Human Rights in Kenya
On 27 August 2010, a new Constitution was adopted in Kenya. The Constitution, considered to be progressive, is seen as the primary instrument required to make social and political reforms in the country, so badly needed, after the violent events of the 2007 elections. Kenya adheres to the monist legal system and as such ratified international treaties are automatically incorporated into national law. Kenya is party to the majority of the core international human rights treaties as well as regional instruments such as the African Charter on Human and Peoples Rights.
However, even with the reforms that have been made, issues of widespread impunity, corruption and political violence continue to permeate Kenyan society. Increased insecurity has resulted in gross violations of human rights at the hands of the Kenyan security forces and the continued threat of the Al-Qaeda linked terrorist group Al-Shabaab has contributed to growing instability not only in Kenya but also in the region as a whole. The 2013 Kenyan elections were conducted without any serious violence and were generally considered free, fair and credible by international observers. Uhuru Kenyatta and his running mate William Ruto were appointed as duly elected president and deputy president, despite their indictment by the International Criminal Court (ICC) for their alleged roles in the previous post-election violence.
The situation for human rights defenders in the country
Despite important social and political reforms that have taken place in the past decade, including the adoption of a Constitution, human rights defenders continue to be subjected to threats, arbitrary arrests and deadly violence.
Hostility towards independent civil society organisations and individual human rights defenders is on the rise. In recent smear campaigns targeted against civil society some of those within the circle of the ruling coalition have branded civil society as “evil society” in public. To mention but one, prominent civil society leader and the current United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, has been belittled for belonging to this ‘‘evil society’’ and has faced continued threats regarding his support of the ICC prosecution.
Kenya is struggling to maintain democratic and constitutional promises that were ushered in 2010. It is widely believed that democracy is not yet consolidated. Impunity and corruption are significant factors undermining advances made; repressive tendencies in the political establishments and the danger posed by terrorist groups based in neighbouring Somalia are adversely affecting the process of consolidation. Kenya’s handling of counter-terrorism measures at home and in Somalia often comes under strong criticism from Kenyan and human rights groups.. Muslim Kenyans living in the coastal areas, ethnic Somali-Kenyans and asylum seekers are those most often affected. The government is accused of extrajudicial killings, and using terrorism threats as an excuse to muzzle political activists, dissidents, media and civil society. To reiterate this point the government and parliament endorsed “a Security Laws amendments bill” that allows the President to expand the power of the government, and made reporting of terrorism related issues difficult for the media. Significant parts of these amendments were suspended by court in February 2015. The government has also attempted to introduce new laws and amendments governing the civil society sector. The process is pending but one of the provisions would set to limit the amount of funding civil society organisations can receive from external sources. The government has already de-registered 510 NGOs for alleged failure of reporting, money laundering and financing terrorism. Among those closed are renowned international organisations such as Doctors Without Boarders (MSF).
Issues of corruption, police brutality and the ICC trials are highly contentious topics and those journalists investigating these issues have received ominous phones calls threatening them to cease their work. Individuals who provide information to the ICC are a group that face considerable risk. Growing evidence has shown that persons perceived to support the ongoing ICC trials are continually subjected to harassment and intimidation. This has led to several individuals relocating to different countries for their own safety. Instances have also been recorded of the offices of organisations supporting the trials being broken into and having computer drives and documents stolen.
This increased hostility has led to a worsening environment for human rights defenders in Kenya. Peter Wanyonyi Wanyama, a prominent human rights lawyer was shot dead outside his home on September 17, 2013. Wanyama had been working on several human rights cases, including the violent attacks and civilian shootings perpetrated by the police and other security forces. Similarly, Hassan Guyo, a well known human rights activist who documented the use of excessive force and other human rights violations against demonstrators, was shot in the back at a roadblock patrolled by police and army officers. Even when the authorities know the identities of the perpetrators, little is done to hold them accountable and any investigation that is undertaken rarely leads to prosecution.
Read our full analysis of the East & Horn of Africa Region in our Regional Report East & Horn of Africa.
Ten rights in focus
The right to life and physical integrity
Following attacks and inter-communal clashes, Kenyan security forces conducted several abusive counterterrorism operations in Nairobi, on the Coastal and in the North Eastern regions of the country in 2014. These operations were largely criticised for targeting the ethnic Somali and Muslim communities. During the operations conducted by security officers, reports show that shops were raided while thousands were harassed or detained without charge in appalling conditions for periods well over the 24-hour legal limit.
There are also reports that show various police groups have been linked to the torture, disappearance and unlawful killing of alleged terrorism suspects. Once again the individuals mostly targeted were primarily of Somali or Muslim origin. Kenya’s Anti-Terrorism Police Unit (ATPU) has been implicated in several cases of extrajudicial killings of terrorism suspects. Suspects were reportedly shot in public places, abducted from vehicles and courts rooms, severely beaten, detained for long periods of time in isolation and denied access to family members and lawyers. Similarly, suspected criminals continue to be killed instead of arrested, highlighting a worrying trend that has seen an increase in the use of lethal force by police officers. The concern expressed is that such continued operations like these will only assist in the potential radicalisation of the Kenyan youth.
The right to liberty and security of person
The recent terrorist attacks that have targeted Kenya have prompted the government to harden its stance towards suspected terrorists. Subsequently this new stance has resulted in the arbitrary arrest and detention of thousands of ethnic Somalis, including women and children, thought to be living illegally in the country. Following a series of grenade and gun attacks in Nairobi and Mombasa, the Kenyan police responded by rounding up, detaining and torturing up to 4,000 ethnic Somali Kenyans and Somali refugees. A total of 359 Somali and other nationals where deported by Kenyan authorities during April and May of 2014. The detainees were reportedly beaten and held in extremely cramped and unsanitary cells and held far beyond the 24-hour legal limit prescribed under Kenyan law.
Prison conditions continue to be dire. Torture, inhuman treatment, unsanitary conditions and overcrowding in prisons are prevalent issues that raise serious concerns. A lack of training, resources and independent oversight has resulted in dilapidated prison facilities. Nevertheless, some positive steps have been taken by the government to improve the treatment of prisoners. Authorities have built new prison facilities and provided better bedding and improved meals for the inmates. Furthermore, human rights officers have been designated to serve in all prisons to allow prisoners to report abuse and other concerns.
The right to a fair trial and an effective remedy
Investigations into brutal attacks carried out by government forces or criminal gangs are very rarely initiated. The gang attacks on villages in Bungoma and Busia counties in March 2013 that left 10 people dead and hundreds injured have still gone unpunished. Similarly, the victims of the large-scale violence that rocked the country after the disputed 2007 elections have yet to see any justice, as the government has failed or is unwilling to prosecute the perpetrators.
The International Criminal Court (ICC) intervened in 2010 and began investigations into President Uhuru Kenyatta, his Deputy William Ruto and journalist Joshua Arap Song for their role in the post-election violence. The trials for Ruto and Sang began in September 2013, but after several delays the Court found it was unable to proceed with Kenyatta’s case which was ultimately dismissed and charges dropped amid concerns of witness tampering and intimidation.
Kenya has supported the African Unions campaign for the mass withdrawal of African countries from the ICC. If successful, African leaders will instead fall under the jurisdiction of a newly proposed regional court, the African Court of Justice and Human Rights. The proposed court would be authorized to try individuals accused of international crimes, but its jurisdiction will not extend to sitting heads of state and senior officials in Africa, ultimately granting them immunity from prosecution. This could only aid in further nurturing the culture of impunity in the region.
The right to the freedom of expression
Kenya’s vibrant and independent media sector is protected under the 2010 constitution, which provides for the freedom of speech and press. Nevertheless, the promulgation of restrictive legislation has threatened to significantly limit these rights.
As a response to the rising threats to national security posed by the terrorist group al-Shabaab a controversial Security Laws (Amendment) Bill was signed into Kenyan law on December 19, 2014. The Bill sought to make considerable revisions to current legislation including Kenya’s Penal Code, Criminal Procedure Code and Evidence Act.
The Bill introduced new provisions that imposes harsh penalties on social media users and media houses if found publishing and distributing information that is ‘‘likely to cause fear and alarm’’ or ‘‘disturb public peace’’. Under the Bill, journalists could face up to 3 years in prison if found reporting on terrorist operations without police permission. While the provisions have currently been suspended by the High Court in Nairobi, several media outlets and journalists avoid reporting on issues such as terrorism, corruption or impunity, for fear of reprisals from government agencies and interest groups.
The right to freedom of assembly and association
Freedom of assembly and association are fundamental rights guaranteed under the constitution and accordingly Kenya has a relatively vibrant and active NGO and civil society sector. Nevertheless, Kenya’s National Assembly is currently debating making amendments to the existing Public Benefits Organizations Act (PBO) that would threaten the work of civil societies and NGOs functioning in the country. These provisions aim to consolidate government control over the groups as they have increasingly been accused of serving “foreign interests,” especially those that support the ongoing ICC trials or are perceive to be funding terrorist activities.
The proposed amendments would seek to introduce a 15 percent cap on foreign funding which would result in a loss of billions of dollars in foreign aid used for development programs. While the proposed amendment has been heavily challenged and is no longer in contention, it does show the governments eagerness to exert its influence and control over NGOs and civil society in Kenya.
The closure of hundreds of NGOs in December of last year, highlights a worrying trend that has been exacerbated by the recent terrorists attacks in Kenya. The government subsequently cracked down on NGOs perceived to be aiding the terrorist groups, freezing their bank accounts and effectively crippling their organisations. Two prominent human rights NGOs, Haki Africa and Muslims for Human Rights (MUHURI) have been accused of aiding terrorist operations and have subsequently been deregistered
The right to protection against discrimination
There are several vulnerable minority groups in Kenya that are systematically discriminated, abused and disadvantaged. Kenya’s indigenous communities continue to face severe marginalisation and economic deprivation. This can be attributed to the sustained confiscation of ancestral land and natural resources, lack of political representation, prolonged conflicts and discrimination. There has also been an apparent lack of recognition of indigenous communities by the state. While the new Constitution does provide for the protection of rights of minority and marginalised groups, political disempowerment, lack of access to justice and exclusion from state and development processes are still prevalent issues that plague Kenya’s indigenous communities.
There are currently in excess of 600,000 refugees living in Kenya. The massive influx of refugees has resulted in the formation of the world’s largest refugee camp, the Dadaab Camp, situated in eastern Kenya close to the Somali border. Refugees are particularly vulnerable and are often targeted by police who regularly arrest them and extort money from them to facilitate their release. Xenophobic attacks are also common in urban areas with refugees often treated with suspicion and scapegoated for increases in crime and insecurity. This has been evident following the terrorist attack at Garissa University, which resulted in the deaths of 147 students. The Kenyan government responded by requesting the UNHCR to relocate the refugees at the Dadaab camp. In their statement, the government claimed that if the camp was not closed and the refugees failed to relocate within 3 months, they would be forced to relocate them themselves. Worryingly this ultimatum will risk the lives of 350,000 refugees and would also violate Kenya’s international obligations.
Kenya still has legislation in place that criminalises same sex interactions and there is also a vacuum in the law providing for the legal recognition of intrasexual and transgender persons. Lesbian, Gay, Bisexual, Transgender and Intrasexual (LGBT) persons form a marginalised and discriminated group in society frequently subjected to physical violence, hate speech, harassment and extortion at the hands of police, vigilantes and even ordinary citizens. Due to the illegality of same sex conduct, LGBT persons are routinely harassed and blackmailed by the police and those who fail to provide bribes or sexual favours are often presented in court on trumped-up charges.
Stigmatisation of the LGBT community is commonplace. Once a person’s sexual orientation is revealed they are often alienated or disowned by parents, friends and neighbours. The community is also adversely affected in education, healthcare and employment sectors, where they are regularly punished, abused, refused service or forced to leave because of their sexual orientation.
With the lack of a comprehensive legal framework that prohibits all forms of discrimination against LGBTI persons and with the current legislation that criminalises same sex conduct, the perpetual marginalisation and victimisation of the group continues with impunity.
The role of Civil Rights Defenders in Kenya
The challenges facing Human Rights Defenders in Kenya are numerous and serious. Civil Rights Defenders has been present in the region since 2012 and has been partnering with local networks, individual human rights defenders, NGOs and international organisations. We work closely with human rights advocates, LGBTI activists, journalists/bloggers and other organisations working to protect HRDs in the country. So far our work includes capacity building trainings including digital security and advocacy on human rights and international instruments. There are currently two Human rights defenders in Kenya who are included in the Natalie Project. We are working to expand and deepen our partnerships with local organisations.
Regions: East Africa and Kenya.