Name of Organization: National Coalition of Human Rights Defenders – Kenya

Observer Status Number: 

 Situation of Human Rights Defenders in Kenya

Submitted by: Kamau Ngugi– Executive Director

76^th Ordinary Session of the Africa Commission on Human and Peoples’ Rights

Arusha, Tanzania

Public Session

Human Rights Situation in Africa

October 2023

Mr. Chair, distinguished commissioners and state delegates representatives of NHRIs and NGOs.

On behalf of the National Coalition of Human Rights Defenders -Kenya (Defenders Coalition), I would like to thank the Commission for this opportunity to raise some of the key human rights concerns from Kenya. Human Rights Defenderss play a critical role in any given community as they contribute to the protection and promotion as well as the realization of fundamental rights and freedoms. In 1998, the United Nations General Assembly (UNGA) adopted the UN Declaration on HRDs that recognizes the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms[1]. Further, the Declaration bestows the responsibility of implementation of provisions of the Declaration, with specific reference to Articles 2, 9, 12, 14 and 15.

Regionally, Resolutions ACHPR /Res.69(XXXV)04[2] and ACHPR/Res.196 (L) 11[3] recognises the critical role of HRDs in democracies and the difficult environment in which HRDs in Africa operate and Resolution ACHPR/Res.245 (LIV) 13[4] on the challenges that women defenders continue to face on the African continent regarding the recognition, exercise and enjoyment of their rights. These resolutions call for states to put in place protection of human rights defenders in Africa.

Despite the existence of this legal frameworks in support of HRDs in Africa which includes Kenya, Defenders Coalition is concerned that the legitimate role of protection and promotion of human rights carried on by human rights defenders and Civil Society Organizations is habitually criminalized and remain target for reprisal by both state and non-state actors. Particularly attacks against women human rights defenders, sexual minority activists, environmentalists and those working on business and human rights issues have escalated. Accountability for these violations remain unaddressed as mandated oversight institutions are unable, for various reasons, to investigate, prosecute and serve justice to the victims and survivors.

Below are documented incidences of violations of human rights and fundamental freedoms of human rights defenders in Kenya:

1. Right to life

The prevailing hostile operating environment in Kenya led to the murder of three HRDs. In April 2023, an activist was killed by bandits for confronting them about their continuous banditry attacks on neighbouring communities[5]. An activist litigating on behalf of victims of rape and coercion to sex for work after an expose by BBC Africa in one of Kenya’s multinational tea estates was found dead in his home[6]. A sexual minority activist, Edwin Chiloba was brutally murdered, and his body dumped in a metal box by the roadside[7].

2. The Situation of Human Rights Defenders

Concerning incidents of crackdowns and criminalization of civil society of HRDs is on the rise. Sinece January 2023, three (3) activists have been killed[8]. Seven (7) HRDs have been either arrested, detained or are facing trumped up criminal charges in courts of law. Sexual minority and WHRDs continue to face untold violence. There killing of WHRDs Joannah Stutchbury, Elizabeth Ekaru and Sheila Lumumba remain unresolved despite intensified advocacy efforts.[9] The only known arrest following the killing of Elizabeth Ekaru.

3. Freedom of the media, access to information and expression

According to the 2023 Press Freedom Index by Reporters Without Borders, Kenya ranks position 116 out of 180, a significant drop from the position 69 recorded in 2022[10].  The situation is worsening in what appears as a campaign to cripple independent media and individual journalists through a combination of commercial, verbal, and physical attacks[11]. Targeted are media and journalists perceived to be real or imagined critics of the new administration with reports that independent media houses are under pressure to fire certain journalists and employees.The violation on media professionals including journalists was on the rise during the period with verbal and physical attacks being documented. The Media Council of Kenya (MCK) documented 45 incidences of profiling of and threats to individual journalists and media outlets by politicians related to 2022 General Election in Kenya. By March 2023, the MCK least 25 reporters were attacked by both members of the public and the state.[12]

4. Freedom of Peaceful Assembly and Rights to Protest

In 2023, the Defenders Coalition has documented 61 cases of illegal restrictions and criminalization of human rights defenders exercising their freedom of Assembly[13] and arrested and unlawfully detained hundreds of citizens for taking part in anti-government protests. To this end, we are concerned that there is an onslaught on the freedom of assembly, specifically by state security agencies by use limiting legislative laws such as the Public Order Management Act, 2012^[14] and Penal Code. Human rights defenders (HRDs) and other peaceful protesters are arbitrarily arrested by the police, unlawfully detained for long periods and charged with trumped up criminal charges besides brutalization and murder by security agencies[15]. Journalists have also been victims of this onslaught. Among the most affected counties are Kisumu, Migori, Nairobi, Makueni, Kajiado, Nakuru and Mombasa.

In light of these updates and observations, we urge the African Commission on Human and Peoples’ Rights to:

1. Call on the Kenyan government earnestly concludes the investigations to the murder of Joannah Stutchbury, the findings be made public, and the perpetrators persecuted.
2. Call on the Kenyan government to cease arbitrary arrests and suppression of Human Rights Defenders and civil society organizations who work towards ensuring that Kenya promotes and protects human rights as stipulated in the constitution. The judicial process should not be used as a tool for suppressing CSOs and HRDs.
3. Come up with a resolution to compel the government of Kenya to ensure safety and security of human rights defenders in Kenya through the application of systematically legal provisions that promote and protect human rights and establish mechanisms that protect human rights defenders such as the model human rights defender’s policy[16].
4. Call on the Kenyan government to ensure strong public statements recognizing the legitimate and important role of HRDs and that all alleged attacks against human rights defenders are promptly and thoroughly investigated and persecution through judicial processes dropped.
5. Call on the Kenyan government to implement the direction by the African Court respecting the rights of the Ogiek Indigenous People of Mau Forest in Kenya. Failure to implement the judgement continues to subject the community to unnecessary suffering.

[1] https://documents-dds-ny.un.org/doc/UNDOC/GEN/N99/770/89/PDF/N9977089.pdf?OpenElement

[2] http://hrlibrary.umn.edu/africa/resolutions/rec74.html

[3] https://achpr.au.int/index.php/en/adopted-resolutions/196-resolution-human-rights-defenders-africa-achprres196l2011

[4] https://achpr.au.int/en/adopted-resolutions/558-resolution-need-study-situation-human-rights-defenders

[5] https://nation.africa/kenya/counties/baringo/bandits-target-baringo-activists-in-killing-spree-4200638

[6] https://nation.africa/kenya/news/activist-in-tea-firms-sexual-abuse-case-found-dead-at-home-4172544

[7] https://www.bbc.com/news/world-africa-64229077

[8] https://nation.africa/kenya/counties/baringo/bandits-target-baringo-activists-in-killing-spree-4200638

[9] https://srdefenders.org/kenya-concerns-killing-of-environmental-defender-joannah-stutchbury/

[10] https://rsf.org/en/index

[11] https://defenderscoalition.org/media-freedom-under-siege-in-kenya/

[12] https://reutersinstitute.politics.ox.ac.uk/news/journalists-punched-kicked-and-tear-gassed-inside-darkest-month-kenyan-media

[13] https://defenderscoalition.org/defenders-coalition-welcomes-decision-by-the-director-of-public-prosecutions-not-to-prefer-charges-against-74-sabasaba-peaceful-protestors/

^[14] https://www.nis.go.ke/downloads/Public%20Order%20Act,%20Cap%2056.pdf

[15] https://nation.africa/kenya/news/kenya-is-not-a-police-state-rights-groups-warn-protest-deaths-4310664

[16] https://www.knchr.org/Portals/0/CivilAndPoliticalReports/Human%20Rights%20Defenders%20Policy%20and%20Action%20Plan_B5_L_22-1-18.pdf?ver=2018-06-06-191138-293#:~:text=This%20policy%20recognizes%20and%20reaffirms,secure%20legislative%20and%20operating%20environment.