COMMITTEE AGAINST TORTURE HEARS RESPONSE OF KENYA
The Committee against Torture this afternoon heard the response of Kenya to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Thursday, 13 November, the delegation, which was led by Martha Karua, Minister of Justice and Constitutional Affairs of Kenya, said it was true that the Convention against Torture had not been domesticated in Kenya and that that had led to a number of difficulties in its implementation, in particular with regard to the non-inclusion of a definition of torture in the law. It was also true that the prosecution of offences of torture under other sections of the criminal law had been haphazard and had led to differential treatment of various offences and sentencing for those offences. The Government was currently developing a national action plan on human rights, which would include proposals for domestication of a number of human rights instruments, including the Convention against Torture. The hearings on the national action plan had been ongoing for three years, and were drawing to a close.
Regarding action taken on human rights violations that occurred in the Mount Elgon district, as mentioned in the report of the National Human Rights Commission, the delegation noted that those allegations, which had also come from other non governmental organizations, had been taken very seriously and action had been taken. There had been serious and substantial allegations against police and armed forces personnel, but unfortunately, that information had not always been very accurate. For example, saying that 500 persons had been executed in the context of those actions was very misleading. Nevertheless action had been taken, including action taken against officers in the police force "who may have behaved badly".
The delegation also provided answers on a number of other issues, including follow-up to the Waki Report; the independence of the judiciary; statistics on prisoners; the age of criminal responsibility; rules for obtaining confessions; detention rules; the situation of human rights defenders; asylum law and the situation of refugees; and complaints.
The Committee will submit its conclusions and recommendations on the report of Kenya towards the end of the session on Friday, 21 November 2008.
As one of the 145 States parties to the Convention against Torture, Kenya is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 3 p.m. this afternoon, it will consider follow-up to individual communications submitted to it.
Response of Kenya
Responding to a series of questions raised by Committee Experts on Thursday, 13 November, the delegation of Kenya said, with regard to the report-writing process, that that had been done with the help of international organizations, and had been a very inclusive and participatory process involving governmental ministries and agencies, non governmental organizations and civil society, as well as the National Human Rights Commission. The Government had also developed a draft core document, also through a participatory process, which was awaiting final approval before being released.
It was true that the Convention against Torture had not been domesticated in Kenya and that that had led to a number of difficulties in implementation of the Convention, in particular with regard to the non-inclusion of a definition of torture in the law. It was also true that the prosecution of offences of torture under other sections of the criminal law had been haphazard and had led to differential treatment of various offences and sentencing for those offences. The delegation wished to reiterate that the Government was committed to domesticating the Convention. The Government was currently developing a national action plan on human rights, which would include proposals for domestication of a number of human rights instruments, including the Convention against Torture. The hearings on the national action plan had been ongoing for three years, and were drawing to a close.
On the age of criminal responsibility, it was correct that that had been set at eight years in Kenya, the delegation said. However, this was another issue that was being looked at in the context of the national action plan on human rights, and was actively under review.
Regarding complaints, the delegation said the officer receiving a complaint of torture was responsible for putting it in writing and referring the complainant to a police inspector, or to the highest ranking officer available in the absence of an inspector. If the complainant alleged injuries, no matter how slight, he was sent for a medical exam. During the investigation of the complaint, the officer in question was temporarily removed from active duty. The advice of the Attorney-General's office might be sought in cases carrying criminal sanctions. The punishment that could be awarded in domestic proceedings included fines, reduction in rank, a reprimand or dismissal from the force. There had been 224 complaints against police officers in 2007, but there was no breakdown showing how many of those complaints related to torture.
Concerning where the special units detained suspects, the delegation said that with regard to custody of all persons detained by police who were suspected of having committed an offence, the arresting officer was under the duty to present the prisoner to the nearest officer commanding station within 24 hours.
Turning to the issue of the conduct of police officers during the post-election violence, the delegation noted that the Police Commissioner had appointed a task force to investigate allegations of sex crimes committed by security personnel in that connection. The task force was also tasked with liaising with all persons and institutions liable to have relevant information. Among cooperating institutions were the Nairobi Women's Hospital, and the Kenyan Women's Lawyers Association. This investigation was not just window dressing.
Concerning confessions, the prohibition against police taking confessions had run into difficulties, owing to the distance between courts and police stations. In rural areas, the courts could be a day's journey away. Another issue was lack of magistrates to hear those confessions, as sometimes there were only one or two magistrates in a given court. So certain modifications had to be made, such as stating that confessions obtained by police officers could not be relied on without outside corroborating evidence. Moreover, it should be remembered that most confessions in the past that were obtained through torture involved political accusations. Since 2003, it was very rare to hear of a case of a police officer torturing a defendant in the hopes of obtaining a confession, "mainly because it added little value to the case", the delegation said
Regarding action taken on human rights violations that occurred in the Mount Elgon district, as mentioned in the report of the National Human Rights Commission, the delegation noted that those allegations, which had also come from other NGOs, had been taken very seriously and action had been taken. There had been serious and substantial allegations against police and armed forces personnel, but unfortunately, that information had not always been very accurate. For example, saying that 500 persons had been executed in the context of those actions was very misleading. Nevertheless action had been taken, including action taken against officers in the police force "who may have behaved badly".
Cases of missing persons were always investigated by the Police, in liaison with the family of the missing person. If a person went missing, it was very difficult to investigate such a case without the assistance of the family. Indeed, unless such a missing person was suspected of having been subject to a crime, that case was normally not investigated, unless it involved a child.
The delegation said that, as of today, there were 44,816 prisoners in jails in Kenya – 18,327 were remandees and 26,489 were convicts. Of the remandees, 6,991 were on remand for capital offences, 507 of them women. Of the convicts, 22,044 were ordinary prisoners, 825 of them women; and 3,610 of those convicts were on death row, 61 of them women.
The prison system had a capacity of 16,886 places. One strategy for addressing prison overcrowding had been a focus on alternative sentencing, the delegation said.
A Standing Inspection Directorate enabled senior officers to periodically review prison conditions, with regard to health and other considerations. There were five new prisons under construction and there were projects under way to renovate older facilities, the delegation added.
Visits by families were organized on application to the Governor General of Prisons. Accredited organizations were also allowed to visit prisoners upon application. To date, no accredited organization had been refused the right to visit. Other groups that were allowed to visit prisoners included magistrates.
In response to an Expert's statement that, reportedly, 80 per cent of prisoners' complaints to magistrates were not taken up for consideration, the delegation asked for further details so that that could be looked into.
Currently there were five qualified doctors and several paramedical and other medical personnel for all of the prison system, the delegation said. They had not been able, given the sheer numbers, to examine all inmates upon arrival. A private doctor was only available upon a decision of the court or by the decision of the Governor General of Prisons.
Regarding a mechanism to monitor and investigate allegations of torture in prisons, the delegation noted that the Prison Act provided that no prison officer should use force against a prisoner, except for as set out by that law, and elaborated detailed rules for any infringement of those rules. All prisoners were allowed to make complaints and on every visit of senior officers or visiting judges they could make petitions that would be entered into a complaints book for follow-up. Prisoners could also make petitions during their court appearances directly to the magistrate. If actual bodily harm occurred, a case might be subject to police investigation and handed over to court.
On judicial independence, as it stood, judges could only be removed by a Presidential order. There were currently ongoing debates on the independence of the judiciary and whether or not they should sign performance contracts as officials in other areas had to do. The Government had made it clear that reforms of the judiciary were not negotiable, as that was part of ongoing reform of the whole justice system to re-establish confidence in the judiciary.
Criminal Law (Amendment) Act 2003 provided for orders for compensation and payment of court expenses by convicted persons to the injured party. That was considered groundbreaking in Kenya, as it allowed for victims of torture in criminal cases to be directly awarded compensation by the convicted perpetrator without having to institute a separate civil suit. That was of special significance in Kenya, where the cost of litigation was high.
As for the situation of human rights defenders, the delegation wished to respond on the two specific cases of Wafula Buke and Okoiti Omtata of the Kenyans for Peace with Truth and Justice Initiative. In the case of Mr. Buke, he had tried to organize a protest action without obtaining the necessary permit. He had been taken into custody and held for three days before being released. As for Mr. Omtata, with the same organization, he had chained himself to a police fence in protest. He had been taken briefly into custody for disturbing the peace and subsequently released. Neither of those individuals had complained that they had been abused while in police custody, and those police custodies had been carried out in a lawful manner. The large number of human rights organizations in Kenya was itself testimony of the good situation of human rights defenders in Kenya.
Regarding the links between land issues and security in the country, the delegation enumerated a number of violent clashes or incidents that had their roots in land issues, sometimes further complicated by the fanning of inter-ethnic rivalries. A case in point had been the heinous crimes perpetrated by the Support Land Defence Force in the Mount Elgon district under the cover of protests in favour of land rights. To address the gross violations of rights of internally displaced persons, the Government was taking stringent measures to crack down on the violent groups and was working to address the land issue as comprehensively and conclusively as possible through the development of a land policy. It was perhaps true that Kenya was trying to play catch up in this area, but it was an ongoing process.
Refugee law provided clear circumstances for the return of asylum seekers. While torture was not specifically mentioned, conditions that would prevent return included threats to personal integrity, and this effectively covered the threat of torture, the delegation said. Kenya was proud of its record on refugees, given the number of important flows of refugees into Kenya starting in the 1960s from surrounding countries. Kenya had so far been able to absorb flows of refugees from Ethiopia, Somalia, Sudan and other neighbours, and integrate them into Kenyan society.
It was true that there had been problems with the most recent flow of refugees from Somalia. In that case, it had been necessary to screen refugees coming in for security reasons, which had slowed down the process. But the delegation stressed Kenya's overall very good record in this area.
Additional Questions and Comments by Committee Experts
NORA SVEAASS, the Committee Expert serving as Rapporteur for the report of Kenya, stressed the importance of providing redress and compensation for wrongs committed in the past, such as for summary extraditions, so as to establish a culture where impunity was not accepted.
Regarding the national action plan for human rights, Ms. Sveaass was eager to hear a time frame for its adoption and implementation.
On women's issues, Ms. Sveaass said that concern had been raised on the bill on sexual offences because it appeared that it did not properly protect women making complaints under its provisions. She also understood that information on human rights was to be posted in all police stations, and asked for confirmation that that had been done.
Among positive achievements, Ms. Sveaass singled out for particular attention the national action plan on female genital mutilation; plans to completely reform the judiciary; the reduction of the time in which a person could be held before presentation before a judge to a 24-hour period, and efforts to stick to those limits; and action to resolve the land issue, as poverty and social exclusion were among the underlying causes of torture.
Finally, Ms. Sveaass asked for clearer statistics on cases of police that had been prosecuted in the courts for abuse of authority or torture.
XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the report of Kenya, welcomed the delegation's admission that it did not have a proper complaints procedure, and that it wanted to set up a Public Complaint Office. Also welcome had been statements that the Government would investigate serious situations, such as the post-election violence. However, in answer to the delegation's comment that many allegations in the Mount Elgon district action by police and the armed forces were not well founded, he wished to stress that even if there was one well founded allegation, it should be followed up.
Mr. Wang had heard that prisoners on remand received only half the food rations of convicted prisoners, allegedly because "they did not have to work".
Other Experts then asked questions and made comments on a number of issues, including that Kenya should ratify the Convention on the Protection of All Persons from Enforced Disappearance; a need to strengthen protections for individuals against refoulement where they were under threat, as provided in the Convention; a need for legal assistance; whether the Waki Report findings could actually be used as the basis for bringing court cases; clarification on whether officials could claim immunity for acting under orders for acts of torture or ill-treatment; a culture of impunity; a lack of legal recourse for victims; updates on action on the 17 pending cases against police officials in torture cases; and information on deaths in custody, and whether any of those cases were investigated and prosecuted.
Response by Delegation
Responding to some of the additional questions raised, the delegation of Kenya clarified that the Public Complaints Committee had already been established, in June 2007, and it was mandated to receive, sort and classify complaints against all public officers and to inquire into any abuse of office, breech of confidence, incompetence or inefficiency, among others. One of the motives of setting up that Committee had been to unburden a crowded courts system. The Committee had already handled 100 complaints. It had four members and a substantial secretariat. It was hoped that, in time, it could develop into a full-fledged Ombudsman's Office.
Two months ago, a national legal aid and awareness programme had been established and it had six pilot projects in areas of the country where there was the greatest need. A specific focus was raising awareness on legal rights among vulnerable groups, especially women.
On security issues, the delegation enumerated a list of terrorist actions and security breeches, including the 1998 bombing of the United States Embassy in Nairobi, that had led to Kenya putting into place new screening measures for refugees flowing into the country from Somalia.
Regarding the Waki Report, the Commission itself had recognized that it had not been able to collect sufficient evidence to bring cases to trial. For that reason, it had been recommended that a tribunal be set up to look into the allegations contained in the report and to prosecute them.
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