Kenya’s 3rd UPR Cycle Pre-Session

Palais des Nations, Geneva

Situation of Human Rights Defenders in Kenya

10th December 2019

On behalf of the Defenders Coalition, which is the National Coalition of Human Rights Defenders in Kenya, I thank the Organizers of this Pre-session for this opportunity to raise some of the key human rights defenders concerns from Kenya.

During its second UPR cycle, the Government of Kenya received 11 recommendations related to HRDs, including CSOs and one on peaceful assembly. We are particularly concerned that the legitimate role of protection and promotion of human rights carried on by human rights defenders and Civil Society Organizations is criminalized and target for reprisal by both state and non-state actors. One particular concern and a challenge for us, is the extended use of surveillance by both state and non-state actors, targeting HRD because of the nature of their work, facilitating other abuses of human rights and limiting the freedom to conduct their activities.

The Defenders Coalition has noted the following challenges since Kenya’s 2nd UPR cycle:

Violations of Freedom of Peaceful Assembly; Human  Rights  Defenders  more than often use demonstrations as a form of expression. However,  state  officials have routinely denied or prohibited peaceful assemblies through banning of scheduled protests, arrests of protesters and use of excessive force on protestors resulting  to injuries  and  deaths.  During  its  second  UPR  review,  Kenya  accepted one  recommendation  “to  […]  guarantee  peaceful  assembly  of journalists, activists and participants in demonstrations.” Article 37 of the Constitution protects the right “peaceably and unarmed, to assemble,  to  demonstrate, to picket, and to present petitions to public authorities.” However, as evidenced below, the government has failed to realise this recommendation adequately. In the month of September 2019 alone, 43 people were arrested in the course of protests.

• On 5 November 2018, students from Maseno University protesting against the detention of their colleagues were harassed following an altercation with  the  The students alleged that the law enforcement officers harassed them as they sought to file a police report. Later that day, a video and pictures circulated on social media showed protesters posing no immediate  threat  to  public  order or the security of persons being beaten and mistreated by security officer.
• On 19 June 2019, two HRDs were arrested while taking part in a peaceful demonstration in solidarity with the people of Sudan. The arrests occurred despite the fact that the HRDs had notified the central police station of their intention to protest and requested for security.
• According to statistics by Article 19 East Africa,  100 people were arrested between 1 January 2019 to 12 November 2019. Most of these have been university

Threats to Freedom of Association: the government continues to interfere in the operations of NGOs. On 16 August 2017, the Kenya Revenue Authority (KRA), accompanied by Kenyan police officers, attempted to enter the offices of the Africa Centre for Open Governance (AfriCOG) without notice and with a defective search warrant. The attempted raid came two days after AfriCOG, together with the Kenya Human Rights Commission (KHRC), were served with a notice of deregistration by the NGO Coordination Board.

Harassment, intimidation, and attacks against human rights defenders, civil society activists.

1. Defenders Coalition documented over 50 cases of harassment and intimidation against HRDs. Between January and December 2016, 12 fatalities were recorded when police officers used live ammunition to violently disperse protesters and HRDs. From January 2016 to April 2019, NCHRD-K received over 30 cases of threats and harassment of HRDs, including over 36 cases of arbitrary arrests, and 10 cases of forced evictions of lesbian, gay, bisexual, and transgender (LGBT) HRDs.
2. Between January 2016 to September 2019, Defenders Coalition has documented 3 cases of HRDs killed in their line of  duty. They include Students leaders and land rights  HRDs and HRDs advocating for the rights of Indigenous communities.
3. HRDs experienced attacks during the 2017 electoral periods. Human Rights Watch reported that from August 2017-March 2018, police targeted at least 15  activists in Nairobi and Kisumu. Intimidation tactics ranged from threats of arrests and restrictions on freedom of expression, to confiscation of equipment.9

PROGRESS:

Since the last UPR review, the Government has partially implemented the recommendations it accepted to implement. Other than public pronouncements by the investigative agencies (Office of the Director of Public Prosecutions and Director of Criminal Investigations) at human rights forums, the government has not intensified its efforts to ensure decriminalization of HRDs and recognition of their work. On 22 June 2018, the office of the Director of Public Prosecutions, through a letter to the Director of Criminal Investigations and Witness Protection Agency, requested the protection of HRDs advocating against lead poisoning in the Owino Uhuru slums (Mombasa).

RECOMMENDATIONS

In light of these updates and observations, we urge the Government of Kenya to:

1. Withdraw the Public Order Act Amendment Bill, 2019 that seek to amend, among others, the Public Order Act and Operationalize the Public Benefit Organisations Act 2013 without delay, and without amendment, and withdraw the Associations Bill
2. Conduct impartial, thorough, swift, effective, and transparent investigations into all cases of attacks, surveillance, harassment, intimidation, and killings of HRDS and bring the perpetrators to justice in fair trials;
3. Adopt a specific law on the protection of HRDs, in accordance with Council resolution 27/31 of the Human Rights Council; and Recognize publicly the important contributions of HRDs to promotion and protection of Human Rights, alongside including specific protection mechanisms for cases of surveillance, harassment, threats, censorship, or other violations to their rights in the context of their
4. To ensure that in the Implementation of the Data Protection Act 2019, human rights defenders will be able to work freely and safely without communication surveillance and mishandling of their That includes establishing a financially and independent protection authority, to properly implement the Law.

Delivered by Francis Ndegwa, Communications Officer, Defenders Coalition