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AFRICA’S CIVIL SOCIETY STATEMENT ON THE KENYA’S GOVERNMENT REACTION TO ONGOING PROTESTS

The Civic Space Network Africa (CSNA), the African Centre for Democracy and Human Rights Studies (ACDHRS), the Thulani Maseko Foundation (TMF), and civil society groups and individuals listed below are deeply concerned about the way the police and law enforcement agents have used and continue to use force to try and contain the ongoing protests in Kenya against the Finance Bill 2024.

We are equally concerned that the disproportionate reaction to peaceful protests has triggered the peaceful protests to turn violent and result in serious damage to property and injuries and fatalities to people. So far, 39 deaths, including the deaths of minors, have been confirmed and verified by the Kenya National Human Rights Commission and the Kenyan civil society as of 2nd July 2024. There has also been a lot of destruction of property and injuries to scores of people, and the country is currently experiencing high levels of instability and a threat to peace.

The right to protest is not only legal but also a crucial aspect of democratic engagement. This is especially so in Kenya, where the proposed bill sought to raise taxes significantly, thereby increasing the cost of living and further burdening an already struggling populace. The disproportionate use of force, including wanton use of live ammunition by the police against protesters, leading to severe injuries and the deliberate and unprovoked killings of peaceful protesters, is alarming coming from a country that is a beacon of democracy and peaceful transfer of power following democratic elections in Africa. The use of live ammunition to target protesters is unjust and a blatant violation of the rights to life, freedom of assembly, association, and expression. Credible civil society groups in Kenya, notably the Police Reforms Working Group, have raised alarm about enforced disappearances and abductions of social media activists and other human rights defenders, as well as cases of arbitrary arrests, detentions, and torture of protesters.

The situation was aggravated by the seeming irregular deployment of the army by the Kenyan authorities to deal with unarmed civilians engaged in peaceful protest. The military should not routinely be involved in law enforcement. These actions are wrongful and illegal under international human rights law obligations binding on Kenya. Everyone’s right to freedom from torture and cruel, inhuman, or degrading punishment and treatment must be guaranteed. It is also an issue of grave concern that there have been reports of internet shutdowns or slowdowns during these protests. An internet shutdown is a violation of digital rights and freedom of expression. It also impedes the ability of international media and civil society to effectively monitor the situation, creating fertile ground for further violations and for impunity to prevail. Digital rights are human rights, and Kenyans should always be able to access information efficiently and promptly.

We call on the Government of Kenya and its security agencies to cease these violations immediately. We demand that the government of Kenya must immediately account for all cases of enforced disappearances, extra-judicial killings, torture, and inhuman and degrading treatment that is happening as a response to the protests and bring the perpetrators to justice. The government must adhere to international and regional instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, which explicitly prohibit arbitrary arrests, detentions, and enforced disappearances and require that all detained individuals be treated with dignity and respect and be afforded their right to a fair trial and to justice. In their decision-making, the Kenyan authorities must adhere to international standards on the use of force in law enforcement that are legally binding on them.

In particular, we expect the authorities to strictly adhere to the core principles applicable in the use of force, that is, legality, precaution, non-discrimination, necessity, and proportionality. All these principles appear to have been violated in Kenya. We urge the Kenyan government, led by His Excellency President Dr. William Samoei Ruto, to listen to the voices of the Kenyan people. Protests are often the language of the unheard, a means for citizens to express their dissatisfaction and demand accountability. Suppressing these voices through violence and repression is not the solution. Instead, constructive dialogue and genuine efforts to address the underlying issues are essential. We call on the government to respect and uphold the constitutional and internationally recognized rights of its citizens to cease the use of excessive force against unarmed civilians involved in peaceful protests.

A just and democratic society must honor the voices of its people, protect their rights, and foster an environment where peaceful protest can lead to meaningful change. We stand in solidarity with the Kenyan Civil Society, all peaceful protesters, and all Kenyans fighting for their rights. Coordinated by Civic Space Network Africa, the Africa Centre for Democracy and Human Rights St .udies, the Thulani Maseko Foundation and signed by the following organisations and people.

ORGANISATIONS

1. Civic Space Network Africa (CSNA)
2. African Centre for Democracy and Human Rights Studies (ACDHRS)
3. Thulani Maseko Foundation (TMF)
4. African Initiative of Women Human Rights Defenders (WHRD Initiative)
5. SouthernDefenders
6. Network of the independent Commission for Human rights in North Africa (CIDH AFRICA)
7. Save Our Sacred Lands
8. Africa Centre for Open Governance (AfriCOG)
9. Lawyers for Democratic Reform Swaziland (LAW-DERSWA)
10. Protection International Africa
11. Chapter 4 Zimbabwe
12. National Coalition of Human Rights Defenders Uganda (NCHRD-U)
13. Burundian HRD Coalition
14. Human Rights Defenders Network-Sierra Leone
15. La Coalition Burkinabè des Défenseurs des Droits Humains (CBDDH)
16. Réseau Nigerien des Défenseurs des Droits Humains RNDDH
17. Coalition Togolaise des Défenseurs des Droits Humains (CTDDH)
18. Institut des Médias pour la Démocratie et les Droits de l’Homme (IM2DH)
19. Tanzania Human Rights Defenders Coalition-THRDC
20. Chapter One Foundation- Zambia
21. Zimbabwe Lawyers for Human Rights
22. DITSHWANELO -The Botswana Centre for Human RightS

23. Access Justice Point -Uganda

INDIVIDUALS

1. Tanele Maseko – Eswatini
2. Hannah Foster – Banjul
3. Simphiwe Sidu – South Africa
4. Arnold Tsunga – Zimbabwe
5. Tito Magoti – Tanzania
6. David Mburu – Kenya
7. Mary Pais Da Silva – Eswatini
8. Constance Vimbai Mukarati – Zimbabwe
9. Sheila Nhancale – Mozambique
10. Norman Tjombe – Namibia
11. Blessing Gorejena – Zimbabwe
12. Deprose Muchena – Zimbabwe
13. Washington Katema – Zimbabwe
14. Tauriq Jenkins – South Africa
15. Sithembile Dingake – Botswana
16. Maxwell Nkambule – Eswatini
17. Francis Ndegwa – Kenya
18. Clemence Manyukwe _ Zimbabawe
19. Bob R. Kirenga – Kenya
20. Charles C Chimedza – Zimbabwe
21. Ndifuna Mohammed – Uganda

Memorandum Addressees
This memorandum has been sent to the following office bearers in their official capacity H. E the President of Kenya, Cabinet Secretary for Interior & National Administration, Cabinet Secretary Defence, The Inspector General of Police, Director General National Intelligence Service, The National Police Service Commission, The Independent Policing Oversight Authority, The Kenya National Human Rights Commission.

Email:
feedback@president.go.ke – The President

feedback@interior.go.ke – Ministry of Interior publicaffairs@mod.go.ke -Ministry of Defence nps@nationalpolice.go.ke – Inspector General

info@npsc.go.ke – The National Police Service Commission info@ipoa.go.ke – The Independent Policing Oversight Authority haki@knhcr.org -The Kenya National Human Rights Commission
For any follow up action contact the following coordinators of this initiative

FOR IMMEDIATE RELEASE

STATEMENT CONDEMNING VIOLENCE DURING RECENT PROTESTS AND CALLING FOR PROTECTION OF CIVIC SPACE.

Nairobi, 4^th July 2024.

We, The Police Reforms Working Group Kenya (PRWG-K), extend our sincere condolences to the families and friends of the 39 individuals who lost their lives in the recent protests. We also pass our condolences to police officers who has lost their lives and others critically injured during these protests. We also express deep concern and solidarity with the 361 injured, 627 arbitrarily arrested, and 32 forcibly disappeared, as reported by the Kenya National Human Rights Commission (KNHRC) on 1^st July 2024. These numbers may have gone up following the protests on Tuesday 2^nd of July 2024. Our thoughts are with all those affected during this difficult time. We stand with you, offering our support and unwavering solidarity and commitment to seeking justice.

We strongly condemn the violence witnessed during the recent protests in Kenya, which has resulted from both the excessive use of force by law enforcement and the presence of what appears to be hired goons. The police’s use of lethal crowd control weapons like water cannons, tear gas, and live ammunition against peaceful demonstrators has led to unnecessary injuries and fatalities, escalating tensions and undermining the citizens’ rights to assemble, demonstrate, picket and petition which is enshrined in Article 37 of the Constitution of Kenya, 2010.

This comes on the backdrop of a recent court order which barred police from using water cannons, tear gas, live ammunition, rubber bullets or other crude weapons or draconian measures and from deploying brute force or any other form of violence or committing any extra judicial killings, arrests, abductions, detentions, harassment, intimidation, torture, cruel, inhuman and degrading treatment against peaceful protesters.

Moreover, under the Public Order Management Act, the police have a fundamental obligation to uphold public safety and facilitate peaceful protests while enforcing regulations to prevent disruptions. However, we express deep concern over recent events where the police have failed to uphold this duty, resulting in the involvement of hired goons committing robberies, assaults, and looting. Who is hiring the goons to discredit and delegitimatize protestors and justify the use of excessive force by the state that has contributed to widespread chaos? Such actions undermine the credibility of peaceful demonstrations and constitute severe violations of human rights and democratic principles. Immediate accountability is imperative to restore order and uphold the rule of law. It is essential that the Independent Policing Oversight Authority (IPOA) ensures those responsible for these actions are held accountable swiftly and transparently, ensuring that citizens’ rights to peacefully assemble and express their grievances are protected and respected.

We strongly condemn the actions of these hired goons who have engaged in looting and destroying property, resulting in wanton destruction and significant loss of livelihood for thousands of

individuals and businesses. These reprehensible acts not only undermine public safety but also inflict severe economic and emotional harm on our communities. We stand in solidarity with business owners who have suffered losses due to these criminal activities. It is essential that those responsible for these actions are swiftly brought to justice to restore confidence, protect businesses, and ensure that such incidents do not recur.

Moreover, the deepening infiltration and deployment of these goons has had severe consequences, including the assault of police officers, which we strongly condemn as per Section 103(2) of the National Police Service Act. The infiltration has also led to the withdrawal of the services of Medics for Kenya, a volunteer group of doctors and other medical personnel who were providing emergency services during the protests. This withdrawal has left many without critical medical support, as these medics were forced to cease their operations across the country.

Further, the continued state attack on Kenya’s civic space through increased targeting of human rights defenders and activists is a deeply troubling development documented extensively in the media. This escalating scrutiny threatens to stifle the vital role that civil society plays in a functioning democracy. By targeting those who advocate for justice, transparency, and accountability, the state is not only infringing on individual freedoms but also eroding the foundation of democratic governance. The intimidation and harassment of activists and human rights defenders create an environment of fear and repression, effectively silencing critical voices and closing the civic space essential for holding the government accountable. It is imperative that the state respects and protects the rights of these individuals to ensure the continued health and vibrancy of Kenya’s democracy.

We remind the state of its duty to ensure that during protests, the police have a critical duty and obligation to maintain public order and safety while respecting and protecting the rights of citizens to assemble and express their views peacefully. As enshrined in Article 244 of the Constitution of Kenya, law enforcement officers are mandated to adhere to the principles of transparency, accountability, and respect for human rights. This includes ensuring that their response to protests is proportionate and lawful, avoiding the use of excessive force, and distinguishing between peaceful demonstrators and those engaging in criminal activities. The police must facilitate peaceful protests, protect protestors, medical, media and other professionals from any harm, and prevent infiltration by malicious actors. Upholding these responsibilities is essential to fostering trust between law enforcement and the community, and to safeguarding the democratic principles that allow for free expression and civic engagement. This is part of the obligation and commitment of the government under the recently commenced Public Benefits Organisation Act.

Therefore, we call on the government to:

Protect Kenya’s civic space and ensure the safety of human rights defenders and
Instruct law enforcement officers to uphold their duty to protect public order and safety during assemblies and demonstrations as per Article 244 of the Constitution of Kenya.
Ensure accountability for those responsible for the violence and opportunistic crimes during the protests.
Facilitate open dialogue with citizens to address the root causes of the protests and work towards meaningful solutions.

The state must act decisively to restore peace and order while respecting the fundamental rights of its citizens. Together, we must strive to build a society that values justice, transparency, and the protection of human rights for all. Together, we must strive to build a society that practices National Values and Principles of Governance and UTU.

This statement is signed by the Police Reforms Working Group-Kenya, an alliance of national and grassroots organizations committed to professional, accountable, and human rights-compliant policing. They include:

Independent Medico-Legal Unit (IMLU), Kariobangi Paralegal Network, Defenders Coalition, Katiba Institute, Social Justice Centres Working Group (SJCW), Kenyan Section of the International Commission of Jurists (ICJ Kenya), International Justice Mission (IJM-K), HAKI Africa, Inuka Ni Sisi, Democracy Without Boarders-Kenya Women Empowerment Link, Social Welfare Development Program (SOWED), Kenya Human Rights Commission (KHRC), Federation of Women Lawyers (FIDA- Kenya), International Centre for Transitional Justice (ICTJ – Kenya), Transparency International Kenya, Shield For justice, Wangu Kanja Foundation, Constitution and Reform Education Consortium (CRECO), Kenyans for Peace, Truth and Justice (KPTJ), Peace Brigades International Kenya. (PBI Kenya)

A typical human rights 101 lesson starts with a conversation on the circumstances leading up to the global agreement of states on the protection of human rights called the Universal Declaration of Human Rights (UDHR). We are reminded that the global community was shocked by the devastation and atrocities of 1939-1945 World War two and declared that henceforth, all human beings shall be treated with dignity and that their rights and fundamental freedoms shall be protected.

States have domesticated these agreements. Kenya, which emerged from a repressive dictatorship era and the devastation of 2007 post-election violence, introduced a whole Chapter 4 on the Bill of Rights in its constitution to protect itself from the excesses of the state. Kenya has since 2010 guarded selflessly guarded their their supreme law because they know the value of constitutionalism for a functional democratic society.

Of all the fundamental rights ever codified with respect to how a society can craft and reshape its affairs, the right to protest is the alma mater of popular sovereignty. One would be right to say that Kenyans are alarmed that an aspect of this proposition is slowly sinking back into the national psyche in Kenya. In the last few days, the country is abuzz with what is largely christened the Generation Z revolution.

In stride, young Kenyans have been mobilizing across the country to protest this year’s Financial Bill (just passed by the National Assembly) and condemn the overbearing tax proposals in the budget. Through protests, they are exercising one critical right on participation in governance process – where their votes and their representative do not represent their interests, they can exercise their right peacefully and unarmed, to assemble, demonstrate, picket and to present petitions to public authorities.

What has been interesting though for this new generation of protesters is the fact that that they are being collectively regarded like a new discovery!

Indeed, they are. The country, despite eons of public discussions of its pyramidal demography and the attention that its youth bulge should be given, including the need for accelerated expansion of economic opportunities that would muster the future stability of the country, it appears that key decision makers have often ignored this call. For starters, the constitution clearly recognizes the exclusion facing the youth, women and persons with disabilities and requires affirmative action measures to address them, something that has been casually ignored.

It is apparent too, that Kenyans generally have consistently dismissed this generation to a point that not much attention has been directed to its independence of thought, growing proclivity for political self-determination and the power to organize for their own interests.

This can be an ideological debate but nonetheless the country is currently swept down its own feet by the fervent show of the youngsters that they have a political stake in the affairs of the country. Their mobilization acumen, strength in numbers, (numbers make up the power of the people) and their disconnection from vices that have crippled similar past initiatives namely tribal affiliations, cash handouts etc have caused discomfort for bearers of power.

Whereas the state machinery has always prepared itself around the subjectively partisan and jaundiced stereotypes of politically led demonstrations, it has fazed in the face of the situation of having to face teenage girls asking for tax reliefs on sanitary towels and baby formulas for their children; or youthful tech honchos grimacing high taxes on telecommunication data and mobile gadgets, or bemoaning taxes on money transfers among other issues on the debate about high cost of living in the budget. The police officers deployed across the country have faced situations where they have to confront agemates of their children rather than the poor urban hoodlums that they have been used to chasing down the alleys with as skimpy sympathy as the clothes covering the backs of the victims.

The Law Society of Kenya (LSK) rose up this time around to avail to protesters found in the trap of the retrogressive public order legal framework in the country, which still sanctions the right to lawful protests and demonstrations. Across the country, volunteer lawyers have been trooping into the police cells to assist some of the demonstrators held by the police over the demonstrations, businesspeople freely shared food, water and respite spaces while medics came closer to the people to the streets to treat those injured by the police who despite peaceful nature of the protests still unleashed brute force.

Invariably over 400 young demonstrators found themselves locked up in the capital city’s police stations, mainly Central Police Station, Parliament Police Station, the Railways Police Station, and Kamukunji Police Station. The situation was replicated in other towns as well. The swift action by the LSK leadership and its membership nationally has been laudable. Even more important is that the Gen-Z community sacrificed their meagre incomes to support each other when in distress.

In the full outlook of the Financial Bill demonstrations, the Gen Z – aware that article 37 of the constitution guarantees them the right to assemble, demonstrate and picket while observing peace and nonviolence – has literally knocked onto their doors of their political ambition to reorder the country in their own image and vision.

Kenya has not yet apologized to some these young boys and girls who were teargassed or watched their colleagues suffer at Lang’ata primary in January 2015 to protect their school. They have also silently witnessed time and again their parents agitation for expanded democratization and the fight for the new constitution in the country, after the turn of the millennium. They were born into a socially liberal but hugely divisive debilitating political culture as the 2007/8 post-election violence in Kenya evinced. It is now clear to many that the youngsters have been struggling with history.

The demonstrations have condemned ethnicity, patrimonialism and gerontocracy of the local leaders in all their dimensions. This generation of Kenyans may have taken longer to comprehend what the founding fathers like Jomo Kenyatta, Oginga Odinga, Tom Mboya, Gideon Ngala, Kungu Karumba, Pinto Gama Pinto or Bildad Kaggia were about and their vision for the country, but sure they have showed their zeal to craft a country in the image of fairness, justice and progress as these patriarchs may have wanted.

It also means that the flavor of history does not in any case perish with time but rather it thickens to fruition. It is all too clear that the civic education aspirations founded in that period of time, about the same age as they are, have blossomed and the race to re-order Kenya’s political affairs is on. The baton for change is alive. This is fair to say because songs, slogans and philosophies that underlined the people’s movements of the period, buoyed by civic groups such as the National Constitution Executive Committee (NCEC), the Citizen Constitutional Change Committee (4 Cs) as well as the Release Political Prisoners (RPP) led the charge in the several processions across the country. These songs, mainly inspired by the tunes from the South Africa anti-apartheid clarion anthems have been emphatically sang in the assemblies escorted with the reminder of ‘bado mapambano’ that they would definitely have heard the first time as children.

In the multiple police stations handling the ‘unlawful assembly’ and ‘rioting’ suspects over the period, the youngsters have shown that their voice can no longer be swept under the carpet. Their high-tech coordination and mobilization cut across social privileges, gender and other superficial political cleavages. They have showed that the youth is a generation hungry for change.

Finally, it is interesting how several theories have been crafted and spinned to discredit the current politital awareness of a young generation. Old and tired phrases that were used by colonialists against our grandparents who fought for our independence like “terrorists”, unappreciative of development or too black (replace with young unformed brains) have been thrown right left and centre. Others have blamed civil societies for alleged funding of protests. This language has been used in the past. Our forefathers that we today celebrate for their bravery that secured our independence, democratic space and progressive constitution were themselves branded as terrorists. Such profiling, intimidation and hollow propaganda can only convince those that are too comfortable to fathom the pain and suffering of our young people who have a future to protect.

We owe it to the Gen-Z for being true to our laws and constitution. They exhibited discipline despite provocation, courage and clarity of their love for their country and fellow citizens. We must say kudos to the young demonstrators for educating us about our rights and how they should be exercised with humility. It is unfortunate that two young people were killed and several others injured. Sincere condolence to the families. It should never have happened.

Is this the generation of change makers that the country has been waiting for? Views may differ, but this has been a loud announcement of the arrival of the new face of change in the country. The answer, surely, may be beckoning.

As youngsters we stood up with Young Turks, ushering in Multiparty democracy in 1990s; in June 2024, Kenyan Youths have taken up the constitutional challenge to peacefully protest nationally over their future. May their wishes for a better future be honored.

Otieno Aluoka is Advocate of the High Court of Kenya & Kamau Ngugi is the Executive Director, Defenders Coalition (Kenya)

Helpline: 0716 200 100

Helpline: 0716 200 100