Urgent appeal to the Government of Kenya concerning Disrespect for economic, social and cultural rights and the post-election violence.

Ambassador Amina Chawahir Mohamed Hossain Permanent SecretaryMinistry of Justice, National Cohesion& Constitutional AffairsNairobi-Kenya Dear Madam, REF: DISRESPECT FORECONOMIC, SOCIAL AND CULTURAL RIGHTS LEADS TO TORTURE AND OTHER FORMS OF VIOLENCE IN KENYA We, the Centre for Minority Rights Development, the World OrganisationAgainst Torture and theundersigned Human Rights non-governmental organizations fighting tortureand other cruel and inhuman or degrading treatment or punishment,[1]in light of the forthcoming examination of the national reports of Kenya at the41st Sessions of the UN Committee Against Torture and the UNCommittee on Economic, Social and Cultural Rights, wish to emphasise the stronglink between disrespect for economic, social and cultural rights and theincidence of torture and other forms of violence in Kenya[2].Specifically, we wish to underline that Kenya’s poor, excluded and othervulnerable groups are often the first and most numerous victims of violence,including torture and cruel, inhuman or degrading treatment, and that violenceis often inflicted on persons for the simple fact that they demand respect foreconomic, social or cultural rights – their own or those of others. It is alsooften the case that socio-economic hardship and the iniquitous allocation ofresources in Kenya contributes to inter-community competition and that this, inturn, leads all too often to inter-community violence. The extreme violence that followed Kenya’selections in December 2007 was in large part an expression of grievancesrelated to social and economic dissatisfaction among the Kenyan population anddeep concern at the unfair distribution of resources, including land. Indeed,current data ranks Kenya as the 5th most unequal country out of 53African states, and the 10th most unequal country in the world. Theroots of the post-election violence are not, therefore, to be found in "ancient tribal rivalries,"but rather in government policies that have not only failed to bridge the gapbetween Kenya’s richest and poorest citizens, but have, in practice, furtherenriched the few at the expense of the majority. These same policies haveincreased the exclusion of certain marginalised communities, who have noopportunity to voice their opposition to policies and programmes thatcompromise their wellbeing and the enjoyment of their human rights. Thisexclusion, and the violence that frequently accompanies it, impedes manyKenyan’s, especially women and children, from reaching their full potential. A clear example of the failure to adequately address poverty andinequality is represented by the situation of pastoralist communities in theNorthern frontier districts of Kenya. These communities have been marginalized by successivegovernments and continue to suffer as a result of inadequate infrastructure,including limited or even inexistent education and health facilities. Thedistricts of Garissa, Wajir, Moyale, Mandera, Marsabit, Turkana, Isiolo andothers have been left out of the development process, a fact that has beenrecognised by the Government on several occasions. This situation has severelyaffected the economies of these districts, compromised living standards andgenerated competition over scarce resources. As a consequence, there has beenan escalation of cattle raids, tribal, inter-community, and resource-basedconflicts and other forms of violence in the region. The lack of a systematicpolicy and structure to handle community conflicts in marginalized, semi aridand arid parts of the country has meant that human rights have often beenabused, either because of the State’s failure to comply with its positiveobligation to protect its citizens, or because the Government has used – withimpunity - unnecessary force against the populations involved, particularly incases of disarmament of pastoralist communities. The use of brutalforce by the state apparatus has not only been evident in rural districts suchas Mt. Elgon, but also in urban areas, where it is often justified in terms ofcracking down on illegal vigilante groups, quelling disturbances by civilsociety, or even as operations against suspected criminal gangs who arethemselves often engaged in exploiting the poor. In turn,the impact of violence and the reality of living in constant insecurity can besuch that many individuals or communities are unable to enjoy fully theireconomic, social and cultural rights: they fear sending their children toschool, travelling to visit health facilities, fetching water or gatheringfirewood. Traditional occupations like pastoralism, cultivation and trading areimportant sources of employment and income for many communities, howeverpervasive violence means that these activities are associated with a highdegree of risk. Violence, or the threat of violence, thus compromises therights to work in safe conditions and to an adequate standard of living.Similarly, high levels of violence and the insecurity they generate canparalyse communities living in informal settlements in Kenya’s urban centres. Women and children are particularlyvulnerable to the impact of violence upon the enjoyment of their economic,social and cultural rights. For example, conflict and violence typicallydisrupt and undermine the provision of, access to and quality of education. Insome cases these can also cause children serious psychological harm. Teachersand pupils not only stay at home for fear of attacks, but also suffer highlevels of trauma due to the pressure of constant fear, particularly in theaftermath of inter-community violence. Parents too face trauma, and keep theirchildren out of school if they fear that their safety is at risk. Furthermore,the forced closure of schools is a phenomenon long present in areas affected byinter-community violence. In addition to the impact of conflict on education,natural disaster have taken their toll as regards access, enrolment, retentionand drop out rates of children in marginalized areas. Within the period of2005/6 in Garissa, in North Eastern Kenya, 13 schools closed because of lack ofwater and in a secondary school in the same region, none of the expected 40pupils turned up for Form 1. Similarly, schools were transformed intodormitories for displaced people in Northern Kenya during the floods ofNovember/December 2006. Rehabilitating them in time for the new school year in2007 and helping the displaced find refuge were challenges for the communities. Given theseverity of existing conditions, we strongly urge the Kenyan Government to takeinto consideration and systematically address the causal links between thefailure to respect economic, social and cultural rights, and poverty, inequality, discrimination and violence.This is particularly pressing as in the case regarding marginalized andminority populations in both Kenya’s urban and rural areas. With this in mind, and withthe desire to support the Government of Kenya in eradicating torture and other formsof violence that are linked to the denial of economic, social and culturalrights, we, the undersigned human rights NGOs, call upon the Kenyan state to:

1. Undertake institutional reforms and, in particular, review the country’s Constitution. This revised Constitution should see the integration of economic, social and cultural rights in order to promote equal enjoyment of and access to education, health care, political rights and representation and the equal pay for equal work principle. It should adequately address issues of property and land rights, ensure that customary law is consistent with international human rights standards, and recognise the rights of minority and indigenous populations.

2. Undertake affirmative action for groups and regions that have long experienced marginalization and discrimination in terms of economic growth and distribution. This should be seen from the perspective of the proposed institutional reforms that should recognise and mainstream the interests of marginalized minorities, persons with disabilities, and the victims of calamities and historical injustices in their new frameworks. These reforms should, among other things, provide for the equitable distribution of resources and take firm and decisive steps to address and end corruption and associated crimes, including the system of political patronage that sees land and other resources allocated to individuals and communities in exchange for political support.

3. Professionalize key sectors, and the security sector inparticular. In Kenya, this sector, which plays a crucial role in everydemocratic nation, should be trained in conflict resolution and should be heldaccountable for the implementation of the very laws it stands for. This mustsee – imperatively - the eradication of the use of brutal force, torture andother forms of cruel, inhuman or degrading treatment or punishment againstcivilians. 4. Finalise theestablishment of the Truth, Justice, and Reconciliation Commission, among othertransitional justice mechanisms. This Commission must not only address Kenya’spost-electoral violence, but also support the attempt to document human rightsabuses carried out since independence and make recommendations concerningreparations to victims, as well as suggest reforms to help prevent futureabuses or violations.

5. Finalise and adopt the National Policy on Peace-building and Conflict Management of 2005-6, which will provide a framework for addressing security issues such as those in Mount Elgon and elsewhere, and end the reactive and crisis-driven approach to conflict management and resolution.

· African Centre for Treatment and Rehabilitation of Torture Victims(ACTV), Uganda

• Bangladesh Indigenous Peoples Forum, Bangaldesh
• Bulgarian Helsinki Committee, Bulgaria
• Centre Libanais des Droit Humains (CLDH), Lebanon
• Centre for Minority Rights Development (CEMIRIDE), Kenya
• Fundación Desarrollo y Paz (FUNDEPAZ), Colombia
• Global Justice Brazil, Brazil
• Jananeethi Insitutue, India
• Movement for the Survival of the Ogoni People (MOSOP), Nigeria
• Mozambican League for Human Rights, Mozambique
• Philippine Alliance of Human Rights Advocates (PAHRA), Philippines
• Psychosocial Attention Center (CAPS), Peru
• Red por los Derechos de la Infancia en México (Mexican Child Rights Network), Mexico
• Rencontre pour la Paix et les Droits de l’Homme (RPDH), Congo-Brazzaville
• World Organisation Against Torture (OMCT), Switzerland

With regards, On behalf of the aforementioned Human Rights NGO’s YOBO RUTIN Executive Director CENTRE FOR MINORITYRIGHTS DEVELOPMENT
[1] These organizations met at the OMCTinternational seminar on, “Addressing theEconomic, Social, and Cultural root causes of violence through the UN SpecialProcedures system” held in Geneva, Switzerland from 23 – 27 June 2008.[2] Find the Parallel report uploaded on; http://www2.ohchr.org/english/bodies/cescr/cescrs41.htmentitled OMCT