ALTERNATIVE REPORT IN RESPONSE TO THE FOURTH PERIODIC REPORT BY KENYA TO THE COMMITTEE ON INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (2013-2020)

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)

1. Human rights defenders have endured threats, intimidation and physical attacks as they conducted their work. The Coalition noted several instances where human right defenders were attacked while in their line of duty.  The report also notes that save for the attacks, there are a few incidents where the police used excessive force when dealing with the HRD’s.
2. Between August 2017 and March 2018, police and other officials targeted at least 15 activists and victims in Nairobi, the capital, and in the western county of Kisumu for intimidation, Human Rights Watch found^[1].  The Kenyan authorities have not investigated or in many cases even acknowledged the alleged killings and other abuses during the election period, from August to October 2017, despite the extensive evidence published by Kenyan and international rights groups. Human Rights Watch documented more than 100 killings, most by police during government clampdowns on protesters in opposition strongholds.
3. The Constitution of Kenya under Article 37 provides for right to assembly, demonstration, picketing and petition. It’s to the effect that every person has a right, peaceably and unarmed, to assemble, demonstrate, to picket, and to present petitions to public authorities. Despite these critical provisions, Kenya has not made any significant efforts to ensure to promote and protect the rights to freedom of assembly. The findings of numerous reports by civil society organizations in Kenya disclose that Kenya’s approach towards promotion and protection of the right to freedom of assembly has been repressive. ^[2]
4. Kenya’s Public Order Act has been used by security agencies as a tool to curtail legitimate expressions of freedom of assembly. Specific provisions within this act require organizers of  peaceful demonstrations/ assembly to notify the police of the date, place and time for convening these peaceful demonstrations. For instance in 2018; In July, the director of public prosecutions charged an administration police officer with the killing of a Meru University student, Evans Njoroge, following investigations by the Independent Policing Oversight Authority. Evans was shot on  March 10, 2018, at close range at the back of his head during protests by Meru University students in eastern Kenya over poor management of the institution. Such investigations were few and far between, as authorities have overwhelmingly failed to investigate and prosecute cases of widespread police killings across the Country.^[1]
5. Although the constitution and law provide for freedom of assembly, the government sometimes restricted this right. Police have routinely denied requests for meetings filed by human rights activists, and authorities dispersed persons attending meetings that had not been prohibited beforehand. Organizers must notify local police in advance of public meetings, which may proceed unless police notify organizers otherwise. By law authorities may prohibit gatherings only if there is another previously scheduled meeting at the same time and venue or if there is a perceived specific security threat. Police used excessive force at times to disperse demonstrators. The local press reported on multiple occasions that police used tear gas to disperse demonstrators or crowds of various types. On April 30, 2020 police used tear gas to disperse protesters who had gathered at Uhuru Park in Nairobi to protest widespread corruption. The security officer in charge of Nairobi central police station cautioned protesters that “there will be no marching outside Uhuru Park.”
6. Human Rights Defenders have been subjected to unlawful arrest and detention by Kenyan Security Agencies, while exercising their right to protest. In 2017, following the controversial Presidential Election, police and pro-government militia were responsible for the deaths of more than 100 opposition supporters in Nairobi and western Kenya during elections protests. Although these killings and other abuses have been well documented by human rights groups, Kenyan authorities have rarely investigated them.
7. On June 19 2020, two human rights activists were arrested while taking part in a peaceful demonstration to express solidarity with the people of Sudan. Police using tear gas also dispersed hundreds of peaceful demonstrators. The arrests occurred despite the fact the activists had notified the central police station of their intention to protest and requested security. Two months earlier, activist Beatrice Waithera was arrested while participating in an anti corruption protest in Nairobi. In November videos posted on social media showed police officers kicking and assaulting a student protesting at Jomo Kenyatta University of Agriculture and Technology. The cabinet secretary for the ministry of interior immediately condemned the incident. Four officers were suspended pending the outcomes of the investigations by IPOA and the IAU.
8. In March 2019, the government tabled a draft amendment to the Public Order Act (2014) that would impose criminal and civil liability on anyone who, while participating in an assembly, causes grievous harm or damage to property or loss of earnings. Civil society groups criticized the draft bill for imposing undue restrictions on the right to peaceful assembly^[1].
9. In November 2017, the Independent Policing Oversight Authority (IPOA), a civilian police oversight institution, said it had investigated at least two cases relating to the 2017 elections, but could not identify the killers due to lack of evidence as it was during mass protests. IPOA recommended a public inquest for the killing of six-month-old Samantha Pendo in Kisumu, and compensation for the families of baby Pendo and nine-year-old  Stephane Moraa, who witnesses said was shot by police as they dispersed a political gathering.Recommendations:
   1. The Kenyan Government should ensure that domestic law and practices related to the right to protest comply with its obligations under the Constitution and international human rights law and standards. In particular, it should ensure the Public Order Act, the Penal Code and related procedures are brought in line with international human rights law and standards.
   2. The State to investigate cases of threats and intimidation of human rights defenders and prefer charges to both state and non-state perpetrators.
   3. develop and adopt HRDs investigations and protection laws that bind all institutions to recognize and support the work of
   4. The Kenyan Government should ensure that law enforcement fully complies at all times with international human rights law and standards on policing, in particular the African Commission Guidelines on Policing of Assemblies, the UN Code of Conduct for Law Enforcement Officials, and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
   5. The Kenyan Police should ensure that the public order management procedures, manuals, training and practice are reviewed and brought to compliance with the Constitution and international human rights law and standards.
   6.  The Kenyan Government should ensure that police oversight bodies develop expertise and procure equipment to facilitate professional investigations into unlawful use of firearms, including for securing and examining potential crime scenes, ballistics and other forensic tests, and autopsies and medical examinations.
   7. The Kenyan government should implement its commitments to fulfil freedom of association and assembly (as articulated in the 2016 UPR implementation plan) and work closely with the UN Special Rapporteurs, including accepting and supporting their outstanding visit requests^[1]