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The Response of the Kenyan Government

The fact that the government has finally taken the SLDF abuses seriously after several years of inaction is an important development. In April 2007, the crisis prompted the Parliamentary Committee on Administration and National Security to summon then-Internal Security Minister John Michuki to discuss the government’s response.¹⁵¹ Even then, the director of police operations told journalists that there was no such thing as the SLDF and that, “the fighting in Mt. Elgon was sparked by land disputes between two clans.”¹⁵²

The problem, however, is the serious human rights violations that have accompanied the clampdown. The main difference between the half-hearted security operations in 2007 and the 2008 joint police-military operation is one of scale. The actions of security forces in 2007 were heavy-handed but the 2008 operation much more so. Coupled with the military deployment, helicopters, and heavier firepower, there has been tighter control on access to the area for journalists, humanitarian workers, and human rights investigators. The military appears to be afraid of scrutiny, with good reason.

The operation has led to the arrest of some of the well-known leaders of the SLDF, and the disruption of their activities. However, even as evidence has piled up—human rights groups have interviewed hundreds of victims—the government persists in denying that anyone has been tortured as a result of the security operation. In response to the Kenyan National Commission on Human Rights’ May 2008 report of torture, the third major report on the subject, which followed Human Rights Watch’s April 4 press release, and IMLU’s investigation of the same month, the military spokesman Bogita Onyeri still claimed that the military had harmed no one in the course of the operation.¹⁵³ Even once an internal investigation was underway, the spokesman told Human Rights Watch that, “no torture has taken place.”¹⁵⁴ The repeated denials of torture by the security forces, especially in the face of tacit acknowledgement by senior government officials off the record, rings increasingly hollow. As a recent editorial in The Standard newspaper put it:

Operation Okoa Maisha, has all the hallmarks of other lawless State clampdowns of recent times….Following the ruthless crackdown on suspected Mungiki sect members in June last year, an operation that resulted in hundreds of unexplained illegal killings, Government claims of respect for law and human rights are not convincing.¹⁵⁵

Eventually, the authorities announced an internal investigation by the police into the allegations of torture on June 5, 2008¹⁵⁶ but without specifying the terms of reference, the nature or time frame of the investigation, or who would be conducting it. To meet its legal requirements in investigating torture, any investigation should be independent, transparent, and should involve participation from the Kenya National Commission of Human Rights since such crimes fall squarely within its mandate. An internal investigation conducted by the same security forces accused of crimes and reporting to senior commanders and government ministers who should in any case themselves be the subject of investigation will lack credibility.

There has been a debate for some time in Kenya about the need for a Police Oversight Board to impartially and independently investigate the conduct of the police where allegations of misconduct or criminality arise.  The need for independent oversight of the security forces, including the military is greater than ever.  Not least because it will help the forces themselves to restore public confidence by demonstrating that they are transparently addressing public concerns.

Success?

The military argues that Operation Okoa Maisha has so far been a success. In a circular, the representative of the Chief of the General Staff cited the recovery of 51 AK47 rifles and three grenades as evidence of “a large number of lethal weapons recovered.”¹⁵⁷ Given that human rights organizations estimate the numbers of AK47s circulating on the mountain as in the tens of thousands, this indicator of success is clearly questionable.¹⁵⁸ A more noteworthy indicator might be the 758 suspects arraigned in court on charges of “promoting war-like activities.”¹⁵⁹ However, the true test of the success of the operation will be whether or not it succeeds in ending the SLDF’s abuses and whether the state can secure convictions against those individuals who are responsible for the violence and for funding, organizing, and otherwise supporting the SLDF’s activities. According to human rights organizations, many of those 758 suspects initially detained have since been released on bail.¹⁶⁰

The widespread use of torture not only has serious moral and legal implications for the Kenyan security forces, and for public trust in the state, it will also likely undermine their effort to secure prosecutions. The use of confessions or testimony elicited after torture is not only legally inadmissible where used against a defendant, such information is also generally considered to be of extremely poor quality given that individuals will often provide false information simply to end the abuse.

Humanitarian Access to Detainees

Since the operation started in March 2008, access for medical staff to the prison and military camps being used as ad hoc detention centers has been erratic. Initially there was no access except for occasional visits by nurses from the Kenyan Red Cross. Nearly one month later, in late April 2008, IMLU were allowed in and arranged some belated consultations. The issue of medical access is urgent given that prisoners have been seriously tortured—five have died in custody so far—and Bungoma prison has been overcrowded at four times its capacity.¹⁶¹ The visiting justice officer was told by the prison director that they had allowed the Kenya Red Cross to come and treat some of the wounded.¹⁶² However, the Kenya Red Cross team did not include a doctor.

At present, although the Kenyan Red Cross has had some access to detention centers, the International Committee of the Red Cross has not. As such, there is no international, independent monitoring of the treatment and conditions of those detained in the course of the military operation. The Kenya National Commission on Human Rights has the mandate to visit and inspect all detention facilities. However, Kapkota and the other military camps in Mt. Elgon district are not gazetted as detention centers, and thus the KNCHR does not have the right to visit, being denied the opportunity when they requested it in the course of their research in April 2008. In its report the Commission called for an end to detention at un-gazetted locations because it was an impediment to the mandate of the KNCHR to protect the rights of Kenyans and thus, by implication, a further violation of human rights under Kenyan law.¹⁶³

The Kenyan authorities should allow medical personnel immediate access to detainees in prisons and military bases where hundreds of people have been tortured, some of whom still require urgent medical attention.

Harassment of Human Rights Defenders

The security forces have targeted human rights defenders who attempt to expose what is happening in the security operation. Two leading human rights activists working with Human Rights Watch were sought by the military following their efforts to expose human rights violations by the military in Mt. Elgon. They have since filed complaints with the office of the UN High Commissioner for Human Rights.

Taiga Wanyanja of Mwatikho Torture Survivors Organization went into hiding after the publication of the April 4 joint statement with Human Rights Watch. Military officers went to his parents’ home demanding to know where he was. Others went to his office on several occasions and asked the secretary to reveal his whereabouts. She did not know.¹⁶⁴ Military officers also pursued Job Bwonya of WKHRW who was co-signatory to the press release of April 4. They visited two WKHRW monitors, one in Lwandanyi and the other in Sirisia demanding to know his whereabouts. Other security personnel then visited the offices of WKHRW in Bungoma repeatedly looking for him. The staff eventually abandoned the office.  Taiga Wanyanja and Job Bwonya left the country for a short time.¹⁶⁵

Rather than denials and harassment of those investigating the abuses, the first step to correcting the problem and cleaning up the operation in Mt. Elgon is to admit that major crimes have been committed on a widespread scale. Instead of threatening the human rights activists calling on the authorities to fulfil their legal responsibilities and trying to support victims, the government should engage with them to better understand what steps are needed to restore confidence to a traumatized and vulnerable population. In a welcome move in June, the internal police investigation had requested statements and assistance from both Taiga Wanyanja and Job Bwonya.¹⁶⁶