PRESS RELEASE: OBSTINATE VIOLATIONS OF THE RIGHT TO PEACEFUL ASSEMBLY PERSISTS, OPENING A NEW FRONTIER OF SAFETY RISKS TO HUMAN RIGHTS DEFENDERS IN KENYA
Nairobi, 7 th July 2021
Defenders Coalition strongly condemns the arrest and incarceration of nine (9) Human Rights Defenders (HRDs)- Wilfred Olal, Erick Omuono, Erick Andati, Julius Kamau, Bosire Micheka, Mohammed Ismael, Kennedy Onyango, Wendy Wakesho, Boniface Muranda in the morning of 7th July 2021 at the Central Business District of Nairobi.
The five were arrested by arrest-and-violence-thirst police officers who took them to different police stations. five (5) were taken to City Hall Police station, One (1) to Kamukunji Police Station and three (3) to Central Police Station. The nine were picked from hundreds of other human rights defenders who were taking part in a peaceful assembly to commemorate Sabasaba March themed #SabaSabaMarchForOurLives and #JobsOrRevolution.
Worryingly, is the manner in which the gatherings to commemorate the day were dispersed. Violence in the form of tear gas was meted at other peaceful assemblers who had to scamper for safety.
Defenders Coalition in partnership with the Kenya National Commission on Human Rights and Kenya Commission on Human Rights have ensured the release of the arrested HRDs. Defenders Coalition provided both legal representation and cash bail for all, KHRC supported the legal representation of those arrested and detained at City Hall and KNCHR offered legal representation for those who were detained in Central Police.
The arrested HRDs now face trumped up charges including contravening the Public Order (State Curfew) Order 2020 and are to appear in court for the mention of their cases on 25 August 2021. Two of the three HRDs detained at Central Police have been released after paying cash bail and are expected to report back to the said police station on 8 July 2021. The HRD detained at Kamukunji was released without any charges preferred against him. However, Boniface Muranda (Detained at Central Police station) will remain detained due to “orders from above” and by the virtue of providing a vehicle that provided public address and roadshow services to the HRDs.
The Executive Director of the Defenders Coalition Mr. Kamau Ngugi has noted that the Public Order (State Curfew) Order 2020 is now the most preferred tool for arbitrarily arresting human rights defenders to intimidate, harass and delegitimize their work of promoting human rights in Kenya.
“The unprovoked arrest and violent dispersion of peaceful arresters has become a norm among security agencies in recent months. Similar arbitrary arrests of HRDs were witnessed in January where four HRDs were arrested in the middle of reading a press statement on the situation of human rights in Uganda elections”
Defenders coalition also notes that security officers have blatantly refused to give security to peaceful protestors even after notifying them of upcoming peaceful assemblies and as required by the law.
In January 2021, HRDs Mr. Khalid Hussein (Executive Director of HAKI Africa), Ms. Beatrice Waithera and Mr. Ojiro Odhiambo were arrested for organizing a press conference at Uganda House to call on the Ugandan Government to denounce Ugandan police brutality, electoral injustice, to respect international Human Rights law and laws of Uganda during the presidential ballot in Uganda. The three were charged with unlawful assembly.
on 7 July 2020, 63 HRDs from various social justice centres across Nairobi who had staged a commemorative event of the Sabasaba and to reflect on the dissident conduct of the government towards the adoption of one of the most progressive constitutions in the world were similarly violently arrested and charged with contravening public order regulations.
On June 9 2020, Collins Ochieng and Samuel Gathanga of Ruaraka Social Justice Centre, were arrested and detained at the Central Police Station. They were arrested by police officers shortly after delivering a petition to Parliament regarding police brutality within informal settlements in Nairobi. The two were booked in with charges of failure to keep social distance and failing to wear face masks contrary to the directives given for managing spread of COVID-19.
Sabasaba is a day from 31 years ago when gallant Kenyas brazed teargas, beatings, injuries, torture to say no to dictatorship by Marching to Kamukunji grounds to call for liberation from the then ruling regime. The charges were later dropped as they were malicious.
Defenders Coalition is concerned that intimidation and harassment of rights defenders is becoming the norm in Kenya despite assurances by senior police and government officials of cordial engagement between police carders, ordinary citizens and rights champions.
Defenders Coalition calls on :
DEFENDERS COALITION
*ENDS*
Photos Courtesy @IMLU
To Permanent Representatives of Member and Observer States of the United Nations (UN) Human Rights Council (Geneva, Switzerland)
12 May 2021
Multilateral action is needed to address the human rights crisis in Cameroon.
Excellencies,
We, the undersigned civil society organisations, are deeply concerned over ongoing grave human rights violations and abuses in Cameroon. Ahead of the Human Rights Council’s (“HRC” or “Council”) 47th session (21 June-15 July 2021), we urge your delegation to support multilateral action to address Cameroon’s human rights crisis in the form of a joint statement to the Council. This statement should include benchmarks for progress, which, if fulfilled, will constitute a path for Cameroon to improve its situation. If these benchmarks remain unfulfilled, then the joint statement will pave the way for more formal Council action, including, but not limited to, a resolution establishing an investigative and accountability mechanism.
Over the last four years, civil society organisations have called on the Government of Cameroon, armed separatists, and other non-state actors to bring violations and abuses1 to an end. Given Cameroonian institutions’ failure to deliver justice and accountability, civil society has also called on African and international human rights bodies and mechanisms to investigate, monitor, and publicly report on Cameroon’s situation.
Enhanced attention to Cameroon, on the one hand, and dialogue and cooperation, on the other, are not mutually exclusive but rather mutually reinforcing. They serve the same objective: helping the Cameroonian Government to bring violations to an end, ensure justice and accountability, and fulfil its human rights obligations. In this regard, the establishment of cooperation between the Office of the UN High Commissioner for Human Rights (OHCHR) and the Government of Cameroon, following High Commissioner Michelle Bachelet’s May 2019 visit to Yaoundé,2 and building on the capacity of the OHCHR Regional Office for Central Africa (CARO),3 is a step forward.
However, since a group of 39 States delivered a joint oral statement to the HRC during its 40th session (March 2019), and despite the High Commissioner’s visit, the holding of a national dialogue, and OHCHR’s field presence, violations have continued unabated. Some of the violations and abuses committed by Government forces and non-state armed groups may amount to crimes under international law. Impunity remains the norm.
In the English-speaking North-West and South-West regions, abuses by armed separatists and Government forces continue to claim lives and affect people’s safety, human rights, and livelihoods. The grievances that gave rise to the “Anglophone crisis” remain unaddressed.4 In the Far North, the armed group Boko Haram continues to commit abuses against the civilian population. Security forces have also committed serious human rights violations when responding to security threats. In the rest of the country, Cameroonian authorities have intensified their crackdown on political opposition members and
DEFENDERS COALITION SOLIDARITY STATEMENT ON THE 2021 IDAHOBIT CELEBRATIONS
17th May 2021
The 2021 IDAHOBIT celebrations have come at a time where SOGIE HRDs and organizations are mourning and alarmed of their safety and security. Defenders Coalition is concerned about the recent killing of a respected human rights defender in the coast region, Joash Mosoti. We condemn this act and witnessed rising insecurity amongst SOGIE HRDs and organizations in the country. We pass our condolences to the immediate family, friends, HAPA Kenya and all organizations affiliated with Joash. We extend our solidarity and support to you during this difficult moment.
Since 17th May 2020, Defenders Coalition has responded to more than ten cases comprising of SOGIE organizations office break-ins, home break-ins, physical injuries, negative profiling forced evictions and threats to HRDs across the country. These paints a gloomy picture in the recognition of the important work carried by HRDs to respond to the needs of their community members.
The effects of COVID 19 have also affected individual HRDs family life. In our monitoring of the situation of HRDs during the pandemic, there has been reported domestic and gender-based violence that has resulted to family disintegration and targeted attacks to HRDs. COVID 19 has also seen some organizations miss out on funding for their projects and activities. This has seen some of the organizations close down, scale down their interventions and also delay in responding to human rights cases reported to them. We have also noted with the rising scapegoating instances both physical and online platforms.
The witnessed delay by the government to acquire and disburse ARVs has been an up hill task for SOGIE organizations and HRDs who have been at the forefront to support people living with HIV/AIDS. This has created a mistrust between the organizations and their clients, something that has affected service delivery in this sector.
However, despite all this challenges, we cannot fail to celebrate the successes and good practices witnessed in the past year. We recognize the agility of organizations and individual HRDs rise to occasion to mitigate the effects of COVID 19 in their communities. Whereas some out of the way to do personal donations and humanitarian support for the SOGIE community, some went online to fundraise and highlight the situation of their communities.
We celebrate organizations that went ahead to organize webinars, entertainment and online games that kept their staff, volunteers and supporters engaged during the lockdown, curfews and restrictions to in person gatherings. We also recognize organizations that initiated income generating incentives for their members and other social-economic activities that kept them engaged and also creating community ownership.
In addition, we cannot forget the great work done by organizations who initiated a free toll number for counselling and wellbeing activities in their area of work. We appreciate your support, solidarity and hospitality to colleagues, peers and community members who are suffering repression in their countries. This affirms your commitment to ensuring a safe and conducive environment for the LGBTQ+ communities across board.
These successes indicate that we care about each other and are willing to stand in for our communities. In line with this year’s theme: “Together: Resisting, Supporting, Healing, Defenders Coalition wishes to affirm our support to the noble work done by SOGIE HRDs and organizations through strategic engagements/interventions, rapid response and advocacy initiatives led by the movement. We are just a call away in fulling the mandate you have bestowed on us of ensuring safety, security and wellbeing of HRDs in Kenya. VIVA!
Our story for 2020 is not one of drastic changes to the world we live in, but of our response to ongoing challenges we face. Time and again we saw with adept demonstration how resilient, creative, and adaptable human rights defenders can be in the face of
repression and mutation of risks. The challenges are well known: criminalization of HRDs work through perpetual intimidation, harassment, imprisonment, detention, enforced disappearances, threats, digital shaming, punitive justice administration processes, systematic implementation of restrictions to fundamental freedoms and a deepening shift in the narrative on human rights defenders from protector of the people to enemy of the state.
The Covid-19 pandemic amplified some of these challenges while contributing to even more challenges within the operating environment for HRDs. We don’t accept this challenging environment for human rights as the new normal, but, we acknowledge the need to develop ways to achieve our goals within it.
The key is in how we adapt, how we resist, and how we use the power of solidarity within our networks and establish strong movements that not only respond to the situation of HRDs, but also set the human rights agenda. The vibrant communities and partnerships we have fostered for the last one decade through the different fora and auspices of engagement demonstrated the strength of their potential. Together, we were visible and we increased our cooperation in advocacy, capacity building and in protection, thus setting the stage to meet the challenges we face.
We can proudly highlight the following key milestones mad enduring the year 2020: Looking to the long term, we took ownership in our response to worrying trends – reaching out to new and existing partners to build coalitions, and laying the foundations for engagement in our joint case studies, reports, and events.
At our launch events and submissions to regional and international watchbodies, we united with different multi-level stakeholders through joint statements and recommendations to the relevant duty bearers. We also used our combined networks to make sure HRD voices are heard across the world. These included submission to the UN Convention Against Torture (UNCAT) two shadow reports to the African Commission on Human people’s rights and a statement during Kenya’s UPR report adoption at the 45th Human Rights Council Session in Geneva. We also looked to a joint response to the shrinking civic space in Kenya as more and more freedoms are under threat in the guise of implementing Covid-19 measures. We challenged regulations, practices and actions aimed at drawing pushbacks on the civic space, specifically the freedom of expression, association and assembly.
In the same spirit, we launched a case digest report dubbed “They Keep Coming After Rights Defenders” to highlight trends on human rights defenders and the law in Kenya. The report is a basis for advocating for a just and fair legal and judicial processes for HRDs seeking their services. Besides joining forces to address international trends, aligning with technological advances and needs of HRDs, we came together in areas such as human rights education and capacity building.
Through the newly launched Defender Coalition E-library, HRDs can now access resources necessary to enhance their capacities at the click of a button. Further, we held 24 physical capacity building activities which culminated to the Annual weeklong HRD Academy in November 2020, where 100 upcoming HRDs were brought together to network, debrief and equip them with necessary skills.
Having re-thought the sustainability of the work of defending rights in Kenya, we have made huge strides in advancing and instilling the same among HRDs through the #ClimbForJustice Campaign. Over 800 fitness enthusiasts and supporters of our work have hiked different destinations to speak against human rights violations as well as raise funds for setting up a HRD hub. We are thankful
1. We watched over the backs of 400 HRDs who were at risk due to their work. We equipped them with skills to continue doing their work effectively and without fear
2. We equipped HRD networks with skills to be effective first responders within their communities during Covid-19 pandemic
3. The presence of Defenders Coalition as the spokesperson for HRDs served to denounce and resist harmful actions on the environment of HRDs, and keep the perpetrators on toes (both state and non-state)
4. Defenders Coalition had a 100% success rate on mitigating torture and detention among HRDs who were criminalized because of their work
5. Defenders Coalition successfully mobilized critical partners to jointly engage in advocacy over pressing human rights issues in Kenya
6. Defenders Coalition successfully build protection pathways for HRDs at the most remote corners of the country with national, regional and international systems and actors coming on board to protect HRDs
7. Defenders Coalition innovatively responded to humanitarian and resilience need to HRDs and CSO organizations during Covid-19 pandemic
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
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.
|
| 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
|
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.
|
| 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
|
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
|
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
|
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.
|
| 46. Rejection of a passport application | Remove 46(1)(a)
|
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.
|
| 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.
|
| 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
|
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.
|
| 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.
|
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
|
| 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
|
Section 63 should specifically reference Kenyans and stateless persons who lack proof of identification as well as people with poor biometrics.
|
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.
|
| 67. The NIIMS Coordination Committee
|
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
|
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.)
|
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.
|
| 72. NIIMS General Design
|
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
|
| 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.
|
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.