KNCHR submits its Shadow Report on The African Charter on Human and Peoples’ Rights and the Maputo Protocol

The Kenya National Commission on Human Rights has submitted to the African Commission on Human and Peoples’ Rights its shadow report on the African Charter on Human and Peoples’ Rights (African Charter) and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol). The report critically examines the implementation of the provisions of the two regional human rights instruments and proposes recommendations for better protection and respect for human rights.

Kenya is a State Party to the African Charter and the Maputo Protocol, having ratified the treaties on 23^rd January 1992 and 6^th October 2010 respectively. By so doing, Kenya committed to report every two years on the legislative and other measures taken to give effect to the provisions of the two treaties. On 15^th March 2021, Kenya submitted its combined report of the 12^th and 13^th Periodic Reports on the African Charter and the initial report on the Maputo Protocol, covering the period of 2015 to 2020. This report will be reviewed during the 69^th Ordinary Session of the African Commission on Human and Peoples’ Rights scheduled to take place from November 15^th 2021 to December 6^th 2021.

In preparation for this review and in order to present an objective basis for the review by the African Commission, the Kenya National Commission on Human Rights has prepared and submitted its shadow report on Kenya’s implementation of the African Charter and the Maputo Protocol.

The shadow report commends the State for its progressive enactment of crucial laws that will enhance the protection and observance of human rights in Kenya. Key among them is the Prevention of Torture Act 2017, which gives effect to Article 25(a) of the Constitution which declares that freedom from torture and cruel, inhuman and degrading treatment or punishment as one of the fundamental freedoms that may not be limited under any circumstance. The Act defines the offence of torture and the offence of cruel, inhuman and degrading treatment and provides appropriate sanctions for these offences. Notably, the rights of intersex persons in Kenya have been affirmed by progressive judgments and the inclusion of the Intersex marker in the 2019 Kenya Population and Housing Census.

The report however also draws attention to some of the following grave concerns:

• Violation to the right to life during the August 2017 General Elections and excessive use of force during enforcement of COVID-19 containment measures by police. Furthermore, there have been very low rates of prosecution of the implicated police officers.
• The withdrawal by the Director of Medical Services of the Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, despite medical abortion being permitted by the Constitution in certain circumstances.
• Certain provisions under the Criminal Procedure Code and the Prevention of Terrorism Act, 2012 allow suspects to be detained for lengthy periods of time, thereby limiting their Constitutional right to be tried within a reasonable time.
• The existence of several laws and policies which inhibit access to information and freedom of expression. These laws include the Official Secrets Act, the Public Service Code of Conduct and Ethics 2016, and the Computer Misuse and Cybercrimes Act 2018.
• Threats and intimidation by the Government of non-governmental organizations viewed as being too critical of the State for its human rights violations.
• Poor realization of political rights for everyone prior to, during and in the aftermath of the August 2017 General Elections. The KNCHR observed incidences of bribery and manipulation of voters during campaigns; election violence; insufficient voting materials; lack of adherence by authorities to voting timelines; voter names missing from voter registries; harassment of female political aspirants; poor accessibility of voting venues for groups such as persons with disabilities; and limited voting rights for prisoners.

For the full content of the reports, please access the attachments below.

For more information concerning the reports contact us at haki@knchr.org

Monitoring Briefs: UN and ACHPR KNCHR submits advisory on removal of Kenya’s reservation under Article 14 (2) (c) of the Maputo Protocol