The Kenya National Human Rights Act (No. 9 of 2002) defines “human rights” as the fundamental rights and freedoms of any individual protected under the Constitution and any human rights provided for in any international instrument to which Kenya is a signatory. When Prof. Philip Alston, special rapporteur of the United Nations, visited Kenya in 2007, he recorded numerous instances of extra-judicial killings of criminal suspects by elements of the Kenyan security establishment that he stated were human rights violations. He added that the Attorney-General and the Chief Justice of the High Court were the main impediments in the protection of human rights, calling them the two most important obstacles in the fight against impunity.
Justice Philip Waki and the CIPEV recorded numerous instances where Kenyans were denied their human rights in the aftermath of the 2007 general elections. In recognising the relative infirmity of the Kenyan Judiciary to deal with these issues, Mr. Justice Waki recommended that either a special tribunal be constituted by law to deal with the investigations and prosecutions or that the matter be handed over to the International Criminal Court at the Hague, a creature of the Rome Statute to which Kenya is signatory.
In recent weeks, the Ivory Coast has held presidential elections that are heavily disputed by the two leading contenders - Laurent Gbagbo, the incumbent and Alassane Ouattara, the challenger. The Right Honourable Prime Minister of Kenya, before he took up the role of chief mediator in the Ivorian imbroglio, had called for the removal of the incumbent, even by military means. Before he was appointed Prime Minister under the terms of the National Accord and Reconciliation Act of 2008, which was subsequently embedded in the former Constitution, he was the main challenger to the incumbent President of the Republic of Kenya, Mwai Kibaki, and he hotly contested the results of the presidential poll, even though it has now been established by the Kriegler-led Commission of Inquiry that his hands were not entirely clean in the small matter of poll 'irregularities'.
Mr. Justice (ret'd) Kriegler, a former South African Supreme Court Justice, opined that the state of the electoral management system in Kenya was such that it had dire effects on the human rights of Kenyans and that its reform was a matter of priority if similar irregularities were to be avoided in future. The Kenyan Prime Minister is not in a position where he can declaim with impartiality on the Ivorian crisis and one wonders why he has waded into this cesspit.
The euphoria that accompanied the promulgation of the Constitution in August last year obscured a fact that many Kenyans refuse to acknowledge - that their government has been responsible for the violations of human rights on an epic scale and the Constitution is not the panacea for what ails this nation. The history of this nation is riddled with instances where the State acted with impunity, violating and denying its citizens their rights whenever it suited its purpose. Today, tens of thousands of Kenyans live in abject poverty, having been uprooted violently from their homes and hearths on flimsy political grounds.
The State has frequently promised to address their plight but the reality is that the matter has been hijacked by partisan, corrupt and selfish individuals acting with impunity. In numerous instances, the victims of the PEV know and can identify some or all of their attackers; yet, the Attorney-General and his Director of Public Prosecutions have yet to successfully prosecute a single individual for the human rights violations that took place in 2007/2008. The laudable work that was conducted by the KNHCR in the aftermath of the violence, documenting the horror stories endured by Kenyans, has been challenged by those who do not wish to see justice done.
When the President declared that he would support a local judicial mechanism to try the perpetrators of the PEV, he unwittingly admitted that the current judiciary was incapable of handling the massive violation of human rights that had taken place in 2007 and 2008. His, and the prime Minister's, previous attempts at setting up such a mechanism had foundered on the obstinate refusal of the national Assembly to address the plight of the victims of the violence. To the victims, it has always appeared that they are pawns in the chess-board of regional and ethnic political gamesmanship. The powers-that-be have never had their interests at heart. I have argued previously that the question of resettlement is not the right way to proceed.
The men, women and children who were violently displaced from their properties include those who have occupied their pieces of land for generations. The former Constitution, as the new Constitution, guaranteed all Kenyans the right to own and hold property any where in Kenya. What the state has actually told them is that this right will always be subsumed to the petty 'tribal' feelings of a violent few and that their rights are not so important as the feeling of ethno-chauvinistic satisfaction derived from forcibly evicting 'aliens' from their own land. If the State is unable to provide security for these people, then it must pay them a fair price for their properties; or in the alternative, resettle them from whence they came.
The Prosecutor of the ICC has filed to suits involving six men at the ICC. The day he named his suspects, their supporters, some paid and some not, were up in arms, arguing that Kenyan sovereignty was threatened if the six were to be summoned and tried at the Hague. Indeed, some purported victims of the PEV were to be seen championing the rights of some of the accused, while in other instances, members of the ethnic communities of the suspects were declaiming in the agora that their 'people' were being targetted so that they could not participate effectively in the 2012 general elections. At no point have the suspects or their legions of supporters spared a thought for Kenyans who, three years after their forcibly removed from their homes, or their family members raped or murdered. Not one of them has suggested that these unfortunate Kenyans deserve the moral and material support of the State and the nation at large. The Christmas gesture from the First Family is small-potatoes - no compensation has been paid for properties lost, people killed or maimed for life.
Kenya needs a new era of human rights agitation. Until the people who were victims of the PEV are set right, the implementation of the Constitution will forever remain a charade. Of what benefit will be the establishment of a Supreme Court, the appointment of a new Chief Justice, Attorney-General or Director of Public Prosecutions if Kenyans continue to be denied their human rights by their Government? Until their plight is justly addressed, the Constitution will not be worth the paper it is printed on.
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