KENYA

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Kenya

NOTE: As several legislative reforms have been made since the information below was gathered, some details are out of date. These will be updated shortly.

The Republic of Kenya1 gained its independence from Britain on 12 December 1963.2 From independence until 1991, Kenya was a single party state,3 and during this time torture was reportedly widespread in efforts to suppress dissent and political opposition, including at the infamous Nyayo House torture chamber.4

Recent conflict in Kenya occurred following the announcement of national election results on 20 December 2007, which returned the incumbent President Kibaki, leader of the Party of National Unity (PNU) – a result which was disputed by the main opposition party, the Orange Democratic Movement (ODM), led by Raila Odinga. During two months of violence, over a thousand people died, hundreds of thousands became internally displaced and tens of thousands of homes, shops and businesses were looted or destroyed.5 According to the Government’s own figures, the police were responsible for 10% of the deaths.6

The 2008 peace deal sought to address the underlying causes of the violence. Under the terms of the deal, President Kibaki retained his post, with a newly created position of Vice President for Odinga, and ministries split between the two parties which now form a grand coalition government. The Government, as part of the peace deal, committed to constitutional and legislative reform and established a number of institutions to address the underlying causes of the violence and to deal with transitional justice issues before the next scheduled national election in 2012.

Kenya is a multi-party democratic state7 with three arms of Government – the legislature, the executive, and the judiciary.8 The 2010 Constitution made a number of changes to Kenya’s political and governance structures, including the introduction of a devolved government.9

Kenya’s formal legal system is largely based on the English common law system, delivering criminal, civil and administrative justice.10 The superior courts of Kenya are the Supreme Court, the Court of Appeal and the High Court.11 The High Court has unlimited jurisdiction in criminal and civil matters, including jurisdiction to determine whether a right or fundamental freedom in the Constitutional Bill of Rights has been denied, violated, infringed or threatened.12 As with the political system, the judicial system was significantly reformed by the 2010 Constitution, which aimed to secure the judiciary’s financial independence from the executive, to improve transparency, promote merits-based appointments, and to improve systems for disciplining and removing judges.13

Since independence, policing in Kenya has been shared by two separate institutions – the Kenya Police Force (KPF) and the Administration Police Force (APF) – each established by, and subject to, their own separate legislation and command structures.14 However, the 2010 Constitution established a new National Police Service (NPS), which once fully operational in 2013, will bring together the renamed Kenya Police Service and Administration Police Service.15 The two services will remain independent, although under one command, led by the Inspector General of Police.16 Each service will have a separate commander (with the rank of Deputy Inspector General) who will report to the Inspector General of Police.17 There are over 200 police stations across the country, however at the time of writing there was no information about the number of detainees currently in police custody.18

There are 99 prison institutions in Kenya, with a total prison population (including pre-trial and remand prisoners) of 49,75719 – significantly more than the system’s official capacity of just 22,000.20 Kenyan prisons are governed by the Prisons Act. The Ministry of Home Affairs (Office of the Vice President) has overall responsibility for the Kenya Prison Service, which is headed by the Commissioner of Prisons.21 The Commissioner is responsible for the administration of prison services and the supervision of prisoners, subject to the direction of the Minister.22 Each penal institution has a provincial prison commander responsible for supervising and controlling the prison to which he or she is appointed who is answerable to the Commissioner of Prisons.23 It is expected that the Prison Service will undergo reform similar to that of the police services to ensure compliance with the 2010 Constitution; however, at the time of writing, no new prisons legislation had been submitted to the national Parliament.

The use of torture, and other ill-treatment, against persons deprived of their liberty has been a subject of major concern for Kenyan civil society, international observers and, more recently, the current Government.24 The key institutions with responsibility for persons deprived of their liberty (including the KPF, the APF and the Prisons Service) have been routinely criticised for their poor human rights record, including the systematic use of torture and ill-treatment, corruption, excessive use of force, abuse of due process and for the failure of internal and external (where they exist) accountability mechanisms.25

The conditions of detention in Kenya (both in police custody and prisons) have been described as ‘dire’, particularly in relation to overcrowding, lack of appropriate health services, insufficient food, and high levels of violence.26 The UN Committee against Torture has recommended that the Government take immediate steps to bring the conditions of prisons in line with the UN Standard Minimum Rules for the Treatment of Prisoners, including providing an adequate budget and other capacity to strengthen judicial supervision of prisons.27

The Government, civil society and international observers have all noted that acts of torture and ill-treatment are seldom investigated and prosecuted and that the perpetrators are either rarely convicted or are sentenced to lenient penalties not in accordance with the grave nature of their crimes. In this context, the Committee against Torture has expressed its concern over the culture of impunity for perpetrators of acts of torture and ill-treatment throughout the country”.28

Kenya has ratified the Convention against Torture (1997), the International Covenant on Civil and Political Rights (1974) and has committed to implementing the UN Standard Minimum Rules for the Treatment of Prisoners. However, Kenya’s domestic law and practice fails to provide effective and comprehensive legislative, administrative, judicial and other protections to prevent acts of torture and ill-treatment.

One of the key challenges to the effective implementation of the CAT in Kenya has been the lack of a definition for torture and enforceable legal provisions to prosecute individuals for torture, leading to what has been described as a culture of impunity and a ‘very fluid judicial interpretation of the concept of torture’.29 The Governance, Justice, Law and Order Sector reform programme was intended to reform key institutions, including the police and prisons, but it failed to make changes to Kenya’s legal and administrative framework to provide for protection against torture. However, the recent post-election violence reform process has resulted in significant legal reforms.

The 2010 Constitution strengthens the application of UNCAT by providing that the general rules of international law are part of Kenyan law and that treaties and conventions ratified by Kenya form part of Kenyan law.30 The new Bill of Rights contains basic procedural safeguards for the prevention of torture and ill-treatment that generally accord with international standards. It also guarantees that Parliament will enact legislation that provides for the humane treatment of detained persons and that takes into account the relevant international human rights instruments.31 However, at the time of writing, no bill has been presented to Parliament. Both the new Constitution and the National Police Services Act provide definitions of torture that are consistent with Article 1 of the Convention.32 However, at the time of writing, relevant amendments to the Penal Code, the Criminal Procedure Act and the Prisons Act were outstanding and, as such, torture is not a criminal offence under those laws.

With regards to torture, the police have been described as ill-equipped to collect evidence, and the lack of a comprehensive law on torture makes criminal prosecution against errant security sector personnel rare.33 At present, there is no independent internal affairs unit within the police or prison services to receive or investigate complaints of torture. Complaints against police and prison officer misconduct, including torture, are investigated at a station or prison level.34 As a result, allegations of torture are usually investigated by the same units responsible for the torture or ill-treatment, which has hampered investigations and called into question the independence of such investigations.35

The 2010 Constitution and National Police Service Act introduce a new internal accountability regime that will become operational in 2013. A key feature of the new internal oversight system is the right of detainees in police custody to lodge complaints against torture and ill-treatment, which must be investigated by the Independent Police Complaints Authority, an independent statutory body that will provide oversight of policing, and never by officers from the police station against which the detainee is making a complaint.36 Additionally, when a detained person dies in police custody, the officer in charge of the station must notify the Independent Police Oversight Authority for the purpose of investigation.37

Kenya’s judicial system underwent significant reform in the 2010 Constitution. The judiciary has been widely criticised for lacking independence,38 corruption, incompetence, lacking the necessary resources and for being both weak and ineffective in the enforcement of human rights, including protection against torture.39 As a result of previously stalled reforms, access to justice in Kenya is limited and, even where judicial remedies are obtained, there is a frequently failure by the courts to enforce its orders and judgments.40 The absence of a definition of torture in Kenyan penal statutes makes it difficult to state with authority that the courts have ruled on torture, but the Judiciary has, according to the Government ‘taken a stand and affirmed that it will treat with extreme seriousness abuse of office which permits torturous, cruel and inhuman treatment’.41

As a result of this limited access to justice, victims normally seek compensation through civil litigation for civil wrongs or tort (for example, assault). This process is described as difficult, given the barriers of court fees, insufficient accessibility of lawyers42 and the habitual delays in the Kenyan justice system.43 Specific orders for legal redress for torture are only available through a constitutional reference, which is a rigorous and lengthy process that requires assistance from legal counsel.44 Since the post-election reform to Kenya’s justice system, the Government has also been seeking to increase the availability of legal services to all citizens, as it recognises that access to legal services and access to, and delivery of, justice are ‘insurance’ against human rights abuses, including torture.45

The last recourse survivors and dependents/families of victims may take is to file a complaint with the Kenya National Commission on Human Rights (KNCHR). The KNCHR’s mandate includes investigating complaints of torture and inspecting places of detention, including prisons and police cells46 and by its statute, the KNCHR has full powers of court to receive complaints, to investigate and inquire into complaints and to issue compensation. However, as with the court system, the KNCHR is inundated with complaints of all forms of human rights violations and experiences the same problem of delay in settlement of complaints. Further, the KNCHR has experienced a lack of cooperation from state entities, particularly the police, in carrying out its mandate.47 It is reported that its legitimacy is questioned by officials, including the police, when it issues reports.48 Since its inception in 2003, it has heard and determined only one case of torture (See Peter Makori v the AG & 10 others Complaint No. KNCHR/CHP/1/2006).49

The Prisons Act provides that the relevant Minister can appoint persons as visiting justices for each prison, who can visit a prison assigned to him or her at any time.50 On a visit, the visiting justice can inspect “several wards, cells, yards, punishment cells and other apartments and divisions of the prison, inspect and test the quality and quantity of prisoners’ food, hear the complaint, if any, of any prisoner, and question any prisoner or prison officer, and shall ascertain so far as possible” whether the Act has been adhered to.51 The Board of Visiting Judges must make a yearly report to the Minister on the state of the prison to which they are visiting judges.52 However, at the time of writing there was no information on the activities of the visiting judges and the outcomes of their recommendations.

The Government has taken a number of significant steps towards the realisation of UNCAT rights and the promotion of human rights generally. However, the process is incomplete and it is too early to know whether these promising initial reforms will result in comprehensive implementation of the UNCAT and the associated behavioural/cultural changes in the security and justice sectors.

Click here for the full DRAFT Kenya Baseline Report.

Footnotes

  1. Against the backdrop of constitutional, legal and administrative transition, this document provides a snap-shot of the most pressing challenges to the implementation of UNCAT rights in Kenya, as identified by the Government’s own inquiries, civil society monitoring and UN treaty bodies and special mechanism reports. This summary is not an exhaustive list of the issues identified by the Government and its stakeholders, but represents those issues that are commonly and consistently raised in reviews of Kenya’s compliance with UNCAT.
  2. Human Rights Council, ‘UPR Working Group Report: Kenya’, A/HRC/15/8, [7].
  3. Committee on the Elimination of Racial Discrimination, ‘State Party Report: Kenya’, CERD/C/KEN/1-4, [14].
  4. The Independent Medico-Legal Unit, Alternative Report to the United Nations Committee Against Torture’, October 15 2008, available on CAT website, [1] – [31] – [33].
  5. Commission on Inquiry on Post Election Violence, ‘Report’, 15 October 2008, Chapter 1, Part II; Kenya National Commission on Human Rights, ‘Report on Post-Election Violence’, 2008; Human Rights Council, ‘UPR Compilation UNOHCHR: Kenya’, A/HRC/WG.6/8/KEN/2, [13].
  6. Human Rights Council, ‘UPR Compilation UNOHCHR: Kenya’, A/HRC/WG.6/8/KEN/2, [13].
  7. Article 4(2), Constitution of Kenya 2010.
  8. Article 1(3), Constitution of Kenya 2010.
  9. Article 9(5)(b), Constitution of Kenya 2010.
  10. Human Rights Committee, ‘Kenya response to Concluding Observations’, CCPR/C/KEN/CO/2/Add.1, [43].
  11. Article 162(1), Constitution of Kenya 2010.
  12. Article 165(3), Constitution of Kenya 2010.
  13. Human Rights Council, ‘National UPR Report: Kenya’, A/HRC/WG.6/8/KEN/1, [72].
  14. Kenya Police Act [#] and Administration Police Act [#].
  15. Article 78, Constitution of Kenya 2010.
  16. Article 245(1), Constitution of Kenya 2010 and section 8(1), National Police Service Act 2011. For details on the role, function, recruitment and dismissal of the Inspector General of Police, see sections 8(1), 12 and 13, National Police Service Act 2011.
  17. Article 245(3), Constitution of Kenya 2010 and sections 22, 24 and 33, National Police Service Act 2011.
  18. http://www.kenyapolice.go.ke/police%20hotlines.asp (12 October 2011).
  19. www.prisonstudies.org/info/worldbrief/wbp_country.pho?country=25 (3 August 2011).
  20. Governance, Justice, Law and Order Sector Reform Programme, ‘Kenya Prison Service’,
  21. http://www.gjlos.go.ke/ (16 July 2011).
  22. Section 5, The Prisons Act, Chapter 90.
  23. Section 5, The Prisons Act, Chapter 90.
  24. Section 26(2), The Prisons Act, Chapter 90.
  25. See generally, Independent Medico-Legal Unit, ‘Alternative Report to the UN Committee against Torture’, 15 October 2008; Committee against Torture, Concluding Observations: Kenya; Report of the Commission of Inquiry into Post-Election Violence, 2008.
  26. See eg, Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention – Concluding Observations of the Committee against Torture, Kenya, Forty-first session, 3-21 November 2008, UN Doc CAT/C/KEN/CO/1, 19 January 2009. Human Rights Committee, 83rd Session, Consideration of reports submitted by States parties under article 40 of the Covenant and of country situations (continued): Second periodic report of Kenya (continued), Summary record of 2256th meeting, Held at Headquarters, New York, on Tuesday, 1 March 2005 at 10 am, UN Doc CCPR/C/SR.2256, 16 May 2005.
  27. See eg, Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention – Concluding Observations of the Committee against Torture, Kenya, Forty-first session, 3-21 November 2008, UN Doc CAT/C/KEN/CO/1, 19 January 2009. Human Rights Committee, 83rd Session, Consideration of reports submitted by States parties under article 40 of the Covenant and of country situations (continued): Second periodic report of Kenya (continued), Summary record of 2256th meeting, Held at Headquarters, New York, on Tuesday, 1 March 2005 at 10 am, UN Doc CCPR/C/SR.2256, 16 May 2005.
  28. Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention – Concluding Observations of the Committee against Torture, Kenya, Forty-first session, 3-21 November 2008, UN Doc CAT/C/KEN/CO/1, 19 January 2009, [15]. Human Rights Committee, 83rd Session, Consideration of reports submitted by States parties under article 40 of the Covenant and of country situations (continued): Second periodic report of Kenya (continued), Summary record of 2256th meeting, Held at Headquarters, New York, on Tuesday, 1 March 2005 at 10 am, UN Doc CCPR/C/SR.2256, 16 May 2005, [10].
  29. Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention – Concluding Observations of the Committee against Torture, Kenya, Forty-first session, 3-21 November 2008, UN Doc CAT/C/KEN/CO/1, 19 January 2009, [23].
  30. The Independent Medico-Legal Unit, ‘Alternative Report to the UN Committee against Torture’, 15 October 2008, [1], [51]-[52].
  31. Article 2(5)-(6), Constitution of Kenya 2010.
  32. Constitution of Kenya, 2010, Article 51(3).
  33. See Article 29, Constitution of Kenya 2010. See also, National Police Services Act.
  34. The Independent Medico-Legal Unit, Alternative Report to the United Nations Committee Against Torture, 41st Session – 3rd to 21st November 2008, October 15 2008, available on CAT website, [1] – [45].
  35. Chapter 20, Kenya Police Force Standing Orders 2011.
  36. Kenya National Commission on Human Rights, Presentation to the Committee against Torture to Inform its Review of Kenya’s Initial Country Report on the Implementation of the Convention against Torture and Other Cruel, Inhuman and Degrading Punishment or Treatment, September 30 2008, available on CAT website, [18].
  37. Seventh Schedule (s. 48), The National Police Service Act 2011.
  38. Seventh Schedule (s. 48), The National Police Service Act 2011.
  39. Justice Jackton B. Ojwang, The Independence of the Judiciary in Kenya, Kenya Law Review, Vol. II [2008-2010], 10.
  40. Human Rights Council, ‘UPR Compilation of OHCHR: Kenya, A/HRC/WG.6/8/KEN/2, [34]. See also, Human Rights Council, ‘State UPR Report – Kenya’, A/HRC/WG.6/8/KEN/1, [57]; Human Rights Committee, ‘State Party Report: Kenya’, CCPR/C/KEN/2004/2, [132]; Human Rights Committee, ‘Concluding Observations: Kenya’, CCPR/CO/83/KEN, [20]; Human Rights Committee, ‘Kenya comments on Concluding Observations’ CCPR/C/KEN/CO/2/Add.1, [44]; Human Rights Council, ‘Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions: Mission to Kenya’, A/HRC/11/2/Add.6, [23], [29], [31], [95].
  41. Human Rights Council, ‘UPR Compilation by OHCHR: Kenya’, A/HRC/WG.6/8/KEN/2, [34].
  42. Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention – Initial reports of States parties due in 1998: Kenya, CAT/C/KEN/1, 16 August 2007, [75]
  43. Note that since the post-election reform to Kenya’s justice system, the Government has also been seeking to increase the availability of legal services to all citizens, as it recognises that access to legal services and access to, and delivery of, justice are ‘insurance’ against human rights abuses, including torture. See Committee on the Elimination of Racial Discrimination, ‘State Party Report: Kenya,’ CERD/C/KEN/1-4, [101].
  44. Human Rights Watch, Submission to 41st Session of the United Nations Committee Against Torture on Kenya, September 15, 2008, available at CAT Committee website, pg 8.
  45. The Independent Medico-Legal Unit, Alternative Report to the United Nations Committee Against Torture, 41st Session – 3rd to 21st November 2008, October 15 2008, available on CAT website, [1] – [46].
  46. Committee on the Elimination of Racial Discrimination, ‘State Party Report: Kenya,’ CERD/C/KEN/1-4, [101].
  47. Constitution of Kenya, 2010, Article 59(2)(i)-(j).
  48. Human Rights Committee, 83rd Session, Consideration of reports submitted by States parties under article 40 of the Covenant and of country situations (continued): Second periodic report of Kenya (continued), Summary record of 2256th meeting, Held at Headquarters, New York, on Tuesday, 1 March 2005 at 10 am, UN Doc CCPR/C/SR.2256, 16 May 2005, [19].
  49. Human Rights Council, Eleventh session, Agenda item 3, Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions, Philip Alston, Addendum, Mission to Kenya, UN Doc A/HRC/11/2/Add.6, 26 May 2009, [75].
  50. The Independent Medico-Legal Unit, Alternative Report to the United Nations Committee Against Torture, 41st Session – 3rd to 21st November 2008, October 15 2008, available on CAT website, [1] – [168].
  51. The Prisons Act 1977 (Cap 90, Rev. 2009), section 72.
  52. The Prisons Act 1977 (Cap 90, Rev. 2009), section 72.
  53. The Prisons Act 1977 (Cap 90, Rev. 2009), section 72.

Kenya Resources

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  • Universal Periodic Review documents

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