Torture reforms must tackle implementation gap and end impunity
Nairobi, 5 October 2013
At the conclusionof a visit to Kenya by a delegation of anti-torture experts, the WorldOrganisation Against Torture (OMCT) and its coalition of partner organisationsin Kenya call for the continuation of the reform path and effective steps toend impunity.
Scope of the mission:
Over the last weekthe delegation held meetings with state and civil society actors to assess theway forward in implementing the recommendations issued over the last years bythe main UN anti-torture bodies. We wish to express our appreciation for allthe state and civil society actors met, and note the openness of discussionswith the authorities, including the Attorney General, the Solicitor General,the Deputy Commissioner of Prisons, the Independent Police and OversightCommission and the Police Service Commission, representatives of the Judiciary,and the Kenyan National Human Rights Commission. The delegation was also ableto visit a penitentiary facility in Industrial District in Nairobi.
Torture and terrorism:
The mission tookplace only a few days after the terrorist attack on the Westgate Mall. To ourorganisations there is no doubt that such a terrorist act constitutes a crimeagainst humanity and violates the very values human rights law seeks toprotect. It is vital for victims and their families to receive support, to receiveadequate information about what happened to their loved ones, and that thoseresponsible for such crimes are brought to justice within the ordinary justiceprocess.
We appreciateassurances by the Attorney General that security threats such as terrorism mustbe addressed within and not as an abrogation of the rule of law. It isimportant to withstand any temptation to resort to measures outside the law,and we urge all actors involved to fully respect the absolute prohibition oftorture, cruel, inhuman and degrading treatment even in such time of crisis,and not to repeat some of the violations that occurred after the attacks inMombasa in 2002.
Dissemination of recommendations:
The UN CommitteeAgainst Torture and the UN Human Rights Committee have both - on the basis ofKenya's state report - made important recommendations for an effectiveprevention of torture. These recommendations should be disseminated widely sothat they trigger down to all relevant actors, and we believe that thought needto be given to consider conducting government and civil society consultationson their implementation, and the discussion of a joint action plan on its implementation.We also believe that the governments stated intention to invite the UN SpecialRapporteur on Torture should be followed soon by a visit of the SpecialRapporteur as an important follow-up measure.
Legislative and constitutional reforms:
Our experiences duringthe mission mirror the findings of the UN Committees on legal reforms. Kenyahas made over the last years important progress in building a strongconstitutional and legal framework against torture. Other importantrecommendations include the early adoption of the child rights and personsdeprived of liberty bills presently under consideration.
We believe thatthese important reforms need to be rounded up by the adoption of a preventionof torture law, which the UN Committee Against Torture identified as a priority.
This draft law elaboratedin consultation between state and civil society would fully ensure thedomestication of the UN Convention Against Torture. We are greatly encouragedin this regard by the Attorney General's commitment received during our meetingwith him to expedite the law to parliament before the end of the year as wellas the openness to hold a consultation on torture prevention and reparations.
Redressing lack of implementation:
The number one challengein the fight against torture remains in the view of all those that we met thelack or late implementation of the many of the good laws passed over the lastyears as well as the continuous impunity for torture, and other forms of cruel,inhuman or degrading treatment, that appears to persist despite the adoption ofthese various legal reforms.
The bodies andcommission set-up in recent years need to be fully resourced to life up totheir expectations. Serious concerns about the delays in their creation or effectivefunctioning, for example of a gender and children desk within police facilitiesand an FGM board under the FGM law, need now to be addressed. We are concernedabout the severe reductions in funding for the Kenyan National Human RightsCommission and the delays in the appointment of its commissioners which risksto frustrate one of the most effective national institutions in the region.
Police reforms:
We appreciate theimportant reform efforts of the police, including through the creation of anIndependent Police Oversight Authority (IPEA). Scope and mandate of this institutioncan become an important model and reference point in other jurisdictions.However, the delegation is concerned about apparent attempts to limit some ofits powers and that may alter and expand the rules on the use of firearms.Altering the IPEA mandate at the very moment when it is about to gaincredibility is a real threat to its future impact. It also runs counter theconclusions of the UN Committee Against Torture. Overall, we recall theimportance of the recommendations made by both UN bodies on moving forward inthe actual vetting process of the police. While recognizing the complexitiesinvolved, this process should proceed to secure the transition from a policeforce to a police service.
Judicial reforms:
The delegationnoted the wide consensus that the judiciary reforms have improved the humanrights performance of the judiciary. At the same time there remains a seriousdelay in the adjudication of cases leading to overcrowded prisons in remand.There is also concern that most torture cases do not make it to the court stageposing questions on actual effectiveness of investigations into torture. Theright of victims to reparation is vital. In this regard, we learned with concern,that rulings providing compensation for torture victims have in a number ofcases not been executed, undermining the judiciary and the rule of law.
Penitentiary reforms:
We are encouragedby the reforms in the prison system with an increased openness to the outsideworld. There remain problems of overcrowding - including in pre-trial detentionin some cases for up to 11 years - which is unacceptable and requires arethinking of punishment policies. We are particularly concerned about thedetention of children, including in remand detention, as children should only besubjected to pre-trial detention in the most exceptional circumstances. Anotherarea of reform concerns the treatment of prisoners facing the death penalty whoseprison regime has to be assimilated to ordinary prisoners, as the death penaltyis not executed in Kenya.
Overall, we appreciatedthe openness of the prison administration and urge the authorities to move forwardon the ratification of the Optional Protocol to the UN Convention AgainstTorture, which establishes a national prevention mechanism, implementing a corerecommendation of the UN Committee Against Torture.
Impunity and investigations:
The centralchallenge continues to be impunity for torture, cruel and inhuman or degradingtreatment, or extrajudicial killings often despite solid documentation. In thisregard we noted that most cases do not make its way to judicial determinationand there appears to be a serious gap in the functioning of investigations andprosecutions. Without breaking the cycle of impunity a culture change in lawenforcement will remain illusionary. Legal accountability must complement themany legal reforms undertaken.
Protection of victims, witnesses and human rights defenders:
We are particularlyconcerned about indications on the intimidation of victims who lodge complaintsor of their families, or of witnesses who may provide testimonies and humanrights defenders documenting violations, including in the context of theviolations in Mount Elgon.
The protection ofhuman rights defenders and the effective investigation and prosecution ofattacks on human rights defenders must be a first priority of any democraticstate.
Kenya's civilsociety has no doubt played a tremendously positive role in accompanying thereform process in the country. This contribution should be appropriatelyrecognized. Against this background it is disquieting to see that some questionthe patriotism of human rights organisations because of their internationalsupport as members of the universal and regional human rights movement. In thisregard we stress that the implementation of the new Public Benefits Act and anyconsideration of a Draft Charity Act need to fully respect the positive role ofprotecting the rights enshrined in the countries constitution, and protect the rightsenshrined in the UN Declaration on Human Rights Defenders.
Finally, weexpress our conviction that the continuation of the reform process andeffective steps to ensure accountability will allow the country to contributeto an eradication of torture in law and in practice. These efforts will requireour continuous and collective support.
Background:
The United Nations CommitteeAgainst Torture, the authoritative universal anti-torture body made multiplerecommendations to the authorities about ways to implement the United NationsConvention Against Torture. Earlier in 2012 the United Nations Committee onHuman Rights had also identified the fight against torture and for betterprison conditions as a priority concern.
The mission was composed of theOMCT Secretary General, Gerald Staberock, and OMCT Vice President and formersenior UN human rights official, José Dougan-Beaca, and conducted inpartnership with the Kenyan Section of the International Commission of Jurists(ICJ Kenya) The Independent Medico-Legal Unit (IMLU), The Coalition of ViolenceAgainst Women, (COVAW) Legal Resources Foundation (LRF-K) and The KenyaAlliance for the Advancement of Children (KAARC).
For further information,please contact:
OMCT - Seynabou Benga,sb@omct.org, +41(0) 22 809 49 39
ICJ Kenya – Anita Nyanjong,anyanjong@icj-kenya.org, +254-0720491549
Themission was part of a global program of the OMCT seeking the effectiveimplementation of the UN Convention Against Torture with the financial support ofthe European Commission and the Oak Foundation. The OMCT wishes to thank forthis financial support. The OMCT is solely responsible for the content of thisstatement.