The Star (Nairobi)

29 October 2012

Kenya: Record on Human Rights is Not Appealing

opinion

On November 12, 2012 the 67th session of the UN General Assembly will review and vote over the candidature of the Republic of Kenya to the Human Rights Council for the period 2013-2015.

For this purpose, the Kenyan government has issued an aide memoire making a number of "voluntary pledges and commitments on human rights" pursuant to General Assembly Resolution 60/251.

The Kenyan government's record in the human rights arena can only be described thus: long on promises but short on delivery. It has been the distinct habit of the Kenyan government, whenever it is in a tight spot with regard to its human rights record and agenda, to simply issue flowery platitudes and commitments: which, to borrow from constitutional lawyer Wachira Maina, is to use these devises like "an umbrella or gum boots to be trooped out at the slightest sign of rain."

And the document that the Kenyan government has issued with regard to its candidature to the Human Rights Council falls in this category.

It states, for instance, that "Kenya's conviction [is] that peace, security, stability and the enjoyment of civil liberties cannot be enjoyed without the protection of human rights." Clearly, neither the Ministry of Internal Security nor the Kenyan police had any input in this document.

For here is what, Professor Philip Alston, the then United Nations Special Rapporteur on extrajudicial, arbitrary or summary executions (no less) said following his 16-25 February 2009 Mission to Kenya: "Perhaps the most surprising outcome of my visit was the extent to which I received overwhelming testimony of the existence of systematic, widespread, and carefully planned extrajudicial executions undertaken on a regular basis by the Kenyan police.

The Police Commissioner in particular, along with various other senior officials, assured me that no such killings take place. But he and his colleagues appear to be the only people in the entire country who believe this claim...I have received detailed and convincing reports of countless individual killings.

It is clear from the many interviews that I conducted that the police are free to kill at will. Sometimes they do so for reasons of a private or personal nature.

Sometimes they kill in the context of extortion, or of a ransom demand. Often they kill in the name of crime control, but in circumstances where they could readily make an arrest."

And it may be all too well for the Kenyan government to argue that it was the one in the first place that invited Professor Alston into Kenya, a sure indicator of its commitment to ensure the protection and promotion of human rights in the country. In fact, while arguing in favour of its candidature, the Kenyan government gushes: "Kenya continues to work with the special procedures mechanisms and values the engagement..." before proceeding to catalogue five Special Rapporteurs who have visited Kenya at its invitation.

But then surely, proof of the pudding is in the eating. Commitment to marriage is not assessed and discerned merely by the fact that there is a wedding; there must in addition be evidence of abiding fidelity and adherence to the foundations and commitments made by both partners to each other.

In the case of Kenya, it does not even get as far as the wedding ceremony; the government's repudiation happens after the ngurario (engagement) ceremony.

Witness, for instance, its reflexive, dismissive, allergic reaction to the findings and recommendations at Professor Alston's preliminary statement as articulated by former government spokesman Alfred Mutua: "The government finds it inconceivable that someone who has been in the country for less than 10 days can purport to have conducted comprehensive and accurate research on such a serious matter, as to arrive at the recommendations he made... It went beyond Prof Alston's mandate and does not encourage dialogue and appears to have been made in bad faith."

One instantly notices the characteristic and well-worn government tactic to run away from answering the substance and content of allegations, claims and reports of human rights abuses by raising the red-herring issues of process and protocol.

The longer response of the Kenyan government to Professor Alston is even more damning due to its cavalier attitude of the Kenyans' rights: for instance, it asserts "It is misleading to state that Kenyans are subjected to high levels of both indiscriminate and organized violent criminality." Pray, which Kenya is this that our beloved government is talking about?

There are other baffling nuggets in this longer response: "The Government of Kenya does not condone extrajudicial killings and there is no policy sanctioning such killings...The assertion that police killings are widespread, opportunistic, reckless or personal is not supported by facts." The Kenyan government lost a golden opportunity to methodically and meticulously address what were clear and substantiated allegations of human rights violations by reverting to the use of tiresome, blanket routine-responses. And making allegations likes like, "The Kenya police are well trained professionals."

Other sweet-sounding phrases litter the Kenyan aide-memoire. "Kenya...has welcomed...refugee seekers fleeing from neighbouring countries." Well, if we are such "welcoming" hosts to refugees, why was the international NGO Medicins Sans Frontieres (MSF), as recently as this October 1, reported to have been lamenting thus: "With the capture of Kismayu, the Kenyan government is pressing hard for the repatriation of refugees to Somalia. We want to go on record and say that we think it is too early for this. It will lead to returnees being placed in IDP camps with substandard conditions"?

Indeed, Kenya is so welcoming that MSF further expressed concern over the ban on registration of new arrivals to the Dadaab camps saying it violates international refugee conventions that Kenya is party to. "It is an open violation of the 1951 UN refugee convention, 1969 OAU refugee convention, Geneva Convention and other international treaties Kenya is a signatory to. The lack of registration makes it almost impossible to assist and protect the new comers." MSF further observed that there had been a reduction in services offered in the camps that had already led to an outbreak of Hepatitis E and Cholera.

We could go on. But here's the last one: "Kenya recognizes the supremacy of the law and has long recognized the importance of ensuring that institutions of governance observe the tenets of rule of law."

Now, every Kenyan recently heard the judiciary clearly overrule the government over its purported appointments to the offices of county commissioners by finding these offices to be unconstitutional.

We then saw the top mandarins in the Office of the President especially those involved in the ministry of internal security openly direct the appointed county commissioners to ignore the court ruling, despite sound legal advice from the Attorney General.

Guess what: the county commissioners are reported daily in the media discharging their "official functions"; very much working in that capacity despite the court ruling. So much for "ensuring that institutions of governance observe the tenets of rule of law"!

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.

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