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