Kenya should strengthen its legal framework protecting defenders

On 28 and 29 April 2022, in compliance with article 62 of the African Charter, the African Commission reviewed the 12th and 13th reports of the Republic of Kenya on the legislative, administrative and political measures taken with a view to giving effect to human rights guaranteed by the African Charter.

During the review, the Delegation of the Republic of Kenya highlighted some positive steps taken by the government to better protect the rights of its citizens, especially women, according to the African Charter and the Maputo protocol.

The government is obliged by the Constitution to observe, respect, protect, promote and fulfill the rights and fundamental freedom, freedom of association and demonstration. Kenya has efficient and effective structures for safeguarding the rights of all persons in Kenya, including human rights defenders. Articles 33 and 34 of the Kenya 2010 Constitution expand freedoms of expression and of the press, specifically, by prohibiting the State from interfering with the editorial independence of individual journalists as well as both State-owned and private media. However, demonstrations have sometimes degenerated into riots and criminal activities including looting of private property, robbing and physically harming innocent bystanders have been witnessed.

Country Rapporteur of Kenya, Commissioner Solomon Ayele Dersso welcomed the reports and the efforts made in the country. “Are there any legal provisions guaranteeing judicial and non-judicial compensation for access to justice in the context of extractive industries in the communities?” Commissioner Dersso asked. He equally noted that the legal impunity enjoyed by the industries prevents communities from pursuing complaints.

On the specific situation of human rights defenders, Special Rapporteur on human rights defenders and chairperson of the ACHPR Commissioner Rémy Ngoy Lumbu congratulated the Kenyan government for the recognition of intersex people who suffer enormously in Africa because civil status only recognises male or female genders. He asked the States that are still hesitating in this area to take measures in this direction. “Are there any specific measures in place to prevent violations of defenders’ rights in Kenya? In that sense, does Kenya plan to adopt a law on the protection of defenders?” Commissioner Lumbu asked.

In response to some of the various concerns of the Commission, the delegation of the Republic of Kenya stated that:

• the Land Law was enacted in 2013 and the land commission has the mandate to receive all disputes from the communities;
• with regard to the protection of human rights defenders, the Kenyan government will consider adopting a specific law on the protection of human rights defenders;
• the death penalty was changed to life imprisonment and 1471 cases of death sentences have been changed to life imprisonment;
• Kenya is the first country on the continent to recognise intersex people and to admit that there were previously violations of the rights of intersex people in many services.

 Watch the review here and here.

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