October 17, 2011

Recommendations

To the President of Kenya

  • Establish a commission of inquiry into the killings, disappearances, and other human rights violations in Mt. Elgon in accordance with the Commissions of Inquiry Act of 2009. Direct the commission to avail itself of evidence collected by the Truth, Justice and Reconciliation Commission and the Kenya National Commission on Human Rights; to pay particular attention to the conduct of the police and armed forces at Mt. Elgon; and to ensure that witnesses are able to give testimony either publicly or confidentially.
  • Direct the commission of inquiry to review all the cases of those disappeared and provide all known information, including on deaths, to the families.

To the Attorney General’s Office and the Director of Public Prosecutions

  • Order a team of magistrates to conduct inquests into the possible deaths of all persons alleged to have disappeared in Mt. Elgon between 2006 and 2008, as per articles 385-388 of the Criminal Procedure Code. If necessary, temporarily relocate magistrates from other parts of Kenya to courts in the Mt. Elgon region in order to have the human resources to conduct inquests into all cases without further delay. In furtherance of the inquest proceedings, order the exhumations of mass graves in order to identify those buried in those graves, with the assistance of international forensics experts. 
  • Ensure the criminal investigation and prosecution—before a special mechanism to prosecute post-election violence, if appropriate—of those responsible for forced disappearances.
  • In the case of any person presumed to be dead at the conclusion of an inquest, ensure that family members are issued an appropriate certificate of death in accordance with the Births and Deaths Registration Act.

To the Truth, Justice and Reconciliation Commission

  • Pursuant to TJRC hearings in Mt. Elgon, recommend that the government ensure the thorough investigation of enforced disappearances and other human rights abuses committed in Mt. Elgon.
  • Recommend criminal investigations of alleged perpetrators of human rights abuses in Mt. Elgon, including military officials and SLDF leaders, and politicians against whom evidence of criminal acts has been presented in TJRC hearings.
  • Order reparations for victims of enforced disappearance, torture, and other human rights abuses in Mt. Elgon.
  • Use upcoming TJRC thematic hearings on human rights violations by the security forces as an opportunity to further elucidate crimes committed in Mt. Elgon.

To the Kenyan Parliament

  • Ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
  • Ensure that enforced disappearance is a crime under Kenyan law.
  • Establish a special mechanism within the Kenyan judicial system to prosecute serious crimes linked to the 2007-2008 post-election violence, including crimes carried out in the Mt. Elgon region.
  • In conjunction with the Ministry of Finance, ensure that the Witness Protection Agency is fully funded, as required by the Witness Protection Act of 2006 and the Witness Protection (Amendment) Act of 2010.

To the Witness Protection Agency

  • Offer protection to witnesses from Mt. Elgon who wish to report abuses but who may be at risk.

To the Kenyan Security Forces, Including All Police and Military Units

• Cooperate fully with any investigations, by Kenyan or international bodies, into human rights abuses in Mt. Elgon, including by turning over documentary evidence and ensuring that police and military personnel are made available for questioning.

To the Government of Kenya

  • Invite the African Commission on Human and Peoples’ Rights to send a fact-finding mission to Kenya to investigate whether abuses in Mt. Elgon violate the African Charter on Human and People’s Rights.
  • Invite the United Nations Working Group on Enforced or Involuntary Disappearances to visit Kenya in order to investigate alleged disappearances and to evaluate the government response in addressing these allegations.
  • Provide compensation to families whose members were disappeared by the state.
  • Establish a mechanism to provide compensation to families whose members were disappeared by the state and to victims of rights violations committed by state agents.

To the African Commission on Human and Peoples’ Rights

  • Establish an independent mechanism to investigate the human rights violations alleged in the submission made by the Kenyan Section of the International Commission of Jurists (ICJ-Kenya).
  • Direct the Government of Kenya to investigate and prosecute all perpetrators of enforced disappearances and unresolved abductions in Mt. Elgon between 2006 and 2008.

To the United Nations Working Group on Enforced or Involuntary Disappearances

  • Transmit to the Government of Kenya a list of cases of enforced disappearances, as requested by nongovernmental organizations (NGOs) submitting complaints on behalf of the victims.
  • Request an invitation to visit Kenya in order to investigate alleged disappearances and to evaluate the government response in addressing these allegations.

To the Office of the Prosecutor of the International Criminal Court

  • Analyze whether crimes falling within the ICC’s jurisdiction were committed in Mt. Elgon and consider opening additional investigations in the Kenya situation currently before the ICC to bring to account persons most responsible for these crimes. The Office of the Prosecutor should consider in its analysis crimes committed by both the Sabaot Land Defence Force and Kenyan security forces.