Written by KHRC
Wednesday, 17 December 2014 19:51
| KHRC’s Response to the Deregistration of Charities by the National NGO Board
The Kenya Human Rights Commission (KHRC) is a premier Non-Governmental Organization established in 1991 with a vision to Securing Human Rights States and Societies and a mandate of entrenching human rights centered governance values at all levels in the society.
Towards this, the KHRC has been involved in the campaigns for reforms and justice processes in Kenya and beyond. These initiatives have realized many gains and faced a number of pitfalls. The latest challenge relates with the on-going attempts by the state to undermine the constitutional and democratic gains realized after many years of struggles and sacrifices.
Some of the key indicators of the retrogressive developments includes but are not limited to: the campaign to discredit and undermine the operations of the both the independent state offices and non-state actors(especially media, trade unions and civil society organizations) through threats, hate messages, repugnant legal and administrative systems among others.
Last week, the Government of Kenya (GoK) published the Security Laws (Amendment) Bill that purport to provide a panacea for the current gaps in security governance. KHRC and in partnership with the other human rights organizations have declared the Bill unconstitutional for both the process and contents are inimical to human rights and other governance principles and systems enshrined in the Supreme Law of the land and the regional and international human rights frameworks.
Yesterday, the government through the NGO Coordination Board(NCB) deregistered 501 NGOs and gave twelve international NGOs of good standing and with an annual income of more than Ksh. 500 million twenty one days to account for their finances failure to which they will be shut down. Moreover, fifteen NGOs, based mainly in Northern Kenya and the Coast Regions were accused of funding terrorism were banned.
The KHRC wish to raise five Constitutional questions in respect of the due diligence considerations by the NGO Board in making the far reaching decision:
- To what extend was the NGO Council, the sector coordination mechanism and other stakeholders consulted and involved in the decision making process? Public and stakeholder consultation is a fundamental principles enshrined in Article 10 of the Constitution.
- To what extend were the affected 501 NGOs contacted and given adequate notice for compliance. What are the opportunities for appealing against these decisions?
- What are the considerations in the decision making process-failure to account or support of terrorism or both? Was the decision based on fair processes and considerations, pursuant to Article 47 of the Constitution which guarantees a right to fair administrative action that entails expeditious, efficient, lawful, reasonable and procedurally fair?
- What is the logical congruence between the so called “having humongous amounts of money” in NGOs accounts and funding terrorism? This postulation sounds selective, spurious and a gross affront on the right to equality and freedom from discrimination enshrined in Article 27 of the Constitution.
- How comes this decision coincides with current context where by the civil society and other independent actors and stakeholders are involved in the campaign against the repugnant Security (Amendment) Bill?
This decision coincides with the government’s strategy to shrink the civic space and silence the operations of NGOs and other independent voices in Kenya. It is a ploy to unconstitutionally limit such fundamental rights as the freedoms of conscience, belief, opinion, expression and association.
We wish to state that: We strongly believe in transparency, accountability, integrity and other principles entrenched in the Constitution of Kenya- both in our operations and engagements at all levels, in the society. Moreover, we believe that security if a fundamental right without which other rights cannot be released.
However, while we appreciate the state’s interventions geared towards securing the country and enhancing accountability for state and non-state actors, we declare that these must be executed within the established constitutional and legal frameworks. Any limitation should be reasonable and justifiable in an open and democratic society based solely on human dignity, equality and freedom.
Davis M Malombe
Deputy Executive Director
|Last Updated ( Wednesday, 17 December 2014 19:53 )
Written by KHRC
Wednesday, 17 December 2014 12:48
| SUMMARY OF HUMAN RIGHTS AUDIT OF THE SECURITY LAWS (AMENDMENT) BILL 2014
We, the undersigned organizations, wish to express our deep concern with the provisions of the Security Laws (Amendment) Bill, 2014, which the government hastily published on December 10, 2014.
We acknowledge that there are serious security issues in our country and we support government efforts to address the spiraling insecurity. However, any and all efforts must be in line with the principles and values espoused in the Constitution
The Bill seeks to amend the following Laws;
Public Order Act (Cap 56), Extradition (continuous and foreign countries) Act (Cap 76), Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Prevention of Terrorism Act (2012), Sexual Offenses Act (2006), Registration of Persons Act (Cap 107), Evidence Act (Cap 80), Prisons Act (Cap 90), Firearms Act (Cap 114), Radiation protection Act (Cap 243), Rent Restriction Act (Cap 296), Kenya Airport Authority Act (Cap 395), Traffic Act (Cap 403), Investment Promotion Act (Cap 485), Labour Institutions Act (2012), National Transport Safety Authority Act (2012), Refugee Act (2006), National Intelligence Service Act (2012), Kenya Citizenship and Immigration Act (2011), National Police Service Act (2011) and Civil Aviation Act (2013),Public Benefits Organizations Act,2013. The bill once enacted as it is will have an impact on many more laws.
In exercise of our respective mandates we bring to the attention of the public the under-listed summary of our concerns, our detailed submissions will be made available on our respective websites.
1. PROCESS: We are concerned that contrary to the express provisions of Article 118(b) Parliament has not facilitated meaningful and effective engagement of the public with the Bill. The Bill was published on 10th December and was not made easily accessible. The tight timelines given by the Departmental Committee on Administration and National Security for making submissions combined with the difficulty in accessing the Bill limited public participation in the process. The proposed changes are not minor. They are momentous and seek to amend the Bill of Rights through the back door. Accordingly, any changes to the Bill of Rights require a referendum as per Article 255. The proposed Security Laws (Amendment) Bill 2014 makes major amendments to at least 22 laws and impact on several others including the laws relating to County Governments.
2. UNCONSTITUTIONALITY OF A NUMBER OF THE PROVISIONS. We are concerned that a number of the
provisions are in conflict with the provisions of the constitution or will in implementation result in a limitation of the rights provided for in the constitution.
Article 238 of the Constitution provides that National Security shall be promoted and guaranteed subject to the
authority of the constitution and parliament and further, that the national security shall be pursued in compliance with the law and utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This is an absolute requirement and not subject to the exercise of discretion.
Freedom of Assembly and Association: Clause 4 proposes to amend the Public Order Act so as to give powers to the Cabinet Secretary to designate areas where and times at which public gatherings or public processions may be held. This contravenes Articles 10, 36,37 and 119 of the Constitution. The Limitations have the effect of negating the essence of the right. The current law that requires that an individual in notifying the authority give details of the purpose, date, duration, location and route of the procession are adequate. It is not clear how the proposed amendment to the Public Benefit Organisations Act will address the security challenges. The proposed amendment signifies an intention to maintain control over these organisations.
Freedom of Expression and Information: Clause 15 amends the penal code to create the offence of publishing or causing to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace. The offence created is a felony and if committed by an individual the penalty is a fine not exceeding 1 million and imprisonment for a term not exceeding 3 years. If committed by a media enterprise a fine not exceeding 5 million shillings. Whereas the import of these provisions is clear when applied to communication by extremist and terrorist groups, the section does not seem to make exception for the role media and other actors play in sharing information and social commentaries on current issues. As framed the clause is an infringement on the right to expression and information. The existing media regulatory framework can adequately address the concerns of responsible journalism.
Access to Justice and Rights of Arrested Persons: Clause 18 (4) (c) and (10) make it possible for persons to be held without charge for a period of up to 90 days. As framed therefore the provision allows for detention without trial. So as to comply with constitutional standards it is necessary that the provision require that the Police furnish the court and the arrested person with a charge sheet that would indicate the offence for which the individual is being held. Clause 19 allows the prosecution to withhold information from an accused person. This is in direct contravention of the Constitutional requirement that the accused person be given all information that will enable him/ her prepare his or her defence. At the same time the accused person is obligated to furnish all the
details of his/ her defence to the prosecution. This is an abrogation of the constitutional right not to incriminate oneself. Clause 76 extends the period of detention of terror suspects to 31 hours. This contravenes the constitutional timeline of 24 hours. As with other suspects it is necessary that courts sanction extended detention.
Protection of Refugees and Asylum Seekers:
A key principle of refugee protection is the principle of non-refoulement, which protects asylum seekers and refugees from being returned to places where their lives or freedoms could be threatened. Clause 58 proposes to amend the refugee Act and limit the number of Refugees and Asylum seekers permitted to stay in Kenya to 150, 000 persons. UNHCR current statistics provide that total population of concern is close to 600,000. Of these 539,938 are Refugees, 52,285 are asylum seekers and 20,000 are stateless persons. If passed this amendment would directly impinge on Kenya’s commitments at the regional and international level.
Right to Privacy: Clause 66 amends the National Intelligence Service Act by deleting the entire Part V of the Act and replacing it new Part V- Covert operations. This part eliminates the need for the NIS to seek a warrant from court. This means that the officers are able to carry out their functions without due regard to the law and respect
for human rights, contrary to Article 238 of the Constitution. Like the defunct Special Branch, the Bill seeks to give the NIS powers to arrest suspects. In essence the NIS is given powers and functions outside of its constitutional mandate. We remind Kenyans of the heinous atrocities committed by NIS’s predecessor, the Special Branch, which wielded similar unfettered powers as the proposed ones. Hundreds of Kenyans were held incommunicado, killed and tortured in the infamous Nyati and Nyayo house torture chambers for speaking out against bad governance. To date the survivors and families of victims are still seeking justice.
Citizenship Rights: Clause 31 gives broad powers to the Director of Registration to take away citizenship
rights. It expands the grounds provided for under the constitution by including a vague and indefinable ground ‘any other justifiable cause’.
3. INDEPENDENCE OF THE NATIONAL SECURITY ORGANS: One of the Key recommendations of the National Task force on Police Reforms (Ransley Task Force) was the need to ensure that appointments to the National Police Service and especially at the leadership level be through a transparent and competitive process. Clause
63, 64 and 98 relate to appointment, term of service and removal from office of the Director General of the National Intelligence Service and the Inspector General of the National Police Service. In effect the amendment would revert to the position obtaining under the repealed constitution. The amendments seek to make the appointments and dismissal from these core positions the sole prerogative of the President. As framed the President would exercise unfettered discretion. The holder of the position would therefore be beholden to the
appointing authority for all intents and purposes and will not be insulated from political and executive interference. The amendments also remove the fixed term of the Director General and Inspector General and therefore they would serve for an indeterminate period.
The Bill also takes away security of tenure of the Deputy Inspector Generals.
We do not agree that security and human rights are incompatible as suggested by the proposed amendments. We are concerned that the amendments target existing provisions on accountability and transparency. We argue that security challenges can best be dealt with by restarting the stalled security sector reforms in order to enhance accountability, transparency and efficiency. The passage of a new law will not on its own solve Kenya’s security conundrum as there are over 30 existing laws related to security that have not been adequately implemented. While we support the government effort to stamp out terrorism and insecurity, it is our considered opinion that such efforts must uphold the Constitution. To this end we recommend;
- The immediate withdrawal of the said bill from parliament.
- The separation of major from minor amendments proposed in the Bill.
- Compliance with values and principles stipulated under Article 10 and 118 of the Constitution on public participation.
- The subsequent bill or bills should therefore be made accessible in a simple language to Kenyans with reasonable timelines to allow public participation.
- That any amendment proposed on any provision in the Bills of Rights should be subjected to a referendum in line with the Constitution
Kenya National Commission on Human Rights, ARTICLE 19, Constitution and Reform Education Consortium (CRECO), Gay and Lesbian Coalition of Kenya (GALCK) Human Rights Watch, Independent Medico-Legal Unit (IMLU), Katiba Institute, Kenya Human Rights Commission (KHRC), Legal Resources Foundation, National Coalition for Human Rights Defenders-Kenya (NCHRD-K) and UHAI-EASHRI, The Federation of Women Lawyers – Kenya, Haki Focus
|Last Updated ( Wednesday, 17 December 2014 13:12 )
Written by KHRC
Friday, 12 December 2014 05:49
| STATEMENT ON THE SECURITY LAWS (AMENDMENT) BILL (2014)
For Immediate Release
STATEMENT ON THE SECURITY LAWS (AMENDMENT) BILL (2014)
We, the undersigned organizations, wish to express our deep concern with the provisions of the Security Laws (Amendment) Bill, 2014, which the government hastily published on December 10, 2014.
Contrary to the Memorandum attached to the Bill, the proposed changes are not minor. They are momentous and seek to amend the Bill of Rights through the back door. Any changes to the Bill of Rights require a referendum as per Article 255. The proposed Security Laws (Amendment) Bill 2014 makes major amendments to at least 22 laws and impact on several others including the laws relating to County Government.
The proposed amendments are unconstitutional and risk clawing back on the gains made under the 2010 Constitution. They contravene international and Pan-African instruments of human rights to which Kenya is a party. The amendments appear to be calculated to undermine the various accountability mechanisms created by numerous laws passed since 2010. Kenyan authorities need to be careful not to infringe the rights protected by the Constitution in the guise of dealing with security challenges.
In particular, we are greatly concerned by the actions of the Government to use the proposed Security Laws Bill (2014), to amend a number of substantive provisions of various laws in violation of the letter and spirit of the Constitution (2010). The parliament has been requested to fast track the passage of the said bill which effectively closes the window for any participation, scrutiny and input from both the parliament and the public.
Additionally, the said process does not comply with the principles outlined in Article 10 of the Constitution which requires public participation. These values are further encompassed in Article 238 (1) and (2) (a) and (b) of the Constitution which provides that, the national security of Kenya shall be promoted and guaranteed subject to the
Parliament should be guided by provisions of Article 94 (1) of the constitution which reaffirms that the legislative authority of the Republic is derived from the people and is thus an exercised by Parliament on their behalf and for their benefit.Thus any legislation passed by Parliament should be in the national interest. Article I of the Constitution of Kenya vests all sovereign power in the people of Kenya and provides that this power is delegated to state organs, including Parliament which is required to perform their functions in accordance with the Constitution.
It is thus not in doubt that the proposals to make these amendments are an affront to the letter and spirit of the Constitution.
Kenya National Commission on Human Rights
Kenya Human Rights Commission (KHRC)
Independent Medico-Legal Unit (IMLU)
Constitution and Reform Education Consortium (CRECO)
UHAI - EASHRI
National Coalition for Human Rights Defenders-Kenya (NCHRD-K)
Human Rights Watch
Legal Resources Foundation Katiba Institute
The Gay and Lesbian Coalition of Kenya (GALCK)
The Bill seeks to amend thefol/owing Laws;
Public Order Act (Cap 56), Extradition (continuous and foreign countries) Act (Cap 76), Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Prevention of Terrorism Act (2012), Sexual Offenses Act (2006), Registration of Persons Act (Cap 107), Evidence Act (Cap 80), Prisons Act (Cap 90), Firearms Act ( Cap 114), Radiation protection Act (cap 243), Rent Restriction Act (Cap 296), Kenya Airport Authority Act (cap 395), Traffic Act ( Cap 403), Investment Promotion Act ( cap 485), Labour Institutions Act (2012), NationalTransport Safety Authority Act (2012), Refugee Act ( 2006), National Intelligence Service Act (2012), Kenya Citizenship and Immigration Act (2011), National Police Service Act ( 2011) and Civil Aviation Act ( 2013),Public Benefits Organizations Act,2013.
|Last Updated ( Saturday, 13 December 2014 01:33 )
Written by KHRC
Friday, 10 October 2014 11:47
| ‘SHOOT TO KILL’?
Should the police “shoot to kill” suspected criminals to counter the high security threats in the country?
In the face of increased insecurity in the country over the recent months resulting in loss of many innocent lives, physical and emotional trauma among other impacts, the National Police Service (NPS) has devised strategies to combat crime. Whereas most of these strategies are lawful and acceptable, our attention has been drawn to directives issued by senior police officers ordering police officers to ‘shoot-to-kill’ suspected criminals. Appreciating the challenging task facing our security forces in guaranteeing security in the face of violent criminality especially terror-related and other related crimes police will inevitably be required to use force on occasion, and sometimes lethal force in order to protect life.
It is however important for police officers in particular and Kenyans in general to understand the circumstances under which a police officer is legally allowed to use force and firearms (lethal) in executing his/her duty.
When should police officers use lethal force or firearms while combating crime?
Section 1 Part A of the Sixth Schedule of the National Police Service Act 2011 sets out the rules and procedures on use of force and firearms by police officers. The schedule states that:
- A police officer shall always attempt to use non-violent means first and lethal force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result
- The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
- Firearms or lethal force may only be used when less extreme means are inadequate and for the following purposes—
ü Saving or protecting the life of the officer or other person; and
ü In self-defense or in defence of other person against imminent threat of life or serious injury.
- An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except;
ü where doing so would place the officer or other person at risk of death or serious harm; or
ü If it would be clearly inappropriate or pointless in the circumstances
- A police officer shall make every effort to avoid the use of firearms, especially against children.
Note: Any use of firearms outside the ambit of the instances provided above amounts to unlawful use of firearms and in case of deaths, extrajudicial executions.
WHAT IS AN EXTRAJUDICIAL EXECUTION?
Extra-Judicial Executions are planned executions committed by governments or government-backed agents with a total lack of regard for due process of law and/or judicial procedure as protected in the law. Kenya is a party to both the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights. International law prohibits the “arbitrary deprivation of life”, and obligates governments to both “respect and ensure” the right to life.
Article 238(2) of the Constitution of Kenya, states that national security shall be promoted and guaranteed in accordance with the principle of compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. In common parlance the police while implementing their mandate should uphold the principles set under the bill of rights where the right to life is protected under article 26(2) that states that a person shall not be deprived of the right to life intentionally, except to the extent authorized by this constitution or other written law
WHAT ARE THE POSSIBLE EFFECTS OF THE SHOOT TO KILL ORDERS?
Killing of innocent people: The laws of Kenya assert that a person is innocent until proven guilty by a court of law. Any shoot to kill order would undermine this presumption and most critically may result in the killings of innocent persons as has been evidenced and documented variously in reports and courts judgments.
Proliferation of more militarized criminal gangs: Responding to crime and insecurity by using force would most likely see the proliferation of more militarized criminal gangs, increased gang wars and infiltration of more sophisticated illegal arms in the country. This is because such action would alienate and threaten public relations and hence a reluctance by members to share crucial information they may be having. Further the gangs would employ retaliation tactics as common in a state where the rule of law is violated.
Police officers individual liability: Police officers who follow directives on use of force not in line with the abovementioned provisions shall face individual disciplinary action or prosecution for unlawful use of force where it amounts to a criminal offence despite the fact that they were acting pursuant to a purported superior order.
WHAT SHOULD YOU DO IN CASE YOU ARE A WITNESS TO EXTRA JUDICIAL EXECUTIONS?
You are legally and morally obligated for the sake of the victims, community and the betterment of policing, to make a statement to the following institutions with clear details about the incident covering noting that this information will be upheld in utmost confidentiality:
- The date and the time ofthe incident
- The police service number of the officer(s) if displayed, name if known, gender etc
- In case of a vehicle, the registration number and any other details on the vehicle
- Witnesses to the incident if any
- Any other details.
ALL INFORMATION RECEIVED WILL BE TREATED AS CONFIDENTIAL.
|Last Updated ( Friday, 10 October 2014 12:54 )