Legal Opinion on the Law against Police Torture in Kenya

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Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

No express black letter law exists on torture in Kenya as a law passed by Parliament. Our leaders whisper in dark corners of the evils of the past yet legislation on the abuses is as much the same as when they were being perpetrated. Our redeemer can only be found in Article 25 of the Constitution. The following is an overview of the legislation against torture perpetrated by police.

Legal Analysis

The Constitution of Kenya guarantees the Bill Of Rights in Chapter Four for every individual. These freedoms are not granted by the state but are inalienable by virtue of being a human being.

Article 25(a) of the Constitution provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment being unlimited and guaranteed by the constitution.

The Constitution of Kenya guarantees its citizens’ protection by creating National Security Organs in Chapter fourteen of the Constitution. Among these organs is the National Police Service created in pursuance to Article 243 of the Constitution.

Article 4 of the United Nations Convention against Torture states:-

  • Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
  • Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The African Charter on Human and Peoples’ Rights provides in Article 5 that, every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

There are no penal provisions against a torture perpetrator in Kenya. The closest penal provision is causing grievous harm contrary to Section 34 of the Penal Code. The mental aspect of torture is yet to be investigated and coded in law in Kenya.

Despite these constitutional provisions, several government agencies frustrate the enjoyment of these rights. Top among them is the National Police Service established under Article 243 of the constitution.

The objects and functions of the National Police Service are to:-

  1. strive for the highest standards of professionalism and discipline among its members;
  2. prevent corruption and promote and practice transparency and accountability;
  3. comply with constitutional standards of human rights and fundamental freedoms;
  4. train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
  5. foster and promote relationships with the broader society.

Despite this clear constitutional mandate the police have been in the forerun to exercise acts of torture.

Some of the documented reports include:-

Prison Commandant boss sued over torture of five inmates Maureen Odiwuor, Standard Digital News, Kisumu, 7 March 2014 www.standardmedia.co.ke/thecounties/article/2000106290/prison-commandant-boss-sued-over-torture-of-five-inmates [accessed 17 March 2014]

Kenya police accused of abuse, torture, rape of Somali refugees after terror attacks Tom Odula, The Associated Press AP, Nairobi, 29 May 2013 www.foxnews.com/world/2013/05/29/kenya-police-accused-abuse-torture-rape-somali-refugees-after-terror-attacks/ [accessed 21 March 2014]

The state of the world’s human rights Amnesty International AI, Annual Report 2013 www.amnesty.org/en/region/kenya/report-2013 [accessed 26 Jan 2014]

Human Rights Reports » 2005 Country Reports on Human Rights Practices U.S. Dept of State Bureau of Democracy, Human Rights, and Labor, March 8, 2006 www.state.gov/g/drl/rls/hrrpt/2005/61575.htm [accessed 16 February 2011]

Freedom House Country Report  Political Rights: 4   Civil Liberties: 3   Status: Partly Free 2009 Edition www.freedomhouse.org/report/freedom-world/2009/kenya [accessed 26 June 2012]

Kenyan Police Accused of Torture, Arbitrary Arrests in Eastleigh http://www.voanews.com/content/human-rights-watch-charges-kenya-with-torture-arbitrary-arrests-of-somalis/1670519.html reported by Mohammed Yusuf on May 29, 2013 9:44 AM.

Kenya Police fire tear gas at children protesting over playground  http://www.aljazeera.com/news/africa/2015/01/kenyan-police-tear-gas-protesting-children-201511913521303110.html accessed 9/3/2015 2 : 45 pm

These are among the many media reports showing gross violation by the police on the right against torture. Very little is often done in respect of disciplining the rogue police officers instigating torture especially when the police officers are responding to ongoing threats such as terror or demonstrations. It is as if at these points of chaos no order should exist except that which is dictated by the bearer of a gun. If such rationale is to be advanced then law on protection of civilians during war would be nonexistent.

The reverse is however true. The right against torture cannot be limited or bent to achieve any aim. There is no justification for it hence any act of the same should be taken with utmost diligence to ensure it never occurs again.

In fact the police spokesman Mr. Masoud Mwinyi has been quoted admitting there will always be complaints against police and the way they execute their work.  Mwinyi said some police officers may have overstepped regulations when dealing with security matters. “We also acknowledge once in a while we might have some incidents of some officers getting excited or going out of their mandate,” he said.

Such talk when brought out so casually raises doubt over the genuine concern in achieving discipline in the force. Officers don’t get excited. They break the law! They rape, maim and kill people. Torture cannot be justified. Justification signifies failure and failure creates anxiety. An anxious force eager to please its superiors will instigate all forms of human rights violation. It is the predicament we as a country face whenever we have an imminent threat.

Avenues for redress

The National Police Service Commission

The constitution foresaw such gross violations as has been promoted by the police force since independence and included the National Police Service Commission. The commission is charged with the responsibility of exercising disciplinary control in the service. So far the commission has vetted 196 police officers but there are no records over how many it has dismissed on disciplinary grounds.

The Independent Policing Oversight Authority

This institution is created by Act No. 35 of 2011. It provides provide for a civilian oversight of the work of the Police. The objectives of the Authority are to:-

  1. hold the Police accountable to the public in the performance of their functions;
  2. give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
  3. ensure independent oversight of the handling of complaints by the Service.

The authority has neither prosecutorial power nor disciplinary power hence only investigative authority ridding it of any autonomy. It relies on the police to arrest fellow policemen accused of gross violations of human rights and other crimes while the police relies on the office of the Director of Public Prosecutions to commence proceedings against the accused. The circle of bureaucracy if not properly effected frustrates justice and ensures such crimes are not brought to book.

The Kenya National Human Rights and Equality Commission

This is a body established under Article 248(a) of the constitution. It promotes enjoyment of all fundamental human rights investigating on alleged breaches and reporting on the complaints to the necessary bodies.  Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Conclusion

The right against torture is yet to be fully realized in Kenya. Threats to this freedom are still being justified by the government including the passage of the new Security laws. For instance Section 49 of the Security Amendment Act 2014 provides for limitation of the number of refugees. Such limitation when effected results in automatic torture of any refugee found within the borders. Kenyan police tortured and abused more than 1,000 refugees, asylum seekers and Somali Kenyans in Nairobi in a “10-week rampage” beginning in late 2012 in Eastleigh. This action was taken from a police directive, juxtapose if such a law was to take effect.

All is not gloomy as a bill called The Persons Deprived of Liberty Bill, 2014 is in parliament awaiting debate. The bill will protect against any elements of mental torture by ensuring remandees and prisoners are guaranteed their freedom.

Recommendation

Parliament should pass a law on prohibition from torture to cure the gap created in realization of this right. The law as it is still leaves a lot of room for interpretation by the police and any other citizen on what amounts to torture. International obligation to adopt a statute for the achievement of this right under the United Nations Convention against Torture is yet to be achieved.

Reparation for victims should be provided for in a prohibition from torture bill. As noted from the prosecution of former Chicago Police Commander Jon Burge, police torture survivors continue to suffer from the psychological effects of the torture they endured without any compensation or assistance; most have no legal recourse for any redress.  They cannot sue for any financial compensation because the statute of limitations has expired on their claims of torture or trespass to person.  Their family members also continue to bear the wounds of decades lost away from their loved ones.

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JUSTICE 2015- GOAL 16 UPDATE

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By Stacey Cram

Over the last two years more than 300 organizations in the Global Legal Empowerment Network have campaigned for justice targets to be included in the new Sustainable Development Goals (SDGs). Their advocacy has been at both the international and the national level, with high-level political meetings, OpEds, open letters, campaign days and media events pushing the case for justice in the future of the development framework.

Network members and campaigners have identified five measurable priorities:access to legal services; access to information; participation in the delivery of basic services; legal identity; and rights to land and property.

The campaign has borne fruit. Repeatedly, drafts of the planned SDGs have included targets for justice and one specific goal, Goal 16, which recognises the need to ‘promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.

Yet targets for justice and the rule of raw were dropped from the Millennium Development Goals at the last stages of the negotiations, and the case for justice in the new SDGs still needs to be made. With this in mind, members of the legal empowerment network undertook to show how the actual implementation of Goal 16’s targets would look at the national level – which is where the attention will shift following the SDG declaration in September 2015.

The Global Legal Empowerment Network and Namati have supported major National Justice 2015 meetings in three countries – Kenya, Jordan and The Philippines. Together they illustrate different approaches to making the justice targets a reality in contrasting political and legal contexts. While there are initial promising outcomes, much more support will be required to ensure this success translates into long term sustained action.

This briefing paper: Emerging Trends in National Implementation of SDG Goal 16 and Justice Targets, is being presented to UN delegates today, June 25 2015, at a side-event to the UN negotiations in New York entitled: Building the Sustainable Development Agenda into National Planning and Review Mechanisms.

Civil society justice organizations can learn from these three meetings how to begin the process of implementing the justice targets in the SDGs – and ensuring they have a voice in the level ambition that their governments undertake to achieve.

Most significantly of all, the three countries, Kenya, Jordan and The Philippines illustrate how the presence of Goal 16 in draft form has already prompted government, civil society and others to come together to grasp a generational opportunity to deliver justice for all.

National Justice 2015 Case Studies

Kenya – Integrating Goal 16 into existing legislation and reprioritizing the legislative agenda

Organized in partnership with the legal empowerment and access to justice NGO, Kituo cha Sheria, the International Commission of Jurists Kenya and the Law Society of Kenya, the National Justice 2015 meeting had an ambitious agenda. It was looking create an action plan for improved national justice that would cover: access to legal services; access to information; legal participation in the delivery of basic services; legal identity; rights to land and property; and the role of justice and legal empowerment in increasing security in Kenya. This meeting took place in the aftermath of the attacks in Garissa and within Kenya there was a renewed interest for how justice sector reforms could increase security. Those who attended the meeting were keen to ensure that the attacks did not allow for kneejerk policies to be passed which would hinder the rights of citizens and their ability to access justice. As Goal 16 covers justice, peace and security, it provided the necessary framework to discuss these issues in tandem.

Over the course of two days the Kenyan Parliamentary Human Rights Association,  representatives from the Attorney General’s Office and the Kenya National Human Rights Commission listened to and discussed at length justice issues being faced in Kenya.

Initially, civil society had proposed a new, standalone, Justice Plan to incorporate the SDG justice targets and existing National Justice Priorities. Government stressed such a policy could take several years and suggested instead that civil society and government work together on existing legislation that could be revised and passed quickly. The National Human Rights Policy and Action Planwas agreed as the obvious legislation to tackle. This Policy has been in draft form since 2008, and participants saw the opportunity to use the momentum of the SDGs to bring this policy to the top of the legislative agenda.

The passing of this legislation would push forward related including: the Legal Aid Bill; Right To Information Bill; and Community Land Bill.

In addition, the National Human Rights Policy already has many relevant national indicators to track progress – however they only included data gathered by the National Statistics office. Civil society argued that perception and third party data should be included. The Human Rights Commission agreed.

In the short period since the meeting the National Legal Aid Bill has moved into the next stage of law making, and is set to be finalized before the end of this sitting of parliament.

Philippines – Integrating Goal 16 into the new Philippine Development Plan through participatory policy making

Organized in partnership with the Alternative Law Group (ALG), an umbrella organization of legal empowerment organizations, in collaboration with the National Anti-Poverty Council (NAPC), this one day meeting brought together over 60 participants from across all regions of the Philippines to discuss how Goal 16 can be integrated into the planning and formulation of the next Philippine Development Plan (PDP) 2016-2022. Alongside civil society, the NAPC, the National Economic and Development Agency (NEDA), The Philippine Statistics Authority, members of the Judiciary and the Attorney General were present, as were representatives from what are known in the Philippines as the 14 ‘basic sectors’ who represent the needs of groups in the Philippines (including for example, women, children, indigenous people, etc.)

Participants agreed that there is currently a ‘justice deficiency’ in the Philippines and that the forthcoming PDP must contain a new justice section with integrated SDG goals and targets integrated. The government and civil society agreed to work in partnership to develop this section with both sides stressing this must happen prior to the presidential elections next year to ensure timely national implementation of the SDGs. To begin this process, countrywide consultations with citizens will be held and a structure for consultations produced by July 2015.

Including justice in the PDP will also ensure that justice is recognized as an essential tool for inclusive growth and development. This reframing of justice will allow for additional funding for the justice sector including through increased national budget allocation and from international donors.

Jordan – A new Arab approach: government and civil society use Goal 16 to begin a dialogue on advancing justice across the region

With the support of HRH Prince El Hassan bin Talal and the West Asian and North African Institute the National Justice 2015 Meeting brought together government, civil society, multilateral agencies, academia and regional participants from Palestine and Lebanon. This meeting represented the first of its kind in Jordan in bringing together these stakeholders to have honest and open dialogue on justice and SDG Implementation. Goal 16 provided the rationale for kicking off these discussions with the hope being that this is the first of several dialogues between different stakeholders that will drive forward justice within Jordan and across the Arab region.

Participants recognized that the SDGs represent an opportunity to reposition justice in West Asian and North African states. HRH called on States to develop authentic solutions that take into account a balanced strengthening of justice sector institutions at the governmental and non-governmental levels. The areas that were of most interest and discussed in depth included: inclusive growth; stability and good governance; 
 security and countering violent extremism. 
Following the meeting a research agenda has been developed to look specifically at how a regional approach to implementation of the SDGS can tackle these three areas.

In Jordan, the meeting began the dialogue on using the SDGs to assist the adoption of national legal aid. It also highlighted that even in contexts where justice and legal empowerment are at an early stage of development, the SDGs and Goal 16 shift the discourse and have justice viewed as a nationally owned priority, not an imposition placed on to the region.

Emerging Trends

  • Goal 16 as opportunity: the MDG experience demonstrated that internationally agreed goals translate into focused attention. From these pilots we have seen how Goal 16 has provided context to push forward justice issues at a national level. Civil society in Jordan highlighted that being able to speak frankly on the rule of law and justice in a public forum, with senior government representatives, for the first time.
  • Bridging the Gap between New York and Capital
s: in all three countries basic knowledge of the SDGs is still low. Participants stressed the need for basic SDG literacy and welcomed the knowledge shared in these meetings. They also stressed the need to ensure that the agenda does not become a ‘club for the few’.
  • National Leadership: implementing the SDGs necessitates political will, leadership and long term planning. In Kenya and the Philippines this leadership came from civil society who found champions within government to collaborate with, while in Jordan a more top down approach used HRHs Prince Hassan’s standing and commitment to legal empowerment to drive forward the agenda.
  • National Ownership: all stressed the need to align the SDGs with existing processes and policy formulations. This may mean taking a staggered approach to implementation rather than sector-wide implementation.
  • Partnership and Participation: Attendance included representatives from across the different arms of government, the judiciary, national lawmakers, civil society, academia, bureaucrats, statisticians, private sector, religious leaders and Royals. Being able to brand the SDGs as a shared agenda has proven incredibly useful in framing why these stakeholders must work in partnership to drive forward justice.
  • Relevant National Indicators and Data: Better and more integrated data is needed to allow for better planning and policy making across the justice sector. Real and existing challenges still remain for setting national indicators and tracking the data – a skills transfer from other governments and data experts will often be necessary.
  • Funding and Technical Transfer: Central to all of these meetings was concerns around funding. Funding, capacity building, technology and technical transfers will serve as important carrots for driving forward justice for all. National governments need to ensure sufficient budgets are allocated to justice.
  • Regional Approaches: Each meeting stressed the importance of region-wide implementation. This would serve cross-border security issues and well as helping sustain regional economic growth.

Conclusion

The National Justice 2015 meetings highlighted the appetite and ambition that exists within government and civil society to move forward on justice and legal empowerment. The SDGs are a generational moment that organizations and government departments working on justice and legal empowerment must capitalize on, to support their advocacy efforts and where possible to forge partnerships between civil society and government in policy formation, implementation and accountability.

Read the full briefing paper: Emerging Trends in National Implementation of SDG Goal 16 and Justice Targets