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The Role of Kenya’s Foreign Partners

Kenya’s foreign partners have a responsibility to take an active interest in the abuses being perpetrated in Mt. Elgon, not only as part of their responsibility to raise human rights issues in bilateral relations but also on the basis of the international community’s ‘responsibility to protect’. This was the rubric under which the panel of eminent African personalities led by Kofi Annan at the request of the UN, assisted in the mediation of the disputed elections and the formation of a coalition government.

That responsibility remains. The government appears to have been actively pursuing a strategy that violates domestic and international human rights standards in Mt. Elgon. Further, the denial of torture and the refusal to independently investigate is a dereliction of a government’s responsibility. At the very least, serious allegations made by Kenya’s own constitutionally independent, government-funded human rights organ, the National Commission on Human Rights, should be independently investigated and not simply dismissed out of hand.

Foreign governments and international agencies have a considerable role to play in pressuring the Kenyan government to stop torturing innocent civilians, stop indiscriminate arrests and detentions, allow detainees access to medical attention and legal representation, and investigate the security forces. They also have a role to play in assisting the displaced communities and the victims of SLDF attacks and government security force abuses.

Medécins Sans Frontières issued urgent appeals for more humanitarian assistance for the population of Mt. Elgon caught in the conflict several times in 2007 and 2008.¹⁶⁷ But as of July 2008, the only other organizations assisting the population affected by the conflict in Mt. Elgon district were the Kenya Red Cross and the International Committee of the Red Cross.  UN agencies and international humanitarian organisations should consider the needs of the population and consider providing assistance to the affected population.

Foreign governments should be aware that a central cause of the problem in Mt. Elgon is the historic and ongoing violations of land rights which have occurred in that area. Those governments who are supporting Kenya’s reconciliation process need to ensure that a comprehensive solution to Kenya’s land problems remains high on the agenda, and is resolved relatively quickly. Any solution should be well-funded, include determination of land ownership, demarcation of land and restitution, or compensation for those who have unfairly lost their land in the past.

Several foreign governments provide assistance and training to the Kenyan police and military, most notably the United Kingdom and the United States. The United States congressional budget request for financial year 2009 for Kenya was US$7.4 million for peace and security operations and $5 million for counter-terrorism activities.¹⁶⁸ In the written justification for the money, it states:

Recent changes in legislation allow for the resumption of military education and training programs with Kenya, which presents new opportunities for progress in the dialogue between the United States and the Government of Kenya (GOK). U.S. foreign assistance, through the Department of State, will focus on providing targeted training to increase the professionalism of the Kenyan military and police.¹⁶⁹

The UK also provides military assistance to Kenyan forces including training in country and in the UK. This assistance is part of a package of support to regional military capability under the African Union mandated East African Standby Brigade, headquartered in Nairobi. Assistance currently stands at around GBP4 million annually ($8 million).¹⁷⁰

The UK did make public statements urging investigations into the allegations of torture, however it did not suspend military co-operation pending an investigation. Rather, the UK government has adopted a ‘wait and see’ approach, preferring to wait until the outcome of the Kenyan internal investigation. This is a marked contrast from the earlier suspension of a training program for units of the Administration Police due to “suspicions over the conduct of certain members of the AP,”¹⁷¹ during the post-election violence in the country.

UK officials acknowledge that the British army has a “heavy reliance on Kenyan training facilities.”¹⁷² UK infantry conducts tropical training in Kenya. Pressing the Kenyan army too hard or suspending co-operation might risk jeopardizing Kenya’s hospitality for British troops: a complicating factor in UK-Kenya military relations. If proven, allegations of torture would jeopardize all UK military co-operation in Eastern and Central Africa since Kenya is the hub for regional training programmes, and the main focus of military assistance.

US and UK officials told Human Rights Watch that they had been actively pushing the Kenyan military and police to investigate, and that their preference is for an independent and transparent investigation.¹⁷³

Unfortunately, the limited investigation currently underway is unlikely to get to the bottom of the allegations. If the Kenyan authorities fail to properly understand what happened and do not bring those in the army and police and those in positions of command responsibility to account, questions will remain which will tarnish the reputation of all forces, placing Kenya’s foreign partners in a dilemma.

Based on the evidence emerging from Mt, Elgon, serious questions must be asked of the police and military units and officers serving in Operation Okoa Maisha. This report and others point to strong evidence of the Kenyan army’s leading role in operations against the SLDF, in the command structure of the operation, in the transfer of suspects to military camps, in acts of torture at those camps (based on the clear testimony of witnesses), and in the use of helicopters to dump bodies. Contrary to government claims, the Kenyan military has played much more than a “supporting role” to the police in this operation.  Therefore both the military and police together must be held accountable.

If there is no genuinely open and independent inquiry the reputation of all Kenyan security force units that have been active in the region will be tarnished. The prominent role of 20 Para of the Kenyan army in operations in Mt. Elgon is potentially especially embarrassing for the UK government. 20 Para has received training from the British army, including training in counter-terrorism operations (ostensibly for deployment along the Somali border). Moreover, both countries have training programs with the police and around two-thirds of all Kenyan military officers are trained in UK or US institutions.¹⁷⁴

Given the Kenyan government’s lack of transparency about the abuses in Mount Elgon, the UK and US governments cannot say with certainty that US or UK-trained units were not involved in torture. Without absolute clarity on this issue, the UK and US governments cannot afford to give the Kenyan authorities the benefit of any doubt. It must suspend police and military assistance to the Kenyan security forces until there is an open, independent inquiry and those responsible for abuses in Mt. Elgon—on the ground and in the chain of command—are exposed and held accountable. Failure to do so leaves London and Washington open to the allegation of training those who practice torture. 

The Kenya National Commission on Human Rights has written to the UN High Commissioner for Human Rights informing her of their concerns about torture in Mt. Elgon and calling for those responsible to be barred from UN operations. The High Commissioner replied that, “anyone suspected of or found to have been involved in torture or other serious human rights violations should be excluded from participation in UN Peace Keeping Operations.”¹⁷⁵

Of course, this is standard practice for UN peacekeeping operations. Kenya has a strong record of contributing to regional and international peacekeeping operations.  For that to continue unimpeded, the Kenyan authorities must demonstrate that they have understood the seriousness of the allegations, have transparently and independently investigated, and held those responsible to account.