Human Rights Committee raises concerns about past and upcoming elections in dialogue with Kenya

Gender-based Discrimination, Anti-corruption Measures Also Among Issues Broached

11 March 2021

The Human Rights Committee today concluded its consideration of the fourth report of Kenya on measures taken to implement the International Covenant on Civil and Political Rights.

Committee Experts inquired about measures taken to address the gaps in laws and practices governing elections, particularly the concerns highlighted by the Kenya National Commission on Human Rights in its report on the 2017 elections.  Had any steps been taken to address the misuse of public office by bribery and inducements, campaigns within and around polling centres, undue influence being exercised on voters, and logistical problems?  The Kenya National Commission on Human Rights had meticulously documented allegations of excessive use of force by police officers against civilians both in the run-up to and aftermath of the October 2017 election, including multiple cases of killings, injuries, torture and sexual violence, as well as widespread destruction of property and looting.  What specific steps would Kenya take to prevent instances of intimidation and harassment of journalists and media during the 2022 elections?

Experts said Kenya should be commended for having undertaken policy, legislative and institutional reforms and measures to address corruption.  What efforts were envisaged to address the challenges that remained in that regard?  They asked what measures would Kenya take to mitigate the negative impacts of the COVID-19 pandemic on women’s rights, and inquired about efforts to combat violence against women.  Did Kenya plan to review articles of the Criminal Code which, according to information sent to the Committee, were used by the police to harass and extort money from medical providers willing to offer abortion services? 

Maryann Njau-Kimani, Secretary, Justice and Constitutional Affairs of the Office of the Attorney General and Department of Justice of Kenya said that, to combat corruption, Kenya had adopted a National Ethics and Anti-Corruption Policy, a comprehensive, coordinated and integrated framework for fighting corruption and promoting ethics.  Noting that women were still underrepresented in elective positions, she said interventions to increase women’s participation in politics included the development of the 2020 Representation of Special Interests Group Law (Amendment) Bill.  Kenya’s measures on violence against women included the 2019 National Policy on the Eradication of Female Genital Mutilation. 

The delegation added that presidential elections, elections of members of the Senate, Governors, members of Parliament, members of county assemblies and women representatives were carried out on a single day, and the only disputed one in 2017 was the presidential election.  That was a clear sign of democracy in the country and the rule of law.  A question had been asked about measures by the Government of Kenya to ensure no violence was meted out against civilians as alleged to have taken place after the general election in 2017.  Kenya had had cases of violence, especially after general elections, but the sitting President had reached out to leaders of the opposition.  In 2018, there had been a handshake between the head of State and the leader of the opposition.  The Independent Policing Oversight Authority held the mandate to investigate police excesses and recommend prosecution to the Office of the Director of the Public Prosecution.  The Independent Policing Oversight Authority had also put in place a toll-free number to receive specific complaints against the police, including allegations of torture.  

In conclusion, Ms. Njau-Kimani commended the Committee for the constructive dialogue and expressed appreciation to all Committee Members for their in-depth consideration of the human rights situation in Kenya.  The session was taking place with the COVID-19 pandemic as a backdrop, which underscored the crucial nature of human rights. 

Photini Patzartis, Committee Chairperson, thanked the delegation for engaging with the Committee in a virtual setting.  She noted that a constructive dialogue had been held, despite technical and connectivity problems. 

The delegation of Kenya consisted of representatives of the Office of the Attorney General and Department of Justice, the Office of the Director of Public Prosecutions, the Ministry of Environment and Forestry, the Ministry of Labour and Social Protection, the Ministry of Public Service and Gender, the National Police Service, the Kenya Law Reform Commission and the Communications Authority of Kenya, as well as a judge.

The Committee will issue the concluding observations on the report of Kenya at the end of its one hundred and thirty-first session on 26 March.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on thesession’s webpage.

All public meetings of the Human Rights Committee are webcast live athttp://webtv.un.org/ while the meeting summaries in English and French can be accessed at the United Nations Office at Geneva’s News and Mediapage.

The Committee will next meet in public at a date and time to be determined.

Report

The Committee has before it the fourth report of Kenya (CCPR/KEN/4).

Presentation of the Report

MARYANN NJAU-KIMANI, Secretary, Justice and Constitutional Affairs of the Office of the Attorney General and Department of Justice of Kenya, commended the Committee for carrying on its work despite the COVID-19 pandemic, and said Kenya was committed to upholding the highest standard of human rights promotion and protection.  Kenya accepted international human rights principles as a foundation for citizens’ dignity and respect, and peace.  Since its last report in 2012, the Government had taken steps to develop effective follow-up mechanisms to ensure the implementation of human rights recommendations by the Committee and other treaty bodies.  Kenya’s fourth report informed about developments since then.  Access to justice was one highlight of the report; Kenya had established 39 additional High Courts in counties, and there were plans to construct a Magistrates’ Court in each of the 290 sub-counties.  In 2018, Kenya’s Supreme Court had declared the mandatory death penalty unconstitutional because it violated the right to a fair trial. 

To enhance equality, the Law of Succession Act of 1981 had been revised to recognize that women and men had equal inheritance rights, and the 2019 Registration of Persons Amendment Bill provided for the registration of intersex persons, who had not previously been recognized by law.  To combat corruption, Kenya had adopted a National Ethics and Anti-Corruption Policy, a comprehensive, coordinated and integrated framework for fighting corruption and promoting ethics.  A multi-agency team enhanced coordination between agencies fighting corruption and organized crime.  The recovery of proceeds of crime had been a deterrent against corruption and money laundering.  The 2016 Bribery Act addressed corruption in the private sector and criminalized both the offering and receiving of a bribe.

Underscoring that the country had suffered terrorist attacks, Ms. Njau-Kimani said that Kenya had put in place measures that countered terrorism and strategies that were in line with the law, thus fulfilling its obligation to protect its nationals and others against the treat of terrorist acts, and to bring the perpetrators to justice.  The Government did not condone excessive use of force, and, whenever allegations of excesses were made, comprehensive investigations were conducted and individuals were dealt with following the due process of law.  The Independent Police Oversight Authority (IPOA) had been created to investigate and recommend the prosecution of unlawful practices by law enforcement officers.  Noting that women were still underrepresented in elective positions, she said interventions to increase women’s participation in politics included the development of the 2020 Representation of Special Interests Group Law Amendment Bill.  That Bill sought to promote the representation in Parliament of women, persons with disabilities, youth, minorities, and other marginalized communities.  Kenya’s measures on violence against women included the 2019 National Policy on the Eradication of Female Genital Mutilation.  A training manual targeting medical personnel was dubbed “Stopping Medicalisation of FGM”.  Measures against human trafficking included the introduction of standard operating procedures as guiding tools for law enforcement, prosecutors, and others involved in identifying, investigating and prosecuting traffickers. 

The COVID-19 pandemic had challenged the implementation of human rights in Kenya.  The introduction of curfews, the prohibition of public gatherings, lockdowns, travel restrictions, and reduced flights in and out of Kenya had had a limiting effect on the enjoyment of some civil and political rights, including access to justice and the freedoms of association, assembly and movement.  Kenya’s Government had taken measures to mitigate the negative impact of the restrictions such as handling all court matters virtually to the extent possible, exempting advocates and members of the police oversight authorities from the provisions of the curfew, releasing petty offenders from prisons, and introducing a national helpline for survivors of sexual and gender-based violence.  Kenya reaffirmed its commitment to the full implementation of the Covenant, and welcomed the opportunity for a constructive dialogue with the Committee.

Questions by Committee Experts

Committee Experts asked whether Kenya had plans to accede to the First Optional Protocol, giving individuals the right to petition the Committee where violations of the Covenant were alleged.  Acknowledging positive developments regarding lesbian, gay, bisexual, trans and intersex people’s rights, particularly in relation to the recognition of intersex status, Committee Experts asked whether the Government would take the lead on the decriminalization of consensual same-sex sexual activity either by repealing the criminal prohibitions, or simply not defending the appeal.  Would Kenya consider enacting specific legislation to prevent discrimination against individuals based on sexual orientation, and what steps were being taken to end the social stigmatization of lesbian, gay, bisexual and trans persons?  The Committee had received information of infanticide and abandonment of intersex children, intersex genital mutilation, and other harmful practices on intersex children and adults which were still current in Kenya.  What measures would Kenya implement to stop those harmful and cruel practices?

Kenya should be commended for having undertaken policy, legislative and institutional reforms and measures to address corruption, Experts said.  What efforts were envisaged to address the challenges that remained?  Turning to discrimination, Experts asked Kenya to provide concrete figures on the representation of women in the executive, judiciary and legislature.  How had Kenya addressed discrimination against Muslims, following reports they had been scapegoated for acts of terrorism?  There had been no efforts by Kenya to arrest and detain the perpetrators of abuses against persons with albinism.  What had Kenya done to eliminate discriminatory acts against persons with albinism that were grounded in the enjoyment of culture, that was to say, the practice of witchcraft, while upholding their right to life?

On the subject of violence against women, how did Kenya plan to consolidate the anti-female genital mutilation legislation in the region to curb the cross-border violations against women’s dignity, especially for children below the age of consent?  What steps had been taken to overcome the inability to successfully prosecute child abuse cases?  Committee Experts asked if Kenya had adequately allocated financial resources to facilitate the enforcement of laws against female genital mutilation.  On gender equality, they inquired about the effects of the COVID-19 pandemic.  Which measures had the Government of Kenya taken to ensure better representation of women in the private sector?

Committee Experts acknowledged that Kenya faced an ongoing terrorist threat from the Al-Shabaab militia group, which had carried out attacks on learning institutions, hotels and shopping malls in Kenya.  The Prevention of Terrorism Act had a very broad definition of terrorist acts, and the provision could be used against political opponents, civil society, and protesters.  How many cases related to countering terrorism had been brought before the courts during the reporting period?  Underlining that increasing incidents of extrajudicial executions and enforced disappearances had been documented in counterterrorism operations, Experts asked what measures the Government of Kenya was taking to prevent such acts and to investigate and prosecute those responsible, as well as provide redress to victims.

Replies by delegation

The delegation said Kenya’s Constitution stipulated that every treaty or convention that was ratified by Kenya formed part of the law of Kenya.  The only test was whether it was consistent with the Constitution.  A national task team was working on the question of Kenya’s accession to the First Optional Protocol of the Covenant.  The process of passing laws and policies in Kenya took quite a bit of time, as public participation was an important value.  To enhance inclusivity, transparency and accountability, participation must take place countrywide, and laws and policies must be subjected to extensive stakeholder consultations.  Parliament must then be educated on each of the laws, their content and their implication for the county as a whole.  Such processes took time and had budgetary implications.  If the government did not have the necessary budget for a given financial year, work on the bill must move to the next year. 

Kenya had intensified the prosecution of suspected cases of corruption by training the police, prosecutors and judges on anti-corruption laws, to improve investigations, prosecutions and convictions.  However, once a case had been instituted in court, the executive did not have control on the time taken in court.  Witnesses must be called, and evidence produced, so the prosecution could take quite a bit of time—it might even take four or six years. 

MARYANN NJAU-KIMANI, Secretary, Justice and Constitutional Affairs of the Office of the Attorney General and Department of Justice of Kenya, said the report of the Truth, Justice and Reconciliation Commission had been presented to Parliament, which was in control of its agenda and calendar.  The Victims Protection Board had been fully operationalized, and it had put in place all the administrative channels; the fund regulations were currently undergoing stakeholder consultations, but had already been developed.  Once they were validated, Kenya would start compensating the victims. 

An Intersex Task Force had recommended that there should be no surgeries until the Ministry of Health had consulted with relevant stakeholders.  This aimed at ensuring the formulation of specialized programmes that provided intersex persons with the care and protection they required.  The Attorney-General had established an implementation committee to enact recommendations of the Intersex Task Force, she added.

The Government did not condone any discrimination on any basis, whether on religion, or any other orientation, and the Courts had pronounced themselves on such issues.  Turning to the issue of decriminalizing sexual relations, Ms. Njau-Kimani referred to a High Court case, which in its decision had noted that when the new Constitution had been drafted in 2010, the issue of same-sex relationships was raised, but there was no appetite to legalize them.  As such, the relevant article of the Constitution recognized only heterosexual marriages.  Every person in Kenya was guaranteed the full protection of the laws, she stressed.

Questions by Committee Experts

Committee Experts asked Kenya to explain the low number of identified perpetrators and convictions vis-à-vis the increasing rates of child trafficking.  Reports had been received of people promised employment in Middle Eastern countries who had been victims of beatings and sexual abuse, and had received inadequate pay after work under deplorable conditions.  Had there been arrests, prosecutions and convictions related to that exploitative practice?  Turning to abortion, Experts noted that it was regulated in Kenya by an article of the constitution, which stated that abortion was permitted only if, in the opinion of a qualified health professional, there was a need for emergency treatment, or if the life or health of the mother was in danger.  Abortion was not permitted, but exceptions were allowed.  Did Kenya plan to review articles of the Criminal Code which, according to information sent to the Committee, were used by the police to harass and extort money from medical providers willing to offer abortion services?  What steps had Kenya taken to combat maternal mortality?  Would Kenya consider lifting its reservations to the Maputo Protocol, which obliged States to protect women’s reproductive rights?

Committee Experts asked what steps Kenya had taken with a view to fully abolishing the death penalty and acceding to the Second Protocol to the Convention.  What efforts had Kenya made to ratify the International Convention for the Protection of All Persons from Enforced Disappearance?  What was the status of the definition of enforced disappearance as a separate criminal offence in legislation, and what steps had Kenya taken to allow its National Commission on Human Rights to access military detention facilities when investigating torture, ill-treatment and enforced disappearances?  What measures had been taken by the State to ensure that the violence committed by law enforcement during the 2017 election did not reoccur in the future?  Experts asked how Kenya would assess whether the Witness Protection Agency provided effective protection to victims or witnesses of extrajudicial killings.  Torture and excessive use of force were concerning practices in Kenya, despite the concerted efforts by the Kenya Government in terms of legislation.  Did Kenya have the intention of ratifying the Optional Protocol to the Convention Against Torture?

With regard to climate change and the right to life, Experts noted that Kenya did not yet have long-term emissions reduction strategies and targets.  On the liberty and security of the person, the Committee was concerned about instances of arbitrary arrest and detention against human rights defenders, journalists and media workers, and civil society organizations.  Did the State intend to adopt a specific law to ensure adequate protection of human rights defenders and whistleblowers, as had been recommended by the Human Rights Council during its Universal Periodic Review of Kenya?  Were there any plans to adopt the model Human Rights Defenders Protection Policy developed by the Kenya National Commission on Human Rights?  

Replies by delegation

The delegation said Kenya conducted an annual campaign against gender-based violence, and had established a toll-free help-line, which women who were victims of violence could call to talk to a service provider, who would address their issue.  On persons with albinism being targeted because of witchcraft, and the ensuing violations of their rights as they were subjected to violence, the delegation stated that the issue of witchcraft was not known in Kenya.  All Kenya’s registered persons with albinism, of which there were about 340, were alive and had not been subjected to witchcraft practices. 

Kenya’s penal laws on abortion were in line with Kenya’s constitutional provisions.  The deliberate termination of a pregnancy, where there was a need for emergency treatment, or the life or health of the mother was in danger, or the life of the unborn child was also in danger, was to be undertaken in such a manner as to give the unborn child the highest chance of survival.  Reproductive healthcare service providers were thus urged to continue to prioritize the provision of quality post-abortion services, other reproductive maternal health care services, and family planning services, as informed by the respective Ministry of Health guidelines and standards on those domains of healthcare service delivery.  Reproductive healthcare service providers were also advised to refer any incidences of crisis pregnancies for which they lacked the technical capacity to the nearest public health facility, so the patient could access multidisciplinary assistance.  That included, but was not limited to, counselling, appropriate linkages to necessary pathways of care for crisis pregnancies, and child adoption services as per the Childrens’ Act of Kenya. 

Maternal mortality remained a challenge for Kenya, and initiatives aiming at reducing it included the Beyond Zero campaign.  That campaign aimed to address the high rates of maternal and child mortality due to HIV/AIDS.  The campaign aimed to contribute to the acceleration of economic and social development in Kenya by eliminating preventable deaths of mothers and children and decreasing social inequities through policy prioritization, resource allocation, improved service delivery, and promoting individual health-seeking behaviors and practices. 

Torture was illegal and unconstitutional in Kenya.  This became even clearer after the promulgation of the new Constitution in 2010 with its elaborate Bill of Rights.  Torture had been common in the early days of post-independence Kenya, but the laws had evolved.  The Evidence Act clearly stated that any evidence obtained illegally, such as through torture or other means, was irrelevant and illegal and could therefore not be introduced in court.  Courts had been very clear that such evidence was not admissible.  Torture and ill-treatment in the context of security operations and counterterrorism measures was prohibited.  The Independent Policing Oversight Authority held the mandate to investigate police excesses and recommend prosecution to the Office of the Director of the Public Prosecution. 

The 2017 Prevention of Torture Act was enacted to operationalize the article of the Constitution on the right to freedom for torture, and to domesticate the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The implementation had not been very smooth, as most of the offences that the act created were also included under other provisions of the law.  The punishment for torture was 25 years of imprisonment, whereas, for the offence of manslaughter, it was imprisonment for life.  A rapid reference guide and draft charge sheets currently under development were intended to offer guidance to prosecutors and investigators on the application of the Prevention of Torture Act.  The Independent Policing Oversight Authority had also put in place a toll-free number to receive specific complaints against the police, including allegations of torture.  

Kenya had developed a draft standard operating procedure to combat trafficking in persons for labour.  It provided tools for law enforcement and others involved in, inter alia, investigation and prosecution of traffickers.  The Government had also developed a national plan of action to combat human trafficking.  Turning to questions about extrajudicial killings and on the liberty and security of persons, the delegation said that since the establishment by the Government of a civilian oversight authority, it had conducted investigations and recommended the prosecution of a number of police officers who had been accused of extrajudicial killings.  Regarding access to military detention camps by the Kenyan National Commission on Human Rights or the Kenya Human Rights Commission, the delegation explained that the Kenyan military was not authorized to, and did not, have detention camps within the jurisdiction of the country.  Only the Kenyan national police service, through gazetted police stations, had cells.  The Kenyan Defence Force only undertook humanitarian activities within the country, delegates added. 

A question had been asked about measures by the Government of Kenya to ensure no violence was meted out against civilians as alleged to have taken place after the general election in 2017.  Kenya had had cases of violence, especially after general elections, but the sitting President had reached out to leaders of the opposition.  In 2018, there had been a handshake between the head of State and the leader of the opposition.  On the first day of enforcement of the curfew and lockdown due to the COVID-19 pandemic, there had been a conflict between police and civilians, and police officers had been indicted for violence against civilians.  Disciplinary action had been taken, delegates assured.

On environmental degradation and climate change, two key Government agencies met regularly to address these matters.  As for the recent launch of a trees programme, the Government did not have adequate resources, and was seeking assistance from development partners.  To reduce carbon emissions, the Kenyan forest services worked with county governments, schools and private landholders to plant trees and reduce emission due to deforestation and forest degradation.  Kenya had also invested heavily in geothermal power generation, which supplied low-cost, low-emission energy. 

Questions by Committee Experts

Committee Experts asked for further information about the measures that were in place to ensure public participation in decision-making related to the environment and climate change.  Were there special consultations held with interested stakeholders, and how did vulnerable populations gain access to information?  Could the delegation provide information about programmes the Government might have about deradicalization and returning foreign terrorist fighters?  Regarding right to life issues, Experts noted that, in response to a Supreme Court ruling from 2017, Kenyan courts had begun to resentence eligible offenders.  How many eligible offenders had been resentenced, and how many petitions were being considered?  Was the framework set up by the task force for resentencing of death row inmates being used?

Responses by delegation

In response to the question about resentencing, the delegation stated that there had been just over 8,000 persons who had been eligible to benefit from the judgment.  Some had since been released, and some had been resentenced. 

Questions by Committee Experts

Committee Experts asked what measures had been put in place to protect minority groups, particularly lesbian, gay, bisexual, trans and intersex individuals, from refoulement.  Since 2013, there had been increasing forced evictions carried out both in urban settlements and in forested areas.  Had any action been taken against those found to have committed breaches of the law during such operations? 

What steps had been taken to address the gaps in laws and practices governing elections, particularly the concerns highlighted by the Kenya National Commission on Human Rights in its report on the 2017 elections?  Had any steps been taken to address the multiple irregularities identified by the Kenya National Commission on Human Rights, such as the misuse of public office by bribery and inducements, campaigns within and around polling centres, undue influence being exercised on voters, and logistical problems such as delays in delivery of polling materials to centres, electronic transmission of results, and access by pregnant women, older persons and persons with disabilities? If so, could the delegation provide specific information as to what reforms have been implemented?

The Kenya National Commission on Human Rights had meticulously documented allegations of excessive use of force by police officers against civilians both in the run-up to and aftermath of the October 2017 election, including multiple cases of killings, injuries, torture and sexual violence, as well as widespread destruction of property and looting.

Experts also asked what concrete steps had Kenya taken to ensure respect for freedom of speech while preventing the spread of hate speech and false news on social media.  What specific steps would Kenya take to prevent instances of intimidation and harassment of journalists and media during the 2022 elections?

Replies by delegation

On deradicalization and returning foreign terrorist fighters, the delegation said the Government had come up with a process of disengagement and integration back to society of returnees who had appeared to have joined terror groups.  Presidential elections, elections of members of the Senate, Governors, members of Parliament, members of county assemblies and women representatives were carried out on a single day, and the only disputed one in 2017 was the presidential election.  That was a clear sign of democracy in the country and the rule of law.  The registration of refugees in Kenya was dependent on their status as refugees, and not their sexual orientation.  If there were any discrimination based on sexual discrimination, action was taken by the State, as Kenya’s constitution was clear that this was no acceptable ground for discrimination.  Freedom of assembly was an important right that was recognized by both the Constitution of Kenya and the Covenant.  Kenya had revised the Public Order Act in 2012 to conform with constitutional and international norms on peaceful assembly.  The Act in no way hindered the freedom of assembly, but rather protected demonstrators and others from crime.  

Kenya had extended an open invitation to all Special Rapporteurs.  When a request was received, Kenya only asked for concurrence on dates and times with the relevant institutions.  Because of the COVID-19 pandemic the visit of several Special Rapporteurs had been delayed.

Questions by Committee Experts

Committee Experts asked which preventative measures were being taken to reduce or prevent instances of sexual violence as well as excessive use of force by the police during the 2022 elections?  On albinism, they observed that the Committee had received a “blanket denial”, which seemed to be inconsistent with the report of the Independent Expert on the enjoyment of human rights by persons with albinism.  What measures would Kenya take to mitigate the negative impacts of the COVID-19 pandemic on women’s rights, the lesbian, gay, bisexual, trans and intersex community and other groups?

Closing remarks

MARYANN NJAU-KIMANI, Secretary, Justice and Constitutional Affairs of the Office of the Attorney General and Department of Justice of Kenya, commended the Committee for the constructive dialogue and expressed appreciation to all Committee Members for their in-depth consideration of the human rights situation in Kenya.  The session was taking place with the COVID-19 pandemic as a backdrop, which underscored the crucial nature of human rights. 

PHOTINI PAZARTZIS, Committee Chairperson, thanked the delegation for engaging with the Committee in a virtual setting.  She noted that a constructive dialogue had been held, despite technical and connectivity problems.


Link: https://www.ungeneva.org/fr/news-media/meeting-summary/2021/03/human-rights-committee-raises-concerns-about-past-and-upcoming

 

___________

 

For use of the information media; not an official record