United Nations Human Rights Council Statement

United Nations Human Rights Council Statement

7th Session of the United Nations Human Rights Council

Written Intervention on the Human Rights Situation in Kenya

The International Federation for Human Rights (FIDH) and its member organisation, the Kenya Human Rights Commission (KHRC) are very concerned by the human rights situation in Kenya since the presidential election of 27 December 2007 and request the UN Human Rights Council to adopt a resolution on the situation.
Electoral Irregularities at the occasion of presidential ballot of 27 December 2007

Although high voter turn out characterised the general elections on the polling day, which was generally peaceful and without any gross irregularities, subsequent events in counting and tallying the presidential poll that led to swearing-in of Mwai Kibaki on 30th October 2007 was heavily flawed and devoid of credibility. After two days of controversy over the tally, the executive arm of government usurped the role of the Electoral Commission of Kenya (ECK). Paramilitary troops (the General Service Police Unit- GSU) invaded the tallying centre, escorted the Chairman of the ECK out of the hall and proceeded to disperse the contestants, observers, agents and media. Subsequently the ECK Chairman announced a result that was not backed by the required statutory documentation and shortly thereafter, Mwai Kibaki was sworn in as President in a private and evidently pre-arranged ceremony. Domestic and international observers have since tabled evidence of irregularities and fraud.[1] Since then, the Chairman and Commissioners of the ECK have also cast aspersions on the integrity of the results.

Violence and Human Rights Violations

The subversion of democracy in the presidential election has triggered serious political and civil strife in Kenya. Following these events, Kenya has witnessed a wave of violence and serious human rights violations. The types of violence and Human rights violations are as follows:
− Spontaneous, disorganised uprisings of mobs protesting the flaws in the presidential elections. These mobs looted, raped and burnt down buildings in an anarchical manner.
− Organized violence by militia in the Rift Valley that was aimed at perceived political opponents. The initial militia action attracted retributive, largely organized counter-violence especially in Nakuru, Naivasha areas of the Rift Valley, and Nairobi. Certain members of ethnic groups committed atrocities against innocent individuals (mainly the Kikuyus, Mwai Kibaki’s ethnic group) for their perceived support of Mwai Kibaki during the election. And, some members of the Kikuyu community did engage in acts of revenge.
− Disproportionate and excessive use of force by the Police against unarmed protesters mainly in opposition strongholds including Kisumu, Kakamega, Migori, and the low income settlements of Nairobi. Policing has been uneven in its implementation. In some strong opposition areas, the police have been shooting to kill, while when confronted with some militia, they have opted to negotiate with the groups. However, in the Eldoret area, the Police were bystanders as perceived opponents of the opposition were killed and their houses burnt.
− Local militia in pro-government areas, on receiving internally displaced persons (IDPs) from the Rift Valley, have mobilized in sympathy and turned on perceived opposition supporters, killing them, and burning their houses.
− Death threats, intimidation and harassment of Human Rights Defenders

The violence has so far claimed over 1000 lives and displaced over 300,000 Kenyans, some accross the Kenyan borders, and some displaced for the second time. [2]According to the African Union (AU) mediator, Kofi Annan, Kenya faces «gross and systematic human rights abuses ». And, the United Nations Special Adviser on the Prevention of Genocide, Francis Deng, called for « an immediate halt to the destructive cycle of attacks and revenge attacks in Kenya, where post-electoral violence continues to claim lives » [3] At the occasion of its 10th Summit, the African Union took a decision on the situation in Kenya strongly « deploring the loss of lives » and « condemning the gross violations of human rights that occurred in the past weeks » [4]

A strong need to end the cycle of violence in Kenya
The crisis has since mutated from protest over the flawed presidential election, but also deeper issues among them historical injustices and wrongs [5], inequality (income and geographic), dispossession and corruption. The FIDH, KHRC and KPTJ consider these forms of violence to be venues for serious human rights violations, hence the need for their immediate cessation. While supporting peaceful resolution of the Kenyan situation, the FIDH, KHRC and KPTJ consider that sustainable peace should be founded on truth, justice and respect human rights and the democratic will of the Kenyan people. Further, the solution to the Kenyan situation must aim at preventing any possible future cycles of violence and human rights violations.

Recommendations

FIDH and KHRC
1) Regret that the UN Human Rights Council members did not convene a special session on the situation in Kenya in conformity with its mandate;
2) Thus, welcome the decision of the UN High Commissioner on Human Rights to send a Fact-Finding Mission in Kenya and her statement that “[t]ruth and accountability are of critical importance in putting an end to the violence and preventing future human rights violations [in Kenya];”
3) Recommend that the members of the Fact-Finding Mission publicly release its preliminary findings at the end of its mission in Kenya;
4) Recommend that the Fact Finding Mission report be presented before the members of the Human Rights Council at the March Session;
5) Recommend that the Mediation Team to take into account the conclusions of the Fact-Finding Mission for just and peaceful settlement of the crisis in Kenya;
6) Request the Human Rights Council Members to adopt a resolution on the human rights situation in Kenya, based on the findings and recommendations of the UNOHCHR Fact-Finding Mission’s report, notably to
a) condemn the serious violations of the provisions of International Human Rights Instruments committed after the 27 December 2007 presidential elections;
b) denounce the electoral irregularities that were committed at the occasion of the presidential ballot of 27 December 2007, in blatant violation of international human rights instruments;
c) request Kenyan authorities to:

− ensure unobstructed investigations on the alleged breach of the Presidential and National Assembly Elections Act and the Constitution of Kenya by the Electoral Commission of Kenya;
− ensure the protection of human rights defenders and civilians in general;
− take all necessary measures to ensure an end to impunity and a return to democratic governance, respect for human rights and just peace in the country;
− ensure that all individuals responsible for directly inciting ethnic violence are investigated and prosecuted;
− ensure that all members of security forces responsible for disproportionate use of force and repression of peaceful demonstrators and other individuals are investigated and prosecuted;
− ensure the opening of investigations against militia members responsible for human rights violations;
− ensure unobstructed investigations on the murder of two opposition Members of Parliament and death threats pronounced against human rights defenders in Kenya;
− take all the necessary measures to ensure respect for the United Nations (UN) Guiding Principles on Internal Displacement;
− establish transitional justice mechanisms to address the underlying causes of the violence and provide justice relating to immediate and historical wrongs in Kenya; and
− more generally, to take all necessary measures to settle the root causes of the crisis in Kenya, notably the issue of land, ineqaulity and poverty, and to guarantee justice, respect for human rights and return to democratic governance.

7) Support the efforts of the Mediation Team to settle an effective political solution to the crisis, based on peace, truth and justice

Notes:

1. See Commonwealth Secretariat, Kenya General Election, The Report of the Commonwealth Observer Group (London, January 2008) available at http://www.thecommonwealth.org, EAC Secretariat, The East African Community Observer Mission Report Kenya General Elections December 2007 (Arusha, January 2008)(on file with the KHRC), European Union Election Observation Mission, Doubts about the Credibility of the Presidential Results Hamper Kenya’s Democratic Progress: Preliminary Statement (Nairobi, January 2008), available at http://www.eueomkenya.org/Main/English/Default.html, and Kenya Human Rights Commission, Violating the Vote Nairobi, February 2008) available at http://www.khrc.or.ke.

2. Kenya has had a history of internal displacement, the most recent being between 1992 and 1997. During that period, more than 250,000 people were internally displaced, most of whom have not returned to their farms and homes. See FIDH and KHRC « Massive Internal Displacements due to Polically Instigated Ethnic Clashes, » FIDH Report n°471/2, available at http://www.fidh.org/spip.php?article4259.

3. See UN Center News Press Release, 28 January 2008 : UN genocide adviser urges end to violence in Kenya, sends staffer there
http://www.un.org/apps/news/story.asp?NewsID=25425&Cr=kenya&Cr1=

4. Cf. Decisions and Declaration of the 9th ordinary session of the Conference.
http://www.africa-union.org/root/ua/index/index.htm

5. During past multi-party elections with the exception of 2002, political violence has been a common occurrence. In 1992 and 1997, violence prior to and after elections was largely attributed to the then ruling party, KANU, whose officials organised, fuelled, or otherwise supported violence aimed at suppressing supporters of the opposition. See FIDH and KHRC « Massive Internal Displacements due to Polically Instigated Ethnic Clashes, » FIDH Report n°471/2, available at http://www.fidh.org/spip.php?article4259.

Pambazuka 

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