13th April 2017 marked a historic event as President Uhuru Kenyatta assented to the Prevention of Torture Act 2017. Having been first drafted as the Prevention of Torture Bill 2010 by a multi-stakeholder team led by the Independent Medico-Legal Unit (IMLU) and the ICJ-Kenya Chapter, the 7 year journey to the new law has been arduous and painstaking.
Though bringing together the diverse technical expertise of legal and other experts within government agencies, parliament and civil society was a task in itself, securing the political good will to have the bill successfully go through the legislative process was the biggest challenge. Thanks to the tenacity and hard work of those championing the bill, including victims of torture, their families and the Parliamentary Human Rights Caucus, the Attorney General in November 2016 finally presented a government version of the Bill to the Cabinet, setting the stage for the new law to go through parliament as a government bill.
This new law is a milestone for several reasons. First, the law now provides for a clear platform to actualize several fundamental articles in the Constitution of Kenya 2010 including Article 25 with regards to freedom from torture and cruel, inhuman or degrading treatment or Punishment, Article 28 on respect and protection of human dignity and Article 29 on freedom and security of the person.
Secondly, the new law brings all state agencies and officials under the ambit of accountability for torture and cruel, inhuman or degrading treatment or punishment, and provides clear penalties for such atrocities. Prior to this torture was expressly outlawed under different pieces of legislation covering only members of the National Police Service, the National Intelligence Service and the Kenya Defense Forces. Other law enforcement agencies that have historically and more recently been increasingly involved in perpetuating torture and cruel, inhuman or degrading treatment or punishment like council askaris, Kenya Wildlife Services and Kenya Forest Services had no legal provisions prohibiting them from perpetuating these heinous atrocities.
Thirdly, it is important to point out that the Constitution already prohibits torture in Article 25 but it was hitherto difficult to prosecute the crime of torture because a specific law providing for penalties had not been enacted. Under this new law those perpetuating torture and ill-treatment will no longer be charged with such crimes as assault but with the more serious crime of torture or ill treatment that will now attract a sentence of not more than 25 years and 15 years respectively.