Nairobi, Thursday August 27, 2020
Katiba @ 10: A Human Rights Scorecard
Today, the Kenya National Commission on Human Rights joins Kenyans of all walks of life in taking stock of the 10th anniversary of our Constitution. In exercise of their sovereignty through a referendum held on 4th August 2010, Kenyans bequeathed themselves and future generations a historical document, the supreme law of the land. Through the promulgation of the Constitution of Kenya, 2010 on 27th August 2010, Kenyans aspired for a radical shift in the form and manner of governance and accountability in our Nation. A government that was to be responsive, where the national cake was equitably shared regardless of political, ethnic, religious or other affiliations, a nation where democracy, rule of law and accountability reigned supreme.
The People of Kenya yearned for a government that was based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law - values that were conspicuously absent in the former power regimes. The 2010 Constitution symbolised a written covenant, a collective promise, a bright future and a beacon of hope particularly for the disenfranchised majority. A new dawn it was to be!
The aspirations of the new dawn were founded on national values and principles of governance referred to in Article 10 of the Constitution. A nation’s values define a people’s identity. They are fundamental beliefs of a nation guiding the choices, actions and behaviour. One of the most significant hallmarks of our Constitution, close to mwananchi was the progressive expansive Bill of Rights founded under Chapter 4. Hence today, as the constitutional Commission entrusted to promote and protect human rights of all in Kenya; we reflect back and take stock, pose and ask what have we gained as a country? What have we lost down the constitutional memory lane? What have we not achieved as a country thus far? How do we move forward as we step in the next decade?
The most fundamental gain of the 2010 Constitution was the recognition of human rights as inherent to every human being and not a favour as had been practiced in the previous regimes. This express affirmation in our Supreme Law culminated to various enabling legislations that gave light to these rights and brought them closer to the people. Laws were enacted that operationalised oversight institutions that ensured the necessary checks and balances of State power. Very progressive legislations touching on key human rights and fundamental freedoms were enacted - for instance; freedom from torture, access to information, freedom of the media and freedom of association. But has the same translated to better enjoyment of human rights for the common mwananchi? Below is the score card on a sample of pertinent constitutional issues.
The struggle for civil and political rights persists with right to life and freedom and security of the person still featuring high among the violations that the Commission continues to document. Extra judicial killings, arbitrary arrests torture and sexual violence have mostly manifested themselves during electoral conflict but also in alarming numbers in the informal urban settlements with the police being cited as the major perpetrators. The Commission therefore is concerned over the low rate of investigation and prosecution of security officers culpable of extra-judicial killings and excessive use of force vis a vis the number of complaints.
The punishment of petty offences through arbitrary arrests has not only violated the freedom and security of the person but also created a panacea for the violation of human rights of the poor, marginalized and vulnerable people. It is apparent the punishment is on the status of the person.
Further, insecurity remains a major threat to the people of Kenya. Kenya has continued to experience high crime rates of which both civilians and police have been victims of crime. The decade past has seen Kenya become victim of several acts of terrorism. These have led to the loss of innocent lives. Notwithstanding the manner in which the national security forces have responded to the attacks, insecurity has continued to raise major serious human rights concerns. The Commission has recorded these violations in its various published reports and has brought the same to fore and specifically to the duty bearers.
The past decade has also been marked by heightened insecurity and tribal conflicts in various parts of the country. Multiple attacks, counter-attacks, reprisals and displacements have been witnessed in the North Rift region. This was highlighted in a KNCHR public inquiry report, Mending the Rift. Similarly, in KNCHR’s public inquiry report Guarding the Coast, the Commission established historical injustices, religion and land as among the major causes of conflict in the Coast region. Perceived marginalization of the Coastal region and its peoples has also further exacerbated insecurity in the region.
Freedom of association, assembly and demonstrations have faced threats including several attempts to either suspend operations or de-register non-governmental organizations viewed as being critical of the State and the non-operationalization of the Public Benefit Organizations Act seven years later. Equally demonstrators have been met with forceful and arbitrary arrests for exercising this right.
Freedom of Movement and residence in respect to refugees has largely been restricted during this period as compared to the pre-2010 era. From 2012 to 2016 there have been various attempts by the Government to enforce an encampment policy and later on repatriation of refugees and threats to close the Dadaab camp.
Having the Economic and Social Rights under article 43 of our Constitution was indeed the constitution’s ray hope for Kenyans in restoring dignity and uplifting the lives of the Wanjiku. The Commission takes cognisance of the Governments’ efforts in respect to the Big Four (4) Agenda that strategically aims to boost manufacturing, universal health coverage, food and nutrition security and supporting affordable housing. The Commission similarly welcomes the prioritisation of the implementation of the “Big Four” initiatives in the Medium Term Plan III (2018-2022). Moving forward the Commission calls on more concerted efforts to realize these visions.
Over the ten years period, food production in our country has primarily been affected by extreme phenomena characterised by droughts, famine, heavy rainfall, locust invasions and fall army worms infestations. These events have contributed to fluctuations in the production of agricultural commodities over the years, and thus the right to freedom from hunger. The Commission gladly notes that the State put in place the National Food and Nutritional Security Policy Implementation Framework 2017-2022; the National Nutrition Action plans (2012-2017) and (2018-2022). Despite the government’s efforts towards ensuring food security, incidences pointing at lack of food and poverty still persist.
Financial allocation for the health sector remains low with the country managing to allocate only around 5% to 7% of the budget to health between 2013/14 to 2015/16 which is below the 15% target as per the 2001 Abuja Declaration. There are grave concerns on the poor state of public health facilities at both National and County levels and the continued detention of bodies and sickly persons for failure to pay medical bills. The doctor-patient ratio is still below par. On the positive side the Commission has noted improvement on maternal health. Births occurring in health facilities increased from 90.1 % in 2015 to 96.7 % in 2019 as a result of free maternity programme in public health facilities launched in 2014. Maternal mortality rate has reduced from 488/100,000 (KDHS 2008/9) to 362/100,000 live births (KDHS 2014). However, disparities persist, ranging from 189/100,000 in Elgeyo Marakwet to over 1,000/100,000 in the four counties of Mandera, Marsabit, Wajir and Turkana; where many women live beyond the reach of health facilities.
In respect to Clean water and sanitation, the Commission notes that although Kenya has set out various sanitation policies such as the Kenya Environmental Sanitation and Hygiene policy 2016-2030 and the Kenya Environmental sanitation strategic framework (KESSF) 2016-2020; scarcity of clean and safe water, remains a huge challenge posing a risk to realization of other rights such as; the right to health. Following the advent of the COVID-19 pandemic, this basic need and right threatens to spiral. The Commission calls on the government to upscale its efforts in the provision of free, safe and clean water with special emphasis to the informal settlements’ population.
Right to Housing remains an outstanding issue - Kenyans without land documentation or tenure security have found it hard to own a home. Kenya has an annual housing demand of 250,000 units with an estimated supply of 50,000 new units; this culminates to a housing deficit of about 2 million units.
Similarly, there has been an increased number of forced evictions and destruction of property especially for marginalized urban communities to pave way for mega urban renewal and regeneration programs. The government carried out forceful evictions in Mau in 2018 and 2019 where about 50,000 people were displaced resulting to the elderly, children and women to be exposed to harsh weather conditions in their makeshift camps.
In 2020, forceful evictions during the COVID-19 pandemic period occurred in Kariobangi and Ruai where a total of 12,000 families were left in the cold after demolitions of their houses despite the inherent dangers of the pandemic and existence of an interim court order. The manner in which these evictions have been carried has flouted national and international law and guidelines governing evictions. Scores of women and children have been evicted in the dead of night and left more vulnerable to harsh vagaries of weather.
Access to justice continues to improve in the country. The pronouncement by the High Court in April 2019 that actions of the police and government medical facilities to levy fees for issuance of filling of Medical Examination Forms (P3 forms) was in violation of the basic principle of access to justice and; therefore unlawful and unconstitutional. This was a progressive step towards realisation of justice for victims of sexual and gender-based violence. The Commission also acknowledges the court mediation project that has helped with the case backlog. However, the failure to operationalise the National Legal Aid Service (NLAS) Board under the Legal Aid Act has hindered implementation of the Act. Furthermore, delay in operationalising the Small Claims Court has further curtailed the intended accelerated access to justice under the framework
On the rights of persons detained, held in custody or imprisoned, the Commission notes that places of detention continue to face various challenges such as congestion, health and general well-being of the detainees. Following an investigation on the state of healthcare for prisoners in Kenya, the Commission noted the challenges that face the prison system as lack of sufficient health infrastructure, laboratory equipment, poor health facilities within the prisons; lack of adequate medical personnel including resident medical doctors and regular services by dentists and psychiatrists. Most prisons also do not cater for the needs of persons with disabilities and there is lack of assistive equipment for the inmates with physical disabilities.
In conclusion, the last decade has seen a tremendous improvement in terms of enacting an enabling legal environment to bring light to the human rights as stipulated in the Constitution. The implementation therefore; is what has generally lacked and it has led to a dissatisfied and disillusioned mwananchi who had so much hope.
The next decade is therefore a call to action and living up to the promises of the Constitution through strengthening the various Constitutional Commissions, Independent Offices and other oversight bodies, to effectively deliver on their mandates. Above all, the call to action must most importantly empower the mwananchi. Now is the time to make use of the powers bestowed upon the mwananchi by the constitution including Article 1 itself on sovereign power belonging to the people!
As the Kenya National Commission on Human Rights, we will remain true and steadfast in delivering our mandate to promote and protect human rights for All.
Dr. Bernard Mogesa, PhD, CPM
Secretary to The Commission/Chief Executive Officer