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Opening Remarks for The Vice Chairperson, Made During The National Dialogue on Implementation of Recommendations Arising Out Of The 2nd Cycle Of The Universal Periodic Review.

  • The Honorable Attorney General;
  • Representatives from the DoJ
  • Representatives from various Ministries, Departments and Agencies present;
  • Ambassadors, High Commissioners and representatives from Embassies present;
  • Representative from Office of the High Commissioner for Human Rights, Marcella Favretto;
  • Representatives from Civil Society Organizations present;
  • Our Partners;
  • Distinguished Ladies and Gentlemen;

 

Good Morning!

I am pleased to join you this morning as we launch the Kenya CSO Stakeholders Coalition on UPR Mid-Term Report. The UPR-MTR assesses implementation of UPR recommendations supported by Kenya in the 2nd cycle of the UPR that took place in 2015.

I would like to take this opportunity to thank the Coalition of over 60 CSOs on UPR for the great work the respective organizations continue to do and for their dedication and sticking to the course of human rights. I also wish to appreciate in a special way the steering committee of the CSO coalition comprising UPR Info, KHRC, ICJ-Kenya, LWF, Haki Jamii, Women Empowerment Link, OHCHR, and KNCHR for their leadership and sterling efforts in making this possible. Our appreciation also to the Partners who have supported this gathering: UPR-Info and LWF. It has indeed been a long journey; since the time we put our heads together to craft the implementation matrix three years ago led by the DoJ; the third cycle seemed way too far off; but it is now here with us!

Since the first cycle of the UPR in 2010, the KNCHR is proud to have been vibrantly engaging in the UPR process and has been instrumental in coordinating the Kenya CSO Coalition on the UPR, the main vehicle for CSO participation in the UPR process.  While keen to maintain our independence first as a constitutional Commission and secondly as an NHRI, we have not shied away from engaging with our colleagues in both the CSOs and government towards preparation of their respective UPR-MTR reports.

Towards this end, KNCHR has in the past convened and supported a number of forums of the Steering Committee on UPR towards coordinating the drafting of the CSO’s UPR mid-term Report. The KNCHR provided technical support and facilitated dialogues aimed at discussing issues; first, within the CSOs themselves on the one part, the Department of Justice and MDAs on the other and a mixture of both. These sessions were not only useful platforms for collecting data and experience sharing but also served as platforms for sensitization of new entrants.

 The KNCHR is happy to note that the State has concluded its mid-term report. I would like to thank the Office of the Attorney General and Department of Justice for their cooperation in the process even when sometimes we said the truth in unpalatable way, you took it gracefully. The report is available online on the OHCHR website.

Ladies and Gentlemen;

Indeed this is a timely engagement as Kenya and its stakeholders prepare for the 3rd cycle of the UPR; in which Kenya will be reviewed for its human rights track record in January 2020.

As you may all know, Kenya has been reviewed for its human rights performance under the UPR on two occasions in 2010 and in 2015 and has accepted a total of 336 recommendations. During the 1st cycle Kenya accepted a total of 144 out of 150 recommendations made translating to an acceptance rate of 96 % and has accepted 192 out of 253 recommendations made in the 2nd cycle of the UPR. This translates to 75.8%. we should now aim for 100% acceptance rate.

The recommendations accepted in the 2nd cycle crystallized into the Government UPR implementation matrix and action plan which was developed through a consultative process led by the Office of the Attorney General and Department of Justice. The implementation matrix is critical document towards assessing the progress and challenges encountered in the implementation of the recommendations arising out of the 2nd cycle of the Universal Periodic Review. Indeed the CSO Mid-Term report we shall be launching here today assesses government performance on the basis of the implementation matrix.

Ladies and Gentlemen;

 Drawing upon our experience, KNCHR would like to draw a few observations with respect to the status of implementation.

The good:  On a positive note, the KNCHR notes with appreciation that the State has taken significant steps in:

  • Enacting progressive laws & policies: such as the Legal Aid Act, the Prevention of Torture Act, the Judiciary Fund Act, the National Coroners Service Act, Health Act, 2017 and the Access to Information Act. We are especially excited at the adoption of the National Policy and Action Plan on Human Rights 2015. We take cognizance of the ongoing efforts at reviewing the Children’s Act among other laws. We also acknowledge the ongoing efforts at progressive policies including the Public Participation Policy; Privacy and Data Protection Policy; Gender and Equality Policy, National Legal Aid Policy and Action Plan among others.

*it is not for deficiency of legislative framework but the implementation/operationalization and practice of the same that is problematic

  • Submitting international reports: Complying with treaty body reporting obligations by submitting its report to the CEDAW Committee and the Committee against Torture
  • Criminal justice reform: Spearheading reform within the criminal justice system with the establishment of the National Committee on Criminal Justice Reform and the Working Group on Review of the Mandatory Death Sentence. These efforts, and the Supreme Court Judgment (that declared mandatory death sentence under the Penal Code as unconstitutional-Francis Karioko Muruatetu & Another v R & 5 Others (2017) eKLR) have taken us a step further towards the abolition of the death penalty.
  • Ecosoc rights: Prioritizing the implementation of economic and social rights through the big four agenda and the development of the National Action Plan on business and human rights spearheaded by the Office of the Attorney General and the Department of Justice.

  The bad and ugly: Some areas of concern we as KNCHR have noted include:

  • The state is yet to operationalize the Public Benefits Organizations Act despite three court orders on the same
  • The state is yet to enact a comprehensive equality and anti-discrimination legislation
  • The state is yet to implement the Truth Justice and Reconciliation Commission report
  • The state is yet to ratify the Optional Protocol Number 2 of the United Nations Convention on the Rights of the Child
  • Low/no accountability; Prevalence of extrajudicial executions, enforced disappearances and torture; convictions reparations for human rights violations including extra-judicial cases; SGBV and PEV cases which have been a worrying trend.
  • Decline in funding of the National Human Rights institution despite commitment to strengthen and allocate necessary human and financial resources to fulfill its mandate
  • Continued delayed submission of state party report on ICCPR report to the Human Rights Committee (which was due in 2015). Slowed implementation of economic, social and cultural rights: there has been seemingly wavering efforts towards enactment of ECOCOC and Dignity Bill by the national Parliament.
  • The full implementation of the decisions of the African Court and the African Commission in the Endorois and Ogiek matters. Though some efforts have been made; more remains undone.
  • Property rights: Forced evictions without following due process.
  • The state is yet to enact the legislation to activate the two-third gender principle

 

It is my hope that this dialogue will create impetus towards vibrant engagement by all stakeholders in the 3rd cycle of the UPR. One of the hallmarks of the UPR is the consultative nature of the process. I would like to emphasize that the process is centred on consultation and cooperation towards implementation of human rights obligations. The process should never be about confrontation or working in silos, or ‘us’ against ‘them’. It is about collectively working to devise solutions to the challenges facing our nation, our people.

Ladies and Gentlemen,

We have picked many lessons from the UPR process. One such practice is that of recommending states partnering to effect the specific areas of recommendations made (for instance Norwegians funding on ECOSOC rights). We would like to encourage more of this and we hope that the partners present take this as a challenge.

In the consultative engagements with stakeholders, the KNCHR has noted that lack of/quality of data as one of the greatest challenges in drafting the UPR Mid-Term Report and indeed other treaty based reports. The challenge has been noted on both the CSO process as well as the government process in assessing implementation of the UPR recommendations. Without data, monitoring progress becomes difficult. This forum is perhaps an opportune moment for all stakeholder present to see how we can store our data better first as individual agencies and collectively as MDAs and CSOs dealing with the various thematic areas. Indeed MDAs have obligation under the Access to information Act to proactively disclose information that they hold and to provide information upon request.  The upcoming census will be key to providing important indicators on human rights data; we continue to stress the need for data accuracy and a human rights based approach to data collection, disaggregation and dissemination.

 A Centralised mechanism of reporting: The Advisory Consultative Committee on International Human Rights Obligations gazetted in 2005 was instrumental the preparation, submission and defense of some overdue state reports to the human rights treaty bodies. However, since the gazette notice included names of officers as opposed to their organizations, with time due to staff turn-over and government restructuring this committee ceased to exist. There has been a gap which needs to filled. We therefore urge the State through the Office of the Attorney General and Department of Justice to hasten the re-activation of a national mechanism for reporting and follow-up. This is in line with best practices.  Just to stress here that we should aim to have such mechanism well resourced- financially and also human resource so that it does not suffer the fate that the dormant the defunct Advisory/Consultative Committee faced.

 Going forward, it is important for stakeholders to think about the linkages between the recommendations arising out of the Universal Periodic Review to specific targets under the SDGs and other development blue prints of the country i.e. vision 2030. Such an integrated approach will enhance prioritization, efficiency, participation, inclusion as well as accountability. As I conclude my remarks, I would like to restate the KNCHR’s commitment to this process and the successful participation of Kenya in the 3rd cycle of the Universal Periodic Review.

Thank you! Asanteni sana

 

VICE CHAIRPERSON;

 

 KENYA NATIONAL COMMISSION ON HUMAN RIGHTS

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