Press Release: Kenya's Dangerous Path Towards Degeneration of Law and Order Amid Ongoing Demonstrations

Fellow countrymen and women, we gather here today in a very sombre mood. The Kenya National Commission on Human Rights (KNCHR) is deeply concerned by the current state of Human Rights and respect for the Rule of Law in Kenya.

As the Commission has stated in the past, our very progressive Constitution guarantees a bevy of rights, most of which cannot be limited. The Commission has this past week noticed trends that are worrying. As per our constitutive mandate, the Commission is compelled to raise its voice once again and highlight the critical issues that need urgent attention. The grim and grave reality is, there has been a clear manifestation of violations of fundamental rights and freedoms.

It is disheartening to witness the escalating tensions and the blatant disregard for human rights principles and standards, by both rogue demonstrators and indeed rogue security agents, which have resulted in uncalled-for deaths, grievous bodily harm, injuries, and destruction of property. 

In view of the already documented occurrences and state of affairs in containing the demonstrations, the Kenya National Commission on Human Rights wishes to address itself on the following pertinent issues that have captured the nation:

1. Torture by Security Agents: The Kenya Constitution in Article 25 guarantees the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment. The Commission has received reports of torture and abuse, wanton beating of persons even after surrender, indiscriminate tear-gassing of residences and schools. There have been heart-rending images on mainstream media and social media platforms, clearly showing the involvement of uniformed police officers in the wanton and brutal attack of defenceless members of the public. Security agents must be held accountable for their actions and comply with the law, which expressly prohibits torture. The Commission within its mandate in the Prevention of Torture Act shall initiate enquires into the alleged instances of torture and issue report and recommend effective measures for prevention and accountabiity, the Commission also urges the Independent Policing Oversight Authority (IPOA) to hasten its investigations into the allegations of torture and ensure perpetrators face appropriate legal consequences.

2. Access to Justice: Article 48 of the Kenya Constitution guarantees every person the right to have any dispute resolved through the formal system or alternative dispute resolution mechanisms. Article 49 requires arrested persons to be brought before a court as soon as reasonably possible but not later than 24 hours after being arrested. However, there have been reports of delays and denial of justice for those arrested during the demonstrations including the denial of bail at the point of arrest as provided in Article 49. The right to a fair and timely trial must be upheld for all citizens.

3. Conduct of Police and Security Agents during Searches: The Commission notes that Article 49 provides rights of an arrested person, which include the right to be informed promptly in a language they understand of the reason for the arrest, the right to remain silent, the consequences of not remaining silent and the right to communicate with an advocate and other person whose assistance is necessary. The National Police Service is mandated to maintain law and order while observing and respecting Constitutional provisions. Breaking into homes as was seen in Kisumu and other places and affecting improper arrests while dispensing brutality and torture infringes upon the rights of citizens and violates their dignity and sanctity of their private spaces. The Commission calls on the police and other security agents to conduct arrests in a lawful and respectful manner, adhering to established procedures and respecting the rights and dignity of individuals.

4. Respect for Judiciary Precincts and Dispersal of Citizens and Journalists: The Judiciary is an arm of Government and an independent institution in Kenya, and its precincts must be respected as spaces for the administration of justice. Reports and recorded cases of security agents violently dispersing citizens and journalists within Court premises, violates the principle of separation of powers and undermine the rule of law. The Commission urges the Government to ensure the protection of the Judicial spaces and uphold its independence, allowing citizens and journalists to exercise their right to freedom of expression and access to information without fear of intimidation or reprisals. This infringement also affected lawyers and families of the arrested, thus infringing the right to access legal support and access justice.

5. Allegations of Abductions and Infiltration by Security Agents: The Commission has received reports of alleged abductions by persons believed to be police officers in the recent past. These events are worrying as they remind us of our dark past, where the security agency had special squads that would effect such extra judicial activities. Such practices violate fundamental human rights and erode trust between the State and its citizens. These incidences must be investigated transparently and impartially, and hold accountable any individual found involved in these egregious actions.

6. Assaults and Arbitrary Arrest of Human Rights Defenders: The Commission has observed increased assaults and arbitrary arrests of human rights defenders who are striving to ensure respect for human rights principles. These defenders play a critical role in promoting accountability and safeguarding citizens' rights, and their safety and protection must be guaranteed.

7. Harassment and Injuries of Special Interest Groups and the Vulnerable: Special interest groups and vulnerable populations, including women, children, the elderly, and persons with disabilities, must be protected from violence and harassment at all times. Articles 53, 54 and 57 provide for protection and preservation of the special interest groups. It was disheartening to see teargas lobbed into schools, an old lady beaten up by a police man, mothers with babies running of their houses after their residences were tear-gassed and a woman in a wheelchair being beaten up. The Commission is greatly concerned by reports of numerous violations against particularly children. It is unfortunate that children, despite their innocence, continue to face the brunt of the violence. Cases of arbitrary arrests and alleged torture against children have been reported with some children being held at the Industrial Area Remand Prison. This is unacceptable! Law enforcement agencies and the justice system must protect the children. No child should be arbitrarily arrested, detained with adults, or tortured. This must end.
8. The Commission is concerned about reports that there are several people who are nursing injuries at home, for fear of arrest should they seek medication. The right to emergency medical treatment is enshrined in Article 43(2), and we urge all medical personnel to accord medical treatment to the injured while observing the principles of confidentiality.

Call to Action and Recommendations:

In light of the current state of affairs in our country, the Kenya National Commission on Human Rights urgently calls on all parties involved in the ongoing demonstrations impasse and grandstanding to have structured engagement and uphold the rule of law and respect for human rights. The Commission further recommends the following actions:

1. Urgent investigations and prosecution of perpetrators of torture and other human rights violations must be prioritised to ensure accountability and justice for the victims and their families.
2. Authorities must expedite the resolution of Court cases related and ensure access to justice for all citizens who have been arrested and detained;
3. Security agents must conduct arrests and dispersal operations in a lawful and respectful manner, adhering to Constitutional principles, established procedures and respecting the rights and dignity of individuals and their private spaces;