| Kenya PR - Final Mission 4 pages / 612 KB |
Nairobi, 5 October 2013
At the conclusion
of a visit to Kenya by a delegation of anti-torture experts, the World
Organisation Against Torture (OMCT) and its coalition of partner organisations
in Kenya call for the continuation of the reform path and effective steps to
end impunity.
Scope of the mission:
Over the last week
the delegation held meetings with state and civil society actors to assess the
way forward in implementing the recommendations issued over the last years by
the main UN anti-torture bodies. We wish to express our appreciation for all
the state and civil society actors met, and note the openness of discussions
with the authorities, including the Attorney General, the Solicitor General,
the Deputy Commissioner of Prisons, the Independent Police and Oversight
Commission and the Police Service Commission, representatives of the Judiciary,
and the Kenyan National Human Rights Commission. The delegation was also able
to visit a penitentiary facility in Industrial District in Nairobi.
Torture and terrorism:
The mission took
place only a few days after the terrorist attack on the Westgate Mall. To our
organisations there is no doubt that such a terrorist act constitutes a crime
against humanity and violates the very values human rights law seeks to
protect. It is vital for victims and their families to receive support, to receive
adequate information about what happened to their loved ones, and that those
responsible for such crimes are brought to justice within the ordinary justice
process.
We appreciate
assurances by the Attorney General that security threats such as terrorism must
be addressed within and not as an abrogation of the rule of law. It is
important to withstand any temptation to resort to measures outside the law,
and we urge all actors involved to fully respect the absolute prohibition of
torture, cruel, inhuman and degrading treatment even in such time of crisis,
and not to repeat some of the violations that occurred after the attacks in
Mombasa in 2002.
Dissemination of recommendations:
The UN Committee
Against Torture and the UN Human Rights Committee have both - on the basis of
Kenya's state report - made important recommendations for an effective
prevention of torture. These recommendations should be disseminated widely so
that they trigger down to all relevant actors, and we believe that thought need
to be given to consider conducting government and civil society consultations
on their implementation, and the discussion of a joint action plan on its implementation.
We also believe that the governments stated intention to invite the UN Special
Rapporteur on Torture should be followed soon by a visit of the Special
Rapporteur as an important follow-up measure.
Legislative and constitutional reforms:
Our experiences during
the mission mirror the findings of the UN Committees on legal reforms. Kenya
has made over the last years important progress in building a strong
constitutional and legal framework against torture. Other important
recommendations include the early adoption of the child rights and persons
deprived of liberty bills presently under consideration.
We believe that
these important reforms need to be rounded up by the adoption of a prevention
of torture law, which the UN Committee Against Torture identified as a priority.
This draft law elaborated
in consultation between state and civil society would fully ensure the
domestication of the UN Convention Against Torture. We are greatly encouraged
in this regard by the Attorney General's commitment received during our meeting
with him to expedite the law to parliament before the end of the year as well
as the openness to hold a consultation on torture prevention and reparations.
Redressing lack of implementation:
The number one challenge
in the fight against torture remains in the view of all those that we met the
lack or late implementation of the many of the good laws passed over the last
years as well as the continuous impunity for torture, and other forms of cruel,
inhuman or degrading treatment, that appears to persist despite the adoption of
these various legal reforms.
The bodies and
commission set-up in recent years need to be fully resourced to life up to
their expectations. Serious concerns about the delays in their creation or effective
functioning, for example of a gender and children desk within police facilities
and an FGM board under the FGM law, need now to be addressed. We are concerned
about the severe reductions in funding for the Kenyan National Human Rights
Commission and the delays in the appointment of its commissioners which risks
to frustrate one of the most effective national institutions in the region.
Police reforms:
We appreciate the
important reform efforts of the police, including through the creation of an
Independent Police Oversight Authority (IPEA). Scope and mandate of this institution
can become an important model and reference point in other jurisdictions.
However, the delegation is concerned about apparent attempts to limit some of
its powers and that may alter and expand the rules on the use of firearms.
Altering the IPEA mandate at the very moment when it is about to gain
credibility is a real threat to its future impact. It also runs counter the
conclusions of the UN Committee Against Torture. Overall, we recall the
importance of the recommendations made by both UN bodies on moving forward in
the actual vetting process of the police. While recognizing the complexities
involved, this process should proceed to secure the transition from a police
force to a police service.
Judicial reforms:
The delegation
noted the wide consensus that the judiciary reforms have improved the human
rights performance of the judiciary. At the same time there remains a serious
delay in the adjudication of cases leading to overcrowded prisons in remand.
There is also concern that most torture cases do not make it to the court stage
posing questions on actual effectiveness of investigations into torture. The
right of victims to reparation is vital. In this regard, we learned with concern,
that rulings providing compensation for torture victims have in a number of
cases not been executed, undermining the judiciary and the rule of law.
Penitentiary reforms:
We are encouraged
by the reforms in the prison system with an increased openness to the outside
world. There remain problems of overcrowding - including in pre-trial detention
in some cases for up to 11 years - which is unacceptable and requires a
rethinking of punishment policies. We are particularly concerned about the
detention of children, including in remand detention, as children should only be
subjected to pre-trial detention in the most exceptional circumstances. Another
area of reform concerns the treatment of prisoners facing the death penalty whose
prison regime has to be assimilated to ordinary prisoners, as the death penalty
is not executed in Kenya.
Overall, we appreciated
the openness of the prison administration and urge the authorities to move forward
on the ratification of the Optional Protocol to the UN Convention Against
Torture, which establishes a national prevention mechanism, implementing a core
recommendation of the UN Committee Against Torture.
Impunity and investigations:
The central
challenge continues to be impunity for torture, cruel and inhuman or degrading
treatment, or extrajudicial killings often despite solid documentation. In this
regard we noted that most cases do not make its way to judicial determination
and there appears to be a serious gap in the functioning of investigations and
prosecutions. Without breaking the cycle of impunity a culture change in law
enforcement will remain illusionary. Legal accountability must complement the
many legal reforms undertaken.
Protection of victims, witnesses and human rights defenders:
We are particularly
concerned about indications on the intimidation of victims who lodge complaints
or of their families, or of witnesses who may provide testimonies and human
rights defenders documenting violations, including in the context of the
violations in Mount Elgon.
The protection of
human rights defenders and the effective investigation and prosecution of
attacks on human rights defenders must be a first priority of any democratic
state.
Kenya's civil
society has no doubt played a tremendously positive role in accompanying the
reform process in the country. This contribution should be appropriately
recognized. Against this background it is disquieting to see that some question
the patriotism of human rights organisations because of their international
support as members of the universal and regional human rights movement. In this
regard we stress that the implementation of the new Public Benefits Act and any
consideration of a Draft Charity Act need to fully respect the positive role of
protecting the rights enshrined in the countries constitution, and protect the rights
enshrined in the UN Declaration on Human Rights Defenders.
Finally, we
express our conviction that the continuation of the reform process and
effective steps to ensure accountability will allow the country to contribute
to an eradication of torture in law and in practice. These efforts will require
our continuous and collective support.
Background:
The United Nations Committee
Against Torture, the authoritative universal anti-torture body made multiple
recommendations to the authorities about ways to implement the United Nations
Convention Against Torture. Earlier in 2012 the United Nations Committee on
Human Rights had also identified the fight against torture and for better
prison conditions as a priority concern.
The mission was composed of the
OMCT Secretary General, Gerald Staberock, and OMCT Vice President and former
senior UN human rights official, José Dougan-Beaca, and conducted in
partnership with the Kenyan Section of the International Commission of Jurists
(ICJ Kenya) The Independent Medico-Legal Unit (IMLU), The Coalition of Violence
Against Women, (COVAW) Legal Resources Foundation (LRF-K) and The Kenya
Alliance for the Advancement of Children (KAARC).
For further information,
please contact:
OMCT - Seynabou Benga,
sb@omct.org, +41(0) 22 809 49 39
ICJ Kenya – Anita Nyanjong,
anyanjong@icj-kenya.org, +254-0720491549
The
mission was part of a global program of the OMCT seeking the effective
implementation of the UN Convention Against Torture with the financial support of
the European Commission and the Oak Foundation. The OMCT wishes to thank for
this financial support. The OMCT is solely responsible for the content of this
statement.
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