Kenya - OMCT statement to the 41st CAT session

This report has been prepared by the Independent Medico-Legal Unit (IMLU) in conjunction with the International Commission of Jurists-Kenya (ICJ-Kenya) and the Organisation Mondiale Contre la Torture (OMCT). The report has benefitted from extensive support and consultations from many other non-governmental organizations, community-based organisations, and the Kenyan public.

Background

This report aims at bringing to the Committee the voice of the many Kenyans who live in poverty, and continue to fall victim to torture and other cruel inhuman and degrading treatment and punishment. It is the product of an empirical assessment on understanding torture in Kenya, between the years 2006 and 2007, authored by IMLU, along with group discussions and public forums hosted by the organisations mentioned above. The report describes the extensive violence deriving from deep poverty, inequality in resource distribution, and other socio-economic problems in Kenya.

Justification

In Kenya, torture typically occurs in four forms: firstly, torture against those critical of the political establishment. There has been a paradigm shift in this scenario, with dissenters being more identifiable along socio-economic rather than directly political lines. Secondly, torture against those held in confinement, thirdly torture against the poor and marginalized, and lastly, torture within the context of ethnic/land clashes. These dimensions are often intertwined, and there is therefore in practice often no clear demarcation between them.

As concerns the issue of access to justice, this right has been seriously compromised by the prohibitive costs of legal assistance, which therefore remains inaccessible, considering that more than half the Kenyan population lives below the poverty line. Upon arrest and arraignment in court, the majority of Kenyans are unable to raise the extremely high bail typically imposed by the courts. Subsequently those facing trial who are unable to pay bail, often end up being remanded in pre-trial detention. This has led to the overcrowding of penal institutions, and inevitably exposes detainees to inhuman and degrading conditions.

As for arbitrary arrests, the right to liberty and security of a person is de facto systematically challenged by police illegal actions and other abuses of power carried out, in particular, in overcrowded and poor urban neighbourhoods. Bribery on the part of police and other public officials has become commonplace in Kenya. Payment in exchange for liberty is a means of escaping torture and harassment during detention, or simply avoiding the higher costs of legal assistance. Those who cannot afford to pay bribes are at serious risk of ill-treatment. In Kenya, the economic one’s status defines how often one is likely to experience harrassment and abuse at the hands of the police. There has been a growing tendency to institutionally criminalize poverty in Kenya, and this is particularly notable as concerns informal sector workers and poor residents of informal settlements. These people are systematic victims of extortion of bribes, destruction of property, theft of goods and personal effects, arbitrary arrests and unlawful confinement in prison or police custody by the police and local authority inspectorate personnel, including Askari local authority guards. Due to the government’s lack of recognition of the informal sector, right of association is hampered and any protest against violation of rights is met with violence and brutality by the police. At the same time, those living in Kenya’s informal settlements face inhuman living conditions characterized by overcrowding and lack of basic services and are often victims of police brutality and other forms of arbitrary action.

Organised criminal groups have also emerged within informal settlements and elsewhere in Kenya due to inequitable distribution of resources, and failure by the state to provide sufficient security. The government’s response to these groups has involved the excessive use of force, torture, and extra-judicial killings by the police. A case in point is the police operation in the Mathare slums of Nairobi in June 2007 to stamp out members of the outlawed Mungiki sect. Unless this certainly worrying trend is immediately reversed, there is a well-founded fear that other vigilante groups in the country may be similarly targeted.

Historical injustices, marginalization and political manipulation are also among the factors that have contributed to inter-ethnic conflict and violence rooted in the issue of land. Land clashes have in turn worsened the already poor economic conditions of communities. The state’s use of the military to end such conflicts has itself only led to further violations of human rights. An example in this regard is the joint military and police operation in the Mt. Elgon District earlier this year, which culminated in massive torture and summary executions of large numbers of the local civilian population. We wish to now bring to the attention of the Committee a similar and currently on-going military operation in the Mandera District in the North-Eastern Province of Kenya.

In conclusion, we wish to emphasize the linkage between torture and socio-economic factors, and firmly believe that addressing these factors will greatly assist in the eradication of torture in Kenya. Accordingly, we now invite the Committee to make the following practical recommendations:

• Call upon the Kenyan government to recognize that torture and other forms of violence are indirectly but causally linked to poverty and violation of social and economic rights
  
• Further call upon the government to stop the systematic use of the military to resolve internal conflict in Kenya, and particularly to immediately halt military operations in Mandera where, as in Mt. Elgon District, many civilians have been subjected to various forms of human rights violations, including torture.
  
• Urge the government to establish the Office of Public Defender to provide legal aid to victims of torture and other human rights abuses who are unable to raise legal fees.
  
• Call upon the government to address torture and violence deriving from land conflict and immediately finilise and implement the draft National Land Policy.