Written by KHRC
Thursday, 20 February 2014 20:53
| THE TRUTH ABOUT EMBOBUT FOREST EVICTIONS AND A WAY FORWARD
Land and Human Rights Advocacy Organizations’ Open Letter to the Government of Kenya and Other State Actors on Land, Environment and Natural Resources
Addressing a press conference is Mr. Yator Kitum,(centre) Leader of the Sengwer Community, one of the indigenous peoples who live in Embobut Forest who are being evicted by the Kenya Government from their ancestral lands. Mr. Yator is flanked by other members of communities forcibly evicted from Embobut Forest and other activists includingProf. Yash Pal Ghai of Katiba institute (left)and Mazingira Institute's Davinder Lamba and Al Amin Kimathi of the Muslim Human Rights Forum. At the extreme left is Davis Malombe, Deputy Executive Director, Kenya Human Rights Commission
His Excellency Honorable Uhuru Kenyatta,
The President of Kenya;
Honorable Prof Judy Wakhungu,
Ministry of Environment, Water and Natural Resources;
Honorable Githu Muigai,
The Attorney General;
Honorable Amina Abdalla,
Chair, Environment and Natural Resources Committee
Honorable Alex Mwiru,
Chair, Departmental Lands Committee.
THE TRUTH ABOUT EMBOBUT FOREST EVICTIONS AND A WAY FORWARD
We Land and Human Rights Advocacy Organizations would like to state that the recent evictions at the Embobut Forest are not only a grave violation of the Kenyan Constitution but also defiance of international law on human rights and an ineffective approach to biodiversity conservation.
Don’t be misled
We are told that “squatters” have been moved out of the Embobut Forest, and that this means one of Kenya’s water towers has been salvaged. What official sources, and many media accounts, fail to point out is that some of those being evicted are being chased out of their ancestral lands.
Although their plight found space in the Constitution because these communities have suffered long enough, regrettably no one is telling Kenyans that the best way to protect that water tower would be to leave the indigenous inhabitants of Embobut in their forest home, the place that they have protected for centuries; and they can do so even better if given the chance. This means making it legal for them to continue living on their ancestral lands that are now within a Reserve, on condition they conserve the forest, for all of us Kenyans.
- Who lives in the Embobut Forest?
The Sengwer is an indigenous and marginalised ethnic group of hunter-gatherers. They have lived in the Cherangany Hills for centuries, and Embobut forest is their ancestral and communal land.
A group of some of the members of the indigenous communities living in the Embobut Forest have a chat with the Mazingira Intitute's environmental and human rights activist Davinder Lamba (second left) and constitutional expert Prof. Yash Pal Ghai of Katiba Institute ( second rights)
- "Resettled" Landslide victims
These people are there because of the landslides in 1961 and 2010 in the Cherangany Hills, which resulted in loss of life and displacement of people. They have been living in the forest while awaiting resettlement in a proposed second phase.
Other people have moved in, viewing the forest as “free land”, clearing the forest to create land for farming and also cut down the trees for commercial purposes.
2. What are the Real Issues
The Government claims it is evicting people from the Embobut Forest in order to protect the forest’s biodiversity. But the best way to protect the forest is to allow those who have been its guardians for centuries to continue to do so. And this approach is recognised internationally as the most effective.
Gross violations of human rights have been committed against the forest evictees by the Government of Kenya. We have seen the films and photographs of the homes Kenya Forest Service has burnt, forcing thousands of Sengwer families to flee. We can all imagine how traumatising it can be to have homes and belongings, school uniforms and beddings burnt, schooling disrupted, food sources destroyed, and communities broken. Specifically the rights violated include:
- The rights to food and to housing, and almost certainly to health: these are protected by Article 43 of the Constitution, and are violated by removing people from the forest on which they have relied for their daily existence
- The rights of the children: the right to education, and the right to shelter, and to freedom from violence have all been violated
- The right to practice culture: especially for the Sengwer, the forest is their life as well as their livelihood, it contains their shrines, and it is integral to their community life, and they have been deprived of this
- Rights to ancestral land: Article 63 (d) of the Kenyan Constitution recognizes the rights of communities to own ancestral lands traditionally occupied by hunter-gatherers.
- Right to property: destruction of houses and their contents obviously violate this right (Article 40)
- Right to personal security: everyone has the right to be free from violence from any source (Article 29), clearly violated by the manner of the evictions
- Right to dignity: Dignity is at the root of rights, and it has not been respected (Article 28)
- Right not to be evicted in violation of international standards: the Kenyan courts have recognised this right, and even if there is good reason to evict anyone, certain standards must be respected – and they have been violated.
The much hyped compensation of Kshs 400,000 to each family in return for them to vacate the forest is misleading. Many people did not get this, many did not understand or agree to the supposed arrangement. In the spirit of transparency, the Government should publish the list of all the beneficiaries so.
For the Sengwer, compensation and resettlement is not the issue at all; they should be left live in and protect their ancestral home. They are willing to be bound to use those home areas as conservators of the resources that are so precious to their livelihoods and to abide by conditions laid down by KFS.
3. Defiance of the rule of law
- The forceful evictions carried out by the police in the Embobut Forest are not only a violation of constitutionally guaranteed rights but are also a direct violation of stay orders issues by Eldoret High Court.
- Disregard for constitutional values violates the rule of law. And turning a blind eye to a court order is equally a violation. If Kenya Forestry Services, police and officials can decide that they can disregard the law, including an order of the court, the law and the Constitution, then the hopes of Kenyans that rest on this foundation become meaningless.
- Dispossession of the Sengwer people and indeed of the many other indigenous forest communities in Kenya - including the Ogiek, Yaaku, Aweer and Sanye – is a historical land injustice that started with the colonial administration, and has been perpetuated by subsequent independent governments. It is ironic that while the constitutionally mandated National Land Commission prepares its programme to deal with existing historical land injustices, the Government is perpetrating fresh injustices in dispossessing people of their ancestral community land.
4. Why the underlying policy is mis-guided
There are best practices all over the world that the Government could replicate. Over 50 countries have been faced with the same issue: from the Amazonian to the Congo Basins, from the Indian sub-continent to South East Asia. More and more states are finding the way forward – not by abandoning forest conservation needs in favour of forest dwelling communities’ land rights, or vice versa, but by integrating the two in a practical approach that allows forest communities to stay in their forest, on condition that they take on full responsibility for protecting and conserving the forest resources. They cannot dispose of those lands, and if they fail to sustain their forests they lose those rights. Conservation science now tells us that when forest dwelling communities have secure rights to their lands, they are six times more effective than state agencies at protecting their forests.
Even in Kenya the Ogiek of Chepkitale, Mount Elgon are showing the Kenya Forest Service and Kenya Wildlife Services that, given the chance, they can manage those threatened resources themselves with support from these services. They have their own community by-laws to ensure protection and sustainable use of these areas, which they regard as their (ancient) community lands; and the Sengwer had begun the same process before the evictions took place.
5. Mapping the Future
The way ahead is not mysterious. It involves respect for rights, and effective forest conservation. The laws, the mechanisms and the knowledge are all there.
- The National Land Commission is the body, created by the Constitution that should take charge of this situation, and work, with others towards a sustainable solution for Embobut and other forests.
- Technical assistance should be offered to the 8 indigenous forest dwelling communities whose lands have been reclassified into 17 state-owned Protected Areas who are working to find a way out of the conventional conservation-rights impasse.
- Enactment of the Community Land Bill would cure some of the problems. There is real concern that powerful players may be seeking to evict these forest dwelling communities from their ancestral lands before this Bill becomes law.
- And it is the obligation of the National Land Commission to ensure that any evictions that are necessary (and the major point made here is that eviction of the Sengwer is not only unnecessary but will work against forest protection), must be done in accordance with the Constitution, and indeed s. 155 of the Land Act.
Finally: We believe that the government can win. And the people can win. Even if the new government means well, it they will do well in changing times to listen closely to their people, in this case to those who are being affected and those who have solutions well worth listening to. It is clear that recognising ancestral communities’ rights to their ancestral forest lands can give such communities the security to be able to protect their forests from encroachment by those who do not want to protect the forest.
|Last Updated ( Monday, 24 February 2014 07:53 )
Written by Beryl Aidi
Wednesday, 08 January 2014 06:18
| CONCERN OVER THE RUNAWAY INSECURITY IN KENYA
A_burnt_out_home_of_a_Sungusungu_victim-FILE pictureRUNAWAY INSECURITY IN THE COUNTRY: WHERE DOES THE BUCK STOP?
PRESS STATEMENT DECEMBER 20, 2013
We, the Human Rights Campaigners gathered here today, note with concern the cases of runaway insecurity in the country and the lackluster approach adopted by the country’s security organs in handling the situation. Article 238 of the Supreme Law obligates the Inspector General of Police and other relevant national organs to promote and guarantee national security of Kenyans subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.
When Kenyans voted for a new constitutional order in August 2010, they did so with the hope that they were bequeathing unto themselves, a new governance contract anchored on a firm and solid foundation that would ensure that all Kenyans are in a position, and to the fullest extent possible, to enjoy all the socio-economic and political rights espoused in the COK 2010. In terms of security, the COK 2010 is clear on the constitutional security guarantees for Kenyans, and indeed everybody else within our jurisdiction. At Article 29, the Constitution says, and I quote: “Every person has the right to freedom and security of the person, which includes the right not to be: c) subjected to any form of violence form either public or private sources”. Similarly, at Article 26, the Constitution is crystal clear that, and I quote, “Every person has the right to life”. Our Constitution also provides a framework of the key institutions and actors who have been given the constitutional mandate of ensuring that we are all safe and secure. These are clearly spelt out in Chapter fourteen.
However, despite the foregoing, we are alarmed at the recent levels of runaway insecurity experienced in the country. From the wanton killings of innocent Kenyans by an assortment of marauding gangsto the loss of lives in internecine inter-ethnic and intra-ethnic conflicts—sponsored by politicians and ethnic warlords—spreading from Moyale to Isiolo, Pokot, Turkana, Baragoi, and Bungoma to name just but a few places; to the numerous occurrences of car-jackings and robberies in Kenya’s urban centres; to the continued commercialization of cattle-rustling with its dire consequences amongst the pastoralist communities and their neighbours; to the illegal actions of extra-judicial executions carried out by the police under the ‘shoot-to-kill’ orders in the name of fighting crime and insecurity; to the now common incidents of terrorist-related killings with the worst being the West-Gate Mall siege; to the acts of sexual and gender-based violence meted out, mostly on women and young girls, by repugnant sexual predators; it looks like, unless urgent and concerted measures are taken by both state and non-state actors to stem the tide of rising insecurity in the country, we are fast sliding down a dangerous precipice of utter lawlessness. The summary that has been presented to you in the power-point succinctly captures the overall state of insecurity in our country.
We want to reiterate the fact that the ongoing state of insecurity in the country is simply untenable. And, on that note, we call upon President Kenyatta and the Senior Security officials in the government to ensure that Kenyans are safe and secure in line with the COK 2010. We think it is in order to echo Mr. Kenyatta’s commitment and pledge to Kenyans during his inauguration speech where he stated that his government will strive for a safe and secure country, and we quote his speech of 9th April, 2013 which read in part, “Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”
The President must now start walking the talk. The buck stops with the President when it comes to the security and safety of our country. We want our country’s safety and security back! We view the ongoing lapses in security as a manifestation of bad governance—NOT AS A CRISIS OF GOVERNANCE—that must not be allowed to continue. We also hope that the on-going police vetting exercise will help us establish a professional police service that will ensure the safety and security of all Kenyans in line with the law. We therefore expect that the exercise will not be a mere smokescreen but rather a national exercise aimed at giving us a first class police service. As Kenyans get ready to embark on the celebrations to mark this festive season, we hope that the government will do all it can within its capacity to ensure their safety and security.
|Last Updated ( Wednesday, 08 January 2014 07:12 )
Written by KHRC
Monday, 11 November 2013 08:39
| OPEN LETTER ON AMENDMENTS TO THE PBO ACT
THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT
Members of the CSO Reference Group, a network of civil society organisations (CSOs) working in a wide range of arenas for the public benefit across the country, are deeply disappointed with the recent publication, by the Attorney-General of the Republic of Kenya, on October 30, 2013, of the Statute Law (Miscellaneous Amendments) Bill, 2013 and particularly of the proposed amendments to the Public Benefit Organisations (PBO) Act, 2013. The Bill seeks, amongst other things, to amend parts of the Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10th Parliament passed before the March 2013 General Elections.
CSOs have played a critical role in promoting and delivering socio-economic development, promoting social justice, good governance and democratic development, rights of participation, fundamental rights and freedoms and a wide variety of other outcomes for the benefit of Kenyans. The Statute Law (Miscellaneous Amendments) Bill proposes among other things to cap external funding of PBOs to not more than fifteen percent of the total funding. If passed and implemented, the Bill will have serious negative impacts on Kenya’s social and economic development. It will not only constrain the civil society’s contribution to national development but also make the attainment of socio-economic rights that much more difficult. If one looks at the fact that civil society contributes over KSh 100 billion to the economy, employs more people than the manufacturing sector per capita, benefits millions of Kenyans throughout the country and especially the vulnerable and marginalized amongst others, it is difficult to see how the Jubilee government will achieve many of its campaign promises, let alone Vision 2030.
Since September 2009, the CSO Reference Group has mobilized, informed and consulted widely on the reform of the NGO Act and provided recommendations on the development of the new PBO Act. The Reference Group sincerely appreciated the spirit of cooperation afforded by the government, Parliamentarians and other stakeholders in the formulation and passing of the PBO Bill into law.
The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations.
The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. With the publication of the amendments, the overarching objectives of the Act are under jeopardy. Key among these have been:
- The re-birth of a sector guided by national values and principles, and upholding high standards of accountability and transparency, in the pursuit of the public benefit;
- The meaningful protection of the freedoms of association, expression and assembly, which would enable individuals and groups to freely pursue their goals, in collaboration with others for the benefit of Kenyans;
- The re-structuring of the legal and institutional framework for self-regulation, in order to ensure that the sector governs itself more effectively and engenders public trust; and
- The facilitation of principled and constructive collaboration between the Government and Civil Society to address the numerous complex challenges facing society today.
The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for CSOs under the infamous Non-governmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for Planning and National Development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process.
It is common knowledge that the latest set of amendments are a narrow-minded attempt at restricting the activities of a few organizations that have rubbed the new administration the wrong way, and are therefore excessively disproportionate in their overall scope. Granted, the relationship between civil society and the state will not always be smooth, especially because of the former’s oversight and demand-based work. However, there is no reason why there should not be a structured, functional relationship based on shared development goals and other principles. To design legislation that aims to punish a few, whatever the state’s impression of the utility of their work, and then end up debilitating an entire sector is something the state would be well-advised to avoid.
Because of the foregoing, it should be abundantly clear that civil society will resist these latter-day attempts to stifle the sector and shrink Kenya’s hard-won democratic space vigorously. Kenyan civil society is aware of the risks of working in an illiberal environment, where the state determines what can or cannot be done, and the fact that the Kenyan state has borrowed from regional and international worst practice with respect to the latest amendments. It is also aware that this latest move is part of a broader scheme to generally restrict the exercise of rights, including the freedoms of expression and association. It will therefore mobilize effectively to resist these attempts and strive for a meaningful development partnership with the state under-pinned by respect for rights and freedoms rather than subservience to the state. As long as CSOs do not break the law, they should be allowed to operate freely in the multiparty democratic society that the Constitution proclaims Kenya to be.
|Last Updated ( Monday, 11 November 2013 09:16 )
Written by KHRC
Monday, 28 October 2013 07:40
| IGP: STOP ARBITRARY DIRECTIVES AND EMBRACE ACCOUNTABLE POLICING WITHIN THE NEW CONSTITUTIONAL ORDER
October 25th, 2013
INSPECTOR GENERAL AND OTHER SECURITY ORGANS: STOP ARBITRARY DIRECTIVES AND EMBRACE ACCOUNTABLE POLICING WITHIN THE NEW CONSTITUTIONAL ORDER
The Kenya Human Rights Commission wishes to strongly condemn the IGPs’ illegal directive of arrest of some media personnel for executing their societal duty of sharing information to the public. It is our submission that the media acted within its constitutional rights which are entrenched under Articles 33, 34 and 35 thus providing the requisite safeguards on the freedom of expression, freedom of the media and right to information, respectively among others.
Moreover, we wish to bring to your attention that Article 238 of the Supreme Law obligates you and other relevant national organs to promote and guarantee national security of Kenya subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Of course
In addition to this, we affirm that Article 10 on the National Values and Principles of Governance expects you to foster the same tenets plus good governance, integrity, transparency and accountability in making and implementing public policy decisions-including all the security operations.
It is on this basis that the Commission takes great exception in the manner in which the IGP has in the recent days issued arbitrary directives and indecorous warnings that are tantamount to stifling the said hard-earned civil and political rights. It is our considered opinion that this is part of the new and immoral schemes by your office, other state apparatus and merchants of impunity to muzzle our democratic space; undermine social accountability (over the many bungled security operations) and entrench political repression in the society.
While we appreciate the great efforts and sacrifice by our security apparatus to protect the country against internal and external threats, we wish to remind the IG and other members of the National Security Council that that as a state officer, he took an oath to obey, preserve, protect and defend the Constitution of Kenya in the management of the affairs of the state.
In the same vein, the KHRC greatly appreciates and recognizes the role played by other stakeholders to deal with the various insecurity crises and we particularly commend members of the fourth estate for their immense contribution towards enhancing the right to access to information by giving factual and timely information regarding many issues affecting Kenyans, with the most recent exposure of the Kenya state security agencies response to the Westgate attacks and other security issues and operations in the country and beyond. We further recall that the president of the republic of Kenya once quoted as saying that “free media is the heart of democracy”
We wish to remind the IGP that it is through this great work by the media that Kenyans have been constantly informed about the escalating incidences of insecurity in the country particularly in the past ten months where over 200 innocent civilian and as well as dedicated security personnel, have lost their lives through preventable acts of criminality in situations of terrorist attacks as experienced in Garissa, Mandera and Nairobi (Westgate attack), organised illegal gang attacks in Bungoma and Busia, cattle rustling in Baragoi, Kuria, Pokot and Baringo counties, clan clashes in Moyale and Mandera and robberies. These incidences are reminiscent of the insecurity incidences we experienced last year most notably in Baragoi and Tana River. His incidences have further resulted in physical and psychological trauma of hundreds, thousands displaced and property worth millions of shillings destroyed or stolen.
These events evidently expose the existence of fundamental governance and structural deficiencies within the state security architecture which must be given the due attention it deserves and conclusively addressed.
The KHRC therefore calls upon:
- The IG to unequivocally retract and apologize to the media and the country at large for the arbitrary and unconstitutional directives.
- The state security apparatus to have a candid reflection on the gains and pitfalls of the Westgate and other security operations and formulate strategies that responds to both the roots causes and manifestations of insecurity in Kenya and within the established Constitutional principles and threshold.
- The IGP to explore and exploit laid down procedures, if aggrieved by the conduct of some of the media personalities, to engage with the Media Council of Kenya to address his concerns. The IGP should note that Kenyans do not want to see a return to the dark repressive days.
- The IGP to stop acting as the mouthpiece of the KDF and instead reflect upon reforming the NPS to strengthen its operations to prevent and effectively respond to incidences of internal insecurity. The IGP should focus on policing within the COK framework and overall goal of making Kenya a safe place for all citizens and non-citizens in Kenya.
- The President of the republic of Kenya together with the National Security Council, the leadership of the National security organs, other bodies and personalities charged with the security of this nation to critically examine the state security architecture and make hard and strategic decision for the sake the safety of Kenyans.
The KHRC wishes to remind the President of Kenya of his pledge to Kenya in his inaugural speech on 9th April, 2013 which reads in part “…..Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”
We cannot underscore enough the fact that the government holds the primary obligation of ensuring safety and security of all citizens and others living in country. This responsibility must however be executed within the confines of the rule of law and protection and promotion of all rights of all people and groups. This is a key element throughout the COK and emphasized further in article 238 of the COK.
The KHRC finally calls on all the citizens and non-citizens of Kenya to uphold the sanctity and dignity of human life and as such take responsibility of their individual security as well as promote the security of fellow human beings.
The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envision a human rights state and society predicated on our mission of fostering human rights, democratic values, human dignity and social justice.
Deputy Executive Director
|Last Updated ( Monday, 28 October 2013 07:49 )