Experts of the Committee against Torture Commend Kenya’s Efforts to Implement the Law on Prevention of Torture, Ask about Prison Overcrowding and the Death Penalty
The Committee against Torture this afternoon concluded its consideration of the third periodic review of Kenya, with Committee Experts commending Kenya’s efforts to implement the law on prevention of torture and asking about prison overcrowding and the death penalty.
Sebastien Touze, Committee Expert and Country Rapporteur for Kenya, said Kenya’s efforts to implement the law on the prevention of torture should be commended. The State party had made efforts to bring its legislation in line with the Convention. The definition of torture in the legislation, however, was more restrictive than in the Convention.
Mr. Touze said the Committee had asked the State party to provide information on measures taken to reduce prison overcrowding. What was the number of people detained in prisons? Over 50 per cent of detainees in 2018 were in temporary detention, and prison overcrowding was at 195 per cent overall. In some centres, there was over 400 per cent overcrowding. Such overcrowding threatened the health of detainees.
Another Committee Expert said that the Supreme Court had found that the mandatory use of the death penalty in murder cases was unconstitutional in 2016. This decision had attracted praise from many groups. What had been done to implement the decision? How many people were covered by the decision? How many people still needed to have their cases reviewed, and what kind of review would these people receive? There was a long-standing practice where death penalties were not carried out, but the sentence was still imposed. Had progress been made toward the abolition of the death penalty?
Cleopa Kilonzu Mailu, Permanent Representative of Kenya to the United Nations Office at Geneva and head of the delegation, said Kenya still faced the challenge of overcrowding in prisons. However, the Bail and Bond Policy Guidelines had been developed to streamline and address disparities in bail and bond decision-making. In addition, the Diversion Policy developed in 2019 allowed for cases to be settled out of court, on merit and through agreed structures. The Government was also deploying the use of community service orders for those sentenced to three years and below and those with a balance of three years and below left to serve. These efforts had seen the prison population decline by 60.7 per cent. The judiciary also reviewed cases for individuals sentenced to six months and below for release.
The mandatory death sentence had been declared unlawful for murder, but had not been eliminated, the delegation said. Data had been collected from prisons from all persons on death row who had not been executed by August 2018. The Superior Courts were undertaking the resentencing of convicted persons who had been sentenced to death previously. In a number of cases, for those who had served over 30 years, some had been released. The death sentence remained a legal sentence, but its abolition would be determined by the people of Kenya, most feasibly through a plebiscite.
Presenting the report, Mr. Mailu said Kenya shared the conviction that torture could never be justifiable and under the Kenyan Constitution, the right not to be tortured could not be limited under any circumstances.
In concluding remarks, Mr. Mailu said Kenya placed great importance on the respect of human rights and significant developments had been made in law as well as in practice. Kenya did not condone any acts of torture and attached great importance to the respect of human rights for all.
Claude Heller, Committee Chairperson, in concluding remarks, said the openness in which the delegation spoke was appreciated, as were the organised and systematic responses - it was a constructive dialogue, not just protocolary speeches.
The delegation of Kenya consisted of representatives of the Office of the Attorney General and Department of Justice, the Kenya Prisons Service, the National Police Service, the Ministry of Foreign Affairs, the Office of the Director of Public Prosecutions, the Office of the Chief Registrar, the Judiciary, the Independent Policing Oversight Authority, and the Permanent Mission of Kenya to the United Nations Office at Geneva.
The webcast of the Committee against Torture meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Committee against Torture’s seventy-third session can be found here.
The Committee will next meet at 3 p.m. on Friday, 6 May, to conclude its consideration of the fourth periodic report of Uruguay (CAT/C/URU/4).
Report
The Committee has before it the third periodic report of Kenya (CAT/C/KEN/3).
Presentation of Report
CLEOPA KILONZO MAILU, Permanent Representative of Kenya to the United Nations Office at Geneva and head of the delegation, said that Kenya respected and supported the work of the Committee, which was a strong mechanism for combatting and preventing torture and other heinous crimes in the world. He commended the Committee for relentlessly encouraging States parties to take effective measures to prohibit and prevent acts of torture, and for offering protection and redress to victims. Kenya shared the conviction that torture could never be justifiable and under the Kenyan Constitution, the right not to be tortured could not be limited under any circumstances.
Kenya was fully committed to the realisation of the aspirations of the Convention. The State was working to set up the National Coroners Service to independently investigate the causes of suspicious reportable deaths. Kenya was dedicated to providing civil redress for all victims of torture and their families. To this end, in 2021, the State had prepared draft Victims Protection Regulations and a trust fund to provide for reparations and compensation to victims.
To mitigate and address challenges relating to sexual and gender-based violence, the State had introduced the “POLICARE Policy,” which established a multi-agency service provider for victims of sexual and gender-based violence; created training manuals for public officials on data collection, data analysis and reporting on sexual and gender-based violence; and launched a specialised sexual and gender-based violence court.
The Female Genital Mutilation Board was engaged in awareness campaigns to change mindsets about the practice within concerned communities, and the State had intensified cross-border cooperation to eliminate the practice.
The Kenyan Government had established community service orders for all petty offences. These had led to a decline in the number of detained persons and brought the State in line with international standards regarding detention.
The Government of Kenya strived to prevent, investigate and prosecute extrajudicial, summary or arbitrary executions. ln June 2021, the Office of the Director of Public Prosecutors had launched Standard Operating Procedures on the investigation and prosecution of serious human rights offences committed by police officers. The Civil Rights Division had also been established to enhance the promotion of human rights among law enforcers. Police were trained on human rights, ethics and accountability. The Independent Policing Oversight Authority and the Internal Affairs Unit ensured that excessive use of force by law enforcement officers was addressed and those found culpable were prosecuted or dismissed from service.
Regarding the fight against terrorism, Constitutional and legal safeguards were in place to ensure that measures taken to fight terrorism did not lead to an infringement of a suspect’s rights. Suspects were detained for less than 24 hours, and further detention required sanction from the courts. Suspects were given the right to claim wrongful detention. A rapid reference guide and a draft charge sheet for terrorism offences listed in the Prevention of Torture Act had also been developed by the Director of Public Prosecutions to guide prosecutors and investigators.
Kenya recognised its intersex population in the 2019 census, and the Government was taking concrete legislative, institutional and administrative steps specifically aimed at protecting the rights of intersex persons.
Kenya maintained its responsibility to provide refuge to those fleeing persecution in all its forms. Kenya’s refugee and asylum seeker population stood at 547,884 as of 31 March 2022, an 8.5 per cent increase from 2020.
Draft Standard Operating Procedures on human trafficking had been prepared to protect victims and potential victims, and to bring those involved in trafficking to justice.
The National Multi-Agency Consultative Forum on Election Preparedness, chaired by the Chief Justice of Kenya, brought together various agencies to achieve credible and violence-free elections. The Forum trained investigators on international criminal law and response teams on resolving electoral disputes.
Kenya still faced the challenge of overcrowding in prisons. However, the Bail and Bond Policy Guidelines had been developed to streamline and address disparities in bail and bond decision-making. In addition, the Diversion Policy developed in 2019 allowed for cases to be settled out of court, on merit and through agreed structures. The Government was also deploying the use of community service orders for those sentenced to three years and below and those with a balance of three years and below left to serve. These efforts had seen the prison population decline by 60.7 per cent. The judiciary also reviewed cases for individuals sentenced to six months and below for release.
Questions by Committee Experts
SÉBASTIEN TOUZE, Committee Expert and Country Rapporteur, said that the timeframe since the last report was nine years, and welcomed the updates on the situation in Kenya from the head of delegation.
The law on the prevention of torture was implemented after the Committee’s recommendation to do so. The State party’s efforts to implement this law should be commended. The State party had made efforts to bring the legislation in line with the Convention. The definition of torture in the legislation, however, was more restrictive than in the Convention.
What were examples of cases where judges had handed down convictions under the law on the prevention of torture? Judges preferred to invoke common law offenses rather than the terrorism law. Why was it difficult for judges to apply this law?
Sentences for torture under the law included varying fines and imprisonment. What were these punishments based on? Fines were seemingly too low, and not consistent with those given for other serious crimes. What was the number of people detained on terrorism charges?
Provisions on torture in other laws were still used. Which laws had been repealed when the law on the prevention of torture was implemented? What punishments were given for the torture of children? Were they more severe than for torture of adults?
The Committee had recommended that Kenya regulate the use of firearms by the police, but there had been no such amendment to Kenyan law. There was a draft bill on the excessive use of force regarding Nairobi County Police, but national legislation on the use of force by police was already in place. Why had this draft law been prepared?
Mr. Touze commended the State party for implementing legislation on legal aid. Under the law, however, legal aid was only provided for persons in extreme poverty, without mentioning thresholds. Persons receiving legal aid were required to pay fees specified by the national legal aid service. Would the State party revise this legislation to make legal aid more accessible?
How many complaints had been filed related to domestic violence, and how many arrests had been made? Mr. Touze expressed regret that units providing protection for victims of domestic violence had only been established in certain areas. Had units been established in rural areas since 2017? The Committee welcomed that three call centres for child victims of domestic violence had been established. Was this hotline effective in protecting children against violence, and was it able to respond to all calls? What was the state of further mechanisms being established to raise awareness about sexual and gender-based violence and protect potential victims?
Mr. Touze welcomed interventions to prevent arbitrary detention. How did these work, and how could detained persons file complaints? Were police officers transferred to other posts when accused of unlawful detention?
A Government report noted a lack of staff and resources in police stations.
What was the Government doing to improve the condition of detention facilities? The Committee welcomed that a digital detainee registry system had been established. However, only 20 per cent of police stations had a computer. Was the registry system practical, or was an alternative method of registration required?
Was the presence of an attorney necessary to grant bail? Most attorneys practiced in Nairobi, and there were very few in northern regions. Further, in 2017, there were nine times more doctors in urban centres than in rural regions. Was the right to an attorney and health care guaranteed in northern regions?
Courts were mostly situated around the capital. Did this lead to a delay in being brought before a judge for people in rural areas? How long did it take for a person to be brought before a judge?
Only eleven per cent of police officers were women. How was the right to be searched by someone of the same gender guaranteed?
The Committee had asked the State party to provide information on measures taken to reduce prison overcrowding. What was the number of people detained in prisons? Over 50 per cent of detainees in 2018 were in temporary detention, and prison overcrowding was at 195 per cent overall. In some centres, there was over 400 per cent overcrowding. Such overcrowding threatened the health of detainees.
A 2015 report had highlighted that prison toilets were often located outside of facilities, and detainees could not use them when they needed to. Many did not have showers or access to drinking water onsite. No detention centres for minors had resident doctors or nurses, and many did not offer meat or fish on a regular basis, or menus that catered for different religious requirements. The National Human Rights Commission reported in 2019 that medical services sometimes refused to examine prisoners. Isolation cells were used for punishment, rather than for quarantining inmates with communicable diseases. What measures were in place to improve the conditions of prisons?
HIV-positive women and women with disabilities were allegedly forcibly sterilised. Could the State party respond to these allegations? The State had previously reported that “unconstitutional sterilisation” was illegal, but did this indicate that there was “constitutional sterilisation”? Why had one woman withdrawn her case against the State regarding her forced sterilisation?
Were there statistics on calls made to the domestic violence hotline? What other measures were in place to prevent violence against women? Mr. Touze commended the establishment of rehabilitation centres for victims of violence in hospitals. How many women used these centres, and what services did they provide?
Spousal rape was not made illegal under the Criminal Code, but it was prohibited under the Constitution. Were there any cases where a partner had been convicted of spousal rape under constitutional grounds?
How effective was the Council established to combat female genital mutilation in preventing the practice? What was the current number of inquiries related to female genital mutilation, as well as investigations and convictions? Over 600 cases of female genital mutilation had been reported up to 2018, but only 34 convictions had been handed down. Were the remaining 500 still being investigated? Why was the number of convictions so low?
ERDOGAN ISCAN, Committee Expert and Country Vice-Rapporteur, welcomed that all law enforcement officers suspected of committing extrajudicial killings, enforced disappearances and excessive use of force were promptly investigated and, if found culpable, charged and prosecuted for the offence. Mr. Iscan called for updated data on allegations, investigations, prosecutions, convictions and sentences.
Mr. Iscan asked for more information on investigations into excessive use of force and extrajudicial killings perpetrated during the 2007 and 2008 post-election violence; and any redress that had been provided to victims of torture and sexual violence.
He also called for information on the number of cases of the use of excessive force that the authorities had reported to the Independent Police Oversight Authority. What was the current status of the draft regulations related to complaints mechanisms for victims of torture and ill-treatment developed by the Independent Police Oversight Authority?
The Committee had received information that the military was not accessible for investigations of alleged violations of the Convention, including extrajudicial killings, enforced disappearances and excessive use of force. Could the State party respond to these allegations? Were military and medical personnel included in human rights training programmes? Did the State party receive assistance from competent regional and international organizations?
States parties were required to ensure that each victim of torture or ill-treatment had the right to fair and adequate compensation, including full rehabilitation. Were redress and compensation provided to victims by Kenya?
What measures had been taken to ensure compatibility between the Refugee Act and the Citizenship Act, and compliance with the Convention? There were reports of the incompatibility of these instruments. Did the State party ensure the right of refugees to have their cases examined individually, and not collectively? Were medical and other personnel dealing with migrants and asylum seekers provided with effective training? Could the State party indicate its policy and practice regarding “diplomatic assurance” in implementing the principle of non-refoulement?
Another Committee Expert said that the Supreme Court had found that the mandatory use of the death penalty in murder cases was unconstitutional in 2016. This decision had attracted praise from many groups. What had been done to implement the decision? How many people were covered by the decision? How many people still needed to have their cases reviewed, and what kind of review would these people receive? Why was the decision limited to murder cases? There was a long-standing practice where death penalties were not carried out, but the sentence was still imposed. Had progress been made toward the abolition of the death penalty?
Did the National Human Rights Commission receive appropriate resources? Programmatic expenses were paid for by foreign development partners. Could the State party provide information on budget requests made by the Commission and the actual budget that it had been provided with?
Non-governmental organizations had alleged that the Commission’s recommendations were not implemented. Could the State party provide information on responses to the Commission’s recommendations? There were also reports that the Commission had been denied access to military prisons. Did the current law allow the Commission to visit military prisons?
There had been allegations that Government officials had retaliated against human rights defenders carrying out protests. What measures were in place to protect human rights defenders? There were also cases of non-governmental organizations being stripped of their registration or being refused registration. When would draft legislation on non-governmental organizations be implemented?
What had prevented legislation protecting lesbian, gay, bisexual and transgender persons from being implemented? What progress had been made in repealing legislation prohibiting same-sex relations? What was the likelihood of the introduction of legislation allowing for transgender and intersex persons to change their names?
Another Committee Expert said that there was a very high number of pretrial detainees in Kenya. What impact had measures to reduce prison overcrowding had? There were many incompatibilities between the Prison Act and the Mandela Rules. What was being done to address this?
One Committee Expert said that a common form of incarceration in Kenya was placement in psychiatric facilities. What institution was monitoring psychiatric establishments? Was there a complaint mechanism within psychiatric institutions? What had the Kenyan Government done to provide training to medical staff in these institutions to prevent involuntary incarceration?
SÉBASTIEN TOUZE, Committee Expert and Country Rapporteur, said that abortion was illegal in Kenya, and was not permitted unless the life or health of the mother was in danger. Could the right to abortion be recognised in the case of rape or incest? What was the scope of clandestine abortions? There were high rates of clandestine abortions amongst adolescents. Would the State party consider legalising abortions?
Another Committee Expert said that Kenya had signed the Convention on Enforced Disappearances but had not yet ratified it. Various sources attested to acts of enforced disappearance that had been committed. Would the State party consider ratifying the Convention on Enforced Disappearances?
Responses by the Delegation
Responding to these questions and comments, the delegation said that with regard to the Prevention of Torture Act 2017 and the definition of torture that did not conform to the definition provided by the United Nations Convention against Torture, the difference in the wording occurred towards the end of the definition, and the words “person acting on behalf of a public officer” meant “person acting in an official capacity”. A person who was not acting on behalf of a public officer would be addressed under the Penal Code and any other relevant legislation.
On the problems in the implementation of the Prevention of Torture Act, there were three challenges: evidence tampering at the point of investigation; intimidation of witnesses and victims; and general interference with investigations. These were the major problems experienced, and the Office of the Department of Public Prosecutions was working to address the implementation of the Prevention of Torture Act and all actions falling under violations by persons, police officers, and persons working in security. The Office had also developed tools to help in investigations and prosecutions.
On the criteria applied in sentencing when it came to the offence of cruel, degrading and inhuman treatment, the judicial officers had in place a sentencing policy which helped them to assess the severity of the offence and match it to the appropriate sentence. Suspects could also be ordered by the court to compensate a victim for medical and rehabilitation expenses. Certain provisions or sections of laws had been deleted and/or inserted to the effect of covering torture and other forms of cruel, degrading or inhumane treatment in order to bring them into line with the Convention.
Any acts of domestic violence were addressed through the Sexual Offences Act and the Penal Code. On sexual- and gender-based violence, and the effectiveness of the helplines thereon, they were effective, and the indicator was that there was an increase in reporting. Because of the wide-spread access to the telecommunications network, the population had access to Government documents on a range of issues. The practice in criminal justice in the case of rape and rape trials was currently that treatment notes and medical reports were admissible in the courts, as long as they were administered by professional doctors.
On extra-judicial killings, forced disappearances, excessive use of force, and counter-terrorism efforts, whenever cases of excessive force and extra-judicial killings were reported, the National Police Service usually opened inquiry files, and officers involved were subjected to criminal proceedings before a court, and were either fined or imprisoned. The National Police Service had internal mechanisms for addressing such events, which prescribed punishments, including interdiction, dismissal, and reduction in rank. The establishment of an Internal Affairs Unit was a measure which promoted accountability, and the Unit investigated the Police, promoted universal standards of discipline, and kept records of the facts of the complaints and all investigations made. The law only allowed the police to use reasonable amounts of force in order to carry out an arrest.
The Government was making consistent efforts to combat terrorism, and had set up a centre in this regard. Other remarkable milestones had been achieved to this end. The National Prevention of Terrorism Act had been promulgated, and several amendments to it had been subsequently made. The Crime and Anti-Money-Laundering Act 2017 targeted money laundering, which was a critical means for financing terrorism. Apart from the general provisions allowing the police forces to combat crime, the Prevention of Terrorism Act criminalised a number of offences, including radicalisation and encouraging of ideologies supporting violence. Punitive sanctions were prescribed for terrorist crimes. The rights of individuals suspected of terrorist activities could be curtailed, including the right to property. Kenya had launched its National Strategy to Combat Violence and Extremism in 2016.
The Government had realised that the security landscape had rapidly changed over the years, making the demands of the twenty-first century outgrow the capacities of the National Police Service, which had in response developed a comprehensive training programme, addressing the security challenges and the current aspirations of the Kenyan population. The current training syllabus taught in the national police training locations included a number of units on counter-violence, terrorism, and organized crime, community policing, cross-cultural and diversity policing, communications skills and public relations, and on human rights, police ethics and accountability.
The regulations provided timelines in which a direct supervisor of a police officer, a head of station, or any other person operating in the police who oversaw someone suspected of having committed an offence, were required to submit a notification to the competent body. If an officer failed to notify the authority of any infractions, the regulations contained criminal sanctions which could be applied, including a fine and imprisonment.
The Kenyan Constitution included the freedom of association, and the country had a free and active system of non-governmental organizations, which sought to enhance the human rights framework and ensure oversight in Kenya. Civic space was governed by the National Coordination Body, established under the National Non-Governmental Associations Act. While the Constitution ensured the right to demonstrate, assemble, and picket, this must be done unarmed and peacefully.
The police were bound to enforce law and order, and if protestors were armed, then the police were allowed to use reasonable force. A Joint Advisory Technical Committee that had been developed to manage issues that could have a negative impact on elections. Investigators had been trained in investigating gross incidents of violence, including sexual violence, that could occur in the context of the election period. Staff members were nominated to monitor the police during the election period.
On conditions of detention, the Government was committed and guided by the Luanda Guidelines on access by doctors to detainees, and the police and prisons implemented these. On women prisoners being body searched, this occurred by female prison officers, in conditions of privacy.
The development of the Bail and Bond Policy allowed Kenya to address overcrowding in prisons. Judges reviewed cases, especially those of persons sentenced to three years and below, sending them to probation or using community service as a means to reduce overcrowding. On nutrition in prisons, adequate nutrition was a prisoner’s basic right, and food provided was sufficient, wholesome, and nutritious. The Government had employed nutritionists in this context. All health facilities attended to inmates with medical needs, and a hospital was being built for detainees, so as to not have them held in public hospitals. The Government provided access to water, soap, and hygiene items to all detainees.
On the issue of isolation cells, the Government, with the support of the International Committee of the Red Cross and the Kenyan Red Cross, had built isolation facilities in the context of the COVID-19 pandemic. Kenya took the recommendations of the Kenyan Commission for Human Rights seriously. The laws governing prisons in Kenya were currently being reviewed, seeking to align them with the Constitution and international instruments, in order to ensure that the prison systems were managed in a fair manner. The Act was currently still under review by stakeholders before review by the Senate and the National Assembly.
On abortion, the delegation said that the Constitution did not permit it, unless in the opinion of a trained health professional, the life and health of the mother were threatened. The Health Act 2017 defined health as a complete set of physical and emotional wellbeing. Pregnancies resulting from rape and defilement could be terminated under special exceptions provided for in the Constitution. Same-sex relationships and unions were provided for under national laws.
The Constitution stipulated that marriage could only take place between a man and a woman. The position of the courts was that if persons wished to engage in same-sex relationships, they could do so without being prosecuted. The courts did not condone any form of violence or abuse against any person, including lesbian, gay, bisexual, transgender and queer persons. In case of violations, lesbian, gay, bisexual, transgender and queer persons could access a fair trial as could any other persons. They could seek redress before the National Police Authority. All persons, including lesbian, gay, bisexual, transgender and queer persons, could access the services provided by the Government, including health.
The Ministry of Health was working towards protection against involuntary medical intervention, and ensured the protection of those affected, and this included forced sterilisation. The Children’s Justice Bill 2021 was currently before Parliament awaiting a second reading. Once enacted, it would provide for a number of issues, including the age of criminal liability for minor offenders and children in conflict with the law. Child protection units had been set up at some police stations to help deal with children in conflict with the law. Children were held separately from adults. The child protection units had been in operation since 2016 and had guided at least 100 children in that time. The Government sought to establish child protection units across the country.
The mandatory death sentence had been declared unlawful for murder, but had not been eliminated. Data had been collected from prisons from all persons on death row who had not been executed by August 2018. The Superior Courts were undertaking the resentencing of convicted persons who had been sentenced to death previously. In a number of cases, for those who had served over 30 years, some had been released. The death sentence remained a legal sentence, but its abolition would be determined by the people of Kenya, most feasibly through a plebiscite.
On the application of the Convention by the Kenyan courts, they had resolutely affirmed the provisions of the Convention. The Penal Code, the Criminal Procedure Code, the Legislative Act, and the Wildlife Conservation and Management Act, among other legal instruments, were being reviewed.
Questions by Committee Experts
ERDOGAN ISCAN, Committee Member and Co-Rapporteur for Kenya, thanked the delegation for responding to the majority of the questions posed previously. Further information was required with regard to the post-rape kits and forms, the extent to which the public was informed about them and their use in practice. Information on reports on arbitrary detentions by the police for the purpose of extortion was also required, as was information on the witness protection agency, and on allegations of inaccessibility to military installations to investigate violations of the Convention, which latter was a priority. Information on the implementation of obligations of implementation of article 14 of the Convention on the access to redress was also required, as was information on the implementation of obligations under article 3 on non-refoulement.
Committee Experts raised other issues, including on the definition of torture and whether Kenyan law authorised use of lethal force to protect property. Could more information be provided on the recommendations of the National Human Rights Commission and whether there was a mechanism to assess how many recommendations were being implemented or at least responded to formally and whether the Government was doing anything to encourage more implementation. Did the rule against abortion apply if it was to protect the mother’s mental health? The rule against the mandatory death penalty for murder cases was striking; why did it only apply to murder cases and not to any other cases where the death penalty was applicable?
SEBASTIEN TOUZE, Committee Member and Country Rapporteur for Kenya, asked how community service was being implemented in practice. In some parts of the country, access to a lawyer was quite difficult, and he wished to know how this was remedied in practice. More information was required on legal aid. On domestic and inter-family violence, particularly marital rape, the discussion needed to be on how marital rape was apprehended, as it was not punishable under the Criminal Code, but the Constitution ensured equality and consent within marriage.
A Committee Expert noted that the prison legislation required further modification and asked what was the limit to pre-trial detention, if any, and if so, how was it observed. How were prison records related to pre-trial detention kept, in order to ensure that this limit was not exceeded? Another Expert asked whether persons were deported to countries which implemented the death penalty.
Responses by the Delegation
Concerning redress and compensation and the status of victim protection regulations and the witness protection agency, the delegation said that the periodic report provided information on the victim protection regulation act. Since its adoption, the Government had been developing the modalities for victim protection across the board. Even as the Government was putting in place the proper legislative framework for the compensation of victims of crimes, including torture, the courts were still providing redress, and the witness protection programme took action to protect the safety and welfare of witnesses through various means.
Kenya had not yet ratified the Optional Protocol to the Convention, as the process required extensive stakeholder consultation, public participation, and Parliamentary approval, and this took a long time. On the International Convention for the Protection of All Persons from Enforced Disappearance, a committee had been set up to investigate what was required for its adoption and what the ramifications would be. The National Commission on Human Rights had a mandate to investigate violations, in particular with regard to torture.
On the issue of refugees and non-refoulement, the delegation said that there was a Department of Refugee Services, and the Refugee Act of 2021 was being implemented. Kenya maintained an open-door policy, and had no record of refugees being returned to their country of origin involuntarily. Most refugees were from the Democratic Republic of the Congo, South Sudan, Rwanda and Somalia, as well as other countries in the Horn of Africa.
Under the new Refugee Act, refugees were given safeguards to their rights, including the right to education, freedom of movement, and they could be issued with alien identity cards. The Government had signed mutual assistance agreements with various other national Governments. Kenya believed it complied with the principle of non-refoulement, and had never returned an asylum seeker to their country of origin involuntarily.
The Commission on Human Rights enjoyed a wide mandate in Kenya, as provided for under national law to promote and protect the enjoyment of human rights and fundamental freedoms in all spheres of life. With regard to monitoring torture and allegations thereof, the Commission could call for information from any public and private body, and it could issue summons to investigate allegations.
The law on the prevention of torture mandated the Commission to make an annual report to the Assembly to examine the efforts made by the Government to combat torture or any cruel, inhuman or degrading treatment. On recommendations from the Commission, most of the recommendations made by it had been implemented, including on issues of intersex persons. The Commission had an area of remedial measures it could offer to individuals or communities affected by human rights violations.
With regard to pre-trial detention, the maximum time that a person was held was usually 14 days. If a person was held over 24 hours, then it must be court-sanctioned, and strict conditions must be fulfilled. On access to justice, legal representation was always done by qualified lawyers who were contracted pro bono. An advocate was present from the time of plea.
On the death penalty for murder charges, the only other two offenses which were punishable by a death sentence were robbery with violence or attempted robbery with violence, and treason. They did not hold a mandatory death sentence. The Court could examine each situation and issue an appropriate sentence.
Conditions of imprisonment were a work in progress, but the construction of new facilities was improving the situation. Most prisons were self-sufficient in vegetables and maize. Prisoners were provided with free medicine, and any medical interventions were paid for by the Government. The review of prisoners’ cases was continuous - magistrates visited prisons and examined situations, often releasing prisoners immediately or to community service when their sentences were under three years.
Concluding Remarks
CLAUDE HELLER, Committee Chairperson, in concluding remarks, thanked the delegation for traveling all the way to Geneva for the presentation of the review, and its composition from various branches and Ministries. The openness in which the delegation spoke was appreciated, as were the organised and systematic responses - it was a constructive dialogue, not just protocolary speeches. The Committee appreciated the dialogue, and hoped that what was done was useful to the State party. It was in that spirit that the Committee could support Kenya in its national efforts towards the challenges and pending tasks.
CLEOPA KILONZO MAILU, Permanent Representative of Kenya to the United Nations Office at Geneva and head of the delegation, thanked the Committee for taking the time to review Kenya’s report and provide valuable recommendations. The expectations of Kenya’s delegation on having a substantive and open dialogue with the Committee had been met. The delegation had elaborated on the measures that the Government had taken to prevent torture and other cruel, inhuman treatment or punishment in Kenya, and had also highlighted challenges that were faced in this respect and the measures being put in place to overcome such challenges.
Kenya placed great importance on the respect of human rights and significant developments had been made in law as well as in practice. Kenya did not condone any acts of torture and attached great importance to the respect of human rights for all. Kenya wished to reassure all present that all remarks and recommendations expressed by the Committee members would be examined carefully and would be used to enhance and improve Kenya’s compliance with its commitments and obligations under the Convention against Torture.
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