Kenya: Urgent appeal to the Government of Kenya concerning Disrespect for economic, social and cultural rights and the post-election violence.
Ambassador Amina Chawahir Mohamed Hossain
Permanent Secretary
Ministry of Justice, National Cohesion
& Constitutional Affairs
Nairobi-Kenya
Dear Madam,
REF: DISRESPECT FOR
ECONOMIC, SOCIAL AND CULTURAL RIGHTS LEADS TO TORTURE AND OTHER FORMS OF VIOLENCE IN KENYA
We, the Centre for Minority Rights Development, the World Organisation
Against Torture and theundersigned Human Rights non-governmental organizations fighting torture
and other cruel and inhuman or degrading treatment or punishment,
[1]
in light of the forthcoming examination of the national reports of Kenya at the
41
st Sessions of the UN Committee Against Torture and the UN
Committee on Economic, Social and Cultural Rights, wish to emphasise the strong
link between disrespect for economic, social and cultural rights and the
incidence of torture and other forms of violence in Kenya
[2].
Specifically, we wish to underline that Kenya’s poor, excluded and other
vulnerable groups are often the first and most numerous victims of violence,
including torture and cruel, inhuman or degrading treatment, and that violence
is often inflicted on persons for the simple fact that they demand respect for
economic, social or cultural rights – their own or those of others. It is also
often the case that socio-economic hardship and the iniquitous allocation of
resources in Kenya contributes to inter-community competition and that this, in
turn, leads all too often to inter-community violence.
The extreme violence that followed Kenya’s
elections in December 2007 was in large part an expression of grievances
related to social and economic dissatisfaction among the Kenyan population and
deep concern at the unfair distribution of resources, including land. Indeed,
current data ranks Kenya as the 5th most unequal country out of 53
African states, and the 10th most unequal country in the world. The
roots of the post-election violence are not, therefore, to be found in "ancient tribal rivalries,"
but rather in government policies that have not only failed to bridge the gap
between Kenya’s richest and poorest citizens, but have, in practice, further
enriched the few at the expense of the majority. These same policies have
increased the exclusion of certain marginalised communities, who have no
opportunity to voice their opposition to policies and programmes that
compromise their wellbeing and the enjoyment of their human rights. This
exclusion, and the violence that frequently accompanies it, impedes many
Kenyan’s, especially women and children, from reaching their full potential.
A clear example of the failure to adequately address poverty and
inequality is represented by the situation of pastoralist communities in the
Northern frontier districts of Kenya. These communities have been marginalized by successive
governments and continue to suffer as a result of inadequate infrastructure,
including limited or even inexistent education and health facilities. The
districts of Garissa, Wajir, Moyale, Mandera, Marsabit, Turkana, Isiolo and
others have been left out of the development process, a fact that has been
recognised by the Government on several occasions. This situation has severely
affected the economies of these districts, compromised living standards and
generated competition over scarce resources. As a consequence, there has been
an escalation of cattle raids, tribal, inter-community, and resource-based
conflicts and other forms of violence in the region. The lack of a systematic
policy and structure to handle community conflicts in marginalized, semi arid
and arid parts of the country has meant that human rights have often been
abused, either because of the State’s failure to comply with its positive
obligation to protect its citizens, or because the Government has used – with
impunity - unnecessary force against the populations involved, particularly in
cases of disarmament of pastoralist communities.
The use of brutal
force by the state apparatus has not only been evident in rural districts such
as Mt. Elgon, but also in urban areas, where it is often justified in terms of
cracking down on illegal vigilante groups, quelling disturbances by civil
society, or even as operations against suspected criminal gangs who are
themselves often engaged in exploiting the poor.
In turn,
the impact of violence and the reality of living in constant insecurity can be
such that many individuals or communities are unable to enjoy fully their
economic, social and cultural rights: they fear sending their children to
school, travelling to visit health facilities, fetching water or gathering
firewood. Traditional occupations like pastoralism, cultivation and trading are
important sources of employment and income for many communities, however
pervasive violence means that these activities are associated with a high
degree of risk. Violence, or the threat of violence, thus compromises the
rights to work in safe conditions and to an adequate standard of living.
Similarly, high levels of violence and the insecurity they generate can
paralyse communities living in informal settlements in Kenya’s urban centres.
Women and children are particularly
vulnerable to the impact of violence upon the enjoyment of their economic,
social and cultural rights. For example, conflict and violence typically
disrupt and undermine the provision of, access to and quality of education. In
some cases these can also cause children serious psychological harm. Teachers
and pupils not only stay at home for fear of attacks, but also suffer high
levels of trauma due to the pressure of constant fear, particularly in the
aftermath of inter-community violence. Parents too face trauma, and keep their
children out of school if they fear that their safety is at risk. Furthermore,
the forced closure of schools is a phenomenon long present in areas affected by
inter-community violence. In addition to the impact of conflict on education,
natural disaster have taken their toll as regards access, enrolment, retention
and drop out rates of children in marginalized areas. Within the period of
2005/6 in Garissa, in North Eastern Kenya, 13 schools closed because of lack of
water and in a secondary school in the same region, none of the expected 40
pupils turned up for Form 1. Similarly, schools were transformed into
dormitories for displaced people in Northern Kenya during the floods of
November/December 2006. Rehabilitating them in time for the new school year in
2007 and helping the displaced find refuge were challenges for the communities.
Given the
severity of existing conditions, we strongly urge the Kenyan Government to take
into consideration and systematically address the causal links between the
failure to respect economic, social and cultural rights, and poverty, inequality, discrimination and violence.
This is particularly pressing as in the case regarding marginalized and
minority populations in both Kenya’s urban and rural areas.
With this in mind, and with
the desire to support the Government of Kenya in eradicating torture and other forms
of violence that are linked to the denial of economic, social and cultural
rights, we, the undersigned human rights NGOs, call upon the Kenyan state to:
- Undertake
institutional reforms and, in particular, review the country’s
Constitution. This revised Constitution should see the integration of
economic, social and cultural rights in order to promote equal enjoyment
of and access to education, health care, political rights and
representation and the equal pay for equal work principle. It should
adequately address issues of property and land rights, ensure that customary
law is consistent with international human rights standards, and recognise
the rights of minority and indigenous populations.
- Undertake
affirmative action for groups and regions that have long experienced
marginalization and discrimination in terms of economic growth and
distribution. This should be seen from the perspective of the proposed
institutional reforms that should recognise and mainstream the interests
of marginalized minorities, persons with disabilities, and the victims of
calamities and historical injustices in their new frameworks. These
reforms should, among other things, provide for the equitable distribution
of resources and take firm and decisive steps to address and end
corruption and associated crimes, including the system of political
patronage that sees land and other resources allocated to individuals and
communities in exchange for political support.
3.
Professionalize key sectors, and the security sector in
particular. In Kenya, this sector, which plays a crucial role in every
democratic nation, should be trained in conflict resolution and should be held
accountable for the implementation of the very laws it stands for. This must
see – imperatively - the eradication of the use of brutal force, torture and
other forms of cruel, inhuman or degrading treatment or punishment against
civilians.
4. Finalise the
establishment of the Truth, Justice, and Reconciliation Commission, among other
transitional justice mechanisms. This Commission must not only address Kenya’s
post-electoral violence, but also support the attempt to document human rights
abuses carried out since independence and make recommendations concerning
reparations to victims, as well as suggest reforms to help prevent future
abuses or violations.
- Finalise
and adopt the National Policy on Peace-building and Conflict Management of
2005-6, which will provide a framework for addressing security issues such
as those in Mount Elgon and elsewhere, and end the reactive and
crisis-driven approach to conflict management and resolution.
·
African Centre for Treatment and Rehabilitation of Torture Victims
(ACTV), Uganda
- Bangladesh
Indigenous Peoples Forum, Bangaldesh
- Bulgarian Helsinki Committee, Bulgaria
- Centre Libanais des Droit
Humains (CLDH), Lebanon
- Centre for Minority Rights Development
(CEMIRIDE), Kenya
- Fundación Desarrollo y Paz (FUNDEPAZ),
Colombia
- Global
Justice Brazil, Brazil
- Jananeethi Insitutue, India
- Movement
for the Survival of the Ogoni People (MOSOP), Nigeria
- Mozambican
League for Human Rights, Mozambique
- Philippine Alliance of Human Rights Advocates
(PAHRA), Philippines
- Psychosocial Attention Center (CAPS), Peru
- Red por los Derechos de la Infancia en México
(Mexican Child Rights Network), Mexico
- Rencontre pour la
Paix et les Droits de l’Homme (RPDH), Congo-Brazzaville
- World
Organisation Against Torture (OMCT), Switzerland
With regards,
On behalf of the afore
mentioned Human Rights NGO’s
YOBO RUTIN
Executive Director
CENTRE FOR MINORITY
RIGHTS DEVELOPMENT
[1] These organizations met at the OMCT
international seminar on,
“Addressing the
Economic, Social, and Cultural root causes of violence through the UN Special
Procedures system” held in Geneva, Switzerland from 23 – 27 June 2008.
[2] Find the Parallel report uploaded on;
http://www2.ohchr.org/english/bodies/cescr/cescrs41.htm
entitled OMCT