Kenya

Background Information

As part of the East African Community, the Republic of Kenya has a diverse population with over 40 ethnic groups and more than 50 individual languages. Official languages are Swahili and English. After its independence from the United Kingdom in 1964, founder and first President Jomo Kenyatta led the country until his death in 1978 with his Kenya African National Union (KANU) Party. Under increasing pressure of western governments the second president Daniel arap Moi initiated reforms which led to the liberalisation of the political system and ended the de-facto one party system in 1991. In 2002, with a united opposition group, the National Rainbow Coalition (NARC), Mwai Kibaki was able to defeat the candidate of the KANU. His re-election in December 2007 against opposition leader Raila Odinga, which was accompanied by allegations of electoral manipulation, was followed by a violent clash between the opposing groups causing approximately 1.500 deaths. Few perpetrators have been brought to justice yet and the circumstances of the unrest are still subject to investigations by the International Criminal Court (ICC). Due to mediation by the United Nations a power sharing government was established with the participation of Odinga, resolving the crisis.

In 2010 a new constitution was introduced which recognizes the socio-economic rights of the Kenya people and which will lead to major changes in the political system after the next elections. For instance, the new established office of the Prime Minister will be eliminated and most of the executive powers will be assigned to the President. Furthermore the separation between the executive, legislative and judicial branch will be strengthened and the levels of government will be reduced to two (National and Counties). Currently Kenya is involved in a military operation in Somalia against the Islamist militant al-Shabab which constitutes a big challenge to its national budget.

Its legal system is a mixture between English common law, Islamic law, and customary law and after 2010 administered by a Supreme Court, Court of Appeals, and a High Court as well as Magistrate courts, Kadhis courts (sentences according to Muslim law), and Courts Martial. Many parts of the population live below the poverty line of one dollar a day and the Kenyan economy is struggling with high levels of corruption and inequality. Kenya is ranked as 154 out of 183 countries in Transparency International’s 2011 corruption index and its position in the Human Development Index is 143, which categorizes it as a country with “low human development”.

The constitution guarantees fundamental human rights and in 2002, the National Commission on Human Rights was established, commissioned to promote and protect human rights. However, child labour, violence against woman and the discrimination of homosexuality are still widely practiced. Furthermore according to Amnesty International there are incidences of abuse of Somali refugees by security forces.

Sources: CIA World Factbook, BBC Country Profile, UPR, HRW, Amnesty International, US Department of State, International Centre for Prison Studies

Situation of Torture and Ill-Treatment

Legal Framework

Kenya is a state party to the Convention against Torture (CAT) as well as the International Covenant on Civil and Political Rights (ICCPR). It has not yet made a declaration in accordance with article 22 of the CAT nor signed the Optional Protocol to the Convention against Torture (OPCAT). Furthermore Kenya is a state party to the Convention on the Rights of the Child (CRC), The Convention on the Rights of Persons with Disabilities (CRPD) as well as the African Charter for Human and People’s Rights.

Articles 25 and 29 of the constitution guarantee the freedom from torture and cruel inhuman and degrading treatment or punishment but falls short of defining torture as required under article 1 of the CAT. Furthermore the Police Act as well as the Chief’s Authority Act outline that no person shall be subject to torture or ill-treatment by a police officer or chief. In addition, no confessions elicited whilst in the custody of a police officer can be used against this person, unless made in the presence of a judge or a magistrate. Neither the Penal Code nor the Criminal Procedure Code contain any provisions on a specific offence called torture.¹

Kenya is a state party to the Rome statute and therefore accepts the jurisdiction of the International Criminal Court (ICC). However, as for know the country has failed to fully cooperate with the ICC and to bring those accused to be responsible for the 2007/08 post-election violence to trail.²

Practice of Torture and Ill-Treatment

According to the 2000 report of the United Nation Special Rapporteur on Torture (UNSRT), there are a “high number of individual cases, according to which the use of torture by the police to obtain confessions was almost systematic.³ Furthermore there were reports of incidences of intimidation of detainees by security forces in order to dissuade them from engaging in political activities and to extract bribes. The list of perpetrators include Officers of the Directorate of Security Intelligence, the Criminal Intelligence Department (CID), members of the so-called “flying squad”, an elite force created in 1995 responsible for investigating armed robbery and carjacking, officers of the Kenya Wildlife Service (KWS) and of the local administrative police and members of the Kenya African National Union (KANU) Youth Wing, the youth division of the ruling party.
In his 2010 follow-up report the UNSRT states that few steps have been taken to implement the recommendations he made after his visit.⁴

The Kenya National Commission on Human Rights is empowered to monitor and investigate abuses of human rights which include torture,⁵ but according to the follow-up report of the UN Special Rapporteur on Torture it “is not considered the competent and impartial authority contemplated by Article 12 CAT”. Courts rarely investigate complaints of torture but in 2012 a draft law was under development to establish a police oversight body.⁶ Currently, there exists no Government Rehabilitation Program for victims of torture.⁷

¹APT: Compilation of Torture Laws, CAT Report 2007: http://www.univie.ac.at/bimtor/dateien/kenya_cat_2007_report.pdf
²http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0109/
³UNSRT: http://www.univie.ac.at/bimtor/dateien/kenya_unsrt_2000_report.pdf
⁴http://www.univie.ac.at/bimtor/dateien/kenya_unsrt_2010_followup.pdf
⁵CAT Report 2007: http://www.univie.ac.at/bimtor/dateien/kenya_cat_2007_report.pdf
⁶http://www.univie.ac.at/bimtor/dateien/kenya_unsrt_2010_followup.pdf
⁷CAT Report 2007: http://www.univie.ac.at/bimtor/dateien/kenya_cat_2007_report.pdf

About Against Torture

News and background information about the situation of torture and ill-treatment worldwide.

A project by

• Boltzmann Institute of Human Rights

List of Issues

• Systematic Torture
• Widespread Torture
• Excessive Use of Force
• Inhuman Conditions of Detention
• Corporal Punishment
• Solitary Confinement
• Secret Detention
• Evidence Obtained under Torture
• Impunity
• Universal Jurisdiction
• Independence of the Judiciary
• Corruption
• Poverty
• Violence Against Women
• Complaint Mechanism

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