Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security

Total Page:16

File Type:pdf, Size:1020Kb

Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security Africa Programme Meeting Summary Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security Patricia Nyaundi Secretary, Kenya National Commission on Human Rights Chair: Salil Tripathi Senior Advisor, Global Issues, Institute of Human Rights and Business 16 September 2015 The views expressed in this document are the sole responsibility of the speaker(s) and participants, and do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions. The published text of speeches and presentations may differ from delivery. © The Royal Institute of International Affairs, 2016. 10 St James’s Square, London SW1Y 4LE T +44 (0)20 7957 5700 F +44 (0)20 7957 5710 www.chathamhouse.org Patron: Her Majesty The Queen Chairman: Stuart Popham QC Director: Dr Robin Niblett Charity Registration Number: 208223 2 Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security Introduction On 16 September 2015, the Africa Programme at Chatham House hosted the secretary of the Kenya National Commission on Human Rights (KNCHR), Patricia Nyaundi, to discuss the status of human rights protection in Kenya. Despite benefiting from strong economic growth and significant interest from international investors, Kenya continues to face pressure from domestic and regional instability. With development and security high on the agenda, balancing such priorities with the protection of human rights remains a significant challenge. At this meeting Patricia Nyaundi discussed KNCHR’s role as a watchdog and a driving force in Kenya’s human rights landscape. The following summary is intended to serve as an aide-memoire to those who took part in the discussions, and to provide a general summary of discussions for those who did not. Patricia Nyaundi What is a ‘human rights’ state? According to Kenya’s legislature, the country could already be described as such a state: Article 59 of the Kenyan Constitution mandates the maintenance of a Human Rights Commission to ensure the promotion of a culture that respects human rights. However, Kenya has failed to tangibly demonstrate a commitment to human rights, which can be observed in the public statements issued by the country’s leaders in recent years. Kenya has struggled to meet its development objectives relating to the protection of human rights. The country’s leaders believe that mandating the protection of human rights poses a challenge to security. Not only does this belief go against the constitution, it necessitates action from the KNCHR. The primary goal of the KNCHR is to change the negative perception that leaders have of human rights protection. The KNCHR seeks to prioritize the protection of human rights in nationwide development projects in order to ensure that human rights are seen as a foundation of public discourse. Recent development projects embarked on in Kenya have failed to meet the thresholds of accountability and civil society participation. The standard gauge railway and the Lamu Port South Sudan-Ethiopia Transport (LAPSSET) project are examples of initiatives intended to drive development that have left significant humanitarian questions unresolved. It is worth questioning the sustainability of such projects. The response to insecurity in Kenya has been a rationalization of mechanisms for torture. The current government has made several attempts to amend laws in order to both extenuate the accountability of security agencies and lower compliance requirements. Ultimately the primary concern is the relationship between the government and voices most critical of it. Kenya’s government prioritizes supportive organizations, crowding out those who prioritize the protection of human rights. This has led to a situation where even minor criticism of the government is not tolerated. KNCHR has observed increased intolerance in response to its calls for accountability and the participation of civil society in government affairs. Recently, KNCHR criticized what it perceived to be an ethnicization of politics that has emerged as a by-product of ongoing demands for meritocracy. Recently, there have been deliberate measures to restrict the democratic space for civil society to operate in. This presents a challenge to the KNCHR, as it is obligated to work with civil society towards advancing human rights in Kenya. Limitations to civil society space prevent the KNCHR from acting as the government’s conscience on human rights. The relationship between the government and KNCHR, while strained, ought to be one of consultation, involving dialogue and close interaction. 3 Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security KNCHR’s work is affected significantly by Kenya’s history. Tension between the powers of the executive and human rights agencies stems from the political history of Kenya. The country’s second president, Daniel Arap Moi, reportedly stated, ‘I am yet to see a person who can feed on human rights’. This political position, of de-prioritizing human rights, has been evident since the 1970s. Where there has been interaction between the government and KNCHR, this has been out of compulsion, usually requiring the involvement of the judiciary. KNCHR has observed a need to compel public officers to act in accordance with provisions made for human rights in the country’s legislature. A final aspect of KNCHR’s challenge lies in the observation that it has not been possible to quantify the political cost of ignoring human rights. However, such costs do exist, and the KNCHR should measure and identify the political cost incurred when human rights are overlooked. Without such a valuation, Kenya’s government has been insulated from the damage caused by its deprioritization of human rights. Kenya is yet to become a ‘human rights’ state, but the basic infrastructure it needs to do so is already in place. With greater support for civil society, the public can be mobilized to support the human rights provisions of the constitution, thereby transforming Kenya into a ‘human rights’ state. Summary of question and answer session Question What is the KNCHR doing to disseminate information about its work? Patricia Nyaundi The KNCHR was founded in 2003 and has since been known for demanding political accountability. KNCHR has placed pressure on the political class to halt the wastage of public resources. The KNCHR was instrumental in establishing one of the world’s strongest bills of rights in Kenya. Recently the KNCHR has accused Kenya’s government of culpability in extra-judicial killings, and this public exposure led to security sector reforms. KNCHR issued a report on human rights abuses by Kenyan security forces, entitled ‘The Error of Fighting Terror with Terror’, which sought to draw attention to the Kenyan government’s profiling and alienation of a segment of the population in response to growing terrorism. The KNCHR is performing well, considering the social and political environment within which it operates. Recently, Kenya’s government has been more subtle in its resistance to human rights agencies and this has necessitated closed-door discussions between KNCHR and the government. This explains why it may seem publicly that the KNCHR is less active. Kenya’s current leadership is very effective at public relations, and this has led much of the country’s youthful population to consider Kenya’s government as progressive. This position has enabled the government to isolate civil society voices. In response to this, the KNCHR has united various civil society voices, making it less easy to isolate and target any one organization. Part of KNCHR’s strategy has also been the inclusion of ordinary citizens in discussions about human rights, as there is a tendency for conversations to become elitist. The Kenyan public is tired of talking about the broadening of democratic space. The drafting of the new constitution in 2010 was the easiest part or political reform, but now it must perform. 4 Rights and Responsibilities in Kenya: Balancing Freedoms, Development and Security Question Has China’s involvement in development projects, specifically LAPSSET and the standard gauge railway, changed the relationship between Kenya and China? Patricia Nyaundi The Kenya-China relationship is one without the usual strings that come with Western engagement, such as good governance and accountability. But Chinese engagement comes with its own obligations and limitations, particularly in regard to what engagement means for the local economy. It is doubtful that Chinese engagement benefits Kenya’s local economy. For developing democracies like Kenya, engagement that allows certain latitude, as the Kenya-China relationship does, brings risks to the democratic space. Civil society voices are demanding increased accountability in the Kenya-China relationship. Increasing local communities’ capacity to participate in foreign-sponsored development would enable these communities to negotiate potential negative outcomes. Question What impact
Recommended publications
  • Kenya at 50: Unrealized Rights of Minorities and Indigenous Peoples
    report Kenya at 50: unrealized rights of minorities and indigenous peoples By Korir Sing’Oei Abraham Two young Turkana herders near the village of Kache Imeri in Turkana District, northern Kenya. Frederic Courbet / Panos. Acknowledgements also currently represents other minority groups in ongoing This document has been produced with strategic litigation and was a leading actor in the the financial assistance of the European development and drafting of Kenya’s constitutional Union. The contents of this document provisions on minority groups and marginalization. are the sole responsibility of Minority Rights Group International and can Minority Rights Group International under no circumstances be regarded as reflecting the Minority Rights Group International (MRG) is a position of the European Union. MRG's local implementation nongovernmental organization (NGO) working to secure the partner is the Ogiek Peoples Development Programme rights of ethnic, religious and linguistic minorities and (OPDP). indigenous peoples worldwide, and to promote cooperation and understanding between communities. Our activities are Commissioning Editor: Beth Walker, Production Coordinator: focused on international advocacy, training, publishing and Jasmin Qureshi, Copy editor: Sophie Richmond, outreach. We are guided by the needs expressed by our Typesetter: Kavita Graphics. worldwide partner network of organizations, which represent minority and indigenous peoples. The Author Korir Sing’Oei Abraham is a co-founder of the Centre for MRG works with over 150 organizations in nearly 50 Minority Rights Development. He is a human rights attorney countries. Our governing Council, which meets twice a year, and an advocate of the High Court of Kenya. For more than has members from 10 different countries.
    [Show full text]
  • ANNUAL REPORT & Financial Statements 2010-2011
    ANNUAL REPORT & Financial Statements 2010-2011 © KHRC 2011 Table of Contents Acknowledgements 3 Message from the Chair 6 Foreword 7 .0. Introduction to Report 0 .. About the KHRC 0 .2. Context of the Year 0 .3. Introduction 2 2.0. Annual Report 4 2.. Building Social Movements 4 2.2. People’s Manifesto and Scorecard Initiative 7 2.3. Regional Advocacy Initiatives 2 2.4. Monitoring, Documenting and Responding to Human Rights Violations 23 2.5. Constitutional Reform 25 2.6. Transitional Justice 26 2.7. Business, Trade and Human Rights 29 2.8. Communication, Media and Publicity 3 2.9. Equality and Anti-Discrimination Campaign 33 2.0. Kenya Human Rights Institute 34 2.. Sustainability and Programme Effectiveness 34 3.0. Thank You 36 Winning Team 37 Financial Statements 38 • Kenya Human Rights Commission Pamoja Tutetee Haki 2 LisT of Abbreviations 0-20 ALPS Accountability, Learning and Planning System CADL Comprehensive Anti Discrimination Law CBO Community Based Organisation CDF Constituency Development Fund CDF Constituency Development Funds CIC Commission for the Implementation of the Constitution CIOC Constitutional Implementation Oversight Committee CoE Committee of Experts CRECO Constitution and Reform Education Consortium EPAs Economic Partnership Agreements FBOs Faith Based Organisations FCO Foreign and Commonwealth Office FIDA-Kenya Federation of Women Lawyers, Kenya GoK Government of Kenya HRDs Human Rights Defenders HURINETs Human Rights Networks Annual Report and Financial Statements 20 ICC International Criminal Court ICJ-Kenya
    [Show full text]
  • In the Spirit of Harambee
    THE EQUAL RIGHTS TRUST IN PARTNERSHIP WITH THE KENYA HUMAN RIGHTS COMMISSION In the Spirit of Harambee Addressing Discrimination and Inequality in Kenya ERT Country Report Series: 1 London, February 2012 The Equal Rights Trust (ERT) is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. Established as an advocacy organisation, resource centre and think tank, ERT focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. © February 2012 The Equal Rights Trust © Cover February 2012 Dafina Gueorguieva Printed in the UK by Prontaprint Bayswater DesignISBN: and layout: 978-0-9560717-5-0 Dafina Gueorguieva All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. The Equal Rights Trust 126 North End Road London W14 9PP United Kingdom Tel. +44 (0) 207 610 2786 Fax: +44 (0) 203 441 7436 www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288. “Our motto ‘harambee’* was conceived in the realisation of the challenge of national building that now lies ahead of us. It was conceived in the knowl- edge that to meet this challenge, the government and the people of Kenya must pull together.
    [Show full text]
  • Assessing the Impact of Kenya's Trade and Investment Policies and Agreements on Human Rights - 5 the Republic of Kenya: Key Facts
    In cooperation with the Centre for Research on Multinational Corporations (SOMO) ECONOMIC DEVELOPMENT OR HUMAN RIGHTS? Assessing the Impact of Kenya’s Trade and Investment Policies and Agreements on Human Rights International Fact-Finding Mission Article 1 : All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one ano- ther in a spirit of brotherhood. Article 2 : Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or terri- tory to which a person belongs, whether it be independent, trust, non-self-governing or un- der any other limitation of sovereignty. n°506a October 2008 2 Table of contents I. Introducing the Mission........................................................................................................4 Map of Kenya.........................................................................................................................5 The Republic of Kenya: Key Facts........................................................................................6 II. The Human Rights Framework..........................................................................................7 1. Identification of duty holders.............................................................................................7
    [Show full text]
  • Kenya National Human Rights Book 2011 EDITED2
    THE THIRD ST THE THIRD STATE OF In the world of Human Rights Protection and enforcement, there are few issues as important as monitoring and accountability, hence a report such as this plays a crucial function in providing a snapshot- a bird’s eye view - HUMAN RIGHTS A of the state of human rights in Kenya in 2010. TE OF HUMAN RIGHTS REPOR REPORT Prof. J Oloka-Onyango, Director of the Human Rights & Peace Centre (HURIPEC) and former Dean of Law at Makerere University, Uganda. It is laudable that this report devotes significant attention to economic and social rights. In Kenya public and policy discussions on access to electricity, water, education, food, health and housing are still not sufficiently linked to T - the discourse on human rights. KNCHR will have made an important A Human Rights Assessment of contribution to the promotion of human rights in Kenya if it succeeds in reshaping the discussions on these rights. Dr. Willy Mutunga Senior Counsel, Regional Representative, Eastern Africa Office, A HUMAN RIGHTS ASSESSMENT Ford Foundation. OF KENYA VISION 2030 K January 2008 - June 2010 eny a V ision 2030 Published by Kenya National Commission on Human Rights Ist Floor, CVS Plaza, Lenana Road P. O. Box 74359 - 00200, Nairobi Kenya Tel: +254 020 2717900/08 Fax: +254 020 271616 Email: [email protected] © Kenya National Commission on Human Rights, 2011 The Third State of Human Rights Report A Human Rights Assessment of Kenya Vision 2030 Published by Kenya National Commission on Human Rights P.O. Box 74359 - 00200 Nairobi Kenya. © Kenya National commission on Human Rights, 2011 Excerpts from this report may be reproduced, provided that there is an acknowledgement to the Kenya National Commission on Human Rights THE THIRD STATE OF HUMAN RIGHTS REPORT AA HumanHuman RightsRights AssessmentAssessment OfOf KenyaKenya VisionVision 20302030 JanuaryJanuary 20082008 -- JuneJune 20102010 Kenya National Commission on Human Rights The Third State of Human Rights Report FOREWORD The KNCHR is to be commended for producing its Third State of Human Rights Report.
    [Show full text]
  • Download (Pdf, 1008
    Human Rights and Business Country Guide Kenya Table of Contents Table of Contents ..................................................................................................... 2 How to Use this Guide .............................................................................................. 3 Rights Holders at Risk ............................................................................................... 7 Child Labour ........................................................................................................... 18 Forced Labour ........................................................................................................ 23 Occupational Health & Safety ................................................................................. 26 Trade Unions .......................................................................................................... 29 Working Conditions ................................................................................................ 33 Environment .......................................................................................................... 39 Land & Property ..................................................................................................... 49 Revenue Transparency & Management .................................................................. 54 Security & Conflict .................................................................................................. 62 Access to Remedy ..................................................................................................
    [Show full text]
  • The State of Human Rights in the Kenyan Extractive Sector
    The State of Human Rights in the Kenyan Extractive Sector Executive Summary March 2016 State of Human Rights in the Kenyan Extractive Sector Executive Summary Table of Contents Executive Summary ......................................................................... 2 Setting the Scene ......................................................................................... 2 Overview of the State of Human Rights Report .................................. 4 Framework ...................................................................................................................... 4 Audiences ....................................................................................................................... 5 Cross-cutting Themes from the State of Human Rights Report ...... 7 Gaps in the Legal Structure ............................................................................................. 7 Land ............................................................................................................................... 7 Capacity .......................................................................................................................... 8 Key Issues in the Extractive Sector in Kenya – Overview of Field Research ........................................................................................................ 8 Community Engagement ................................................................................................. 9 Impacts on Land Rights ................................................................................................
    [Show full text]
  • Kenya0213webwcover.Pdf
    HUMAN RIGHTS HIGH STAKES Political Violence and the 2013 Elections in Kenya WATCH High Stakes Political Violence and the 2013 Elections in Kenya Copyright © 2013 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 1-56432-986-0 Cover design by Rafael Jimenez Human Rights Watch is dedicated to protecting the human rights of people around the world. We stand with victims and activists to prevent discrimination, to uphold political freedom, to protect people from inhumane conduct in wartime, and to bring offenders to justice. We investigate and expose human rights violations and hold abusers accountable. We challenge governments and those who hold power to end abusive practices and respect international human rights law. We enlist the public and the international community to support the cause of human rights for all. Human Rights Watch is an international organization with staff in more than 40 countries, and offices in Amsterdam, Beirut, Berlin, Brussels, Chicago, Geneva, Goma, Johannesburg, London, Los Angeles, Moscow, Nairobi, New York, Paris, San Francisco, Tokyo, Toronto, Tunis, Washington DC, and Zurich. For more information, please visit our website: http://www.hrw.org FEBRUARY 2013 ISBN: 1-56432-986-0 High Stakes Political Violence and the 2013 Elections in Kenya Map of Kenya .................................................................................................................................... ii Summary ..........................................................................................................................................
    [Show full text]
  • Preventing Post-Election Violence Based on the Kenyan Experience
    Preventing Post-Election Violence Based on the Kenyan Experience Submitted by: Seung Yeon Cho, Erin Connors, Faizaa Fatima, and Utku Yalim Stanford University March 13, 2015 TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................. 2 II. THE KENYA EXPERIENCE ............................................................................................... 3 III. METHODOLOGY .............................................................................................................. 8 IV. PROGRAM MAPPING....................................................................................................... 9 VI. KEY FINDINGS ............................................................................................................... 13 VI. BEST PRACTICES AND LESSONS LEARNED ........................................................... 18 1 I. INTRODUCTION In 2011, President Obama publicly declared, “preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States of America.”1 A year later, he approved the recommendations of a Presidential Study (PSD-10) focused on ways to enhance the U.S. government’s capacity to do so, including the establishment of the Atrocities Prevention Board (APB). As the APB marks three years of operation, it offers a good opportunity to take stock of the Board’s performance to date in spearheading a robust U.S. policy to effectively prevent and respond to atrocities,
    [Show full text]
  • Kenya National Commission on Human Rights
    KENYA NATIONAL COMMISSION ON HUMAN RIGHTS A HUMAN RIGHTS MONITORING REPORT ON THE 2017 REPEAT PRESIDENTIAL ELECTIONS Table of Contents 1.0 Introduction .................................................................................................................................. 0 1.1 KNCHR Repeat Presidential Election Monitoring Strategy ..................................................... 1 1.3 The Legislative, Political and Electoral Contexts Ahead of the Repeat Presidential Poll. ............. 1 1.4 Judicial Processes and Interventions Ahead of the Repeat Presidential Election ........................ 6 2.0 KNCHR’s Findings on Violations Arising out of the Repeat Presidential Election ................... 9 2.1 Pre-Election Campaigns ................................................................................................................ 9 2.2 Electoral Violence ......................................................................................................................... 9 (a) Case of Electoral Violence at Funeral and Burial Functions .................................................. 10 (b) Electoral Violence Involving the Youth: ....................................................................................... 12 2.2.1 Log of Death Cases ................................................................................................................... 19 2.2.2 Injuries ..................................................................................................................................... 21
    [Show full text]
  • Police Powers, Human Rights, and the State in Kenya and Uganda: a Comparative Analysis J
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Valparaiso University Third World Legal Studies Volume 9 Police, Security Forces, and Human Rights in Article 1 the Third World 1-1-1990 Police Powers, Human Rights, and the State in Kenya and Uganda: A Comparative Analysis J. Oloka-Onyango Follow this and additional works at: http://scholar.valpo.edu/twls Recommended Citation Oloka-Onyango, J. (1990) "Police Powers, Human Rights, and the State in Kenya and Uganda: A Comparative Analysis," Third World Legal Studies: Vol. 9, Article 1. Available at: http://scholar.valpo.edu/twls/vol9/iss1/1 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Third World Legal Studies by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. THIRD WORLD LEGAL STUDIES - 1990 POLICE POWERS, HUMAN RIGHTS AND THE STATE IN KENYA AND UGANDA: A COMPARATIVE ANALYSIS J. Oloka-Onyango* Although when seeking the cure for the individual who has become a social misfit it is important to study his environmental background, it is too easy to make his background the excuse for his social behavior. It may well be that these background influences are so strong that they become overwhelming, but to accept them as an overriding excuse for wrongdoing denies the existence of that "divine spark" in human beings which differentiates them from the beast. They have a will and choice between good and evil.
    [Show full text]
  • End of Project Evaluation Support to the Realization of Human Rights and Access to Justice in Kenya
    United Nations Development Programme (UNDP) End of Project Evaluation Support to the Realization of Human Rights and Access to Justice in Kenya (2012 – 2015) November 2015 Evaluation Team Dr. Stephen Otieno (Team Leader) Sylvie Morel-Seytoux Norah Winyi Francis Kabwechere Kari Egge David Solomon Bassiouni Laura Wicks Samantha Nolan The Bassiouni Group Empire State Building 350 5th Avenue, 59th Floor New York, NY 10118 Tel: (917) 403-1136 0 TABLE OF CONTENTS Acknowledgements ................................................................................................................................. 3 List of Acronyms ..................................................................................................................................... 4 List of Figures ......................................................................................................................................... 6 List of Tables .......................................................................................................................................... 6 Executive Summary ................................................................................................................................ 7 1.1 Background and Country Development Context ............................................................................... 12 1.1.1 Kenya National Commission on Human Rights (KNCHR) .................................................... 12 1.1.2 National Gender and Equality Commission (NGEC) ............................................................
    [Show full text]