STATE OF HUMAN RIGHTS IN KENYA: JULY 2023-NOVEMBER 2024

Fellow Kenyans,

I stand before you today pursuant to the mandate bestowed upon the Kenya National Commission on Human Rights (KNCHR), by  the  Constitution  of Kenya, to promote and protect human rights and fundamental freedoms of all in our beloved nation. As an ‘A’ status National Human Rights Institution, I take great pride in the role the Commission has played nationally, regionally, and internationally to infuse human rights principles and standards in laws, policies, and practice.

To this end, the Commission has always endeavored to make an annual State of Human Rights address that reflects and appreciates the gains, marks the progress, points to the challenges, and calls out on areas that various actors need to action to ensure the enjoyment of human rights of all in Kenya. This statement is a summary of the KNCHR State of Human Rights Report 2023/24 that covers a period of eighteen (18) months: July 2023 – November 2024.

As we issue this statement,  it  is  important  to  reiterate  that  Human  Rights accrue to all by virtue of being human.  Human  rights  are  not  a  favour  but rather an entitlement and  can  only  be  limited  in  accordance  with  Article  24 of the Constitution of Kenya. The State as  the  Duty  Bearer  has  the responsibility to respect, fulfil and uphold all human rights and fundamental freedoms. Similarly, the People as the  Rights  Holders  have  the  obligation  to enjoy their human rights responsibly.

Fellows Kenyans, Distinguished Ladies and Gentlemen,  I  will  now  address you on the current status of the respective human rights and  fundamental freedoms as provided for in Chapter Four of the Constitution of Kenya which contains our progressive Bill of Rights.

The enjoyment of the Right to life is sacrosanct regardless of circumstances. During the year under review, violations of this right were witnessed during the Anti-Finance Bill demonstrations, which took place between June and  July 2024. During this period, the Commission documented sixty (60) deaths that were perpetuated during the demonstrations.

The Commission also notes the unprecedented surge in femicide cases, with ninety-seven (97) cases having been reported  in  the  last  three  months, according to the National Police Service. What is more troubling is the brutality in which these femicides are carried out. A case in point was the  discovery  of about ten (10) decomposing bodies,  all  women,  from  Kware  dumpsite  in Mukuru area of Nairobi.

Further, in the period under review, the Commission documented the recovery of four hundred and forty-eight (448) bodies in Shakahola Forest.

The Commission commends the Inspector-General of Police for acknowledging that deaths did  indeed  occur  during  the  demonstrations and calls upon  him  to  expedite  investigations  on  these  cases  and  bring the perpetrators to book. We call  upon  IPOA  to  investigate  and recommend charges against any  officers  implicated  in  extra-judicial killings. We further call on the government should adopt the Minnesota Protocol on the Investigation of Potentially Unlawful Death.

We appreciate the progressiveness of our Judiciary which in the period under review  declared  the  mandatory  life  imprisonment unconstitutional. Additionally, we appreciate the efforts by His Excellency the President of Kenya, William Ruto, for his  commutation of  all  death  sentences  issued  up  to November 2022 to life imprisonment. This is indeed a progressive step and an indication of the country’s commitment to safeguarding the right to life.

RIGHT TO FREEDOM AND SECURITY OF THE PERSON

Fellow Kenyans,

The rising cases of abductions and  enforced  disappearances  are an affront to the human rights tenets that our country  ascribes  to.  We  continue  to  witness and record the cruel, degrading, and inhumane treatment  of  persons  taken against their will. The daring happenings recorded on videos and photographs, some even displaying civilian and security agent  number  plates,  are  rapidly taking the country back to the dark days of our history.

The Commission has documented one thousand, three hundred and seventy- six (1,376) arbitrary arrests as well as six hundred and ten (610) cases of injuries from June 18th to November 2024. These injuries were sustained in the course of the demonstrations and ranged from deep fractures, bullet wounds, soft tissue injuries, and inhalation of tear gas. Most of the injuries were inflicted by the security officers against the protestors. The Commission documented twenty (25) injuries inflicted on security officers by the protestors. We further recorded Seventy-four (74) cases of enforced disappearances in the period between June and November 2024, out of which, twenty-six (26) people are still missing.

We call for an immediate halt to the unlawful arrests, abductions, and enforced disappearances, as well as the fast-tracking of investigations and prosecutions of all those found culpable. We further call on the criminalization of enforced disappearances and the ratification of the International Convention for the Protection of all Persons from Enforced Disappearances.

The continuous insecurity and human suffering in the North Rift and North Eastern regions remain a concern for the Commission with persistent loss of lives, livelihoods, and displacements. We call for legislative support to address banditry through the enactment of the Prevention of Livestock and Produce Theft bill (Senate Bill No. 12 of 2023).

RIGHT TO PRIVACY

Ladies and Gentlemen,

Article 31 of the Constitution guarantees every person the right to privacy. In the wake of the anti-finance Bill demonstrations, personal information such as names, contacts, and locations of people including details of family members were displayed without the consent of those involved. The Office of the Data Commissioner however addressed the matter reminding all citizens of their duty to respect and uphold the right to privacy.

The thwarted attempt to give access to the Kenya Revenue Authority on people’s data through the Finance Bill, for tax assessment, disclosure or enforcement, gives impetus to the Government to be at the forefront of safeguarding the right to privacy.

In this regard, the Commission reiterates that all persons, State and non- state actors have an obligation duty to protect the right to privacy provided under Article 31 of the Constitution, Data Protection Act, cap 411C and attendant regulations.

FREEDOM OF ASSOCIATION

Fellow Kenyans,

The right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind, is protected under

FREEDOM OF CONSCIENCE, RELIGION, BELIEF AND OPINION

Ladies and Gentlemen,

The Shakahola Tragedy caught the country by surprise, with hundreds of citizens having lost their lives in the ‘guise’ of religion. Whereas the Constitution under Article 32 guarantees every person the freedom of conscience, religion, thought, belief, and opinion, this right is not absolute and may be limited on the grounds of public safety, order, health, or morals or the fundamental rights and freedoms of others.

The KNCHR undertook intensive investigative efforts into the massacre and our findings were recorded in the Mashaka ya Shakahola  report. We documented four hundred and forty-eight (448) deaths with recorded statements indicating that over six hundred (600) people were still missing. During the year, exhumations continued even  as  suspects  of  the  massacre  went  through  the legal process in court. The Commission further notes that only less than 10% of the bodies have been identified and handed over to the families for interment with dignity as per their cultural and religious beliefs.

FREEDOM OF EXPRESSION AND THE MEDIA

Fellow Kenyans,

The media remains a key pillar of any democratic country, often  acting  as  a system of checks and balances through the relay of news and information. The Media Council of Kenya (MCK) reported over twenty-four (24) cases where journalists were injured during the anti-finance protests. Several cases of harassment of journalists by citizens, politicians, and  the  police  while  in  their line of duty were also reported. We must as a country put all effort into safeguarding the media space lest we become a banana republic.

The technological shift has also posed a great challenge since it gives the citizenry more access to information through the growth of social media. However, if ungoverned, the space can be a source of misinformation or disinformation, and thus more efforts must go into regulating, monitoring, and accountability.

The Commission therefore calls for speedy investigations and arraignment of persons found culpable of perpetuating violations of the freedom of expression and the media. We further call on the Communications Authority of Kenya to resist any attempt to censor the press and undertake its mandate in strict fidelity to the Constitution and law to guarantee the freedom of expression and media.

Ladies and Gentlemen,

Article 37 of the Constitution of Kenya guarantees every person the right to peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities. During the year under review, the country witnessed two major seasons of demonstrations: the opposition protests of July 2023 and the anti-finance Bill protests of 2024. It is worth noting that in both instances, the protests would begin peacefully only to be brutally engaged by law enforcement officers as well as infiltration of violent acts by a section of members of the public.

The Commission continues to underscore that the right under Article 37 constitutes a  critical  tenet  of  an  open  and  democratic  society,  and  calls on the Government to live up to  its  obligation  to  facilitate  and  protect every person’s right to assemble,  demonstrate,  picket,  and  present petitions to public authorities. The Public  Order  Management  Act  should not be applied in a vacuum or selectively but rather respect and adhere to human rights principles and standards.

PROTECTION OF THE RIGHT TO PROPERTY

Fellow Kenyans,

The Commission documented the blatant destruction of various properties during the anti-finance bill demonstrations by members of the public. The Commission condemns these acts reminding all citizens that rights have responsibilities and as such anyone found culpable should be brought to book. During the same period, the Commission witnessed the eviction of the Ogiek and other Indigenous Communities from their land without due process and without measures to mitigate suffering among affected persons, especially through the loss of property.

THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH

Distinguished Ladies and Gentlemen,

The Kenya National Commission on Human Rights (KNCHR) acknowledges the transition from the National Health Insurance Fund (NHIF) to the Social Health Insurance Fund (SHIF) as a landmark policy shift aimed at realizing Universal Health Coverage (UHC) in Kenya.

Despite its noble intentions, this transition that commenced on October 1st 2024, has been marred with significant challenges threatening the constitutional right to health for millions of persons. Vulnerable groups, including those with chronic illnesses, the indigent, and marginalized communities, are the hardest hit, with disruptions in access to life-saving treatments such as dialysis, cancer therapies, and maternal healthcare.

KNCHR urges the government, healthcare providers, and stakeholders to act swiftly and decisively to address the challenges highlighted in a way that prioritizes equity, inclusivity, and efficiency to ensure that no one is left behind in the pursuit of healthcare for all.

While noting the government’s efforts both at the national and  county governments towards the attainment of Universal Health Coverage, the country still has a long way to go to meet the continental 15% coverage in line with the Abuja Declaration of 2001. With a percentage expenditure of 4.5% by national government and 22.1% by County  government,  KNCHR  remains  concerned about the elimination of out of pocket expenditure by patients.

Cases of under-serviced hospital equipment  and  other  equipment  lying  unused in the Counties continue to cripple the enjoyment of the right to health. Mental Health is becoming a  national  concern,  especially  in  the  ensuing  tough economic times. The Commission welcomes  the  launch  of  the  National Guidelines on Workplace Mental Health Wellness to provide for screening and recovery processes for affected persons.

The period under review was also  not  without  the  disruption  of  services through medical practitioner’s strikes over collective bargaining  agreements. These strikes not only impact on the lives of patients but also on their families many of whom may not be able to afford private hospitals medical care.

The Commission, therefore, calls on the Ministry of Health in conjunction with county governments to engage in public participation and awareness as well as inclusion in the transition exercise from NHIF to SHIF and urgently address the challenges faced by members of the public, including prioritizing the vulnerable groups to ensure no one is denied medical services. We further emphasize that the governments at both levels should fast-track interventions aimed at eliminating direct out of pocket payment at point of use for essential services in line with the  Kenya Health Financing Strategy 2020-2030. In addition, the Commission calls upon the Government of Kenya to inaugurate the Mental Health Board that was gazette on 19 June 2022 but to this day has never been inaugurated.

Climate change continues  to  impact  the  quality  and  quantity  of  food  available to the citizenry. During the  season  under  review,  the  country  experienced erratic weather conditions of heavy rains and flooding that impacted on the performance of crops hence affecting the ability of the agricultural sector to adequately cushion the country against soaring food prices.

The Commission continues to observe that the safety of Genetically Modified Organisms (GMOs) remains contested. There are still unanswered questions raised with respect to the impact on seed  and  State  sovereignty.  The Commission therefore sustains its calls to the Cabinet Secretary of Health to make public the 2014 GMO Taskforce report in accordance with the principles of access to information and transparency. This would aid meaningful and effective public participation in the GMO discourse.

It is unfortunate to also have encountered human-engineered shortage through the provision of ‘fake’ fertilizer which saw many farmers loose produce that could have contributed to the stocking of the national bank. While action may seem to have been taken on culprits, the government needs to strengthen vigilance and put in place systems of checks and accountability to  curb  a repeat. The loss of crop to farmers also greatly affected their lives through loss of earnings which can impact on the provisions of rights such as healthcare, education among others.

RIGHT TO EDUCATION

Ladies and Gentlemen,

Education plays a key and pivotal role in the development of  any  nation.  Its quality will, if not always, reflect itself, especially  in  the  labor  market.  This quality must be harnessed at the beginning of every learner’s step. Despite the Presidential Working Party on Education Reforms giving recommendations on the implementation of the Competency-Based Curriculum (CBC), a lot of uncertainty still looms for grade 9 students come January 2026.

The safety of pupils and students must also be prioritized to prevent cases of deaths and injuries in schools that were reported in 2023 and 2024 either through sickness, teargassing during demonstrations, fires, or attacks in bandit-prone areas.

As the country moves towards strengthening the quality of our labor market through post-secondary and graduate programs, we must be keen to leave no one behind. The Commission thus takes note of the New Higher Education Funding Model which is facing challenges, particularly on adequate facilitation of students from disadvantaged backgrounds. We call on the Government to look into modalities of strengthening the already existing Higher Education Loans Board before re-introducing another entity.

In addition, the Commission notes with concern the challenges facing  our public universities that are inadequately funded and barely functional, as well as the ongoing lecturers’ strike. The Commission calls upon the government to negotiate with the Universities Academic Staff Union (UASU) so that studies may resume. There is also a need to urgently look into the crisis in our public universities and recommend holistic solutions to address the perennial challenges.

RIGHTS OF SPECIAL INTEREST AND VULNERABLE GROUPS

Fellow Kenyans,

The Constitution calls  for  affirmative  action  on  women,  children,  persons with disabilities and marginalized communities. We  note  that  during  the period under review, the  Judiciary  launched  the  Child  Justice  Strategy  which will work towards diversion of children in conflict with the  law  from  formal justice systems to  rehabilitation  centers for ease of re-integration into  society following their rehabilitation. However, even when not in conflict with the law like during demonstrations, children have suffered especially from teargas fumes as security agents storm school compounds with teargas.

We laud our legislators for their deliberate efforts to safeguard the rights and dignity of persons with disability with amendments to  the  Penal  Code  Section 146 which carried derogatory terms such as idiots and imbeciles. Additionally, the Senate passed  the  Learners  with  Disabilities  Bill,  2023,  the  Persons with Disabilities Bill 2023 and Kenya Sign Language Bill 2023.  The Commission lauds these legislative efforts and call for an expedited process by the National Assembly.

As a country, however, we fall behind in meeting the mandated 5% reservation of employment  for  persons  with  disability.  As  we  laud counties such as  Uasin  Gishu  that  has  given  opportunities  for  Persons with Hearing disability, more needs to be done to ensure inclusion.

The Commission hopes that the passage of the Public Service (Values and Principles) (Amendment) Bill, 2022 by Parliament seeking to obligate public institutions to prepare a report on the status of the  values  and  principles  of public service that outlines details of human resource personnel’s gender, age, ethnicity and whether  they  are  persons  with  disabilities  will  support compliance efforts towards effective realization of the employment quota for persons with disabilities.

The Commission therefore  calls  on  Parliament  to  expedite  and  conclude on the enactment of the disability-related laws in a participatory process. The Commission also calls for an audit of the elder person and disability fund registration process. In addition, the County Governments should provide mental health care, treatment, and  rehabilitation  services  within the county health facilities and ensure that level 2, 3, 4 and 5 county health facilities set aside dedicated clinics to offer outpatient services for service users.

On women and girls rights, the right to health tops the agenda,  and  of importance is access to reproductive healthcare. There are still recorded cases of maternal mortality, and the Commission calls on the government to reconsider the reservations it has placed on the Maputo Protocol. As mentioned in the earlier part of this statement,  the  unprecedented  rise  of femicide is of extreme concern to the Commission, and we call for a  multi- agency approach in addressing this problem, including fastracking of investigations and prosecutions as well legislative  reforms  to  curb  and deter this heinous violation.

COMPLIANCE WITH INTERNATIONAL TREATIES AND OBLIGATIONS

Ladies and Gentlemen,

Finally, the enjoyment of human rights in Kenya is not only facilitated by national laws and policies but further by international treaties and protocols that the government signs on behalf of its citizens.  These act as a benchmark for best practices but also for accountability where local laws fall short. The Commission acknowledges Kenya’s compliance with its state reporting obligations under the various treaty body mechanisms as enumerated in the full report.

The 2010 International Convention for the Protection of  all  Persons  from Enforced Disappearance needs  ratification  now  more  than  ever.  The Commission further reiterates its call to the national government to lift the reservation made under Article 14 (2) (c) of the Protocol to  the  African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. This would augment and expand the access to comprehensive sexual and reproductive health services for girls and women in the country.