Amnesty International Report 2004 - Kenya

Covering events from January - December 2003

The new government worked to improve the human rights environment in Kenya. Steps to reform the judiciary were initiated. A constitutional conference was in the process of drafting a Constitution containing a strengthened Bill of Rights. The President ordered the release of 28 death row prisoners and commuted to life imprisonment the death sentences of 195 others. Violence against women, particularly within the family, was rife. Law enforcement officials continued to use excessive force in dispersing demonstrations, and during the arrest of criminal and "terrorist" suspects. Torture in police custody persisted.

Background

Following presidential and parliamentary elections in December 2002, President Kibaki formed a government from the political parties that made up the National Rainbow Coalition, which had won a majority of parliamentary seats. Disagreements within the Coalition on implementing a pre-election powersharing agreement were reflected in discussions about constitutional reforms at the National Constitutional Conference.

The Kenya National Commission on Human Rights was established in law in March, with a mandate to protect and promote human rights and to ensure Kenya's compliance with international human rights standards. In July, 10 commissioners were nominated.

In April the Minister for Justice and Constitutional Affairs, heading a newly created ministry with a clear human rights mandate, appointed a task force to examine whether to set up a mechanism for transitional justice. In August the task force, after public consultations, recommended the establishment by presidential decree of a Truth, Justice and Reconciliation Commission.

The security situation continued to deteriorate. In urban areas armed criminals caused deaths and destruction of property. Security forces clashed with members of the proscribed Mungiki group, which claims to represent traditional African values. More than 20 people were seriously injured in October when police, using tear gas, broke up a Mungiki demonstration in the capital, Nairobi.

Investigation of the judiciary

Following the resignation of the Chief Justice in February, his successor initiated reform of the judiciary by appointing a committee to investigate corruption, headed by Appeal Court judge Justice Aaron Ringera. The committee's report, published in September, contains evidence of corruption, unethical conduct and other offences at the highest levels. It alleged that five of the nine Appeal Court judges, 18 of the 36 High Court judges, 82 of the 254 magistrates and 43 paralegal officers were corrupt.

Review of the Constitution

In May the nominated constitutional conference convened by the Constitution of Kenya Review Commission started its work. Difficulties in agreeing a draft for a revised Constitution emerged, and expectations that it would be adopted in 2003 were frustrated when the review process stalled. On 17 November, the date the conference was to reconvene, riot police barred the Commission Chairperson and 25 delegates from the venue. The Commission, in the absence of the Chairperson, had decided, with the Parliamentary Select Committee on Constitutional Affairs and the House Business Committee, to adjourn the conference until January 2004. No ruling had been given on a legal challenge to this decision by the end of 2003.

Violence against women

Violence against women by state officials and private individuals, particularly violence within the family and sexual violence, continued to be widespread. Many cases did not come before the courts because of unsympathetic and insensitive responses to women's complaints by the police and courts. The 2001 Domestic Violence and Family Protection Bill, which would improve victims' access to justice, was still not enacted. Measures continued to be taken by governmental and non-governmental agencies to end female genital mutilation, but the practice remained widespread.

• A court in Kilgoris in November sentenced three suspects to two years' probation for subjecting a 15-year-old girl to the practice. They were convicted of an offence under the Children's Act.

The UN Committee on Elimination of Discrimination against Women, responsible for monitoring states' compliance with the UN Women's Convention, considered Kenya's third and fourth reports on compliance in January. The Committee expressed concern about the lack of information provided in the reports about violence against women.

Hundreds of Kenyan women made allegations of rape spanning a period of almost 30 years against United Kingdom (UK) soldiers during training in Kenya.

Following publicity about the complaints, the allegations were debated in parliament in October. The UK Royal Military Police initiated criminal investigations. (See United Kingdom entry.)

'War against terror'

In March the authorities said that Suleiman Abdallah, in custody in Kenya after being arrested in Somalia, was suspected of membership of al-Qa'ida and involvement in the bombings of US embassies in Kenya and Tanzania in 1998 and of an Israeli-owned hotel in Mombasa, Kenya, in November 2002. He was reportedly handed over to the US authorities. International legal standards for the extradition of suspects were not met.

In May the government published a Suppression of Terrorism Bill which, if enacted, would allow the police to arrest suspects and search property without the authority of the courts. It provided for the incommunicado detention of suspected "terrorists" for up to 36 hours, and the extradition of suspects without internationally agreed safeguards. The bill conferred on members of the security forces immunity from prosecution for the use of "reasonable force" in the performance of their duties in fighting "terrorism".

Following reported security threats and the suspension of some international flights to and from Kenya in May and June, the police carried out extensive arrests in Mombasa and Nairobi in an "anti-terrorism" drive. On several occasions, dozens of people were detained, interrogated and released without charge.

• On 28 June a contingent of security officials raided the grounds of the Garissa Muslim Children's Home in a commando-style operation, and arrested 24-year-old Naveed Anwar Mohamed, who had been living at the home since his return from Pakistan in 2002. He was taken to Nairobi where he was held incommunicado, interrogated intensively for three days and released without charge after nine days.

In November the trial started of six men charged with the murder of 15 people – 12 Kenyan and three Israeli nationals – in the Mombasa hotel bombing. The trial was continuing at the end of 2003.

Torture and death in custody

The Criminal Law Amendment Act, enacted in July, amended the Penal Code, the Criminal Procedure Code and the Evidence Act to prohibit the use of confession statements or admissions of guilt as evidence in criminal proceedings if they were made under duress. The Act also abolished corporal punishment.

Widespread torture and ill-treatment of suspects and detainees continued to be reported, mainly in prisons and police stations.

• On 6 January, Samuel Sirare Wanyonyi was arrested and two days later died in custody at Malakisi police station in western Kenya, reportedly as a result of torture. No action had been taken to bring those responsible to justice by the end of 2003.

• In October, three detainees suspected of the September murder of Dr Crispin Mbai, Convenor of the Devolution Committee of the Constitutional Conference, alleged that they had been tortured by police officers to extract confessions. The Attorney General's Office announced that 22 officers were to be charged, but had not brought charges by the end of 2003.

Death penalty

There were at least 3,200 prisoners on death row. No executions took place. Kenya has not carried out any executions since the mid-1980s. On 25 February President Kibaki ordered the release of 28 death row prisoners and commuted 195 death sentences to life imprisonment.

On 10 February the Minister of Justice and Constitutional Affairs said in a statement that the death penalty would be abolished so that the fundamental right to life was respected. Other members of the government made statements in support of abolition during the year.

AI country visits

AI delegates visited Kenya in July, October and November to conduct research.