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We Have Rights Too: Enhancing the rights of sex work human rights defenders (REPORT)
SUMMARY OF THR REPORT
Globally, sex work is highly contested. Some states have created legal protection regimes while others criminalize sex work. In Kenya, sex workers face high levels of violence, stigma, discrimination and other human-rights violations. The stigma is due to the criminalization of sex work, discrimination based on gender, race, HIV status, drug use or other factors. Most violence against sex workers is a manifestation of gender inequality and discrimination directed at women, men and transgender individuals who do not conform to gender and heterosexual norms.
Sex Work Human Rights Defenders (SWHRDs) undertake a very critical role of advocating for the rights of sex workers amidst serious risks and threats to themselves, their families and the sex work community at large. Like other human rights defenders (HRDs), SWHRDS play a significant role in safeguarding our democracy to ensure that it continues to open more, become pluralistic and promotes the principles of rule of law and good governance. In view of this, Defenders Coalition and KESWA undertook a research among sex workers community activists from across the country to understand their working environment, their challenges and coping strategies.
The project aimed at carrying out mapping of the security concerns for sex worker HRDs and HRDs working on sex worker rights by carrying out one day dialogue sessions with the HRDs drawn from five regions, NyanzaWestern, Nairobi-Central, Rift valley, North Eastern and Coast.
The aim of this exercise was to:
a) Provide a safe and open platform for experience sharing among HRDs, examining the vital role they play as agents of social change and transformation.
b) Highlight the security concerns and challenges faced by HRDs in the various regions and to make specific recommendations for commensurate responses.
c) Develop collective strategies of ensuring the safety and security of HRDs at risk as well as securing the working environment.
d) Identify existing mechanisms that can be utilized for the protection of human rights defenders.
Throughout the exercise, it was clear that the SWHRDs have organically organized in one way or the other into groups that serve as safeguards as they undertake their work. They meet often and have a mechanism for information sharing, including security threats alerts, arrests and other form of risks that they may encounter. It was evident that the work of SWHRDs and that of sex workers has been highly criminalized. This criminalization has been used as a strategy to delegitimize the human rights struggles and to reduce public support towards them. Subsequently, this has shrunk the space to advance social change and transformation for sex work.
This notwithstanding, the display of tenacity, resolve and hope for a better working environment gives the SWHRDs the morale to keep fighting for the observation and promotion of their human rights. Under the mantra: ‘’we are human too, we have rights’’ they keep the fire burning. Sex work HRDs have also started to organize themselves to collectively defend their rights and to improve their working and living conditions such as protection and economic empowerment initiatives.
RECOMMENDATIONS FROM THE STUDY
1. Every conversation that objectively seeks to promote and protect their rights, must of essence, include them as equal partners in that process.
2. There is need for enhanced capacity in reporting and documentation of violations meted against them. Most SWHRDs do not document the atrocities and when they do, such documentation cannot meet the legal threshold as evidence in court when justice is sought.
3. Deepen the strategy of Health Education through Peer Learning as this was cited as contributing significantly on the capacity of sex worker to demand for usage of condoms.
4. Recruitment of child sex workers has been reported as rampant in most regions. The SWHRDs have brought this to the attention of the relevant authorities. There is need to investigate this matter further in order to take the appropriate action.
5. Defenders Coalition to offer training on: Advocacy, security, SGBV, human rights. Paralegal education; understanding the County By-laws; reporting, monitoring and documentation. Moving forward, the SWHRDs will develop a work plan that will be sent to KESWA in order to coordinate the trainings, with Defenders Coalition.
6. There are inadequate resources to sensitive the community through peer education about the rights of sex workers as people remains a challenge coupled with the vastness of the County. There is need for resources to be availed on this front.
7. There is an urgent need for deepening the sensitization programs for the health practitioners and boba boda community in order to curb the high levels of stigma and violations of rights and harassment that has been witnessed, respectively. This should include proposals for punitive measures for violations of the rights of sex workers.
8. The SWHRDS calls on Defenders Coalition to offer personal and digital security trainings as well assist them to develop a protection mechanism for the SWHRDS at risk.
9. SWHRDs wishes that the Defenders Coalition to puts in place a bail and bond fund to cater for the unique and emerging challenges faced by SWHRDs.
10. It’s about time that laws targeting the protection of human rights defenders in line with the UN Declaration for Human Rights Defenders be developed
Paul Ndirangu Kioi, an activist from Njoro – Nakuru County was found murdered on December 8 and his body dumped in Ndarugo River in Nakuru.
Paul had been last seen alive on the evening 7th December 2020.
Apart from being a human rights defender, Paul worked as a cyclist to put food on the table for his family. He was passionate about human rights. He would not by-pass a violation that came to his attention.
Community members who spoke to Defenders Coalition’s regional representatives said that one time, Paul was an avid believer in good governance and social accountability.He once followed up on a double bursary allocation to beneficiaries. Through his actions, local Members of county Assembly and the area Member of Parliament were brought to account.
In his advocacy and awareness creation work, he used social media as a tool to bring to light human rights violations. Among his most recent cases that Paul was documenting and creating awareness on, were those of sexual and gender based-violence and exploitation of young girls in his community.
During his last days, Paul is said to have been pursuing two major cases related to business and human rights in his home area. A private developer had set a timber processing factory within the local community’s residential area. With an unwelcome and unpopular neighbour in site, waste from the factory became a living hell for the community living in the area. Their health was and is still at stake due to the nature and quantity of pollution.
For safety reasons, the community members sought to relocate, voluntarily but forced by prevailing circumstances. In doing so, they agreed to enter into a pact with the said owner of the timber factory. However, the timber factory owner wanted to buy their pieces of land at his own terms, at the price that he wished for.
Paul could not take this and he was vocal on the abuse of social status by the factory’s owner. He was seen many times standing against the violation of what can be termed as a planned and systematic forceful eviction of community members from their land.
It is at this point that his tribulations started. He started receiving threats against his life. He reported of the threats twice at Njoro Police Station under the OB numbers. Fellow activists, (Names Withheld) told the Defenders coalition that on 28th November, 2020 Paul was arrested by Njoro police officers and spent a night in a police cell without being booked. In solidarity with Paul, the HRDs sought the reason for Paul’s detention and why he was not being booked and presented in court to take a plea.
After inquiring from the OCS Njoro, they were informed that he had been arrested on allegations of threatening one of the timber factory owner’s friend. The HRDs would then proceed to secure Paul’s release on a cash bail of Kshs. 5,000. It was at this point that he was given a date with the judicial process; Paul was to be arraigned in court on 4th December, 2020.
Surprisingly, this never happened on pretext that the person with the allegations wished to withdraw the case. It is on this basis that Paul refused the case to be withdrawn and demanded to proceed to court saying he had enough evidence against the social misdeeds of those behind his arrest. On 3rd December 2020, he posted on his social media (Facebook) over impending court proceedings the following day. Prior to this, Ndirangu had on 22nd November 2020 posted his frustrations of people following him and wanting to take his life. He however did not provide information of who they were.
On the fateful day of his disappearance, Paul left his house at around 2pm to join his two friends (a lady and a man) at Njoro Posta where they relaxed at Njoro Park till around 6-7pm. He left them to pick some cash from an undisclosed location promising to return and buy his friends dinner. What the two friends did not know was that that would be the last time they would see Paul alive. He never returned and his friends had to leave at around 8.00pm after waiting in vain.
The following day at around 7am in the morning, Ndirangu’s lifeless body was found by passersby dumped in Ndarugo River. On 11th December, postmortem was carried out at Egerton University Mortuary by a pathologist in the presence of family and his fellow HRDs.
The report showed that Paul was strangled to death and a blunt object used to hit him from behind on the head. The report suggests that he was hit after he was already dead.
Though investigations are ongoing, there is little progress. Paul’s killers are still at large, walking freely as not a single suspect has been arrested.
We call for speedy investigations by authorities to ascertain the following:
We call on the international community to join us in calling for a speedy conclusion of the murder of activist Paul Ndirangu Kioi
It is an incredibly exciting moment for us at Defenders Coalition and our avid supporters to let you know of the latest milestone in the quest for setting up a permanent home for human rights defenders in Kenya.
On 13 February 2021, 24 climbers set off to conquer the tallest mountain Africa, the majestic Mount Kilimanjaro for justice. 19 out of the 24 climbers made it to Peak Uhuru for justice. The expedition on the mountain, which was characterized by unbelievable scenery, joy, tears, laughter, bonding, breathlessness, altitude sickness, determination, mental testing and character of resilience, took six days to trek and and down the expansive park.
On 18 January 2021, 19 climbers stood at Africa’s rooftop: 5895M asl to show their support for the #ClimbForJustice cause through your support.
We applaud the motivation and financial support accorded to the climbers by friends, family and supporters of the campaign through the #OneStepABob.
Since the first hike on Mount Longonot in September 2019, more than 1000 individuals have taken part in various mountain climbing destinations. These include William Hill, Elephant Hill, Eburru Forest, Kudu Hills, Ngong Hills, Kijabe Hills, Table Mountain and Mount Kenya. All climbers dedicated every step made to the justice cause and have helped raise eight million, one hundred thousand shillings (Kshs 8.1 Million) to set up a safe centre for research, creativity, training and wellness for activists at the forefront promoting human rights for the most vulnerable in our society.
Congratulate the climbers by donating to the cause on Mpesa Paybill 810896, Account: Your Name
Here are some of the photos
Maanzoni Lodge, Machakos County
March 7, 2021
Good afternoon colleagues.
We, members of the Kenya Media Sector Working Group, have met at Maanzoni Lodge since Friday, March 5, 2021 and discussed a number of matters relating to enhancing media sustainability in Kenya.
The meeting, convened by the Kenya Editors’ Guild and the Kenya Union of Journalists with the support of partners including FHI, Internews and Media Council of Kenya, sought to discuss key issues affecting the media industry, including the coverage and reporting of the forthcoming referendum and how to address the emerging challenges facing the media industry.
We have to this end resolved as follows:
1. THAT media stakeholders familiarize themselves with the Guidelines on Effective and Ethical Reporting during the upcoming referendum.
2. THAT the Government considers including journalists in the list of the first phase priority groups receiving Covid-19 vaccine given that journalists are frontline workers and essential service providers.
3. THAT the effects of the proliferation of Big-Tech international firms such as Google, and Facebook on the space of journalism need to be urgently addressed through legislative and policy reforms to ensure that value generated from journalism and media work is paid for.
4. THAT journalists should be adequately compensated for their labour. This require the development of acceptable pay scales that take into consideration the needs of journalists. Journalists constitute the key resource that media houses need to operate and, consequently, their needs must be addressed regardless of the prevailing financial or economic challenges.
5. THAT the retrenchment of journalists, and imposition of pay cuts in some media houses are not sustainable and will have long-term effects on the place, roles and responsibilities of the media in an information society.
6. THAT The media needs to conduct a self-audit in newsrooms on the skillsets available and those that are needed. It is concerning that newsroom strength is impacted by the decreased number of journalists as a result of layoffs.
7. THAT The media should be supported to survive the ravages of COVID-19 and economic downturn. Support in the form of tax cuts or holidays, suspension of licence fees and other levies is necessary to ensure the media survives and continues to serve public interest without fear or favour.
8. THAT a Media Fund is necessary to guarantee consistent and continued availability of independent and diverse media. We have committed to work with Parliament to come up with a law to establish an independent and progressive Media Fund.
9. THAT there is need to ensure journalists are adequately trained to prepare them for the new norm engendered by technology disruption and COVID-19. Accordingly, there should be continuous professional development to ensure journalists are aware and capable of delivering on evolving responsibilities. This would also promote public confidence in the media given the unethical behaviour of some journalists, and also help them build capacity on emerging complex subjects.
10. THAT more women should be recruited into journalism to ensure the media provides equal opportunity and space for both men and women. This requires affirmative action to urgently remedy the gender skew.
11. THAT a sector-wide intervention to address any sexual harassment within the media space be urgently undertaken.
12. THAT the legal, policy and regulatory regime ought to be reexamined to protect the media independence and enhance press freedom and freedom of expression.
13. THAT to reenergize the sector and address the recommendations an interim Media Steering Committee has been selected to lead the Kenya Media Stakeholders
Working Group. The committee comprises:
1. Kenya Editors’ Guild
2. Kenya Union of Journalists
3. Article 19 East Africa
4. Media Council of Kenya
5. Kenya Community Media Network
6. Digital Broadcasters Association
7. Association of Media Women in Kenya
A detailed list of recommendations will be released on March 9, 2021 for enrichment through public participation and inclusivity.
This statement is issued on March 7, 2021 by the following organisations under the cover of the Kenya Media Stakeholders Working Group:
1. Kenya Editors’ Guild
2. Kenya Union of Journalists
3. Article 19 Eastern Africa
4. Media Council of Kenya
5. Kenya Correspondents Association
6. Internews Kenya
7. Association of Media Women in Kenya
8. Defenders Coalition – Kenya.
9. Political Journalists Association of Kenya
10. Kenya Parliamentary Journalists Association
11. Kenya Environment and Science Journalists Association
12. Digital Broadcasters Association
13. Journalists for Human Rights
14. Association of Freelance Journalists
15. Kenya Community Media Network
16. Association of Devolution Journalists
17. Journalists for Human Rights
Huduma Bill 2020 Analysis & Recommendations
Overarching issues:
Detailed Analysis and Recommendations:
| Section
|
Questions and Proposed Changes | Reasoning |
| 2. Interpretation | “Biometric data”: Define biometric data in a more technical sense without referring to specific biometrics. Another section could specify what types of biometric data are actually needed for purposes of identification; other types of biometric data should not be mandatory nor included in the bill
“Resident individual”: Expand the definition to include stateless persons “Authenticate”: Add definition “Identity”: Add definition.
|
The current definition of biometric data is too expansive and there is no limitation in the bill about what is necessary for identification versus other functions
The current definition of resident individual excludes stateless persons from NIIMS and the registration processes set out under this Act.
Despite repeated use of the terms “identity” and “authenticate” in the draft bill, the terms lack a definition. In addition, “authenticate” is used in a broad way (“authenticated by biometrics”) that could open up use of various technologies including facial recognition due to the lack of a set definition of what authentication means. |
| 3. Objects | Section 3 on Objects of the Act should give effect to specific Constitutional and other rights this bill should be advancing, including:
· Right to a Kenyan passport and any document of registration or identification issued by the State to citizens · Right to a nationality from birth (and proof of nationality) · Registration of stateless persons · Right to birth registration / Universal birth registration
Section 3 should include as an Object the establishment of a governing body that will be in charge of NIIMS.
Section 3 should also mention that this Act limits the Right to Privacy and mention to what extent. |
This Act should not focus on bringing in technology, but about enhancing access to identification and access to proof of nationality in the country. This focus should reflect in the Objects of the Act.
As written, the content of the bill goes beyond the stated objects (i.e., use of NIIMS for the voter register).
Currently, none of the Objects reference governance of NIIMS, which is critical given how expansive the system is intended to be and how many areas of life NIIMS will affect.
|
| Part II | Establishing a governing body for NIIMS should be the first step, prior to the establishment of NIIMS in section 4.
The NIIMS Coordination Committee as proposed in section 67 cannot be responsible for day to day implementation of NIIMS. The Committee, as constituted, is more for general oversight. The law should create an independent body responsible for NIIMS that can report to the NIIMS Committee and to Parliament. This governing body will be responsible for setting out implementation guidelines, establishing appeals and grievance redress mechanisms, and other functions prior to the start of NIIMS implementation.
The law must also establish who is the registrar as the officer in charge of NIIMS (registers must have a registrar, as evidenced in other laws) as well as clearly define down to the lowest level of administration the other officials under NIIMS.
|
Normal practice is to establish a body then that body is in charge of the system – but part II first establishes a database/register and makes the technology higher than governance institutions and humans.
It is not clear how individuals can exercise rights granted in this law. For example, where should one go to rectify or update data.
If an individual has a problem related to NIIMS – how do they approach the system?
|
| 7. Huduma Card | 7(1) The Huduma Card should contain limited data on the face of the card. The Huduma Namba, nationality, and resident status of an individual may be excessive information for the card itself.
7(2) The need for a Minors’ Huduma Card is not clear, as children will have been issued with a Huduma Namba and have the number on their birth certificates.
At six years, reliable biometrics cannot be captured nor can informed consent be given by a child.
The birth certificate with Huduma Namba should be sufficient for children.
7(2) should be amended to include issuance of Huduma Namba and Huduma Cards to stateless persons who are present in Kenya. The definition of resident individual must also be expanded accordingly. 7(3) should clearly state who is responsible to consider advances in technology and decide if a non-physical digital identity should be issued, as well as what guidelines may be appropriate for such decisions. |
Including all of this information on the face of the Huduma Card is a danger to identity theft or other breach of data.
What will a minor be using their Huduma Card for without their guardian, or in a way that the birth certificate is not already sufficient?
Currently, millions of adult Kenyans lack documentation, and issuing Minors’ Huduma Cards seems like a misapplications of funds rather than putting resources towards expanding coverage of Kenya’s identification system.
Currently stateless persons are excluded from all aspects of the NIIMS system and will be further marginalized due to inability to access any services or rights linked to Huduma Namba. As written, 7(3) is broad and difficult to implement. |
| 8. Proof of Identity | The language in section 8 should be amended to be more clear that while Huduma Namba may be sufficient proof of identity to access a public service or conduct a private transaction, it is not mandatory. (Related sections, such as section 9, may also need similar adjustment.)
Change “biometrics” to “biometric data” or provide a definition for biometrics |
Lack of proof of identity should not deny anyone access to services, especially emergency services.
Section 8 refers to authentication by biometrics, but this is not a defined term in the bill. The text of section 8 should either refer to “biometric data” or a definition of biometrics should be added in section 2 for clarity. |
| Part III | Add section on initial enrollment and a transition period, as NIIMS is a new system.
The current draft bill does not adequately acknowledge the existing registration and identification laws and systems and what is required to move from one system to the next effectively.
The law must provide for a transitional period for enrollment into NIIMS, in particular for those without registration documents and for those in the process of obtaining an ID card under existing laws. The law should reference existing documents and how people holding birth certificates and ID cards can automatically transition into NIIMS, with appropriate safeguards.
|
Need a multi-year (5 year) transition from the current Registration of Persons Act to the Huduma Act.
A transition period in which the focus is expanding coverage of birth registration and ID card issuance, prior to NIIMS enrollment, will help address challenges of those likely to be excluded from the system. The government must also be responsible for ensuring everyone is registered, including through conducting outreach and implementing mobile registration campaigns, as opposed to expecting people to avail themselves. Expanding coverage first is particularly important given the heavy time, distance, and cost burden that exists in the current registration and identification system – leading many Kenyans to lack proof of identification at present. The transition period will also allow for intensive public education on NIIMS and the process of enrollment and using the new Huduma Namba. |
| 10. Enrolment of Adults | 10(1)(b) Remove “any documentary proof as may be required”
10(1) If an applicant meets the requirements set out in section 10, the bill should state “the NIIMS Officer shall enroll” the adult applicant.
10(2) Add that applicants will be informed also about the Data Protection provisions of the Huduma Act, and that they should be informed about data storage and use
|
“Any documentary proof as may be required” is very broad and can lead to exclusion of certain groups that struggle to obtain documents. The law must allow flexibility in how an applicant can prove his or her identity for enrollment into NIIMS, in order to improve inclusion.
Duties must also be placed on civil servants.
Applicants should also be aware of the safeguards in the same Act. How people will be informed may also need to be specified in the law – so that it’s not just providing a piece of paper but genuine education about data protection, privacy, and the workings of the system. |
| 12. Assigning of Huduma Namba | Add a time limit of 30 days in both Section 12(1)(b) and 12(2)
Add specific grounds on which someone’s application for enrollment may be declined
Add more information on how to exercise right of appeal |
Without a time limit, applicants may seek enrollment into NIIMS and be left pending for months or years while waiting for a response.
The bill includes grounds for revocation but not grounds for denial of enrollment.
Given that Huduma Namba may be a primary way through which people can access services and transactions, denial of enrollment may have severe material and tangible consequences for individuals.
|
| 13. Issuance of Huduma Card | In 13(3) delete “to a citizen” | As written, the initial issue of the card is only free for citizens – not for foreigners, refugees, or stateless persons – which may put an undue burden on vulnerable populations to be able to obtain a Huduma Card under NIIMS. Initial issuance should be free for all enrollees.
|
| 14. Transitioning Minors’ Huduma Card | In 14(a), remove “verify and update”
Consider adding a mechanism for informed consent as a minor transitions to an adult, otherwise children, once adults, have no choice in this process |
“Verify and update” is too vague and allows too much unregulated discretion to NIIMS Officers
There should be a separate decision making process as the child becomes an adult in regards to their enrollment and data |
| 16. Update of Particulars | Add timeframe in which updates must be done
specify which particulars require updating |
A timeframe will better guide both individuals and NIIMS Officers in following their respective duties
Schedule 1 lists a wide range of data; this places an unnecessary burden on both individuals (on whom the duty is placed) and the state for lack of clarity on how to administer such a broad provision. |
| 17. Defining functional data into NIIMS | Add specific limitations on how long data can be stored and on access to data
|
The provision currently gives an extremely broad allowance for agency access |
| 18. Cancellation of Enrollment |
Remove Section 18(1)(c)
In 18(4)(b) change “may” to “shall”
The law should specifify what happens to data of individual whose registration is cancelled – is it kept, archived, deleted?
|
“Any other justifiable cause” invites arbitrary action. The other provisions sufficiently cover justifiable cases for cancellation and adequately safeguard against fraud and corruption.
There should be a very high threshold to cancel someone’s enrollment, due to the severity of impacts that would result.
There must be an internal review mechanism or other grievance redress mechanism set up in order to deal appeals on enrollment and cancellation decisions. |
| Section 19 & 20 | There are inconsistencies in Section 19 and 20 that must be clearly addressed.
The government should register the birth of all children born in Kenya – not only those who are resident individuals and/or whose parents have a Huduma Namba.
|
NIIMS is a register of ‘resident’ individuals but not everyone in Kenya is captured under that term. While here the bill states in section 19 the births all children in Kenya will be registered under NIIMS, the definition of resident individual in section 2 and the particulars for registering a birth in section 20 limit whose birth can actually be recorded. These provisions undermine universal birth registration.
As this Act would repeal the Births and Deaths Registration Act, there would be no basis of registering the birth of children of stateless persons, foreigners temporarily in the country, or undocumented/those without Huduma Namba.
|
| 20. Record of Birth | Martial status should be required from both mother and father, or neither
What happens if nationality of parents is not known or cannot be proven? The law should provide options or alternatives to ensure the birth is still registered properly. |
2(b) and (c) discriminate between men and women
This could impact the ability of child to receive birth certificate and/or have their own nationality questioned. |
| 24. Late Enrolment of Child | Section 24 should allow late registration with no penalty if there is a reason.
24(2) Remove the graduated penalty
24(3) Remove “any relevant information” and “any further requirement”
|
A penalty or denial of late registration punishes child for something that is not their fault and locks child out of the system.
A penalty – and especially a graduated penalty – could be a deterrent to completion of birth registration.
Kenya has not yet achieved universal birth registration. Given NIIMS is a new system, it’s not clear how births that are currently unregistered will be incorporated into the system. This further supports the need for a section on a multi-year transition period from the current system to NIIMS.
Section 24(3) is too broad and leaves too much discretion to the NIIMS Officer. |
| 26. Registering new-born foundlings | Change the title of section 26 to refer to all foundlings – not only new-borns
Amend 26 so that the person who found the child should give information they have to police or those in whose charge the child is placed, but not necessarily have burden to register them in NIIMS
Add a provision to waiver the fee or requirements for late registration so that section 24 does not apply in full.
|
Shifting responsibility for registration to the person who found the child is too high of a burden, and may lead to less assistance for foundlings and/or unregistered foundlings.
Without a waiver, section 24 may prevent the late registration of a foundling. |
| 28. Update of Particulars of a Child | Refine this provision to specify which particulars require updating and in what timeframe, in order to better guide parents of enrolled children and NIIMS Officers. Refer to First schedule or even more narrowly defined set of particulars if possible.
Remove “continuing basis” |
This language of “attainments and other specified vital events” is usually used in clinic cards – and does not appeal in the first Schedule.
“Attainments and other specified vital events” as well as “on continuing basis” are phrases which are vague and impose an unclear and impractical duty on parents. |
| 30. Biometrics of a Child | 30(2) Replace “may” with “shall” | For a child already enrolled in NIIMS and who provides biometrics in line with Section 30(1), the issuance of the Huduma Card should be automatic and not left at the discretion of a NIIMS Officer.
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| 31. Universal registration of deaths | 31(3) reframe “any requirements” to be more specific as to what an applicant may need to provide to register a death after 30 days
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As written, “any requirements” is too broad and subject to abuse. With a limited period (30 days) to register a death, there may be many people seeking to complete the death registration process after the initial deadline. If NIIMS Officer have unchecked discretion to impose requirements, the result will be many deaths unregistered, which is not in anyone’s interest and undermines universal registration of deaths. Given failure to register a death is also an offence under the bill, the requirement must be clear, specific, and reasonable so that it can be followed.
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| 38. Huduma Namba of a Deceased Person | Add content in section 38 to specify what happens to the data of a deceased individual after their death is registered in NIIMS
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The current bill does not specify whether a person’s data is kept, archived, deleted, or handled in another way after they are registered in the system as deceased. It is also not clear who would be able to access the certificate of death mentioned in section 39 and for how long access to the certificate would be possible. |
| 40. Failure to register death | In practice, what will it mean to seek out a NIIMS Officer to register a death? Is it feasible within just 30 days?
|
Current practice is that one can seek a burial permit at a very local level, then proceed to bury a body and use the burial permit to process a death certificate.
The bill would require one to seek out a NIIMS Officer. How decentralized will the NIIMS administration be? Will this requirement put a burden on an applicant – particularly concerning as failure to register a death is an offence. |
| 41. Right to a Passport | Clarify in the bill if other documents (birth certificate, Huduma Card) are also evidence of citizenship – this is explicit in the bill
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In the bill, only a passport (in section 41(3)) is explicitly noted as evidence of citizenship. Given the cost of a passport and the fact that many Kenyans do not possess a passport, it would be useful to clarify in the bill if other documents – such as a birth certificate or a Huduma Card, both of which will include the person’s nationality on the face of the document – are also evidence of citizenship, as they will be more accessible. |
| 42. Issuance and Replacement of a Passport
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Remove 42(4)(b) | “Make any further verification as may be necessary” is too vague and allows too much unregulated discretion to NIIMS Officers in processing an application or a passport. Considering someone is already producing their Huduma Namba and Huduma Card in applying for a passport (under 42(2)) there is no need to conduct further verification.
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| 46. Rejection of a passport application | Remove 46(1)(a)
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While we do not yet know how simple or burdensome updating particulars in the NIIMS database will be – passports can be rejected for lack of updates.
The Constitution emphasizes bringing services closer to people – but now new barriers are introduced: if you haven’t updated your particulars as an individual, your passport is rejected.
These kinds of requirements may also create an avenue for corruption.
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| 48. Access to Information | Legitimate interest of collecting and storing data must be stated
Add time limitation for data storage
Define and limit who has authority to access data
Limit the collection/storage and access to meta data – no meta data should be collected |
This Act should state what the legitimate interest is for keeping data as this is a limitation to right to privacy. (and whether it’s all data or some data like biometrics or data of the deceased will continue to be stored), sharing of data with third parties
Is data held in perpetuity? If so, is all data treated the same or are there different categories of data? (For example, foundational data versus Record History and Registration History as included in Schedule 1)
Metadata is generated when someone uses a Huduma Namba (i.e., information on who is authenticating someone’s identity, when, where, how often) and collecting such data without limiting access and use could lead to severe violations of the right to privacy. In addition, without limitations on metadata, private entities could store data and form their own databases.
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| 49. Restriction on data sharing | Add whether there are any thresholds or requirements for private entities to gain access to foundational data of an individual, and for what purposes.
Overall, the bill needs to be clear about who has authority to access the NIIMS Database and NIIMS data.
49(2) is inconsistent with provisions above on the Huduma Card and birth certificate
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Can any private entity access the data or are there any requirements on who can access? This is essential to ensure privacy and data protection.
49(2) states the Huduma Namba will never be published, displayed, or publicly posted – but the Huduma Namba is on the face of the Huduma Card and on the birth certificate and presumably will be regularly shared with public and private entities for access to services and transactions, and may be recorded by those entities.
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| Part VII – Offences and Penalties | The bill should clearly state what offences may be committed by NIIMS Officers and what the consequences or penalties are.
Include corruption and failure to/delay in issuing a Huduma Namba as potential offences of NIIMS Officers.
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There is too much emphasis on offences of individuals rather than the NIIMS Officers who have more power and more access to sensitive data in their roles
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| 60. Penalties for failure to give information, etc. | Remove Section 60 | Offences should be focused on actions that are fraudulent or done in bad faith – but not for actions such as failing to register, not updating details, or not providing information |
| 63. Measures to Ensure Inclusion
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Section 63 should specifically reference Kenyans and stateless persons who lack proof of identification as well as people with poor biometrics.
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This section is not sufficient to promote inclusion in practice, especially given lack of universal coverage of Kenya’s current birth registration and national ID systems as well as a history of deeply embedded discrimination in the identification system.
The High Court of Kenya required the Government of Kenya to enact a regulatory framework to address a number of issues related to NIIMS, including how Kenyans “without access to identity documents or with poor biometrics will be enrolled in NIIMS” (para 1045) yet nothing in the draft bill even attempts to address these issues.
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| 67. The NIIMS Coordination Committee
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Change committee to a commission or agency with more administrative power
Include representation of other relevant agencies, entities, and people on the committee: · Data Protection Commissioner · Ministry of Social Welfare · Ministry of Health · Department of Refugee Affairs · Civil society organizations · Affected Kenyan and other communities
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The committee currently has a large mandate and needs to be established with the proper administrative power, potentially also reporting directly to Parliament.
See comments above on Part II about the need to establish a true governing body for NIIMS, rather than only an oversight committee.
The law may also need to create separate departments for civil registration, Huduma Card issuance, and passports for efficiency, even if all departments are operating under the Huduma Act. |
| 68. Functions of the Committee | Add establishment and oversight over appeals and grievance redress mechanisms for all NIIMS-related processes (enrollment, updating of particulars, issuance of birth certificate, issuance of Huduma Cards, issuance of passports, issuance of death certificates, etc.)
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Given the implications of not being enrolled in NIIMS, such as denial of public services or inability to complete private transactions, there must be an internal review mechanism or other grievance redress mechanism set up in order to deal appeals on enrollment and cancellation decisions as well as issuance of various related documents.
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| 72. NIIMS General Design
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Add more information on architecture of database (i.e., open source) as well as any limitations on linking the database to others | There is not enough information in this section to ensure proper structure and design of NIIMS, including necessary limitations
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| 74. Repeals | The bill should include provisions for a transition period, rather than repealing these other identification and registration laws without providing for a smooth transition. | See comments above on Part III and the need to add a new section on initial enrollment and a transition period, as NIIMS is a new system.
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ACRONYMS AND ABBREVIATIONS
Coalition: National Coalition of Human Rights Defenders Kenya (Defenders Coalition)
Government/State: Government of Kenya
IEBC: Independent Electoral and Boundaries Commission
IPOA: Independent Policing Oversight Authority
KNCHR: Kenya National Commission on Human Rights
NGOs: Non-Governmental Organisations
HRD: Human Rights Defender
WHRD: Women Human Rights Defender
Defenders Coalition Submission on Paragraphs 16 and 23 of the List of Issues.
Liberty and security of person (art. 9) (Paragraph 16)
The government of Kenya is yet to develop interventions specific to the work of human rights defenders in line with the 1998 UN Declaration on HRDs. These uncertainty has seen cases on HRDs either taking longer to be resolved or no action at all. Between 1st February 2017 to 30th September 2020, Defenders Coalition has received, documented and responded to over 177 cases that have either impeded or halted the work of human rights defenders (HRDs) in Kenya. Out of these 43 cases involve threats to HRDs, 90 cases of arbitrary arrests, nine (9) cases of physical attacks and injuries, five (5) cases of HRDs denied right to information, 10 cases of forced evictions for HRDs and four HRDs have been killed while in line of duty.
Recommendation: the Kenya National Commission of Human Rights and Defenders Coalition have developed a model HRD protection policy, we request the government which can be domesticated by state bodies responsible for protection.
Freedom of assembly (arts. 19 and 21) (Paragraph 23 b and c)
THE RETURN OF THE DARK DAYS
The Police Reforms Working Group (PRWG-K) is deeply dismayed and shocked in the manner in which the Office of the Director of Public Prosecutions (ODPP) has treated the case (Cr No. CR/E043/21) in which 15 police officers and 6 county enforcement officers were involved in an incident in Busia County.
The incident took place on March 30, 2020 in Nambale town, Busia County when Police officers allegedly discharged teargas in a private home, beating up, assaulting and destroying properties of Benard Orenga, his wife, children and neighbours.
On 21st January 2021, the Independent Policing Oversight Authority (IPOA) concluded investigations and recommended various charges against the officers. They were to take plea yesterday (1st February 2021) on charges of assault, causing bodily harm and malicious damage to property, however, the Office of the Director of Public Prosecutions (ODPP) made an oral application to withdraw the case.
As PRWG-K, we opine that police officers who abuse their authority must be investigated and prosecuted. Kenyan will only move towards the rule of law when all those who are suspected to have violated it, including police officers, are prosecuted, and given an opportunity to defend themselves in a court of law
We continue to stand with the families of the victims of police excesses even during the enforcement of COVID-19 rules and emphasise that the use of force should strictly be guided by the law. The use of force should only be used when legal, necessary, proportionate, accountable.
We call upon the ODPP to reconsider their stance on this case to ensure justice for the victims and equality before the law.
Signed by the following members of the PRWG-K:
1. Independent Medical Legal Unit (IMLU)
2. Amnesty International – Kenya (AIK)
3. Kenya Human Rights Commission (KHRC)
4. Transparency International Kenya
5. Katiba Institute
6. HAKI Africa
7. International Justice Mission (IJM Kenya)
8. SOWED Kenya
9. Usalama Reform Forum
10. Kariobangi Paralegal Network
11. Defenders Coalition
12. Shield for Justice
13. The Kenyan Section of the International Commission of Jurists (ICJ Kenya)
Open Letter to All Commonwealth Heads of Government
Excellencies,
Re: Call for independent investigation into Rwandan singer Kizito Mihigo’s death
Civil society organizations around the world are calling on the Rwandan authorities to allow an independent, impartial, and effective investigation into the death in custody of Kizito Mihigo, a popular gospel singer and peace activist. As your governments mark Commonwealth Day today and prepare to attend the Commonwealth Heads of Government Meeting in Kigali in June, we are writing to ask you to engage with your counterparts in the Rwandan government in support of this call.
On February 14, 2020, the Rwanda Investigation Bureau (RIB) confirmed that Mihigo had been arrested close to the border, accused of attempting to illegally cross into Burundi, joining “terrorist” groups and of corruption, as well breaching the terms of his release from prison in 2018. Just days later, on February 17, 2020, Rwanda National Police announced that Mihigo had been found dead in his police cell in Kigali at 5 am that morning, in an alleged suicide.
However, there are reasons to doubt this version of events. In Rwanda, dissidents and critical voices are often the target of threats, judicial harassment, and arbitrary arrest. In recent years, several opposition members and journalists have gone missing or been found dead in suspicious circumstances. After he released a song in 2014 expressing compassion for victims of the genocide and of other violence, understood as a reference to the crimes committed by the ruling Rwandan Patriotic Front as it took control of the country in 1994, Mihigo was threatened, detained incommunicado for 9 days and subsequently prosecuted for conspiracy against the government, among other charges. On 27 February 2015, he was found guilty and sentenced to 10 years. After his presidential pardon and release in 2018, and up to the days before his death, Mihigo informed contacts that he was being threatened to give false testimony against political opponents of the government and wanted to flee the country because he feared for his safety.
The news of Mihigo’s death caused shockwaves in Rwanda and beyond. Before falling out of favour with the government in2014, Mihigo had played a prominent role in Rwandan public life including helping to compose the new national anthem in 2001 and regularly performing at official functions. A genocide survivor himself, Mihigo’s work to promote reconciliation received equally widespread recognition; in 2011, for example, First Lady Jeannette Kagame presented him with a Celebrating Young Rwandan Achievers award in honour of his work.
According to General Comment No. 3 on Article 4 of the African Charter on Human and Peoples’ Rights, “where a person dies in state custody, there is a presumption of state responsibility and the burden of proof rests upon the state to prove otherwise through a prompt, impartial and transparent investigation carried out by an independent body.” Likewise the Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (the Minnesota Protocol), provides that there is a general presumption of state responsibility for a death in custody, unless proven otherwise, and underlines that this is particularly so in cases “where the deceased was, prior to his or her death, a political opponent of the government or a human rights defender; was known to be suffering from mental health issues; or committed suicide in unexplained circumstances.”
On the day that Mihigo’s death was announced, and before an independent investigation could have been conducted, RIB spokesperson Marie-Michelle Umuhoza told local media that Mihigo had “strangled himself” with his bedsheets, had displayed “unusual behavior” while in custody, and had refused to speak with investigators, his lawyer and his family. On February 26, citing an autopsy report, the National Public Prosecution Authority concluded that Mihigo’s death “resulted from suicide by hanging” and said that it would not pursue criminal charges.
Mihigo is one of several detainees to have died in suspicious circumstances while in detention in Rwanda over the last several years. Independent, impartial and effective investigations capable of leading to credible prosecutions are essential to deter future violations and to promote accountability, justice, and the rule of law, and failure to conduct such investigations is a violation of the state’s obligations under the right to life.
To ensure justice for Mihigo’s death, Rwandan authorities should allow an independent body to carry out an impartial, thorough and transparent investigation.
In the Commonwealth Charter of 2013, member states reaffirmed their core values and principles, including upholding human rights, freedom of expression, the rule of law and the role of civil society. Holding the CHOGM summit in Rwanda without addressing the absence of progress by Rwandan authorities towards accountability for human rights concerns more generally, and Mihigo’s death in particular, casts serious doubts on the Commonwealth’s human rights commitments.
For the sake of human rights in Rwanda and the integrity of the Commonwealth, we urge you to support the call on the Rwandan authorities to allow an independent, impartial, and effective investigation into Mihigo’s death in custody.
Sincerely,
Background on Kizito Mihigo’s previous arrest
On February 27, 2015, Kizito Mihigo was sentenced to 10 years in prison for conspiracy against the established government or the President of the Republic, forming a criminal gang, and conspiracy to murder following a trial which relied on confessions alleged to have been obtained through torture.
He had been arrested on April 6, 2014 and held incommunicado for nine days, during which time he said senior government officials repeatedly questioned him about a religious song, Igisobanuro cy’Urupfu (The Meaning of Death), he had written in March in which he prayed for all those killed including victims of the genocide and victims of other violence. He said they also questioned him about his alleged links with the exiled opposition group, the Rwanda National Congress, and that police officers beat him and forced him to confess to the offenses with which he was later charged in court. In a recording Mihigo made on October 6, 2016 while in prison, which was made public after his death, he explains his conclusion that his prosecution was politically motivated in an effort to suppress the song.
In the recording, Mihigo described meetings with several high-level government officials, who he said told him that the president did not like his song and that he should “ask for forgiveness,” or risk death. In the recording, Mihigo also described his incommunicado detention from April 6 to 15, 2014, during which he said he was beaten and interrogated by Dan Munyuza, the then Deputy Inspector General of Police and current Inspector General of Police, who told him to plead guilty and “ask for forgiveness” or face a life sentence and death in prison. These allegations suggest Mihigo was a victim of torture and other ill-treatment, as well as other serious violations of his rights to a fair trial, liberty, physical integrity and security.
On 12 March 2020, the first case of COVID-19 was recorded in Kenya. To curb the spread of the virus, the Government put in place emergency containment measures including a nationwide dusk to dawn curfew; closure of schools, restaurants and businesses; restrictions on gatherings (including in places of worship); social distancing in public and in transport; mandatory use of face masks and hand washing in public places.
As a result of these restrictions and shutdown of businesses and commercial activity, socio-economic impacts have been severe – particularly on the informal sector, which employs the majority of Kenyans. In response, the Government unveiled an economic assistance package to cushion Kenyans against nancial hardships arising from the COVID-19 crisis, including a fund to assist vulnerable groups. Yet, the impact of the COVID-19 crisis in marginalised communities outside urban areas was not clear. Initial feedback from indigenous organisations and networks indicated that little information on COVID-19 prevention and response had reached indigenous communities, and misinformation was circulating on the spread and impact of COVID-19.
Historically, indigenous communities have been marginalised and experience deep inequalities in access to health care, water and sanitation, education and other basic services. Thus it was unclear how already marginalised communities would be able to comply with Government directives, or take prevention and self-protection measures. There were also indications of increasing gender-based violence in indigenous communities.
For this reason, United Nations Human Rights launched a scoping initiative to document the impact of the COVID-19 crisis on indigenous communities and indigenous women who face multiple forms of discrimination, as groups that are often left behind or marginalised. This initiative is part of engagement to integrate human rights dimensions in the COVID-19 response in Kenya, focusing on inequalities and leaving no one behind. The initiative also built upon existing engagement on indigenous rights, and on sexual and gender-based violence.
REPRESSIVE DISCIPLINARY AND CRIMINAL PROCESSES AGAINST VOCAL STUDENTS AT KENYA’S PUBLIC UNIVERSITIES
Academic institutions are the hub for nurturing and sustaining the right to education. Whilst it is to be expected that universities will always stand for the right to education, including free thought and scientific research, that aspirational role of universities is not being realized considering the worrying pattern of students’ expulsions and suspensions by Kenya’s public universities, mostly on non-academic grounds. The systemic trends eschew the democratic vision of education and rely on the precarious despotic administration model which increases vulnerability of the academic community to recurrent human rights abuse and violations.
Universities Act of 2012 is the legal-policy framework that guide operations of universities in Kenya. According to sections 19 and 20 of the Act, a University Charter is the instrument that establishes and gives legal status and authority to a University to inter alia undertake its academic programmes. The Commission for University Education in Kenya grants the charter to qualified institutions to offer university education and monitors the institutions to ensure compliance with provisions of the Act. The governance of a university is set out in section 35 of the Universities Act and includes a Council, Senate and Management Board. The Vice Chancellor of a University is an ex officio member of a University Council, and is the academic and administrative head of the institution. He/she also has the overall responsibility for the direction, organization, administration and programmes of the University.
Before 2012, the Vice Chancellors of public Universities were solely appointed by the president of the country. This left their tenure of office at the pleasure and mercy of the president. As a result, Vice Chancellors were seen to play partisan roles, predictably siding with the government, often at the expense of the students’ welfare. Although the law changed, and a Vice Chancellor is today appointed by the University Council, questions have remained concerning the independence of the office and the decision making of the university administration particularly around issues touching on management of student affairs and collective political culture.
Kenya’s university students have a rich history of organizing and political mobilization. And as such, especially during the Moi era, 1978-1990s, university students were seen as the unofficial political opposition in the country. As a result, in the 1980s, the government started the wave of arrest of students and their leaders. In fact, several student leaders from the University of Nairobi were arrested and subsequently jailed for their suspected role in the abortive coup in 1982. One of the students detained at the time was the then Chairman of the Students Union of University of Nairobi (SONU), Titus Adungosi who later died in prison. Later, left leaning politician and former legislator, Mwandawiro Mgagha was among the students arrested in 1985 following student clashes with the police at the University of Nairobi. He was subsequently charged with attending an illegal meeting and sent to jail.
In August 2019, the media published an interview with some of the former university students and victims of the suspensions. The students bemoaned the fact that some of their former colleagues were not certain if they would ever resume their studies4 . The extent of student intimidation in the colleges has been far reaching. According to the report, extreme disciplinary measures such as suspensions and expulsions are routinely used by university administrations to silence student dissent or fair articulation of their grievances5 .
Common student grievances have included issues such as lack of adequate student accommodation, poor living conditions, insecurity within campuses, lack of student bursaries and missing marks in student examinations. At the same time, the University Amendment Act, 2016 restructured student’s elections, giving more say to the university administration on the running of student election affairs. According to Section 18 of the amendment Act, elections of the student leaders in the universities are managed by the respective administrations. Student stakeholders have blamed the dearth of effective representation of their affairs on this law because it gives the university administration disproportionate powers in the elections. According to the students, the law took away their right to directly elect their leaders and gave authority to the university administration to create pliable students leadership. The university administrations reportedly vet and approve aspirants for the students leadership positions; carry out the nomination processes and finally, conduct the elections.
This has been a source of tensions between the students and the administration of the universities during student elections. For some of the students, the student unions today can no longer support free student engagements and the pursuit of liberal scholarship in the universities. Rather, the student associations kowtow the administration on the general student issues. The control of the union fees is feared to be another source of the uncanny interests in the students’ leadership. Yet, other than long held student debates on the improvement of the quality of their academic training, students participation in decisions that affect them constitutes another area of lingering misunderstandings between students and the university administration.
As a result, student unrests have become common during the period of student elections. In fact, the election environment is a much-nuanced period for the students as some of them soon appear before the hastily convened disciplinary proceedings that routinely expel or suspend suspected trouble shooters in the aftermath of the elections. What is unfortunate is that the sword normally falls on the outspoken students who may have come into the radar of the administration for totally different reasons. The internal private security providers in the universities have also been known to be involved in giving surveillance and unworthy witness reports on some of the marked students who become easy disciplinary targets wherever the universities clean house after the unrests.
Contrary to the constitutional guarantees to fair hearing, the victims are typically not allowed legal representation whenever they face indictments by administrations or the university disciplinary organs. The charges and counts preferred against them are sometimes only consisting of general youth misbehaviors rather than regulatory offences. But the disciplinary process once put in motion is high handed and ruthless – a show of supervisory powers of the administrators so that the victims serve as examples. The process ends up serving interests other than that of fairness and justice. In order to be safe, the students are better off keeping away from activities that would bring them to controversies of this nature which essentially means that the universities are slowly becoming the sinking ground for critical thinking, far away from the nurseries of vibrant debates and knowledge that the society had come to expect of them.