KENYA
Assessment of the Implementation of the Previous Concluding Observations on Kenya (CCPR/CO/83/KEN) at the time of the Review of the Third Periodic Report
Report prepared by Federation of Women Lawyer’s Kenya (FIDA Kenya)
Place and Date / August 5th 2011 at Nairobi, Kenya
Article(s)/
issues / Concluding Observation* / Implementation / Current Status or Additional Comments /
Article 2
(Incorporation of the ICCPR into domestic law)
[CCPR/CO/83/KEN paragraph 8] / Incorporate the ICCPR into domestic law / The 2010 Constitution of Kenya contains a provision in Article 2(5) 2(6) stating that: “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” / The Constitution in Article 261 provides for consequential legislation
In terms of Article 261 (1 & 4) and the 5th schedule of the Constitution the Ratification of Treaties Bill, 2011 has been submitted to the Attorney General for drafting and subsequent publication.[1] The Bill is for an Act of Parliament to make provision for the ratification and domestication of international instruments and for related matters.
Take appropriate measures to allow Covenant rights to be invoked in the domestic courts / As stated above, Article 2(6) of the Constitution has the potential to make Covenant rights justifiable after the enactment of the Treaties Bill.
Also see Article – 22 on enforceability making the rights justifiable
Article 2
(Access to judicial remedies)
[CCPR/CO/83/KEN paragraph 9] / Ensure that all individuals subject to its jurisdiction have equal access to judicial and other remedies / The 2010 Constitution of Kenya addresses this issue. Article 22(1) states that “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Kenya has recently also enacted the
See article 22(3) – Chief Justice is to make rules providing for court proceedings under the Bill of Rights provisions.
Institutional Reform / The National legal Aid and Awareness program (NALEAP) was officially launched in 2008 where six pilot projects were created to carry out its mandate.
The pilot sites are based within organisations that traditionally provide legal aid services while the NALEAP Secretariat is involved in matters of policy and guidance of the sites. The programme design is aimed at assessing the provision of legal aid services through the pilot sites after which the programme shall be rolled out countrywide.
Without a comprehensive legal aid system, many Kenyans will have no means to legal services that would assist in institution of proceedings.
Moreover, court delays limit the practical benefit of Article 22(1) of the Constitution and the new civil procedure rules 2010.
The chief Justice has been appointed, the rules have not been put in place
We have ongoing judicial reforms that seek to address concerns that are deemed of importance to delivery of justice. Among these is the new court structure that has been set up, which includes for the first time a Supreme Court. A new Chief Justice and Deputy Chief Justice; There will be vetting of sitting judges to determine their suitability to continue serving as judges. The process of interviewing judges for eventual appointment to serve in the High Court is ongoing.
Articles 2, 3, 23, 24, & 26
(Discrimination against women) [CCPR/CO/83/KEN paragraph 10] / Provide constitutional protection against discrimination in relation to women / The Constitution of Kenya 2010 under Article 10(2)(b) provides for National values and principles of governance which shall apply to all persons including state organs and state officers and public officers – these values include the principle of equality, non discrimination. It thus provides for de jure gender equality in all areas.
Article 27(3) outlines the equal rights of men and women in the enjoyment of economic, social and cultural rights.
Article 27(8)
Article 172 – the JSC shall in carrying out its mandate be guided by among other principles, gender equity
Articles 2, 3, 23, 24, & 26
(Discrimination against women) [CCPR/CO/83/KEN paragraph 10] / Address gender disparities and intensify efforts to ensure the protection of women, whether through the National Commission on Gender and Development or otherwise. / Articles 97, 98 and 100 of the 2010 Constitution are aimed at increasing the number of women holding office in Parliament.
Further Articles aim at ensuring an element of gender equality in the devolved governments.
Article 27(3) of the Constitution requires that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender.
Under Article 59 the Constitution provides for a Kenya national, human rights and Equality Commission, which is a merge between the current National Commission on Human rights and gender Commission / The Government is required to take legislative and other measures, including affirmative action programmes[2] to redress past discrimination. Despite past acknowledgement that affirmative action is required, by the drafting of an Affirmative Action Bill in 2000, there are few, if any, affirmative action programmes relating to recruitment currently operating in Kenya, either within the public or the private sector.
A comprehensive anti-discrimination and equality law based on Articles 10, 20 and 27 of the Constitution should be enacted so as to establish an independent, well funded National Human Rights and Equality Commission with a mandate to enforce all aspects of anti-discrimination. It must have sufficient powers to receive complaints undertake investigations, summon witnesses have evidence produced and make findings.
Articles 2, 3, 23, 24, 26
(Discrimination against women) [CCPR/CO/83/KEN paragraph 10] / Adopt without delay the draft bill that eliminating inequality of spouses with regard to marriage, divorce, devolution of property and other rights / Article 45(3) of the 2010 Constitution provides for equality between parties to a marriage and requires Parliament, by February 2012, to enact legislation to regulate the recognition and protection of matrimonial property and in particular the matrimonial home both during and on the termination of marriage.
Article 60(1) of the Constitution provides that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the principle of elimination of gender discrimination in law, customs and practices related to land and property in land.
Article 68 of the Constitution requires legislation to revise existing land laws including in relation to the matrimonial home and to protect the interests of dependents including spouses of deceased persons. / Schedule 5 of the Constitution sets the deadline for enacting legislation on family law at five years. It is recommended that the Government sets priority to enactment of family law legislation and enact the Marriage Bill, the Matrimonial Property Bill and the Family Protection Bill within the time limit provided in Schedule 5 to the Constitution.
The following are some of the enabling laws that are yet to be finalized
-Draft Environment and Land Court Bill 2011 -An Act of parliament to establish a superior Court to hear and determine disputes relating to environment and the use and occupation of, and title to, to land pursuant to Article 162(2) of the Constitution.
-Minerals and Mining Draft Bill 2011- Act of parliament to govern mineral exploration, prospecting, mining and deal lings in Kenya and for related purposes.
Draft Land Bill (2011) and the Land Registration Draft Bill (2011)
Articles 3, 7 10
(Domestic Violence and Sexual Violence)
[CCPR/CO/83/KEN paragraph 11] / Adopt effective and concrete measures to combat domestic violence against women and sexual violence. Sensitize society as a whole on these issues / Government priorities the enactment of the Family Protection Bill 2007 to protect victims of domestic violence and to provide for protection orders / According to the KDHS[3] 2008-9: 39% women experienced Gender Based Violence since the age of 15 (KDHS 2008 - 09); 25% experienced violence in the 12 months preceding survey. The survey found that spousal violence was widespread, in particular marital rape which is not criminalized under Kenyan law.
The Sexual Offences Act failed to create an offence of marital rape. This deliberate gap in the criminal law [4] has not yet been corrected. It is recommended that the Government amend the Sexual Offences Act to delete section 43(5) to allow for prosecutions of rape between married couples.
The Sexual Offences Act does not create an offence of marital rape. It is recommended that the Government amend the Sexual Offences Act to delete section 43(5) to allow for prosecutions of rape by a spouse.
To encourage reporting, section 38 of the Sexual Offences Act, which currently criminalized the making of false allegations, should be repealed This section contains highly punitive sentences for those who falsely accuse another of a sexual offence, up to life in prison. However, the Penal Code already criminalizes false accusations, with less severe penalties. FIDA – Kenya has argued in a Constitutional challenge that section 38 discriminates against women because it contains more severe penalties than those under the Penal Code. Additionally, it may discourage victims from filing complaints, out of fear that they too will be charged in the event of an acquittal.
Articles 3, 7 & 10
(Domestic Violence and Sexual Violence)
[CCPR/CO/83/KEN paragraph 11] / Ensure that perpetrators are prosecuted and provide assistance and protection to victims / Currently, services for victims of gender-based violence are mainly provided by non-state actors.[5]
The Government must develop nationwide emergency shelters to provide accommodation, medical care, counselling and advice for victims of gender-based violence. This is essential because many women are economically and emotionally dependant on their abusers. They cannot leave without support
All too often, police simply dismiss reports of abuse, terming them a family or private matter. This must be addressed. Victims of domestic violence should be encouraged to report incidents to the police and the police should continue to undertake training on dealing with such gender issues.
Enact as soon as possible the draft Family Protection (Domestic Violence) Bill / Not enacted / Enactment of the gender bills, including the Family Protection Bill has not been prioritized by Parliament. The Fifth Schedule of the Constitution requires that they be enacted within five years of promulgation but it is recommended they be passed within one year, by August 2011[6].
The definition of ‘violence’ in the Bill should include abuse derived from cultural and customary practices including female genital mutilation, forced marriage, child marriage and forced wife inheritance (Family Protection Bill 3(2)(k))
The Bill does provide for Protection Orders to be issued by courts; however, it does not criminalize domestic violence but only describes it as “unacceptable behaviour” (Family Protection Bill Section 5(a).
Articles 3 7
(Female Genital Mutilation)
[CCPR/CO/83/KEN paragraph 12] / Increase efforts to combat the practice of FGM / The Children’s Act prohibited FGM for all girls under 18.
Prohibit FGM for adults / The Female Genital Mutilation Bill 2011 has gone through the second reading / It is recommended that the Prohibition of Female Genital Mutilation Bill be enacted to criminalize FGM in adult women
Further, it is recommended that the Bill also create an offence of discriminating against, harassing or otherwise treating a person in an unfavorable manner for the sole or main reason that a person has not or refuses to undergo FGM.
Step up the awareness campaign by the Ministry of Gender, Sports, Culture and Social Services. / Enactment and implementation of the bill is insufficient as it may lead to situations where the practice is continued but under cover or where the practice is discontinued but women are ostracized and abandoned by their community.
The practice of paying compensation to the relatives of a woman who has undergone FGM to settle the matter is common. No legal action is taken by the police, her family or community against the mutilator or those who allowed the woman to undergo mutilation.[7]
The Government must engage with communities to build awareness about the negative effects of the practice and to develop alternative rites of passage in order to eradicate the practice.
Article 6
(Death penalty)
[CCPR/CO/83/KEN paragraph 13] / Consider abolishing the death penalty de jure and acceding to the ICCPR’s Second Optional Protocol / Article 26(3) of the Constitution, 2010 still gives room for taking of life when the Constitution or any other written law permits. However Articles 29(f) provides for the right not to be treated in or punished in a cruel, inhuman or degrading manner. Article 25(a) of the Constitution provides that freedom from torture and cruel, inhuman or degrading punishment as part of the fundamental rights and freedom that shall not be limited. / Courts continue to impose the death penalty, although no execution was reported.
There has been effort made through superior court decisions in the cases of Godfrey Ngotho vs. Republic [2010] eKLR .The sentencing on the case declared that the mandatory application of the death penalty for the crime of murder is unconstitutional as it is “antithetical to the Constitutional provisions on the protection against inhuman or degrading punishment or treatment and fair trial”