Written by KHRC    Thursday, 23 April 2015 12:52   
GOALS OF KHRC PARTICIPATION IN THE 56TH SESSION OF THEAFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS (ACHPR )– Banjul, Gambia
  1. Team Participation
  1. Development and submission of a Country Breif on the situation of Human Rights in Kenya
    • In recognition Kenya’s State Report for 2008-14 that was submitted in February 2015 and other contemporary developments, KHRC will be developing a country brief on the human rights situation in Kenya. While Kenya is not listed for review in this session, it may still be prudent to develop the country brief and seek a bilateral engagement with the Country Rapporteur, Commissioner Pacifique Manyirakiza. The brief will be largely based on the information already submitted to the UN Human Rights Committee (2012), the UN Committee against Torture (2014) and under Universal periodic Review (2015)

      2.  Development and presentation of a statement on Human Rights Situation in Kenya

      • The KHRC team including the Transformative Justice team will develop a 5 -minute statement on the Human Rights Situation in Kenya and present it on the 21st of April, 2015.

         ii. Transformative Justice Thematic Participation

         3. Attend panel discussion on Torture and Death Penalty

      • Follow-up on PARI and CPTA discussions on a General Comment on Article 5 of the African Charter: At the 55th session, ACHPR’s Committee on the Prevention of Torture in Africa (CPTA) and the Pan-African Reparations Initiative (PARI) had commenced a conversation regarding the development of a general comment on Article 5 of the African Charter with regard to reparations and torture. It had been agreed that a technical paper would be presented to CPTA by PARI before the deliberations could go any further.
      • As a member of PARI, KHRC will attend a panel discussion on torture that will take place on 22nd of April and a panel discussion on Death Penalty that will take place on the same date. KHRC will attend a Launch of Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa and Interactive Sessions on Policing and Human Rights: April 25

          4. Draft Resolution on Human Rights and Terrorism

      • Discussions are underway with the International Federation for Human Rights (FIDH) to draft a resolution on human rights and terrorism for consideration and adoption by the ACHPR.

           5. NGO Forum Panel on Elections

      • With regards to Electoral Governance, KHRC will be a panelist on the first day of the NGO Forum to discuss elections from a human rights perspective with an emphasis on the human rights-based election observation initiatives in Africa. KHRC will in this context discuss its Electoral Observation framework along with preliminary findings from regional election monitoring with the object of influencing similar initiatives in the region.

           6. Transitional Justice

      • Meeting of the Advisory Committee to the Study on Transitional Justice in Africa: Depending on the availability of quorum in Banjul, there is a scheduled status update meeting on the progress made with regard to the Study on Transitional Justice in Africa including a review of the available draft. In any case a meeting with the Commissioner Pacifique as the lead on the study should be scheduled.
      • A side event on Rehabilitation and Reparations organized by Peace through Accountability in Africa Project Partners (PTAAP). In keeping with past practice PTAAP will probably undertake a side-event to discuss rehabilitation and reparations. The deliberations from this event will eventually be synthesized into a brief that will be an published and disseminated alongside the brief of the panel from the last session which was entitled “Transitional Justice: An Effective Tool for Transitional Justice or an Exercise in Futility?”
      • Will participate in a roundtable discussion on South Sudan: At the invitation of Amnesty International, KHRC will be participating in the roundtable discussion entitled, “Waiting for Justice in South Sudan: Exploring the Need, Prospects and Options for Accountability. It will will reflect on the need for justice, take stock of the regional response to the conflict, explore what more can or should be expected from the region, and consider the possible options for pursuing accountability.

          7. Side event on Implementing of decisions from the African Commission

      • KHRC will be participating in a convening on the implementation of decisions from the ACHPR with the possibility of inviting the ACHPR Working Group on Communications.

          iii. Political Plurality and Diversity Participation

          8. General Comment on Article 7(d) of the Maputo Protocol on Women's land and property rights

        Follow up on the advocacy for the adoption of a General Comment on Article 7(d) of the Maputo Protocol. In this regard, we shall hold a meeting with the implementing partners as a follow up to the regional meeting held in June 2014 as well as with Commissioner Maiga, the relevant mandate holder. We will also hold consultative and strategy meetings with IGED Africa and ISLA on how to take the GC forward as well as have meetings with other practitioners and commissioners to garner support for the GC.

           9. Panel Discussion on Elections and HRs

        We shall have a joint side event with the TJ team, FIDH and Amnesty International on Elections in Africa. The PPD team will seek to advance our agenda on enhancing the participation and representation of marginalized and special interest groups. This meeting will also serve as a precursor to a planned regional meeting on electoral governance and political participation and representation to be held later this year under the Ford Global initiatives.

           10. Terrorism and human rights

        KHRC and FIDH will hold a joint side event on terrorism and human rights. In this regard the PPD team will seek to bring into the discussion the interlinkage between counter terrorism and citizenship and ethnic and racial discrimination.

          11. Sexual Orientation and Gender Identity

        On SOGIE, we shall seek to build on the partnerships we have been exploring with regional actors and to further the discussion on monitoring the extent of States’ compliance with the ACHPR Resolution[1] passed in 2014. We will also highlight recent developments in Kenya on the same.

        We shall further have strategy discussions with partners across the continent on countering the anti-homosexuality legislation ripple.

          12. General

        Preparation of a thematic brief and statement as part of the institutional country brief and NGO statement respectively shall be done. PPD shall also hold advocacy meetings with relevant mandate holders and other partners on thematic and areas of interest.

          iv. Economic and Social Justice Thematic Participation

        1. The Extractive Industry and Corporate Accountability

        Kenya is currently experiencing a surge in the entry of Multi-National Corporations (MNCs) seeking to exploit natural resources such as coal, oil and gas along with large-scale commercial agriculture. The entry of MNCs and the increased activity of natural resource extraction have however brought with it several human rights concerns. Community land is increasingly being appropriated by the government to facilitate the activities of MNCs without the requisite safeguards in the absence of community land legislation. Large-scale projects such as the Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor project pose a threat health, culture and livelihoods of several communities as the project commenced without the necessary environmental and social impact assessments being undertaken. Concerns over equitable benefit sharing of natural resources have also been expressed by various communities who have lost land to the extractive industry.

        Some MNCs also stand accused of presiding over poor working conditions and other labour related violations such as unfair dismissal of workers, denying workers the opportunity to join or form unions, a disproportionate employment of foreign workers to the detriment of local communities and sexual offences within the work place.

        We call on the Commission to remind the Kenyan government of obligation to ensure effective public participation and transparency in any land acquisition process as articulated in article 55 (d) of the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights. The government should be compelled to enact legislation on community land, agreements relating to natural resources and equitable benefit sharing of natural resources without further delay. The government should develop a National Action Plan on the United Nations Guiding Principles on Business and Human Rights as well as develop an effect and appropriate non-judicial grievance mechanism as a supplement to Kenya’s judicial system in offering remedies for business-related human rights abuses. Lastly we request the Commission to consider undertaking a baseline survey on the impact MNCs on human rights in Kenya.

            2. Corruption

        Kenya continues to experience numerous instances of corruption at the highest levels of government that threatens to undermine the principle of governance based on human rights, equality, freedom, democracy, social justice and the rule of law. The Auditor General recently made an alarming admission that half of the country’s annual budget is either misappropriated or “squandered”.

        Corruption has also occasioned a loss of public trust in critical public institutions such as the Independent Electoral Boundaries Commission (IEBC). Several IEBC officials have been implicated in a series of procurement-related scandals dubbed ‘chicken-gate’ that have seen the conviction of directors of a London-based company by the British courts on account of bribing the said IEBC officials in order to receive tenders for the printing of election materials. The imputation of corruption in such a critical public institution raises considerable concern in the face of the upcoming 2017 general elections and in the light of the 2007-08 post-election violence that was triggered by the lack of public trust in the management of elections by the now defunct Electoral Commission of Kenya (ECK).

        We however acknowledge the recent re-dedication by the President to combat corruption as stated in his third State of the Nation Address; where he forwarded to Parliament, a confidential report from the Ethics and Anti-Corruption Commission (EACC) indicating the status of pending investigations against public officials and; directed that all officials of the National and County governments adversely mentioned in the report should step aside pending conclusion of the investigations. We however further note with concern, that this re-dedication by the President has seen been plagued with in-fighting among the EACC Commissioners and allegations of interference in the affairs of the EACC being levelled at the Executive where officials in the Office of the President have been accused of trying to compel EACC Commissioners to resign from office.

        We call on the Commission to encourage the government to translate the President’s pledge on fighting corruption into a comprehensive and transparent process based on the rule of law and our Constitution’s standards on leadership and integrity. The government should refrain from any actions that interfere with the independence of the EACC and therefore undermine or taint any ongoing investigations. The fight against corruption must be comprehensive and shielded against any possible accusations of political bias. In light of the centrality of the IEBC in the management of the upcoming 2017 general elections, we call on the government to speedily conclude the investigation of IEBC officials implicated in the “chicken-gate” scandal.

           3. Labour Rights

        Labour rights remain a critical concern particularly among workers in the agricultural sector. For instance, the minimum wage set by government at Kenya Shillings (Ksh.) 4,854 and 9,780 for unskilled workers in the agricultural sector and domestic workers respectively is still insufficient in affording workers a decent standard of living that allows them to access other economic, social and cultural rights. In this regard, the government has exhibited complacency in defining and adopting a living wage.

        We call on the Commission to encourage Kenya to expediently conduct a study to determine what constitutes a living wage in Kenya and based on the findings from that study, develop a living wage policy.



        [1] Resolution on Violence and Human Rights Violation against Persons on the Basis of their Imputed or Real Sexual Orientation and Gender Identity in Africa

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        Last Updated ( Thursday, 23 April 2015 13:33 )
         
        Written by KHRC    Tuesday, 24 February 2015 15:02   
        Reflecting on the Successes and Failures in the International Fight against Impunity

        The International Centre for Transitional Justice (ICTJ) is currently hosing an online debate entitled “Is the International Community Abandoning the Fight Against Impunity?” The debate has seen contributions from prominent personalities in the field of transitional justice ad human rights including: David Tolbert- President of ICTJ; Michael Ignatieff- Professor and Human Rights Scholar; Zeid Ra’ad Al Hussein- UN High Commissioner for Human Rights; Betty Murungi- Former Commissioner in Kenya’s Truth, Justice and Reconciliation Commission (TJRC) and; Aryeh Neier- President Emeritus, Open Society Foundations. David Tolbert begins by making the case for the need to critically reflect on whether the developments in transitional justice over the last 25 years have served to advance the prospects of justice for victims. Micahel Ignatieff articulated some of the recent setbacks experienced by the International Criminal Court (ICC) as an indicator of the international community in retreat in as far as impunity is concerned. Betty Murungi chose the path of the middle-ground, calling attention to the duty of individual states and citizens in ensuring that the fight against impunity succeeds. Aryeh Neier called for a reinvigoration of the international justice movement through another purposeful global convening such as the Rome conference which birthed the Rome Statute. While I identify with the sentiments of all contributors in various respects, I find myself more aligned with Betty Murungi’s middle-ground perspective in considering Africa’s experience with the fight against impunity.

        In assessing the level of commitment by the international community in the fight against impunity, we must first dispense with certain misconceptions associated with international justice system and the mechanisms that facilitate it. The biggest misconception that is largely ascribed to the International Criminal Court is that it is a “silver bullet” or panacea to the impunity challenges that countries face and that it’s utility somehow absolves states from assuming their primary responsibility in ensuring that there are complementary mechanisms at the national level with requisite political will to ensure their effectiveness. Since the focus of the ICC and international tribunals are restricted to prosecuting persons bearing the greatest responsibility for mass atrocities, it is not conceivable to expect them to deal comprehensively with the impunity question. The absence of domestic processes that deal with the so called mid-level and low-level perpetrators can only mean that the impunity gap will persist and most likely occasion the re-emergence of violent conflict.

        There is a genuine grievance from Africa with regard to the ICC’s apparent fixation on the continent and its double standards as manifested by the court’s hesitance to intervene in conflict situations that suggest criminal culpability on the part of members of the UN Security Council and/or its close allies. There is however a misconception of what the continent’s response to that grievance is. A section of African leaders with vested interests in the outcome of this debate such as Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan will have you believe that the collective African response is to repudiate the ICC and the Rome Statute or temper it with retrogressive amendments (such as immunity from prosecution for sitting heads of state). Admittedly, African States as individual entities and as a collective within the African Union (AU) have issued contradictory positions that have allowed this misconception to propagate.

        The AU through an extra-ordinary session convened in 2013 issued a decision purporting to among other things, prohibit the ICC from proceeding with President Kenyatta’s trial and regulate the interaction between individual African states and the ICC. While this decision on face value carries with it the perceived consensus of the continent, a closer look at the prevailing situation on the ground suggests otherwise. The foreign policy posture of various states since the 2013 decision was issued has suggested that national interest reigns supreme in as far as relations with the ICC are concerned. Despite the AU decision, numerous African states at the 2014 Assembly of State Parties (ASP) to the Rome Statute not only reaffirmed their support for the ICC but also gave Kenya’s diplomatic efforts to introduce immunity clauses to the Rome statute a wide berth. Omar al-Bashir still faces considerable travel restrictions on the continent as he remains unsure of whether various states would be willing to overlook their Rome Statute obligations with regard to his outstanding arrest warrant. It is indeed insightful that in considering its progress report on the implementation of previous ICC related decisions, the AU at the January 2014 summit felt the need to reiterate its call for member states to speak with one voice and to comply with the position of overlooking Omar Al Bashir’s arrest warrant. The fact is there is no consensus.

        Finally, in considering international commitment to the fight against impunity, we must move beyond the conventional notion of the international community consisting of just state entities. While the State remains the key actor in international relations which serves as the platform for negotiating the future of international justice, we must take due cognizance of the increased influence of other actors in the context of multi-track diplomacy. Non-governmental organizations and individual activists from different countries and continents have over time managed to enhance their collaborations and sustain global debates on impunity that have considerably influenced state positions on this matter. The Kenyan government for example, was particularly incensed and startled by the ability of civil society to intervene in its 2013 request for a deferral of the ICC cases by the UN Security Council. Furthermore it has long branded civil society’s contact with the organs of the ICC as politicization of the judicial and prosecutorial functions of the court. The rise of civil society in the diplomatic and wider foreign relations sphere has meant that the debate on the future of the fight against impunity is a robust one and not monopolized by States who would willingly overlook justice concerns in the face of other interests.

        In summation, while international support for the fight against impunity has suffered some significant setbacks in the face of prioritized national interest (read political leaders’ interests) all is not lost. There is a core constituency of states that continue to display a tacit resoluteness on fighting impunity and; a vibrant global civil society that will continue to challenge those states that waver on their commitments while also supporting victims in search of justice.

        You can follow the Impunity Debate here.

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        Last Updated ( Friday, 27 February 2015 10:08 )
         
        Written by KHRC    Tuesday, 09 December 2014 15:17   
        POST 2013 LEARNING FORUM ON ELECTIONS AND ELECTORAL PROCESSES IN KENYA

         

        The Kenya Human Rights Commission (KHRC) in collaboration with the Institute for Education in Democracy (IED) and the International Commission of Jurists – Kenyan Section (ICJ-K) organized a 2-day learning platform at the Great Rift Valley Lodge in Naivasha that brought together key state and non- state electoral stakeholders.

        The objectives of the forum were i) to share with relevant institutions, the observations, findings and recommendations from recent by-elections; ii) to discuss, enrich and commence preparations on the adoption of recommendations aimed at improving the management and administration of upcoming elections and iii) to develop a road map of required administrative and legal reforms within the current electoral cycle.

        The forum saw over 40 representatives from civil society organizations, the Judiciary, Independent Electoral and Boundaries Commission (IEBC), Office of the Registrar of Political Parties, National Police Service, Political Parties Disputes Tribunal, the National Registration Bureau and Political Parties attend and participate in the electoral discourse. Notably, Ms. Lilian Mahiri-Zaja (Vice Chairperson, IEBC), Ms. Lucy Ndungú (Registrar of political parties), Mr. Mohamed Alawi (Commissioner, IEBC), Ms. Grace Maingi (Executive Director, Uraia Trust), Mr. Justice Luka Kimaru (Judge, High Court), Mrs. Susan Mwongera (CEO, Youth Agenda), Ms. Tryphaena Estambale ( CEO, Political Parties Dispute Tribunal), Ms. Anne Nderitu ( Director, Voter education and Partnerships, IEBC), Ms. Immaculate Kassait (Director, Voter Registration and Electoral Operation, IEBC) graced the Forum.

         

        The forum entailed presentations by key experts followed by plenary discussions. To this end, Mr. Oloo led a presentation and a discussion on the gaps in the electoral legislation and the role the courts play in the electoral process while highlighting the importance of dispute resolution mechanisms and electoral jurisprudence emanating from the supreme court; Mr. Mike Yard – the Chief of Party-IFES, highlighted the issue of technology in elections with a focus on what technology can and can’t do during elections; Ms. Grace Maingi, underscored strategies on the implementation of the 2/3 gender rule; Ms. Lucy Ndungú highlighted and reiterated the role political parties play in elections with a focus on the challenges political parties faced during the 2013 general elections as well as the way forward; Ms. Carol Werunga of KHRC, underscored the human rights perspective in elections with a focus on the political participation of persons with disabilities; and Ms. Susan Mwongera highlighted the challenges youth faced during the 2013 electioneering period. Lastly, IEBC was able to share their strategies that will see them deal with the challenges around voter registration, party lists, nominations, dispute resolution, the participation of special interest groups in electoral processes, voter education and the use of technology in the electoral process.

        As a result of the forum, a comprehensive report, highlighting, among other things, a road map that identifies key issues, strategies, timelines and responsibilities is being developed and will be shared with all participants for validation before being shared with other stakeholders.

                                                                               25TH-28TH NOVEMBER

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        Last Updated ( Thursday, 11 December 2014 12:29 )
         
        Written by KHRC    Wednesday, 25 June 2014 22:35   
        TORTURE: UN International Day in Support of Victims of Torture

        Torture survivors inspect the Nyayo House torture chambers that were used during the repressive Moi regime in the '80s and the '90s to suppress voices calling for democracy in the country. The torture chambers must remain preserved as part of memorialization,  which is a form of transitional justice mechanism as a record of history and to prevent the recurrence of abuse.  Torture survivors inspect the Nyayo House torture chambers that were used during the repressive Moi regime in the '80s and the '90s to suppress voices calling for democracy in the country. The torture chambers must remain preserved as part of memorialization, which is a form of transitional justice mechanism as a record of history and to prevent the recurrence of abuse.

        While cases of political torture seem to have reduced in Kenya, torture while in police custody is still rampant, and mostly due to impunity. 

         

        2014 THEME: FIGHTING IMPUNITY

         On June 26th every year the world marks the International Day in Support of Victims of Torture. Today the world stands in solidarity with victims of torture, to reiterate the fact that torture is a gross and cruel violation of human rights. The day is anchored in the United Nations Convention against Torture (UNCAT) that seeks Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Kenya ratified the convention in 1997.

        The theme for this year’s campaign is Fighting Impunity.

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