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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Read more... Last Updated ( Wednesday, 25 June 2014 23:09 )
 
Written by KHRC    Wednesday, 18 June 2014 15:04   
FORGOTTEN IN THE SCRAMBLE FOR LAMU

A Position Paper in the Case of the Aweer and Fisherfolk

KHRC's LAPPSET Position PaperKHRC's LAPPSET Position PaperA call to avert development induced poverty as is a common consequence of mammoth development projects that displace people and alter their way lives.

During the period between March, 2011 and April, 2014, the Kenya Human Rights Commission (KHRC) set out on a series of fact finding missions to Lamu spanning from . This was spurred by concerns voiced throughout KHRC’s collaboration with various community based organizations in Lamu and had the sole purpose of interrogating the validity of community fears in regard to the proposed Lamu Port South Sudan Ethiopia Transport (LAPSSET) Corridor Project.

Lamu hosts indigenous peoples who have the right to determine and develop priorities and strategies for exercising their right to development. In recognition of the fact that indigenous communities are predisposed to human rights violations; the fact that land rights have historically been a thorny subject even for dominant ethnic groups along Kenya’s Coast; and the fact that Lamu is a UNESCO World Heritage Site on which the Aweer and fisher folk are solely dependent for their livelihood, this Position Paper focuses on the land rights, economic, social and cultural rights of the people resident in Lamu prior to the LAPSSET Project and in particular the indigenous Aweer and fisher folk community. It raises concerns that the manner in which the LAPSSET Project is being administered will relegate host communities further into the periphery of poverty and invisibility and offers recommendations on how to urgently mitigate against this adverse yet imminent outcome.

The KHRC launched the  Forgotten In The Scramble And Petition of Lamu: The Case of the Aweer and the Fisher-folk on the 18th of June, 2014 at the Manda Island in Lamu.

The findings of this audit raise a red flag that if the LAPSSET Project proceeds in the same manner as it is being currently administered, it is unlikely to result in poverty reduction and improved livelihoods for the people that inhabited Lamu before the Project’s onset.  KHRC intends that the recommendations of this Position Paper will be applied towards ensuring that the LAPSSET Project results in inclusive growth of the Lamu community and sustainable development. To this end, the Position Paper offers recommendations on how various stakeholders may engage towards achieving the state of respect for human rights and environmental justice in implementing colossal development projects.

For these reasons the Position Paper:

  1. Recommends that the development of the oil and industrial infrastructure is not executed in a manner that displaces existing and potential livelihoods. On the contrary, it should complement, even boost local capacities for production. It further exhorts government to support host communities towards adapting to new developments without being compelled to abandon old trades. They should, in addition, be enabled to compete effectively in emerging economic activities;
  2. Recommends that historical economic marginalization of communities and persons should be addressed within its immediate and appropriate context rather than through blanket “development projects” whose impact might be to aggravate the incidence of marginalization;
  3. Argues for the protection and promotion of the rights of indigenous communities in light of pressure to modernize and of their continued vulnerabilities;
  4. Argues for a comprehensive Equality and Non-Discrimination policy which also anchors questions of affirmative action, for the benefit of marginalized communities, groups and persons. It, thus, calls for the establishment of equalization models and benefits-sharing standards that seek to rebalance age-old disparities;
  5. Tests the principle of “Public Participation” with regard to the Constitutional thresholds of public involvement in government decision-making as part of the broader end of good governance and accountability. It is suggested that a minimum standard for public engagement in questions that directly affect the well-being of communities be established;
  6. Echoes calls for a well-managed, yet, timely transition into the newly established land tenure systems and structures of accountability as well as the continued regulation of the system thereafter;
  7. Argues for the expansion of grievance redress mechanisms beyond those that are presently utilized by communities, for the resolution of cases of violation of economic, social and cultural rights by State, corporate entities and development partners alike. It suggests viable avenues of grievance redress, beyond the conventional structures of accountability; and
  8. Urges the respect for human rights by the State, corporate entities and citizens alike. As such, it suggests the establishment of, among others, protective legal frameworks and the enforcement of law and policies to protect vulnerable persons and communities from the adverse effects of large scale development projects.

 Please click here to download the report. 

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Last Updated ( Wednesday, 18 June 2014 15:24 )
 
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