pangani,
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Muthaiga, Langata, Nyayo Stadium, Ongata Rongai, Kiserian, Central (Nairobi) 28 reports from the monitoring missions Support to the activities Meetings with 2 workshops held of the working groups stakeholders on on terrorism and human terrorism and human Draft work plan rights rights prepared Joint work plan for implementation of activities on terrorism and human rights Collection, design and Meetings with Meetings undertaken exhibition of history anthropologists and exhibition other stakeholders Minutes of meetings Minutes of meetings undertaken Participation in peace Peace missions in None building and conflict theatres of conflict resolution initiatives Mission reports Meetings with District Peace Committees in theatres of conflict Development of IEC Posters, billboards and Billboards on one love materials against pamphlets; audio campaign put up in negative ethnicity – visual materials on strategic venues in posters, billboards and negative ethnicity Nairobi pamphlets; audio visual produced 2000 T-shirts (‘Mimi ni materials, etc Mkenya) produced Artwork on posters and pamphlets on negative ethnicity produced, awaiting publication Complete the Published manual Draft manual ready, not There wasn’t much progress operational manual on published on having the operational transitional justice manual published. However, the manual was a key resource that informed
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) discussions surrounding the establishment of the Truth Justice and Reconciliation Commission, after the 2007 general elections File court proceedings Pleadings filed in None against individual court perpetrators of past Research report injustices Conduct advocacy Meetings with victim towards redress for groups clash victims Media advocacy Conduct lobbying and Media advocacy on None Planned advocacy activities advocacy on the the Nyayo Torture were not undertaken. proposed Nyayo House House Museum However, the Programme Museum Meetings with policy worked comprehensively on makers actively informing and shaping the debate on the TJRC and actualization of the proposed Truth Justice and Reconciliation Commission (created under the Agenda 1-4 agreements). Feedback and compile Published Operational None This activity was not Operational Manual on Manual on CDF deemed a priority activity the CDF particularly in the context of the 2007 general elections and the ensuing matters. Conduct Research and Report on past Not done This work was put off till compile report on past campaign financing later as the Programme campaign financing and and security slush focused on 3 critical security slush funds funds investigations – extra judicial killings, Mt. Elgon and Post-election Violence Countrywide launch Report of the launch Report prepared and dissemination of of the MOPA Charters Countrywide missions the political Undertaking undertaken in 8 accountability charters dissemination provinces with media for the Movement for missions countrywide publicity during the
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Political Accountability launch Reprint of the Reports reprinted None A policy decision was made referendum report not to undertake this activity “Behaving Badly” and during the year under reprinting the July 2006 review as it was felt the by-elections reports activity was unlikely to add value Institution of Pleadings prepared None representative private and filed in court prosecutions arising out Legal opinion of the referendum and by-elections violations Monitoring the 2007 Reports from Periodic reports from General Elections and campaign monitoring the campaign related processes missions in 70 monitoring missions constituencies 2 progress reports Periodic reports produced Summative Report 1 summative report produced Privately prosecuting Legal opinion None This activity was pre- documented violations prepared empted by the violence that of the law from the Pleadings prepared occurred immediately after election monitoring and filed in court the 2007 elections. Filing a work suit against individuals would have heightened ethnic tensions at the time. It was deemed wise delay this activity. Conducting rapid Investigation missions 6 investigation missions response interventions undertaken based on undertaken in Likia, in cases of human rights complaints received Kuresoi, Mount Elgon violations Reports from and Burnt Forest investigation missions Reports from the 6 investigation missions Scenarios planning for Meetings with staff 1 meeting with staff the pre and post 2007 and other stakeholders Brief disseminated general elections Brief on pre 2007 and post 2007 general elections
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) From the results matrix, it is clear that the Programme did not implement most of the activities that were planned for the year under review, because the Programme’s activities were negatively affected by the post-election violence. The violence compelled the Commission to shift its focus to address the emerging issues. These included widespread human rights violations by the police force, the military, and militia groups, the general breakdown of law and order; and the public’s mistrust of Kenya’s governance institutions. The Commission concentrated its advocacy efforts on the creation of a Truth, Justice and Reconciliation Commission, the Commission’s campaign against disappearances and extra-judicial killings, investigations into the torture of civilians during a military operation in Mount Elgon, investigations into post-election violence and a campaign against arbitrary renditions, in addition to key planned activities.
3.3: Achievements
Outputs 1. Profiled misuse of public resources during the election campaigns in 2007. 2. Profiled the human rights violations during arbitrary renditions in fighting terrorism. 3. Led in advocacy efforts for the creation of the TJRC. 4. Blew the whistle on extra – judicial killings by police and torture by the military in Mt. Elgon. 5. Highlighted the plight of IDPs.
3.4: Key lessons and challenges
Key Lessons The following were some of the key lessons learnt during this financial year: 1. Partnership building is important to achieve the Commission’s goals.
2. The support of key government institutions, including the police, is crucial for the work the Programme undertakes.
3. There is a need for continuous monitoring of Kenya’s political environment, not just one- off monitoring of elections and by-elections.
4. The measure of democracy is not the elections themselves but what transpires in between. The focus has been on elections but there is a need to institutionalize monitoring and have it undertaken at least 1 to 2 years prior to elections.
5. Further with regard to election monitoring, a key lesson learnt is relating to the need to coordinate efforts of the various actors working towards the same goal.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 6. Further, and still on election monitoring work, it is important to educate the public as we monitor the actions of political leaders and other players. It is therefore critical to build upon the efforts of the year under review and upscale this work.
Challenges Due to the sensitive nature of this work, staff within the Programme experienced continuous threats by the perpetrators of violence and human rights violations. This calls for proper security arrangements to protect staff.
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4.0: HUMAN RIGHTS EDUCATION AND CAPACITY BUILDING PROGRAMME
4.1: Background
The Kenya National Commission on Human Rights Act under section 16(1) c) mandates the Commission “to inform and educate the public as to human rights for the purpose of enhancing respect for such rights.” This mandate has been given effect through Strategic Objective 4 on Establishment of Comprehensive Human Rights Education Systems, in which the Commission strives to build the capacity of both rights holders and duty bearers through public education, trainings, workshops and development of key Information, Education and Communication (IEC) materials.
Objectives of the Programme The objectives for the programme under the strategic objective 4 are as follows: 1. Undertake human rights capacity building for government agencies. 2. Advocate for the incorporation of human rights education in all public learning and training institutions as well as law enforcement agencies. 3. Develop targeted IEC materials.
4.2: Activities Undertaken
1. Undertook high level gender and human rights training sessions for public and law enforcement officers, and for Public Service Commission employees, who included lecturers from Kenya Institute of Administration (KIA) and Kenya Government Training Institutes (GTIs) from Matuga, Baringo, Embu and Mombasa. 2. Planned and held discussions with the Army, Prisons and Police Officers from different countries between June 2007 and July 2008. 3. Organized refresher courses on human rights for Police Officers at Kiganjo Police College as well as UN Peace Keeping Forces who were to be deployed to Sudan and Somalia, among other countries. 4. Developed national guidelines and curricula for human rights education in key institutions. 5. Developed specialized IEC materials on human rights (including those focusing on human rights for girls and women as a vulnerable category). 6. Conducted a survey on the extent of incorporation of human rights content in primary and secondary school curricula. 7. Developed a human rights curriculum and training manual for public officers.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 8. Organized a colloquium for Judges and Magistrates in collaboration with Kenya Magistrates and Judges Association and the International Commission of Jurists. 9. Developed key target-based IEC materials on Child Rights, Human Rights Based Approach to Programming, Complaints Procedure, and Right to Food. 10. Carried out a Situation Analysis (SITAN) for children’s rights in partnership with UNICEF, Government ministries and NGOs and produced a report covering the Right to Health; Freedom from Discrimination and socio-economic rights for children in difficult situations of poverty and vulnerability; the Right to Education and Development; and the Right to Freedom of Expression, Participation and Choice.
4.3: Achievements
Outputs
1. Contributed to building the knowledge and skills on gender and human rights of senior policy makers, law enforcement and military officers and key opinion shapers. 2. Raised awareness of human rights among the armed forces personnel, prisons and police, judges and magistrates. 3. Infused human rights courses in teacher training curricula. 4. Availed baseline data on the extent of human rights incorporation in school curricula. 5. Produced a human rights training curriculum and training manual. 6. Developed key target-based IEC materials to be used by the public. 7. Produced a report on the situation of children’s rights.
The actual quantification of the outputs is outlined in table 1 below.
Outcomes
1. Adoption of human rights principles through curriculum development for learning and training institutions as well as law enforcement training institutions. 2. More informed citizens taking action in upholding and defending human rights. 3. Increased capacity and change of attitude of public and law enforcement officers in upholding human rights of Kenyans, including the rights of women, children and people with disabilities
4.4: Key lessons and challenges
The following were some of the key lessons learnt during this year: • That partnership building is important to achieve the Commission’s set goals.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) • Participatory approach is key to achieving and implementing programme work. • Timely planning is of paramount importance to Programme planning and execution. • Targeted IEC materials are effective in the achievement of objectives of enhancing awareness of human rights. • Selections and Terms of Reference for consultants should be clear and comprehensive to realize the goals of an activity. • Once engaged it is important to provide management services to consultants.
Challenges
There were several challenges but the main ones were: 1. Flow of information between the Commission and the Police Department was limited, making it difficult to undertake informed analysis. 2. The survey on the extent to which human rights content is infused and integrated into school curricula was not well conceptualized. Therefore, the findings were not defensible. 3. The study on human rights in school curricula was poorly conducted due to inadequate conceptualization and a choice of sampling that was not representative. 4. Low staffing levels in the programme led to targets not being met.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Table 8: The outputs of the education and capacity building programme.
Activity Expected output Actual output Variance Analysis Training of public 40 officers 32 officers trained 8 people did not officers attend Training of deans of 35 officers 35 officers trained No variance curriculum from Teacher Training Colleges Judges colloquium 362 judges and 362 judges and No variance magistrates magistrates attended the colloquium Human rights 200 peace keepers 200 peace keepers in No variance discussions to UN attendance Peace keepers forces (Ad hoc) Refresher course on 400 officers 400 police officers in No variance Human rights for police attendance officers at Kiganjo police training college 2. Incorporation of human rights education in training and learning institutions Survey on the extent of A survey carried out A draft report Survey did not incorporation of human Report on the meet the expected rights content in findings objectives so it primary and secondary was rejected by school curricula stakeholders Human rights Development of a Draft Human rights No variance curriculum for public human rights curriculum and officers curriculum training manual available
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3. Development of key IEC materials Development of key 5 issues based IEC 5 issued based IEC No variance IEC materials materials developed materials developed on Child rights, Human Rights Based Approach to Programming, The Complaints Procedures, Right to Food Arrested, What Next? ( the trial process) 4. Ad hoc activities SITAN – Situation A report on the A draft report No variance analysis for children’s thematic areas rights
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5.0: RESEARCH, POLICY AND LEGISLATION PROGRAMME
5.1: Background
The Research, Policy and Legislation Programme responds to the National Commission’s Strategic Objective 2 on Leadership in Framing and Informing the Human Rights Discourse. It also responds to section 16 (1) f) of the KNCHR Act that mandates the Commission “to act as the chief agent of the Government in ensuring the Government’s compliance with its obligations under international treaties and conventions on human rights”.
Objectives In line with the Strategic Objective 2, the programme worked towards realizing the following objectives: 1. To gain recognition as the national focal point for reliable, current human rights information about Kenya. 2. To emerge as the key human rights agenda setting institution. 3. To emerge as the authority in judging human rights violations situations and 4. To emerge as a regional leader in agenda setting on human rights.
During the period under review, the Commission continued to research various human rights issues as a strategy for discharging its mandate. The programme sought to frame human rights issues through research. However, much of the planned work was delayed by the 2007 post- election violence and the comprehensive investigations into the violence that the Commission conducted.
During the year under review, research by the Commission was driven by two main considerations: 1. To make recommendations for policy, legislative and administrative reforms; and
2. To influence and shape the human rights discourse, both nationally and internationally.
5.2: Activities implemented
1. Steered development of the National Policy and Action Plan for the promotion and protection of human rights in Kenya The Commission in conjunction with the Ministry of Justice and Constitutional Affairs continued to steer the development of the National Policy and Action Plan for the promotion and protection of human rights in Kenya. This entailed the following:
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) a. Conducted hearings in four provinces, Central, Nyanza, Western and Eastern, with the objective of consulting and gathering the views of Kenyans on the key issues that they would like to see reflected in the human rights policy and action plan. During the hearings, the Commission isolated and acted upon complaints lodged before the panelists as well as key human rights priority areas that needed immediate intervention.
b. The process of developing the policy and action plan enabled the Commission to engage in outreach and sensitization in the far-flung areas where the Commission has no presence. The ‘Wananchi’, NGOs and administration officials in the provinces where the hearings have been conducted are now much more aware of the Commission, its mandate and functions.
c. A Steering Committee and Thematic working Groups comprising Government, civil society and private sector membership was set up, leading to a cross-sectoral partnership and network for human rights.
2. Strengthened mechanisms for the protection of human rights The Commission together with its partners successfully lobbied the Government to ratify the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The ratification took place on 19th May 2008. The Commission has subsequently embarked on a campaign to push for domestication of the Convention and review of the Persons with Disabilities Act to be in line with the UNCRPD. The UNCRPD, once fully implemented, will provide for a mechanism through which the rights of persons with disabilities in Kenya would be realized and enhanced. It will also provide a framework through which both the Government and the private sector will be held accountable to ensure that persons with disabilities’ rights are safeguarded and enabled, including in sectors such as labor and the work place. The Commission will continue to provide advisories to the Government on key issues that need to been taken into account to achieve full implementation of the UNCRPD.
3. Anti-discrimination. The Commission embarked on a project, in partnership with civil society and other Government agencies including the Ministry of Justice, to create a framework for anti-discrimination and equal treatment. A broad-based stakeholders committee was formed to drive the process and lead in the identification and isolation of key issues that would form a national strategy for anti- discrimination and equal treatment for Kenya. The committee has been mandated to look at both horizontal and vertical aspects of discrimination as well as multi-discrimination with policy measures to address and resolve them. The strategy will be finalized, validated and adopted in the next financial year.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) The Commission successfully achieved a working collaboration with civil society and Government partners and this collaboration opened and facilitated further engagement between the Commission and partners in other sectors beyond work on equal treatment and anti- discrimination.
4. Issuing of authoritative, occasional, human rights research reports and position papers The Commission strived to infuse human rights into various policies, both proposed and existing, through research and the publication of occasional papers. To this end, the Commission identified key human rights issues, mainly arising from complaints lodged at the Commission, and conducted comprehensive research out of which it published 3 occasional reports with key recommendations to targeted Ministries and Government departments and agencies. The recommendations were presented in the form of policy, legislative and administrative actions necessary to remedy the identified human rights issues that formed the subject of the research.
During the period under review, the Commission conducted research, published and launched three occasional papers on the right to food, right to education for children with disabilities and on citizenship and access to identity documents. These reports were titled “Objects of Pity or Individuals with Rights: the Rights to Education for Children with Disabilities”; “Right to Food: An Assessment of Kenya’s Implementation of the Relief Food Program in 2006” and “An Identity Crisis: A Study on the Issuance of National Identity Cards in Kenya”. Following publication and dissemination of the said reports, the National Commission engaged the Ministry of Education and its agencies thus the Teachers Service Commission (TSC), Kenya Institute of Education (KIE), Kenya Institute of Special Education (KISE), the Kenya National Examinations Council (KNEC) and the Ministry of Immigration and the National Registration Bureau to advise and follow up on the implementation of the recommendations made.
The occasional paper on the right to education focused on recommendations to make education both relevant and accessible to children with disabilities while bearing in mind the principle of “the best interest of the child”. Arising out of this work, the Commission has engaged with the Ministry of Education to draft a Special Needs Policy that would govern and regulate education for children with disabilities. The findings and recommendations of the occasional paper largely informed the work of the Task Force assigned to prepare the policy.
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The occasional report on the issuance of identity cards made recommendations towards reforming the structures, rules and regulations governing the issuance of national identity cards. Arising from this, the Commission continues to work with the National Registration Bureau and the Ministry of Immigration and Registration of Persons in order to isolate recommendations to be implemented in the short, medium and long term. The National Registration Bureau reported to the Commission that it had set up a team to review the recommendations of the report and it should be noted that a number of recent reforms instituted by the Minister for Immigration regarding identity cards were contained in the Commission’s report.
5. Audit and Issue Advisories on Legislation and Policies that impact on Human Rights The Commission audits both existing and proposed legislation with a view to preparing advisories to Parliament and relevant Government ministries and agencies with recommendations for ensuring that the relevant legislation is human rights compliant. In the period under review, the Commission audited and prepared advisories on the following Bills and Legislation:
• The Media Act, 2007: The Commission made recommendations and comments that were presented to the Ministry of Information and Communications on the inadequacy of the existing media regulation framework and the need for an urgent review of relevant policies and laws. The Commission was emphatic that media regulation should not extend to media control and advised that the Bill ought to be crafted in such a way that both the rights of the general public and those of journalists were taken into account. The Commission also called for the Media Council’s independence to be guaranteed not only from the Government, but also from commercial media interests. The Commission’s advice was taken into account during the finalization of the Bill, which has since been passed by the National Assembly and assented to by the President.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) • Kenya Communications (Amendment) Bill: The Bill sought to place the Information, Communications and Broadcast sectors under a single regulator without independence. It also sought to regulate the licensing of broadcasters, establish a public broadcaster, restrict cross-media ownership and increase access to ICT services. After a public uproar over the Bill’s form and content, the Minister for Information and Communications withdrew it pending consultation with stakeholders. The Commission prepared an Advisory brief whose key highlights were: the necessity of access to information within a system regulated by an independent entity; the welcoming of cross-media ownership restrictions in view of the need to promote pluralism; the need to license broadcasters in a manner that does not interfere with the freedom of expression and choice of investment; and support for the deletion of the Minister’s emergency powers which were unconstitutional and a threat to democratic governance.
• The Miscellaneous Amendments Bill, 2007: The Commission reviewed and gave comments on 13 of the 41 Statutes proposed for amendment among them the KNCHR Act, 2002, The Judicature Act (Cap.8), the Advocates’ Act (Cap. 16), the Penal Code (Cap.63, the Non-Governmental Organizations Co-ordination Act (Act 19 of 1990 and the Anti-Corruption and Economic Crimes Act (No.3 of 2003). The Bill was passed by the National Assembly but rejected by the President in view of certain amendments to the Anti-Corruption and Economic Crimes Act, which were introduced on the floor of the house, seeking to prevent KACC from investigating acts committed before the year 2003.
• Section 25A of the Statute Law (Miscellaneous Amendments) Act: The Commission reviewed amendments made to the Anti-Corruption and Economic Crimes Act via the Statute Law (Miscellaneous Amendments) Act, 2007 and noted the inclusion of a Section 25A, which allowed the granting of amnesty by the government to persons accused of corruption. The provision was included in the Act in spite of the arguments against the inclusion of an amnesty clause contained in a memorandum issued by the President while rejecting a clause of a similar effect in the Statute Law (Miscellaneous Amendments) Bill and which argument was to the effect that the President was rejecting the principle of amnesty on grounds that it would run counter to public interest and policy, and that the same should be addressed by a separate and more comprehensive Bill on the subject. In addition, the Commission wrote to the Attorney General asking for urgent action to correct the dangerous situation of selective amnesty authorized by the amendment.
• The Constituencies Development Funds Act: Prior to publication of the Bill, the Commission and key stakeholders made proposals for a review of the Constituencies Development Funds Act with a view to infusing therein
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 5.3: Achievements
These include: 1. A consolidated understanding of the opinions of the Kenyan public on key issues to form the national policy and action plans for human rights. 2. Increased outreach of the Commission to far flung areas where it has no presence through regional hearings to develop the national policy and action plan for human rights. 3. Established focal points (steering committee and thematic groups) drawn from the Government, civil society and the private sector for networking and partnerships on human rights in the country. 4. Successfully lobbied, in collaboration with other partners, for the ratification of the UN Convention on the Rights of Persons with Disabilities. 5. Identified key issues to form a national strategy for anti-discrimination and equal treatment in Kenya. 6. Published two occasional reports targeting ministries and other Government agencies detailing policy, legislative and administrative changes to remedy identified human rights issues. 7. Prepared 12 advisories for Parliament on 12 bills and legislation. There was also an advisory prepared for the East African Community.
Outcomes
1. The Ministry of Education drafted the Special Needs Policy that would govern and regulate education for children with disabilities. The report is entitled “Objects of Pity or Individuals with Rights: The Right to Education for Children with Disabilities”. 2. The recent reforms instituted by the Minister for Immigration regarding identity cards were recommendations of the report of the National Commission titled “An Identity Crisis: A Study on the Issuance of National Identity Cards in Kenya”. 3. The government of Kenya has been able to keep to its reporting obligations under the international human rights mechanisms.
5.5: Challenges
The process of developing the national policy and action plan for human rights was delayed by the events of the post-election violence. Regional hearings planned for the Coast, North Eastern and Nairobi were therefore not conducted as initially planned and would be undertaken in the next financial year.
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6.0: ECONOMIC, SOCIAL AND CULTURAL RIGHTS PROGRAMME
6.1: Background
The Economic, Social and Cultural Rights Programme responds to the Commission’s Strategic Objective 3 on “Increased Opportunities for Realization of Economic and Social Rights”. In this regard, it worked towards realization of the following outcomes: • To contribute to improved livelihoods for vulnerable groups, in particular women, children and people with disabilities. • To ensure equitable access to social services by low income persons. • To ensure that there is enhanced legal protection of socio-economic rights.
Objectives The objectives for the reporting period revolved around the following areas: 1. Greater commitment by business entities to respect human rights; 2. Greater protection of the rights of internally displaced persons; 3. Public expenditure profiled as a tool for realization of rights of the vulnerable and marginalized groups; 4. A more informed citizenry on past corruption practices; 5. Greater understanding of the role of cultural systems in the protection of rights of the vulnerable.; 6. Reduction of barriers to the representation of women in local governance; 7. Rights of minority and Indigenous peoples profiled as a human rights issue; and 8. Policy advice provided to relevant stakeholders.
6.2: Activities implemented
These included:
1. Malindi Public Inquiry. The Commission continued to implement work following from the Malindi inquiry. The following were undertaken: a) Since the publication and dissemination of the Malindi Inquiry Report in 2006, the Programme has been working with the various stakeholders towards the implementation of its recommendations. Together with local civil society organizations, the salt companies and Government departments, the Programme pushed for the development of an implementation plan.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) b) The Commission conducted a capacity building workshop for Malindi Salt Manufacturers that was facilitated by Federation Kenya Employers (FKE) in which 14 participants from seven companies participated. The Provincial Administration was also represented and agreed to coordinate a multi-sectoral Task Force at the District level. A Joint Action Plan for the companies was developed and individual companies committed to develop company-specific action plans. The companies requested the Commission to serve as an independent arbiter between them and the complainants. The matter was handed to the FKE because most of the companies are members of it. Some of the key outputs of this intervention include briefs which were developed and circulated to highlight the lessons learnt from the Malindi Inquiry. The briefs were shared with the team working on the public inquiry on insecurity and will inform future public inquiries.
2. ISO SR 26000 The Programme continued to participate in the development of the ISO Social Responsibility Standard 26000. It did this by providing comments on the second working draft which were submitted in August 2007. The Standard is expected to guide all types of organizations on social responsibility and has a strong component of human rights. It is expected to be completed in a couple of years.
During the period under review, a regional workshop was held which brought in participants from South Africa, Zimbabwe, Zambia, Namibia, Ghana and Nigeria, where the draft Standard was discussed. The Programme made a presentation in addition to participating in two National Mirror Committee meetings which were led by the Kenya Bureau of Standards (KeBs).
3. Investment Guidelines. Based on interviews involving petitioners and consultations with investors, as well as relevant government departments, the Programme found that tension between investors and communities can be averted through application of human rights principles during project development. Consequently, the Programme in partnership with other stakeholders has collected material to develop a framework that could act as a guide to investors on issues of respecting human rights. Specifically the Programme undertook research and identified a human rights compliance assessment tool developed by the Danish Human Rights Institute, which it was granted permission to adapt for its purposes.
On 14th December 2007, the Programme had a presentation/discussion led by a social responsibility expert from the Danish Institute of Business to examine the human rights compliance assessment tool and other tools developed by the Business Leaders Initiative, Rights and Democracy and Global Compact. The Danish Institute also expressed an interest in working with KNCHR to customize the tool following a similar exercise in South Africa.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) In partnership with the Complaints and Investigations Department, the Programme conducted a fact finding visit to investigate allegations of human rights violations arising from the activities of Pan African Paper Mills in Webuye. Subsequent to this, the Programme participated in a roundtable discussion with an international team of legal experts from civil society and finalized and shared the report on the Commission’s findings with various stakeholders, including the area Member of Parliament.
4. Consultations on Business and Human Rights In May 2008, the Programme in partnership with the London based Institute for Human Rights and Business held a regional consultative meeting on business and human rights. The meeting was one of the meetings being held around the world to investigate the need for, and possible functions of, a global institute or network of existing institutions on Business and Human Rights. The meeting drew participants from national human rights institutions in the region, Government, businesses, civil society organizations, and research and academic Institutions.
5. Informal Sector Given the large size of the informal sector, which accounts for approximately 75% of employment in Kenya, and the existence of many vulnerable groups, the Programme has embarked on work that will initially target understanding and profiling the human rights challenges faced by those operating in this sector. To this end, the Programme planned to hold a dialogue on surveys and research which was intended to culminate in a three-day national workshop.
During the period under review, the Programme finalized work around the concept paper and the identification of the various parties to be involved. The concept paper was circulated within the Commission to obtain input on its various aspects. The comments were collated and contributed towards on-going non-discrimination work by the Research, Policy and Legislation Programme. Further, and on the invitation of the Ministry of Trade and Industry, the Commission provided comments on the Ministry’s draft trade policy which is intended to fast track the attainment of Vision 2030. Among other things, the policy aims to facilitate and promote informal traders and has benchmarked strategies including developing a profile and database for informal sector traders, and formalizing informal traders in urban areas by 5% per annum.
The Programme also reviewed and prepared a brief on the draft trade policy, adopting its strategy under the earlier developed concept on increasing opportunities for the realization of economic, social and cultural rights and equal opportunities and treatment of the informal sector. The proposals made by the Programme for inclusion in the trade policy include the inculcation of a human rights approach, focusing on the essentials of the right to work and non-discrimination, legal protection of informal sector workers and access to social security. The Programme also participated in the policy’s launch.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 6. Public Expenditure and Human Rights In this area, the Programme continued work on undertaking applied budget analysis as a tool for monitoring ESC rights observance, with a focus on the right to health. A concept paper to guide the Programme’s work in this area was developed and discussed early in the period. Between 30th September and 2nd October 2007, two staff members received training on the application of the Health Rights of Women Assessment Instrument (HeRWAI), which is an initiative of the South Africa-based Humanist Committee on Human Rights (HOM) with the aim to support the implementation of women's rights. HeRWAI provides practical guidance for rights based policy analysis. The analysis examines local, national and international influences and is based on the norms set by CEDAW and ICESCR. The main objective of the training was to acquire skills for policy analysis geared toward the realization of health rights.
Following the training on the HeRWAI tool, the Programme embarked on planning for a policy and applied budget analysis geared towards the realization of the right to health. In this regard, it held internal meetings as well as consultations with the Ministry of Health, Ministry of Gender and Reproductive Rights Programme to identify health policy gaps and explore potential areas where the analyses could have an impact on the Kenyan health sector. Consultations were also held with officials from Ministry of Health and GTZ with a view to enhancing the Commission’s involvement in health sector reforms and training of senior MOH staff on how to mainstream human rights in their work.
Finally, the Programme held an internal training session on the application of HeRWAI, in collaboration with FIDA Kenya. During this training, staff from various programmes were shown how to use this newly developed, practical tool intended to assist organisations employ a rights-based approach to improve policies and their implementation, in relation to health rights, particularly women’s health rights.
8. Community Development Fund (CDF) In partnership with OSIEA, the Programme was involved in a Social Audit Training Program for community based organizations where a practical social audit exercise/practical tracking of CDF funds was conducted in Changamwe constituency. The outcome of this was a review and reprint of the publication on the CDF jointly with the Institute of Economic Affairs. The review looked at the issues around CDF management and dispelled some myths held by constituents and the general public. Based on this, a recommendation was made to regularly undertake this assignment to educate constituents on the operations of the CDF.
9. Unjust Enrichment The publication of the second issue in the Unjust Enrichment series was finalized and launched during the year. The publication, produced in partnership with Kenya Land Alliance (KLA), used existing information from the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (popularly known as the Ndung’u Report ) to highlight how a few
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) politically correct individuals were unjustly enriched at the expense of the public through grabbing of public land. The second issue focused on political accountability, in accordance with the Commission’s other work on the issue. The publication was intended to: a. Provide an account of the human rights dimensions, social costs and consequences of land grabbing; b. Unmask those who benefited from the plunder; and c. Highlight the Ndungu report’s key findings and recommendations.
The report also aimed to enhance the protection of public resources, give a voice to those who are most hurt by the illegal acquisition of resources, empower the general public to demand accountability and transparency, and serve as a check and balance on unscrupulous and unaccountable leadership.
10. Publication on Human Rights Dimensions of Corruption The Commission contributed papers to a regional conference that it hosted focusing on the theme of the human rights dimensions of corruption. The papers and presentations were edited, compiled and published for wider dissemination during the period under review. Most importantly, the regional conference issued the Nairobi Declaration on Human Rights Dimensions of Corruption, which established an action plan for National Human Rights Institutions in the African region.
11. Greater protection of the rights internally displaced persons Following the violence and forced evictions sparked by the disputed results of the 2007 general elections, a key focus of the Programme became raising the profile the human rights of IDPs as
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) well as monitoring the resettlement program. Various activities were undertaken, beginning with the preparation of a monitoring tool and a concept note to guide the programme’s work. Three field missions were conducted in North, South and Central Rift to assess the resettlement program. Reports on the findings of the missions were prepared and an advisory to the Government was subsequently prepared. The Commission organized press conferences to highlight the shortcomings of the resettlement program and impressed upon the Government the need to institute remedial measures. For example, in late May 2008 the Programme team met with a delegation of leaders of IDPs who were camped at PCEA and Soul Winning Church in Mathare 4A. They were formerly residents of Kijiji cha Chewa, which was razed to the ground on 30th December 2008. The IDPs sought support from the Commission to highlight their plight. The Programme followed up with the Ministry of Special Programmers and the Provincial Administration in order to ensure that these cases were attended to.
With regard to the debate on the Mau forest, the Programme developed the Commission’s position using research conducted by the Commission to produce both the first issue of Unjust Enrichment (which contained a section on Mau Forest), and Nowhere to Go (which specifically dealt with previous Mau Evictions) as well as the UN Guidelines on Evictions.
12. Culture and Human Rights. During the review period, the Programme planned to exit the Nyanza model pilot project on cultural rights. In this regard, the Commission prioritized the completion of on-going work and devolved its responsibility to a partner organization to carry on the work. An evaluation of whether the model was working was also planned, with the core being the enhancement of elder’s skills through training on Alternative Dispute Resolution (ADR). A concept paper outlining the project’s rationale, experiences and planned work was developed early in the period. During the period under review, a booklet on Luo culture and women’s rights to own and inherit property was finalized and published.
In Meru, the Programme planned to undertake research on identifying and documenting aspects of the cultural system that are protective of human rights. as well as to continue engagement through community meetings. The Programme visited the larger Meru District in preparation for the Meru North workshop. A workshop was subsequently held to identify key issue and plan a path of action for the future.
Further, two sample case studies were undertaken related to the project’s aim to work with cultural institutions to protect human rights. The Programme decided to observe and track resolution of the cases in order to understand how the Council of Elders works to resolve human rights violations. This helped to deepen the Commission’s understanding of the strengths and weaknesses of the Council and inform the project’s future direction.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) The Programme also participated in a one day ‘Lessons Learnt’ workshop organized by Health Policy Initiative, one of the Commission’s project partners. The overall purpose of the workshop was to share with partners and collaborators the following: what has worked, what has not worked and why, an assessment of the effectiveness of the programme’s design and implementation, and the attainment of the expected outputs and outcomes. It was anticipated that the outcomes of the documentation process would provide useful information to guide the effective and efficient implementation of the planned activities for 2007 and 2008.
The Commission’s programme staff, together with the Njuri Ncheke Secretary General and Ker of the Luo Council of Elders. participated in the ‘Together on the Move Show’. The show was designed as a tool for addressing issues of social concern for overall development. The discussion topic was “My Daughter My Future Leader”.
Other activities that the Programme undertook during this period included: Wise up to Women’s This programme was jointly undertaken with MS Kenya. It was Leadership intended to contribute to a change of attitude towards women leadership. This included leadership training for women, a women’s conference and training of women on electoral processes. Minorities and Indigenous This activity was undertaken through stakeholder forums to People address issues around the exclusion of minorities from mainstream national economic agendas. The communities that the Commission worked with included the Endorois and the Muchongoi in Marigat. Other activities The Commission prepared and disseminated policy briefs to the Ministry of Water and Irrigation on the right of marginalized communities to access water and to the National Economic and Social Council . The Commission also contributed to Kenya’s report on ICESCR
6.3: Achievements
Outputs
1. Profiled the human rights of Malindi salt workers by conducting and producing an inquiry report. 2. Initiated a process to identify a “human rights compliance assessment tool” to guide investors. 3. Drafted concept papers to identify human rights challenges for the vulnerable groups in the informal sector.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 4. Gained experience in the application of the HeRWAI tool to scrutinize public expenditure and health human rights. 5. Diagnosed the human rights gaps in the Community Development Fund (CDF). 6. Profiled the case for unjust enrichment through corruption and impunity. 7. Profiled the human rights of the internally Displaced Persons (IDS). 8. Published a booklet on Luo culture and the right of women town and inherit property, which precipitated discussions on women’s property rights. 9. Assessed the potential for cultural institutions to defend human rights.
Outcomes
1. Stakeholders developed and adopted a joint action plan to guide salt companies in observance of human rights of the community. 2. The Commission successfully profiled corruption in Kenya as a human rights violation. 3. Widows in Nyanza who had been disinherited were successfully reinstated to their husband’s property; this was facilitated by the LUO Council of Elders through the project of culture and human rights.
6.4: Challenges
This Programme is very diverse and expansive, which makes implementation of its activities challenging. During the reporting period, the work of the Programme was adversely affected by three factors, namely: i. The scale down necessitated by Commission’s role in monitoring elections; ii. The involvement of team members in post-election violence investigations; and iii. The suspension of the GJLOS programme funding. iv. The Programme’s limited internal capacity was also a challenge.
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7.0: OUTREACH PROGRAMME
7.1: Background
The Commission has made the strategic decision that its policies and practices will be governed by core values, which include accessibility. Since its inception, the Commission has opened two regional offices, one in Wajir in 2006 and the other in Kapenguria in 2007. The Wajir Regional Office covers the North Eastern province and the Upper Eastern region. Both these regions are vast and difficult to reach.
During the year 2007/2008, the regional offices focused on increasing accessibility to the Commission. The Commission, under its regional outreach strategy, has established mobile outreach human rights clinics and community capacity building programmes. The use of mobile human rights clinics and human rights education has been an effective way to provide services to the marginalized and areas which are inaccessible. Use of other forums such provincial ASK shows and international days have also been effective during the year 2007/2008.
7.2: Activities implemented
7.2.1: Wajir (Northern Kenya) Regional office
The Wajir regional office undertook various programmes in the year 2007/2008. The aim of the programmes was mainly to enhance access to the Commission’s services for the residents of Northern Kenya. The year under review mainly focused on: addressing and investigating human rights complaints, the provision of redress to victims of human rights violations, visits to places of detention to ensure that they comply with human rights standards for persons in detention, and meetings and workshops with communities to educate them about their human rights and empower them to resolve the human rights and conflict related issues that affect them.
Complaints and case analysis for Northern Kenya regional office
Many of the complaints received in the regional offices were not admitted because they do not fit within the mandate of the Commission. At the same time, most of these complaints do not fit with the KNCHR’s admissibility criteria. The regional office has been referring some of the cases not admitted to the relevant authorities, such as the Kadhi’s court, the Children’s Department, and the Labor office. The regional office also employs ADR as a technique for resolving most of the cases not admitted, as indicated in the table below. The regional office plans to publicize its mandate and admissibility criteria when conducting human rights clinics.
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The table 8: Case analysis of the region during the reporting period. District Number Male Female Cases Cases Cases Cases of petitions petitions not admitted referred taken petitions admitted for ADR WAJIR 62 29 33 59 3 6 53 MOYALE 52 43 9 49 3 9 10 IJARA 9 7 2 9 0 0 9 GARISSA 17 12 5 16 1 1 11 MARSABIT 15 11 4 14 1 2 12 TOTAL 155 102 53 147 8 18 95
It should be noted that Wajir accounted for the highest number of complaints received, owing mainly to the petitioners’ close proximity to the regional office, which is located in Wajir. The Commission is also able to respond to reports of alleged violations faster in Wajir than in other parts of the region. For cases not admitted, some are referred to agencies and organizations with better competency in resolving them. The office has also found that it is able to use ADR to resolve many of these cases that mostly relate to family matters.
A majority of the complaints received from Ijara and Marsabit were related to land matters, labour, domestic, property inheritance and police brutality. Complaints that relate to family/domestic matters should ideally be resolved through the Kadhi’s Court, which has lacked a Kadhi. To address this, the office has focused on educating communities on the mandate of the Commission as well as on advocating for the posting of a Kadhi to address domestic disputes.
Wajir Regional Office Team in Moyale District on a mobile outreach programme. The Team visited the police station and conducted a human rights clinic in Moyale town.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Table 9: The results of Wajir office. Planned Activities Achieved Activities 1.0 Conduct two investigations Conducted three investigations (two in Mandera and one in Moyale)
2.0 Formation and Strengthening of 2 human Two human right networks formed and being rights networks capacity built in Moyale and Wajir regions
3.0 Visit at least 2 police stations Five police stations visited (Garissa, Ijara, Wajir, Marsabit and Mandera).
4.0 Visit 2 prisons Four prisons visited i.e. Moyale, Wajir, Mandera and Tana River. 5.0 One Stakeholder Dialogue and mediation One workshop held among communities in the workshop between communities in Isiolo, regions around upper eastern and parts of the North Laisamis, Igembe, Samburu south and Rift. Garbatulla Districts.
6.0 Monitoring and follow up of cases with Addressed issues with Ministry of Health key government departments 7.0 One Stakeholder meeting. Wajir, Ministry of Agriculture Garissa/Wajir, provincial administration, Wajir county council, roads department in Wajir and Mandera, the Kadhi’s court in Wajir and the children’s department in Wajir district. One stakeholder meeting held in Ijara District.
7.2.2: Kapenguria (North Rift) Regional office
The Kapenguria regional office was opened in September 2007 with objective of serving communities living in the North Rift region and enhancing their access to the Commission. The activities during the year were mainly concentrated on office establishment, profiling the regional office and partnership building. The specific activities were mainly to introduce the Commission to groups and organizations working in the North Rift region through human rights clinics and to support legal aid activities through collection of cases. A few activities were carried out in Turkana area with the aim of identifying strategic partners to work with and profiling cases and issues that are of concern to communities in the region.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) Generally, the human rights concerns that the team encountered in the larger Turkana and Kapenguria Districts during the year 2007/2008 were:
• Land disputes, especially with regard to the sub-division, demarcation, transfer, registration, acquisition of titles and succession, and failure of the Government to pay compensation for compulsorily acquired land. • Accessibility of government services/facilities for the residents and poor development record in the area due to constant neglect by successive governments. The local people complained of the poor state of the road between Kapenguria and Lodwar, which has caused the area to lag behind in terms of development. • The cross-border attacks and cattle raids between the Pokot and Turkana that have led to deaths and loss of property. The local people are keen to find a lasting solution to this conflict in order for the communities to coexist peacefully.
Turkana District is a border district, which means that it requires additional security to prevent the constant attacks from Ugandan and Ethiopian neighbors. Some Turkana residents believe that a military base should be set up along the Kenyan-Ugandan Border on the Turkana Side to enhance security. There are also constant border disputes between the Turkana and Pokot, which has led to conflict in the area. The Government therefore needs to address the issues around the administrative boundary between Turkana and Pokot Districts. Other issues include:
i. Harmful cultural practices which perpetuate teenage marriages and early motherhood, sexual and gender-based violence against women, inheritance of widows and their children. ii. The neglect of children’s rights. Turkana children’s education has been seriously compromised. Girls are married off early while boys herd cattle. Many girls drop out of schools due to early pregnancies. iii. Delay in the issuance of National Identity Cards due to the vetting process the local residents undergo because of their proximity to the border. There were complaints that the vetting system is flawed and susceptible to corruption. iv. Abject poverty in most parts of Turkana and Pokot due to harsh climatic conditions.
7.3: Achievements of the outreach programme
1. Enhanced accessibility of the Commission in the North Rift region. 2. Raised the profile of the Commission in the most marginalized areas.
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A Public Baraza and Human Rights Clinic in Turkana led by the Kapenguria Regional Team with Commissioner Dr. Samuel Tororei. Entertainment was also provided during the Human Rights Clinic in Kapenguria
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8.0: CHAPTER THREE
8.1: Overall Conclusions
1. The Education and Capacity Building Programme was able to build skills and raise awareness of a variety of stakeholders including public law enforcement officers, opinion leaders as well as educators. As a result, there was a marked improvement in the attitude of the law enforcement officers towards human rights. There was also increased adoption of human rights principles in public institutions, including those in charge of education.
2. The Research Programme successfully pushed the Ministry of Education to draft a Special Needs Policy that will govern and regulate education for children with disabilities. Some of the Commission’s advice around IDs led to practical reforms by the Minister for Immigration.
3. The ECOSOC Programme successfully rallied the stakeholders in Malindi’s salt industry, who in turn developed a joint action plan to guide salt companies in observance of human rights.
4. The Outreach Programme was able to raise the profile of the Commission in the North Rift and Northern Kenya regions. They not only managed to interact with the communities, but also attended to complaints of the local people through clinics, visits to the police cells and prisons. They also brought to the fore the unique human rights issues particular to those areas.
5. The Complaints and Investigations Team screened and processed 1,465 complaints, of which 13 lead to the creation of new files for further investigations. They also collected evidence by undertaking investigations, including rapid responses on extra-judicial killings.
6. The Campaigns and Advocacy Programme profiled the misuse of public resources during the election campaigns in 2007. It also profiled the human rights violations during arbitrary renditions in fighting terrorism. The team was instrumental in blowing the whistle on extra – judicial killings by police and torture by the military in Mt. Elgon. It provided the analytical support during the advocacy for the creation of the TJRC. They remained vocal highlighting the plight of the IDPs.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 8.2: Challenges in the reporting period
7. The post-election violence compelled the Commission to shift its focus to address the emerging issues. This included widespread human rights violations by the police force, the military, militia groups, massive internal displacement and the general breakdown of law and order and mistrust of governance institutions. The Commission was forced to scale down all planned activities and instead concentrate all efforts (personnel and resources) on the investigation of post-election violence.
8. The National Commission operated under-capacity during the reporting period with staffing of about 40 against a capacity of 120. This highly weakened the Commission’s implementation capacity.
9. The period following the post-election violence saw the suspension of the GJLOS programme. This highly affected the work of the Commission since most of its work was funded under the GJLOS facility. This suspension led to the delay, or in some cases the suspension, of the implementation of a number of planned activities.
10. Government funding remained low (at less than 30% of its budget) during the reporting period so that with the suspension of GJLOS program, the Commission was not able to draw on government funding to implement planned activities.
8.3: Key lessons learnt during the financial year
11. Partnership building and collaboration with both state and non-state actors are important strategies in the delivery of the Commission’s mandate and goals. The Commission will continue to build on these partnerships in the next financial year.
12. Support of key government institutions, in particular law enforcement and administration of justice sector institutions, is crucial in the work the Commission undertakes. The Commission will strive during the next financial year to build better working relations with these institutions in order to realize its mandate of the protection and promotion of human rights.
13. There needs to be more synergy between the Commission’s various programmes to ensure that the available resources are used in the most optimal manner.
14. The profile of the Commission is still low among local communities and hence more efforts need to be directed towards outreach and awareness creation programmes.
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KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) 15. There is a need for continuous monitoring of the political environment rather than one-off monitoring of elections and by-elections, so as to inculcate the principles of political accountability amongst Kenyans.
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