December 10, 2016,
H.E. Uhuru Muigai Kenyatta,
Republic of Kenya,
The State House,
P.O. Box 40530 – 00100,
Re: Call for a Judicial Commission of Inquiry into human rights violations committed during security operations
We, the undersigned Kenyan and international human rights organizations urge you to promptly establish an independent judicial commission of inquiry to conduct a thorough, impartial and effective investigation into allegations of enforced disappearances, extra-judicial executions, torture and other ill-treatment of detainees by the Kenya Police Service, Kenya Defense Forces (KDF), Kenya Wildlife Service, (KWS) intelligence and law enforcement agencies mentioned in human rights and media reports. Since 2011. Some of the media reports include, Al Jazeera Investigates- “Inside Kenya's Death Squads”, Al Jazeera 2014, “Killing Kenya: People & Power”, Al Jazeera 2015.
Our request to you is made based on the Kenya Commissions of Inquiry Act of 1962, where the president has power to appoint a special commission to “inquire into the conduct of any public officer or the conduct or management of any public body, or into any matter into which an inquiry would, in the opinion of the President, be in the public interest.”
Since Kenya intervened in Somalia in 2011, several Kenyan and international organizations and media, have found that various security forces have allegedly perpetrated numerous human rights violations during counter-terrorism operations, some of which may amount to crimes under international law, in response to Al-Shabab attacks in Nairobi, in the northeast and at the coast. Allegedly, security agencies have also been implicated in extrajudicial executions of young people in rural areas and informal settlements in urban centers during routine policing.
To cite a few examples:
In July 2016, Human Rights Watch documented at least 34 people taken into custody by security forces during counterterrorism operations in northeastern Kenya between 2013 and 2015. We understand two of these people have now been located in state custody, with one now facing terrorism related charges. In addition, bodies of at least 11 people previously arrested by state agents have been found in the last two years, in some instances far from the location of their arrest. The whereabouts of the rest of those taken into custody between 2013 and 2015 remain unknown.
As far as Human Rights Watch is aware, police have not investigated these unexplained deaths or made any arrests of those allegedly responsible.
In 2013, Open Society Justice Initiative jointly with Muslims for Human Rights (MUHURI) produced a report, “We’re Tired of Taking You to the Court”, that implicated the Anti-Terrorism Police Unit (ATPU) in enforced disappearances and extrajudicial executions of those linked to Al-Shabab.
In 2015, Kenya National Commission on Human Rights (KNCHR) released a report, “The Error of Fighting Terror with Terror”, which found that multiple security units were involved in extrajudicial executions and enforced disappearances of those suspected of links to Al-Shabab. In 2014, an Al Jazeera documentary, Inside Kenya's Death Squads, detailed the existence of security units that extra judicially execute alleged to have links with Al-Shabaab.
These reports and media documentaries show that Kenyan security forces, especially specialized units and other security agencies, operate with impunity and with little regard for the rule of law and human rights. Kenya government officials and the police have responded by dismissing or denying the allegations.
We acknowledge that Kenya is implementing provisions of the 2010 Constitution that establishes accountability institutions such as the Independent Policing Oversight Authority (IPOA), a statutory body mandated to investigate allegations of human rights violations by the police. But the scope and nature of abuses in Nairobi, northeast and at the coast are such that the existing accountability institutions and framework cannot adequately respond.
For example, the wildlife police and units of the Kenyan military, which are not subject to adequate and effective oversight, are reportedly involved in committing human rights violations.
Those seeking information from KDF regarding the whereabouts of detainees believed to be held in military barracks, for instance, have no clear avenues for asking even basic questions compared to the police where there is a civilian oversight mechanism.
We believe that it is critical to establish a new mechanism, a commission of inquiry, specifically to investigate human rights violations allegedly committed during counterterrorism operations and other security operations and to ensure, that if sufficient admissible evidence exists, those responsible are held to account. The commission of inquiry should be comprised of individuals with proven expertise, knowledge and experience in the promotion and protection of human rights, including expertise in Kenyan and international human rights law. The commission should be granted unhindered access to relevant locations, including all places of detention, such as police stations, military barracks and other suspected un-official sites.
The commission should be mandated to summon commanders and officers from any agencies, including the police, military and the KWS and any government officers believed to have information relevant to ensuring accountability for the abuses. The mandate of the commission should make it clear that no one should be able to claim immunity, or for whatever other reason refuse to appear before the commission, if summoned.
Further, unless the interest of justice dictates otherwise and only to the extent it is necessary for the purpose of criminal prosecution, the Commission’s findings should be made public. Otherwise they should be handed over to a judicial authority to pursue possible prosecutions.
We would welcome the opportunity to meet with you to discuss this and other pressing human rights concerns in Kenya.
We would welcome the opportunity to meet with you to discuss this and other pressing human rights concerns in Kenya. Alternatively, your staff could contact Africa researcher at Human Rights Watch, Otsieno Namwaya, at firstname.lastname@example.org; Eastern Africa researcher at Amnesty International, Abdullahi Halakhe Boru at Abdullahi.Halakhe@amnesty.org or Executive Director at Kenya Human Rights Commission, George Kegoro, at GKegoro@khrc.or.ke.
Kenya Human Rights Commission
Muslims for Human Rights
Wajir Paralegals Network
Human Rights Watch
Independent Medico – Legal Unit
International Justice Mission