Torture in Kenya: Ending Impunity by Speaking the Victims’ Truth

kenya flagMy heartfelt thanks to IntLawGrrls for the opportunity to contribute this introductory post.

This month, the Committee against Torture will meet in Geneva to conduct a review of Kenya’s progress in meeting its obligations under the Convention against Torture (UNCAT). I worked with Physicians for Human Rights to submit an alternative report in April on Kenya’s efforts to comply with UNCAT. The report highlights Kenya’s inability to address torture stemming from unchecked gang activity, its failure to stop the torture of domestic violence, and its de facto acquiescence to torture in the form of female genital mutilation.

Kenya submitted a report describing its own progress and challenges faced in ending torture. Other nongovernmental organizations submitted reports about Kenya’s efforts to address the insidious, destructive problem of torture within its borders. The independent observations of NGOs are central to the UNCAT reporting process, offering alternative perspectives to the self-serving reports submitted by the states.

PHR, while largely known for its cutting-edge forensic work exposing human rights abuses, is also home to the Asylum Program. The Asylum Program is a unique model that provides direct services to asylum seekers while advocating for improved conditions in immigration detention centers and documenting human rights abuses suffered by immigrants. To document torture suffered by asylum seekers in their home countries, the Asylum Program pairs volunteer physicians and mental health experts with asylum seekers in the U.S. The medical professionals perform evaluations, prepare affidavits based on those evaluations, and submit the affidavits along with the asylum seekers’ applications, providing medical documentation to support claims of torture and abuse.

In writing the report to the Committee on behalf of PHR, I read all the medical affidavits for asylum seekers from Kenya since 2008, written by professionals affiliated with the Asylum Program. (2008 was the last time Kenya participated in the reporting process to the Committee; the Committee had been requesting a report from Kenya for each of the preceding nine years, and the country finally complied for the first time in 2008).

The affidavits make up a stark narrative of torture and ill-treatment suffered by Kenyans at the hands of the mungiki, a criminal gang that has terrorized the country with impunity for decades. Rape, genital mutilation, and beheadings characterize its violence. Despite its status as an illegal organization, Kenya has been powerless to put a stop to the mungiki’s torture and has even harmed innocent civilians in its efforts to address mungiki violence. The government allegedly formed a secret police force to kill members of the mungiki on sight. When Kenyan activists began to investigate these extrajudicial killings, the police then began targeting the activists to silence their investigations. Staff of human rights organizations faced threats and beatings from police for their work in exposing the execution-style murders of suspected mungiki members.

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Prosecutorial conduct in question (again) at the International Criminal Court


Uhuru Kenyatta (photo credit: Wikipedia)

Readers of this blog will probably be aware that the Prosecutor of the International Criminal Court spectacularly dropped the charges against Francis Muthaura, co-accused to Kenyan President Uhuru Kenyatta, last month. This occurred after it was revealed that a key prosecution witness (known as Witness 4) had admitted to lying in earlier testimony and had recanted his testimony. This important piece of exculpatory evidence was not disclosed to the defence until after the confirmation of the charges hearing in January 2012, even though the admission had been made in 2010.

On the basis of the Muthaura acquittal and the fact of the non-disclosure, Kenyatta asked for the charges against him to also be dropped. The Kenyatta defence team further pointed to the fact that large swathes of prosecution evidence (including an estimated 24 of the 31 fact witnesses for the prosecution) had been gathered after the confirmation of charges hearing. In the alternative, Kenyatta submitted, the matter should be referred back to the Pre-Trial Chamber for reconsideration of the confirmation of the charges decision.

Last Friday, Kenyatta’s request was denied. Trial Chamber V held that a stay or termination of proceedings would be a disproportionate response. It also held that to refer the case back to the Pre-Trial Chamber on the basis of changes in evidence would exceed the Chamber’s statutory powers, insofar as it would essentially be exercising appellate functions over the original confirmation decision. Nonetheless, the Office of the Prosecutor did not escape censure in the decision. The majority noted its concern at:

the considerable volume of evidence collected by the Prosecution post-confirmation and the delays in disclosing all relevant evidence to the Defence.

Judge van den Wyngaert put her criticisms in even stronger terms, referring to the Prosecution’s ‘negligent attitude’. In a very strong separate opinion, Judge van den Wyngaert pointed out that the prosecution had failed to give any proper justification for the large amount of evidence collected post-confirmation, besides vaguely referring to the security situation in Kenya.

This incident is not the first time the Office of the Prosecutor has been criticised for its investigative conduct, of course. But this decision calls into question the appropriateness and effectiveness of reprimands as remedies, and whether reprimands are sufficiently punitive to deter carelessness when it comes to prosecutorial obligations.  A number of alternative sanctions may serve a greater deterrent function. For example, Caianiello has suggested that repeated violations of the disclosure obligation should, in exceptional cases, lead to a permanent stay of proceedings. But, as pointed out in the present decision, this remedy will often be disproportionate to the harm suffered. So what are the alternatives? Continue reading

The Kenyan Presidential Election and the ICC

On March 3, 2013, Kenyans went to the polls and elected Uhuru Kenyatta as President.


Kenyatta’s ability to perform the necessary duties may be called into question, however, given that he is due to stand trial at the International Criminal Court this summer on charges of crimes against humanity. The charges stem from his alleged role in funding and organizing the ethnic violence that led to the deaths of an estimated 1,200 people after the last presidential election in 2007. Kenyatta has said that he will cooperate with the ICC when it comes time for him to face the charges, but the very fact that he was elected president of a country in which he allegedly masterminded post-election violence in the past is concerning. (photo credit)

It is unclear exactly what role – if any – the ICC case had in the election, and how it may have influenced voters. Some reports, however, indicate that, far from leading people to vote against Kenyatta due to the charges against him, the ICC involvement may have led Kenyans to vote for him (see here and here.) Leading up to the elections, the United States and other countries warned of consequences should Kenyatta be elected. These statements, perhaps perceived as bullying, may have had the opposite of their intended effect. Indeed, where ICC involvement is considered interference in Kenya’s domestic affairs, a vote for Kenyatta may be a vote against the ICC and the international community.

On the other hand, the ICC charges against Kenyatta may not have had much effect at all on the election, given that voting was largely along ethnic lines and Kenyatta had plenty of resources to put toward his campaign. Regardless, it will be interesting to see how the world reacts to a Kenyatta presidency, and how Kenya – and Kenyatta – will react in July once the ICC proceedings start.