Protect Free Speech, Carry Out Reforms
April 23, 2013
Kenya’s new leaders have promised to respect the rule of law and promote human rights. Turning those pledges into action will require addressing serious past and present abuses and supporting justice – both at home and in The Hague.
Daniel Bekele, Africa director

(Nairobi) – Kenya’s new administration should take urgent steps in four key areas to address longstanding human rights challenges, Human Rights Watch said in a report released today. The administration should ensure that abusive security forces are held to account, protect independent voices, accelerate key police and land reforms, and cooperate fully with the International Criminal Court (ICC).

“Kenya’s new leaders have promised to respect the rule of law and promote human rights,” said Daniel Bekele, Africa director. “Turning those pledges into action will require addressing serious past and present abuses and supporting justice – both at home and in The Hague.”

Kenya’s new president, Uhuru Kenyatta, and his deputy, William Ruto, both face trial on charges of crimes against humanity at the ICC for their alleged role in the country’s post-election violence in 2007 and 2008. The two were sworn into office on April 9, 2013, following a court decision upholding their narrow victory against legal challenges. Kenya, as an ICC member country, is obligated to cooperate with the ICC.

Accountability for human rights violations remains a major challenge for Kenya. While the scale of the 2007-2008 post-election violence was unprecedented, Kenya has had recurring episodes of election-related and other violence dating back decades. Repeated commissions of inquiry have identified those responsible, but they have rarely been held to account. The ICC opened its investigation in 2009 after the Kenyan government failed to establish local mechanisms to prosecute those responsible for the post-election violence.

The ICC’s investigations have resulted in pending charges against three people. But in the five years since the violence took place the vast majority of human rights violations documented by Kenya’s Commission of Inquiry into Post-Election Violence (CIPEV), known as the Waki commission, have not been addressed.

Human Rights Watch has been able to identify convictions in Kenyan courts of only seven cases – one vacated on appeal – involving serious crimes committed during the election violence. The result has been an almost complete lack of accountability for police officers and those alleged to have organized the violence. In 2012 the director of public prosecutions said that his office was reviewing at least 5,000 case files stemming from the 2007-2008 violence, but the office later said it was difficult to get enough evidence to proceed with the cases.

“Alongside full cooperation with the ICC, Kenya’s judicial system needs to address this backlog of cases,” Bekele said. “Authorities should set up special mechanisms to bring new investigations and prosecutions and close gaps in accountability.”

The new administration should also protect civil society and the media, and urgently investigate and prosecute those responsible for attacks on and harassment of human rights defenders, journalists, and other independent critics. In the last four months, unidentified people have threatened 19 journalists and have harassed or physically attacked several human rights defenders.

Some instances of harassment and threats appear to have been prompted by a perceived association with the ICC. For example, two journalists and four human rights defenders in Eldoret received death threats in late 2012 and 2013 that appeared to be linked to the court’s investigations. The ICC prosecutor, Fatou Bensouda, referring to pressure on ICC witnesses and their families, has called the scope of interference with witnesses in the Kenya cases “unprecedented.” She cited people’s fear of coming forward as one factor in the decision to drop the case against Kenyatta’s former co-accused and former secretary to the cabinet, Francis Muthaura.

“The new leadership needs to protect constitutional rights like freedoms of expression and assembly and combat the climate of fear,” Bekele said. “This means investigating and holding accountable those responsible for attacks on journalists, human rights defenders, or people presumed to be working on justice for crimes committed during the last elections.”

The government should also ensure that civil society can operate freely in Kenya. The passage of a new law in January requiring re-registration of all public organizations, followed by language in the now-ruling Jubilee Party’s manifesto calling for restrictions on civil society, have prompted fears that the government will adopt more repressive policies toward nongovernmental organizations.

Authorities should ensure that the new laws do not restrict critical human rights work. They should also lift the indefinite ban on public meetings imposed by police as the country awaited presidential election results.

The Kenyan leadership should also jump-start critical reforms. The previous government stalled on key reforms that were identified in the 2008 political agreement that ended the 2007 election violence and that have been embodied in the 2010 constitution.

While there has been progress on judicial reforms, police and land reforms have been very slow, or stalled altogether, delaying attempts to redress injustices by police and in land distribution. Vetting and reorganizing the police service remain urgent priorities, as is starting the work of the National Land Commission. The key ruling of the African Commission on Human and People’s Rights in The Endorois Community v Kenya case – which ordered the government to restore the Endorois people to their historic land and compensate them – has not been carried out.

“Kenya’s new leadership should demonstrate commitment to human rights by accelerating the stalled reforms and making good on promises made during their political campaigns,” Bekele said. “Turning a blind eye will only exacerbate grievances and undermine justice in the long run.”