Amnesty International Report 2009 - Kenya

Head of state and government: Mwai Kibaki
Death penalty: abolitionist in practice
Population: 38.6 million
Life expectancy: 52.1 years
Under-5 mortality (m/f): 111/95 per 1,000
Adult literacy: 73.6 per cent

The government failed to put in place a plan to bring to justice those responsible for human rights abuses committed during post-election violence, which subsided early in 2008, or to guarantee reparations for the victims. State security officials continued to torture and kill suspects with impunity. Violence against women and girls remained widespread.The government did not impose a moratorium on forced evictions. Public health facilities were poorly funded, equipped and maintained.

Background

The post-election violence abated following political mediation supported by the UN and the African Union that led to the signing, in February, of a power-sharing agreement between the main parties – President Kibaki's Party of National Unity and the Raila Odinga-led Orange Democratic Movement. The parties also signed an agreement aimed at achieving "sustainable peace, stability and justice in Kenya through the rule of law and respect of human rights". Further agreements committed the parties to short and long term constitutional, land, legal and electoral reforms.

Unemployment, crime and poverty were widespread, with most Kenyans living below the poverty level, and millions highly vulnerable to frequent droughts.

Insecurity – post-election violence

More than 1,000 people were killed as a result of politically motivated ethnic violence and associated police killings following the December 2007 disputed presidential and parliamentary elections. Over 300,000 people were estimated to have been displaced from their homes. About 12,000 crossed into neighbouring Uganda as refugees.

In addition, thousands suffered serious injuries. Other abuses recorded included sexual violence against girls and women, the burning of homes and widespread forced relocation.

A Commission of Inquiry on Post Election Violence (CIPEV) was formed following political mediation with a mandate to investigate the facts and the conduct of state security agencies, and to make recommendations. In October, the Commission submitted its report to the government. The Commission's recommendations covered individual criminal responsibility of alleged perpetrators of the violence, police reform, the incorporation into domestic legislation of the Rome Statute of the International Criminal Court (ICC) and constitutional reforms. The Commission's key recommendation was for the government to establish a Special Tribunal to investigate and prosecute perpetrators of the violence. If the government failed to do this, the Commission recommended that the cases be referred to the ICC for investigation and possible indictments in relation to alleged crimes against humanity committed during the post-election violence.

In November the government announced its support for implementation of the report and formed a cabinet committee headed by the President and Prime Minister to recommend action. In December the government announced that the committee would prepare a draft Bill to establish a Special Tribunal to investigate and prosecute alleged perpetrators of the post-election violence. Parliament also enacted the International Crimes Act, 2008, to incorporate the Rome Statute of the International Criminal Court into domestic law. However, by the end of 2008 the government had not announced a comprehensive plan of action to implement the report or guarantees that victims of human rights abuses would receive reparations.

Internally displaced people

In May the government launched 'Operation Rudi Nyumbani' ('Operation go back home'), a programme of government assistance to help more than 300,000 people displaced by the post-election violence to return home. Although the government regularly stated that the programme was a success, a research report released in late October by the non-governmental Kenya Human Rights Commission found that most internally displaced people (IDPs) had not returned to their original homes. They were still living in tents in hundreds of transit IDP camps that emerged when the main IDP camps were closed after the launch of the programme.

Local civil society groups also documented complaints by IDPs that the government did not consult them while devising the programme. There were numerous complaints of forcible returns in some areas – sometimes including the use of force by government security personnel. Many IDPs complained that they could not freely choose between return, resettlement or integration at the site of displacement, as these options were not all meaningfully available to them. In particular many expressed the view that the areas where they originally lived remained insecure. There were also complaints of inadequate humanitarian assistance and that the cash sums meant to assist them in return were too low.

Thousands of people remained internally displaced in the Mount Elgon area near the Kenya-Uganda border following clashes over land.

By the end of 2008 there was neither a legal framework for the displaced nor a national strategy to deal with the long-standing issue of forced displacement in Kenya. This was despite recommendations to this effect from a UN fact-finding mission and CIPEV.

Truth, Justice and Reconciliation Commission

In October Parliament passed a law establishing a Truth, Justice and Reconciliation Commission (TJRC), in line with the political mediation agreement signed in March. The TJRC's mandate would be to investigate human rights violations, including those committed by the state, groups or individuals, between 12 December 1963 and 28 February 2008.

The law governing the TJRC contained a number of provisions which breached international law and best practice standards. These included provisions allowing the TJRC to recommend amnesty for crimes under international law such as torture, enforced disappearance and extrajudicial executions, and provisions creating obstacles to prosecutions of crimes under international law. The law would not guarantee a comprehensive protection programme for victims and witnesses, and fell short of ensuring a broad range of reparations for victims of human rights violations.

By the end of the year, the TJRC had not been formed.

Impunity

Allegations of human rights violations, including torture and unlawful killings, by state security officials persisted.

In March (after complaints of government inertia for many months), the government launched a joint police-military operation called 'Operation Okoa Maisha' ('Operation Save Life') in the Mount Elgon area in western Kenya. The operation was targeted against members of the Sabaot Land Defence Forces – an armed militia blamed for unlawful killings, forced displacement and other human rights abuses in the area. The local media and local and international organizations documented cases of human rights violations by the military and police during the operation. These included arbitrary and unlawful arrests of hundreds of civilians, arbitrary detentions, and torture in military camps and police custody. There were reports of unlawful killings of dozens of individuals by military personnel and cases of families complaining that their relatives had disappeared. The government denied these reports but failed to ensure an independent investigation into the allegations.

In November, dozens of residents of Mandera district in northern Kenya complained of rape, torture, beatings and the use of excessive force by government security personnel involved in a joint police-military operation to curb the influx of illegal arms from the Horn of Africa. The government denied these allegations but had not instituted independent and impartial investigations by the end of the year.

The government failed to investigate allegations of torture and unlawful killings committed by the police in 2007, including the shooting and killing of hundreds of people in the course of security operations against members of the banned Mungiki group.

Violence against women and girls

Women and girls continued to face widespread violence. During the post-election violence and in the conflict in the Mount Elgon area, women and girls were subjected to rape and other forms of sexual violence. Alleged perpetrators of gender-based violence, including the police and other law enforcement officials, were hardly ever brought to justice.

Right to health

Public health facilities remained poorly funded, equipped and maintained, leading to a high rate of maternal mortality and other nationwide health problems. The effect of under-funding of the health sector was particularly evident in public maternity hospitals. Most low-income women who used these facilities received a low standard of health care.

Forced evictions

The government announced, in July 2008, the formation of a Task Force on the Mau Forest complex, following its promise in October 2007 that it would compensate and resettle thousands of people who were forcibly evicted from the Mau Forest complex in 2006. The Task Force was to deal with the demarcation of the Forest complex; identification of Forest residents with ownership documents; and compensation and resettlement of identified residents. By the end of the year, the Task Force had not completed its work.

In November, hundreds of families living in informal settlements close to the Nairobi River were living under the threat of forced evictions by the government.

By the end of 2008, the government had not fulfilled its 2006 pledge to release national guidelines on evictions. It also failed to impose a moratorium on forced evictions until the guidelines were in place.

Refugees and asylum-seekers

The government did not reverse its decision of January 2007 to close the Kenya/Somali border. However, due to ongoing fighting and a significant escalation of the conflict in Somalia, refugees and asylum-seekers continued to cross the border into Kenya. Between January and September, more than 38,000 new refugees and asylum-seekers had been registered by UNHCR. In October alone, more than 8,000 refugees and asylum-seekers were reported to have crossed the border. Humanitarian agencies reported poor and deteriorating conditions in camps housing new refugees and asylum-seekers and called for more humanitarian assistance from the Kenyan government and the international community.

Refugees and asylum-seekers fleeing into Kenya faced harassment by Kenyan security personnel at the border; many were arrested, beaten and forced back into Somalia. Some had to pay bribes to security officials (partly as a result of the official decision to maintain the formal closure of the border) in order to gain access into Kenya.

Counter-terror and security

Some of the more than 40 victims of unlawful transfers from Kenya to Somalia and Ethiopia, who were held in secret and incommunicado detention in Ethiopia at the end of 2007, were released. Those released included at least eight Kenyans, despite the continued denial of the Kenyan government that no Kenyans were part of the unlawful transfers.

• Mohamed Abdulmalik, a Kenyan national, was arrested by Kenyan police in February 2007 and unlawfully transferred to US custody in Guantánamo Bay, Cuba, where he was believed to be held at the end of 2008. He was not charged with any offence, nor was he able to exercise his right under international law to challenge the lawfulness of his detention.

By the end of 2008 the government had taken no action in response to calls for a thorough and independent investigation into the arrests, detention and transfer of these individuals, and their treatment during detention.

Freedom of expression

In February, the government formally lifted the ban on live broadcasts that it had imposed in December 2007 at the start of the post-election violence.

Between January and March, a number of human rights defenders and journalists were subjected to threats, including death threats, by armed groups which accused them of "betraying the tribal cause" for commenting on the elections and speaking out against some of the post-election violence.

In March military personnel involved in the joint police-military operation in the Mount Elgon area arbitrarily arrested, harassed and physically ill-treated journalists reporting on events.

In December, parliament passed the government-sponsored Kenya Communication (Amendment) Bill 2008 into law. The new law could lead to an unjustified restriction on the right to freedom of expression. It grants broad powers to the minister in charge of internal security to ban media coverage and seize broadcast equipment on grounds of national security and gives a government-controlled Communications Commission the power to license and regulate broadcasting services and to prescribe the nature and content of media broadcasts. The new law was awaiting presidential assent at the end of the year.

• In September, Andrew Mwangura, a former journalist and a Seafarers Assistance Programme official, was arrested by police. He was charged with "spreading false information" after he gave press interviews contradicting the official government version of the destination of a Ukrainian cargo ship seized by pirates off the Somali coast in September. At the end of the year, the trial was ongoing.

Death penalty

Courts continued to impose the death penalty, although no executions were reported. There was no progress towards the abolition of the death penalty.

Amnesty International visits

Amnesty International delegates visited Kenya in February, March, September and December.

Amnesty International reports

• Kenya: Amnesty International's Recommendations to the African Union Peace and Security Council (1 March 2008)
• Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill (21 May 2008)
• Kenya: Unlawful transfers of "terror suspects" must be investigated (31 July 2008)
• Amnesty International's Recommendations to the African Union Assembly (31 January 2008)
• Kenya: New government must ensure justice for victims of post-election violence, (18 April 2008)
• Kenya: Amnesty International calls on government and the African Commission to act (15 February 2008)
• Kenya: Government must protect people from politically-motivated and ethnic attacks (25 January 2008)
• Kenya: Amnesty International condemns excessive use of force by police (18 January 2008)
• Kenya: Kenyan election sparks political killings (4 January 2008)