This page summarizes cases raised with Kenya by the Special Rapporteur between May 1, 2011, (when the Special Rapporteur took up his functions) and February 28, 2017 (the date of the last public release of communications). Communications are released to the public once per year. This page also contains observations on these communications and on responses received from Kenya.
Communications and observations are divided into sections based upon which observation report they originally appeared.
Each communication is referenced as urgent appeal (UA), allegation letter (AL), joint urgent appeal (JUA) and joint allegation letter (JAL) – the hyperlinks lead to these documents. This is followed by the date the communication was issued, as well as the case number and the State reply (also hyperlinked if available).
Summaries and communications are published only in the language of submission (in the case of Kenya, English).
None.
Observations
The Special Rapporteur regrets that no response has been received from the Government of Kenya to the two communications he sent during the period under review. He considers responses to his communications as an important part of the cooperation of Governments with his mandate, and urges the authorities to provide as soon as possible detailed responses to all the concerns raised in his communications.
The Special Rapporteur is concerned about the allegations of death threats against members of the organisations Kenya Society for the Mentally Handicapped, Disabled Voters of Kenya Alliance and Central Region Deaf Network, and more generally about individuals and their relatives, who took part in peaceful assembly. He urges the authorities to take positive measures to ensure individuals can freely exercise their right to freedom of association and of peaceful assembly and are not subject to, or threaten to be subject to, discrimination, threats or use of violence, harassment, persecution, intimidation or reprisals.
The Special Rapporteur refers to Human Rights Council resolution 21/16, and in particular operative paragraph 1 that “[r]eminds States of their obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, online as well as offline, including in the context of elections, and including persons espousing minority or dissenting views or beliefs, human rights defenders, trade unionists and others, including migrants, seeking to exercise or to promote these rights, and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law”.
Observations
The Special Rapporteur deeply regrets that the Government of Kenya has neither responded to his communications sent during the current reporting period nor during the previous one. He reiterates that he considers the responses to his communications as an important part of the cooperation of Governments with his mandate and urges again the authorities to provide detailed responses to all the concerns raised in his communications without further delay.
Among the cases brought to his attention, the Special Rapporteur is particularly concerned about the reported harassment and intimidation by the police of members of local non-governmental organizations working on alleged cases of enforced disappearances and collaborating with human rights mechanisms of the United Nations. He also expresses his grave concern about the alleged killing of Mr. Hassan Guyo, founder member of the Strategies for Northern Development, an organization that promotes human rights for women, children and refugees and combat human trafficking in Eastern Africa. He urges the authorities of Kenya to conduct prompt and thorough investigations in each case, prosecute perpetrators, and provide adequate reparation to victims.
The Special Rapporteur calls upon the Government to put in place an enabling and safe environment allowing individuals to exercise their legitimate freedoms of peaceful assembly and association without undue hindrances. He reiterates the content of the operative paragraph 2 of the Human Rights Council Resolution 24/5 that “[r]eminds States of their obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, online as well as offline, including in the context of elections, and including persons espousing minority or dissenting views or beliefs, human rights defenders, trade unionists and others, including migrants, seeking to exercise or to promote these rights, and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.”
The Special Rapporteur expresses further concern about the provisions of the Statute Law (Miscellaneous Amendments) Bill (the “Bill”) that aims at amending, among others, the Public Benefit Organizations Act, 2013, which regulates associations, and the National Youth Council Act, 2009, which regulated activities carried out by youth groups and other associations. The Bill allegedly includes unclear provisions that limit the rights to freedom of association, restrict the access of associations to funding, allow for undue State interference, and impose additional and unnecessary burden on civil society organizations.
Furthermore, the Special Rapporteur expresses concern at the allegations of a blanket ban on public gatherings in March 2013 following the presidential elections. He wishes to refer to the following extracts of his thematic report to the General Assembly: “The right to freedom of peaceful assembly and of association are pertinent to the democratic process, both during the election period and between elections” (A/68/299, paragraph 5). “More specifically, the right to freedom of peaceful assembly and of association are a critical means for individuals and groups of individuals to participate in public affairs” (A/68/299, paragraph 6). “The engagement of civil society organizations in the electoral process should not lead to their being involuntary labelled or treated as political parties simply as a result of their having participated in public life in the way in which they have chosen” (A/68/299, paragraph 9). Civil society organizations have also an important play in the context of elections … In different capacities, organizations undertake various activities to advocate for the concerns and interests of their beneficiaries, to contribute to ensuring the integrity of the electoral process, to further contribute to the achievement, protection and strengthening of democratic goals and standards, and to keeping authorities accountable to the electorate” (A/68/299, paragraph 42).
In addition, the Special Rapporteur recalls the opinion of the Human Rights Committee that considers unjustified temporary derogation measures from the right of freedom of assembly during a state of emergency (General comment no. 29). He further reminds the Government of Kenya that only certain restrictions may be applied, as provided for in the International Covenant on Civil and Political Rights and that the freedom is to be considered the rule and its restriction the exception. He reiterates the content of the articles 21 and 22 of the mentioned Covenant, which Kenya acceded on 1 May 1972: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” (article 21) “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right” (article 22).
The Special Rapporteur reminds the Government of Kenya of his country visit requests sent in March 2014. He regrets to not have received a response to date. In this connection, OP6 of resolution 15/21 states that the “Human Rights Council… [c]alls upon States to cooperate fully with and assist the Special Rapporteur in the performance of his or her tasks… and to consider favourably his or her requests for visits”. He is convinced that such a country visit could provide him with a significant opportunity to engage in a constructive dialogue with the Government.
Observations
Responses to communications
The Special Rapporteur takes note of the Government’s acknowledgment of one of his communications. However, he regrets that the Government of Kenya failed to provide substantial responses to the questions raised in his communications since the establishment of the mandate in 2011. He considers responses to his communications as an important part of the cooperation of Governments with his mandate and urges again the authorities to comply with Human Rights Council resolutions 24/5 (2013), 21/16 (2012) and 15/21 (2010) that call upon States to cooperate fully with him and assist him in the performance of his mandate and to respond promptly to his communications. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in his communications.
The Security Laws (Amendment) Bill, 2014
As indicated in the communication sent on 18 December 2014 (KEN 7/2014), the Special Rapporteur recalls that the Government of Kenya committed to protect and promote rights set forth in international human rights law and standards, and in that regard, looks forward to receiving a detailed reply to the concerns raised in his letter, including information the outcome of the debates related to the case, as soon as possible. He remains seriously concerned about certain provisions of the Security Laws (Amendment) Bill, 2014 that may negatively interfere with the ability of associations to freely perform their activities and of individuals to publicly expresstheir views. Similarly, he remains concerned by the vague wording of some of the provisions and cautions the authorities against ambiguous legal provisions governing the rights to freedom of peaceful assembly and of association that increase the risk of abuses and violations of these rights and infuse fear of breaking the law among society activists, which in turn can lead to self-censorship.
In addition, the Special Rapporteur warns against the practice of resorting to security considerations to adopt stricter measures that annul fundamental rights and freedoms. He articulates that there should be a presumption in favour of holding peaceful assemblies and associating freely. In his view, excessive restrictions, mass surveillance and shows of force attest that authorities in some Member States often presume the opposite, which has a chilling effect on civil society activism. He stresses that security considerations should not be used as a justification for unduly strict rules or interpretations that void the rights to freedom of peaceful assembly and of association.
The Special Rapporteur reminds the State of its obligation to ensure a conducive environment for the free exercise of the rights of peaceful assembly and association, rights enshrined in the International Covenant on Civil and Political Rights, acceded by the State on 1 May 1972. It also restates that, according to this same Covenant, only a very limited number of restrictions to these rights may apply, which should be prescribed by law and necessary in a democratic society for responding to a pressing social need for the interference.
In relation to the clauses aiming at countering terrorism, the Special Rapporteur recalls that even during a state of emergency, the rights to freedom of peaceful assembly and of association shall not be derogated. He advocates that when absolutely necessary, the measures provided by the International Covenant on Civil and Political Rights are adequate to combat terrorism or handle other security considerations.
The Special Rapporteur encourages the State to overturn any legislation that curtails the rights to freedom of peaceful assembly and of association.
Environment in which these rights are exercised
The Special Rapporteur remains concerned about the cases brought to his attention during the period under review. Namely, he reiterates his preoccupation at prima facie violations of the State’s positive obligation to actively protect peaceful assemblies and to make sure members of association can operate freely and without fear.
He urges the Government of Kenya to put in place an enabling environment for associations to operate safely and for protests to take place free from undue restrictions. He remains concerned about the reported intimidation and threats against organizers of a peaceful rally in Owino Uhuru village in April 2012 (KEN 6/2014) and about the alleged pattern of disruptions of peaceful assemblies and criminalization of protestors or assemblies’ organizers, including non-governmental organizations, registered in Nairobi in February 2014 (KEN 3/2014) and December 2014 (KEN 1/2015).
Country visit
The Special Rapporteur thanks the Government for its invitation to carry out a visit to the country during the second half of March 2016. He hopes to revert back to the authorities in the briefest delays with a proposal for dates for this visit, within the framework of his other mandated activities for 2016, and reiterates his appreciation to the Government for its collaboration with the mandate.
Observations
Response to communication
The Special Rapporteur regrets that, to date, no reply has been received to his communication KEN 2/2015. He recalls that responses to his communications are an important part of the cooperation of the Government of Kenya with his mandate, and urges the authorities to comply with Human Rights Council resolutions on the rights to freedom of peaceful assembly and of association. These resolutions, including resolution 24/5 (2013), call on States to cooperate fully with and assist him in the performance of his mandate and to respond promptly to his communications.
The Special Rapporteur remains concerned about the fact that MUHURI and HAKI Africa have been unable to access their funds in their bank accounts, as a result of the inclusion of these organizations in an official list of entities suspected to be associated with Al-Shabaab. The Special Rapporteur reiterates his concern about the fact that MUHURI and HAKI Africa may have had their bank accounts frozen as a result of their peaceful and legitimate human rights activities in Kenya. The Special Rapporteur urges the Government to provide detailed information concerning the grounds for including both associations on the list of entities suspected to be associated with Al-Shabaab.
He recalls that the ability for associations to access funding and resources is an integral and vital part of the right to freedom of association. In this regard, in his second thematic report, he called upon States to “ensure that associations – registered and unregistered – can seek, receive and use funding and other resources from natural and legal persons, whether domestic, foreign or international, without prior authorization or other undue impediments, including from individuals; associations, foundations or other civil society organizations; foreign Governments and aid agencies; the private sector; the United Nations and other entities” (A/HRC/23/39, para. 82(b)).
More generally, the Special Rapporteur reminds the Government of Kenya of its positive obligation to ensure that civil society, including human rights defenders, can carry out their legitimate work free in a safe and enabling environment without fear of threats or acts of intimidation, harassment or threats of any sort. He also wishes to refer to the joint report on the proper management of assemblies he prepared with the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/31/66), which is particularly relevant to the situation in the country.
Country visit
The Special Rapporteur regrets that the Government of Kenya never provided a response to his letter proposing specific dates for a visit to the country during the second half of March 2016. He reiterates that Human Rights Council resolution 15/21, which established his mandate, and 24/5, which renewed it for an additional period of three years, both call on States to consider favourably his requests for visits.
Observations
Responses to communications
The Special Rapporteur regrets not having received a response to his communications. He considers responses to his communications to be an important part of the cooperation of Governments with his mandate, in line with Human Rights Council resolutions 24/5 (2013), 21/16 (2012) and 15/21 (2010). In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in his communications.
Environment in which these rights are exercised
The Special Rapporteur reiterates his concerns regarding the crackdown implemented by Kenyan authorities over the past few months, occurring less than a year before the presidential elections to be held in August 2017.
The Special Rapporteur restates his utmost concern for the critical situation of the right to freedom of peaceful assembly in Kenya, as raised in communications KEN 3/2016 and KEN 5/2016. The Rapporteur considers the creation of an environment where opinions can be expressed peacefully key to avoiding a repetition of the wave of violence which followed the disputed presidential poll in 2007 (PR 10 November 2016). The Special Rapporteur reiterates his call for the Kenyan authorities to respect the demonstrators’ fundamental rights at future protests.
The Special Rapporteur is further concerned by the reported repression of peaceful protests by security forces. He reiterates his dismay at the alleged excessive use of force during various protests, including the use of live ammunition, tear gas and water cannons against peaceful protestors, as well as violent beatings of individuals with batons. He also stresses his concerns regarding the numerous arrests and arbitrary detentions of protestors, as well as journalists, which took place in various cities. He recalls that the use of force by law enforcement officials should be exceptional, and assemblies should ordinarily be managed with no resort to force. Additionally, any use of force must comply with the principles of necessity and proportionality (A/HRC/31/66, para. 57).
The Special Rapporteur remains concerned about several cases brought to his attention during the period under review. Namely, he reiterates his concern about the alleged disappearance, torture and extra-judicial executions of a human rights lawyer, Mr. Willie Kimani, as well as Mr. Josephat Mwenda and Mr. Joseph Muiruri (KEN 4/2016). He expresses additional serious concern regarding the fact that these actions were allegedly perpetrated by police forces and seem to be directly related to Mr. Kimani’s legitimate work as a lawyer and human rights defender. The detention and judicial proceedings against ten human rights defenders (KEN 6/2016), allegedly in reaction to the legitimate exercise of their rights to freedom of expression and freedom of association in promoting land rights in Kenya, is another illustration of the restriction of civil space in the country. Finally, he is deeply concerned about the safety of the CJGEA members and their families who have peacefully campaigned to protect the Owino Uhuru community’s environmental and human rights for years (KEN 6/2017).
As indicated in the communication sent on 6 February 2017 (KEN 3/2017), the Special Rapporteur warns against the recent Government circular accusing a large number of NGOs of posing a threat to national security and of being involved in money laundering and terrorism financing, as well as at what appears to be a lack of political will to create a favorable environment for civil society to work without hindrances, embodied by the continued prolongations of entry into force of the Public Benefit Organization (PBO) Act. The Special Rapporteur reminds the authorities of the Government of Kenya that a vibrant and strong civil society is a cornerstone for the stability of political institutions.
He recalls that any restriction on the rights to freedom of expression, peaceful assembly and association must comply with the provisions of articles 19, 21 and 22 of the ICCPR. The Special Rapporteur also recalls resolutions 24/5 and 15/21, which affirm the responsibility of States to respect and fully protect the rights of peaceful assembly and association of all individuals.
He urges the Government of Kenya to put in place an enabling environment for associations to operate safely and for protests to take place free from undue restrictions.
Country visit
The Special Rapporteur thanks the Government for its invitation to carry out a visit to the country during the second half of March 2016. He reiterates his appreciation to the Government for its collaboration with the mandate.
For the full reports, containing communications, replies and observations for all countries, see the following links:
Report A/HRC/20/27/Add.3: May 1, 2011 to March 15, 2012
Report A/HRC/23/39/Add.2: March 16, 2012 to February 28, 2013
Report A/HRC/26/29/Add.1: March 1, 2013 to February 28, 2014
Report A/HRC/29/25/Add.3: March 1, 2014 to February 28, 2015
Report A/HRC/32/36/Add.3: March 1, 2015 to February 28, 2016
Report A/HRC/35/28/Add.4: March 1, 2016 to February 28, 2017
