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Kenya

Ensuring accountability for the violations that occurred during the post election violence is widely viewed as a crucial first step to preventing such violence from occurring again either during the forthcoming referendum on the new constitution or in the general elections of 2012. The Kenyan authorities have so far failed to establish a special tribunal. On a more positive note, on March 31st 2010, the pre-trial chamber of the International Criminal Court (ICC) approved the Prosecutor General’s request to investigate into the post-election violence.1 It is hoped that the positive step taken by the ICC will bring an end to impunity, and the perpetrators will be held to account. Nevertheless concerns remains both to the scope of accountability that will be achieved but also the level of security which will be accorded to those involved in the ICC investigations. The lack of an ineffective and viable witness protection mechanism has been of great concern in the country. However, on 7th April the parliament of Kenya passed the Witness Amendment Protection Bill 2010. The bill establishes a Witness Protection Agency mandated to institute and maintain a Witness Protection Program to protect crucial witnesses who require protection from a threat or risks that exist on account of their testimonies.2 Previously, of particular concern was the fact that the Act stipulated that the Attorney General and the police are those given the responsibility to accord protection to witnesses. The amended bill stipulates that the agency will be headed by a director with a statutory security of tenure yet concerns remain about the independence and the credibility of the mechanism’s admissions policy.3  

A culture of impunity, notably for security and law enforcement agencies reigns, in part as a result of failings within the judicial system - a system that continues to lack transparency, efficiency and largely failing to offer redress for key human rights violations.4 Independent and impartial investigations or legal sanctions against those responsible for clear human rights violations during the 2008 post election period are almost non-existent. Significant reform of the judiciary is one of the key areas of the reform agenda as stipulated in the peace accords of 2008.

The rights of women continue to be violated. Cases of sexual violence have been particularly high in situations of conflict notably during the post election violence and the military deployment in the Mount Elgon region. Domestic violence is widespread and yet the government appears to be delaying the enactment of key legislation relating to the protection of women.

At the heart of the current situation in Kenya is the draft constitution. The draft constitution in Kenya forms part of the power sharing agreement that ended the post election violence in 2008 and will be put for a referendum due in July this year.5 Among other things, the draft limits the executive’s power, reforms the judiciary, deals with land ownership issues, all issues believed to have been at the heart of the post-election violence. Kenya has ratified both the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People’s rights. However, in January 2010, the Parliamentary Select Committee (PSC), in charge of revising the draft Constitution, removed the rights to food, housing, water, health, education and social security as enforceable rights from the draft Constitution, and treated such rights only as guiding principles. The PSC also entirely removed the right to sanitation, provisions for equal rights of men and women and the rights of minorities, persons with disabilities, older members of society, youth and children.6  Other clauses in the current draft that have ignited controversy, notably amongst Kenya’s religious groups and leaders are: one clause that would allow doctors to perform an abortion if a woman’s life is in danger and the proposal to keep the kadhi’s courts-which deal with legal matters of Muslims.7  

Since the contested elections of 2007 human rights defenders have faced a range of challenges and come under significant threat. Defenders involved in activities and investigations into violations that occurred during the post election violence have come under particular threat as have those working on extrajudicial killings are also targeted. These threats have still not been dealt with by the authorities. An example of this has been the failure by the authorities to carry out adequate and independent investigations into the assassinations of Mr. King’ara and Mr. Oulu of the Oscar Foundation Free Legal Clinic, on the 5th March 2009. On the 12th April 2010 Keneth Kirimi a defender working with Release Political Prisoners (RPP) was kidnapped and tortured. His kidnap is reported to be linked to his work on extrajudicial killings and his active membership with the Bunge la Mwananchi, a grassroots movement which aims to fight social injustice and promote accountable leadership at all levels in Kenya.
The LGBTI community in Kenya came under attack at the beginning of the year in Mtwapa, Kilifi district after it was rumored that a gay wedding was going to take place. The mob tried to attack LGBTI activists and people suspected of being homosexual. Among the perpetrators were religious leaders who said that homosexuals should be driven out of Mtwapa while others were saying that rather than taking the homosexuals to police, they should take the law in to their own hands.8 Activists feel that the case has not been sufficiently investigated. Homosexuality is a criminal offence in Kenya.
The media in Kenya has come under significant pressure of late which is clearly affecting their role and impact. There is still no legislation relating to freedom of information despite the fact that Kenya is party to several international and regional treaties guaranteeing freedom of expression and the media and no provisions on access to information have been included in the draft constitution. According to Article 19 a draft law on hate speech presented in late 2009 failed to meet international standards. 9