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Address by Navanethem Pillay, United Nations High Commissioner for Human Rights - University of Nairobi June 8, 2010

Ladies and Gentlemen,

It is a great honor to address you on the topic of Developing Trust through Respect for Human Rights at a time so momentous for all Kenyans and at the midpoint of my mandate as United Nations High Commissioner for Human Rights.  I will always be grateful for Kenya’s support of South Africa, my country, in its struggle against apartheid.  It is also thanks to the help from friends in our time of need that we succeeded in ridding ourselves of apartheid and in healing the wounds of strife.  And now the gaze of the international community turns upon Kenya, as this country seeks to overcome its own predicament of societal divisiveness and to solidify its gains towards reconciliation.

 In a constructive and collaborative spirit, Kenya is tackling the challenges posed by its recent turmoil on two crucial fronts: through institutional reform, and in particular, with a new Constitution, as well as with processes that are meant to foster societal cohesion. The pillars of such a momentous process must be a charter that enshrines the vision and aspirations of all Kenyans, a justice system that promptly and fairly redresses grievances when the law is challenged by acts of commission or omission, a robust system of checks and balances on executive power, vehicles that promote harmonious relations among communities, as well as a vibrant civil society. These issues will also be the topic of my address today.

Before getting to the heart of these crucial matters and discussing them in good order, let me note that taking a firm and impassioned look into the underlying causes of conflict is a prerequisite for dealing effectively with the legacy of the past and to build or recover communal trust.
The debate on, and the drafting of, constitutions offer key opportunities for addressing the root-causes of societal strife and for enshrining protections of all human rights, including economic, social and cultural rights, as well as civil and political rights at the very core of the fundamental law of the land.  These processes also propel rights and entitlements at the forefront of public consciousness and discussion.  Crucially, constitutional recognition of all human rights is an indispensable conduit to the implementation of a State’s international legal obligations. It is a precondition for redressing and preventing discrimination and abuse.  Indeed, it is not by coincidence that the principles of the 1948 Universal Declaration of Human Rights have been reflected in the constitutions of more than 90 countries, as well as in countless pieces of legislation all over the world.  To summarize, constitutional processes can and must be stepping stones for the attainment of larger areas of freedom, justice and wellbeing.

As a South African, a jurist and a longtime human rights advocate, I know this first hand.  Together with many passionate colleagues and friends, I worked to ensure that the Constitution of South Africa enshrined in law what had been achieved in the political arena, that is, a thorough rejection of the twin scourges of discrimination and inequality.    My country’s constitution upholds the right to equality and includes protections for rights related to property, housing, heath care, food, water, education, language and culture.  It upholds and champions political and civil rights.   

The draft constitution of Kenya also contains its own bill of rights that promises to deliver on fundamental freedoms and includes a strong platform for bolstering economic, social and cultural rights. It addresses historical exclusion based on ethnicity and lack of access to land. I note that the bill of rights of the new draft constitution is entrenched and can only be amended through popular referendum.  Its provisions include the mandate and structure of the National Human Rights Commission, a key institution which historically has represented a beacon of hope for victims of human rights violations in Kenya.  The independence of the judiciary is similarly protected.

The process leading to a referendum on the constitution is a good exercise in democracy. For my part, let me underscore that the Office of the High Commissioner for Human Rights promotes compliance with international human rights norms and standards.  Accordingly, the spirit and letter of national laws, including constitutions, should uphold the principle of accountability—and the separation of powers—as well as promote and protect democratic institutions, good governance, the rights of all people, and the rule of law.

 We also emphasize the need to anchor viable implementation mechanisms into constitutions, so as to ensure effective protection of human rights and justice.  We insist that the constitution-making process must be nationally owned and led, as well as genuinely inclusive and participatory.  Outreach, education, capacity building and institutional development are the vehicles that anchor aspirations and vision to reality and, in so doing, become veritable conveyor belts to the enjoyment of all human rights.

Ladies and Gentlemen,

I am just back from Kampala, where I attended the Review Conference of the International Criminal Court.  This, too, is a topic of great moment for Kenya. As you know, the International Criminal Court is now involved in an investigation into specific responsibilities for the violence that erupted in this country following the 2007 elections.  I am told that public opinion favors this development, but that questions have been raised regarding the scope and methods that the wheel of international justice may set in motion.   As a former judge and later as President at the International Criminal Tribunal for Rwanda and a judge at the International Criminal Court, I can offer some explanations regarding the goal and purpose of the ICC, as well as clarify some of the misunderstandings that may surround its modus operandi.

The Statute of the International Criminal Court was adopted in 1998 as a result of the human rights movement’s struggle against impunity.  One of its defining features is the principle of complementarity, a principle that underscores a system of primacy of jurisdiction on the part of national authorities. 

According to the principle of complementarity, the ICC will only admit cases if national authorities are unwilling or unable to act against the perpetrators of war crimes, crimes against humanity and genocide. Indeed, it can be said that its jurisdiction is exercised by default.   I can not overemphasize that it is States that have the primary duty to bring genuine, credible and effective proceedings against those suspected of committing serious crimes of concern to the international community.  This important legal principle also reflects an eminently practical approach.  Justice obtained at home may better serve, in its proximity to location and culture, the interests of victims. This, of course, depends on the quality of justice that can be delivered and on whether proceedings satisfy minimum international standards regarding judicial guarantees of due process, fairness and impartiality.

Thus the ICC’s role is clear and limited. The ICC will generally only be able to address a relatively small number of cases of war crimes, crimes against humanity and genocide.  The Office of the Prosecutor has decided on the policy of prosecuting only those deemed most responsible for these crimes.  The duty of States is not to wait for the probable exercise of ICC jurisdiction.  It is important not to allow the “most responsible” policy of the Office of the ICC Prosecutor to be taken up by States as a signal to
prosecute only some and not all perpetrators.  States’ duty is to act in a manner that conforms with national and international legal obligations, and that delivers effective justice and remedies to victims of serious violations of international law. To this end, OHCHR stands ready to help States strengthen their justice system capacity in order to ensure that impunity and impunity gaps do not exist.  Indeed, considerations of inability and lack of capacity should not be allowed to dominate discourse on why States do not deliver on their part of their bargain of complementarity. With the requisite political will, resources, and cooperation from the international community, inability can be overcome and capacity can be built.  Justice becomes more meaningful for the victims when it is delivered close to home.
In this regard, I have urged the Government to reconsider the establishment of a Special Tribunal to pursue accountability for individual responsibilities in the post-election violence.  I have received reassurances that such an option is still open.

Let me stress again that, ultimately, it is an independent, credible and efficient national judicial system which can best safeguard the rights of individuals and communities, deter further abuse, and instill confidence in governmental institutions. Indeed, the principle of accountability for unlawful and abusive conduct underpins good governance and societal cohesiveness.  Conversely, impunity and corruption may—and routinely do— corrode public trust in the rule of law and in justice.

Dear Colleagues,
  The mandate of the High Commissioner for Human Rights, as decided by the United Nations General Assembly, is to protect and promote all human rights for all.  In my view, overcoming divisions and developing trust within societies recovering from conflict, communal strife or repressive rule are central to my mandate.  From a human rights’ perspective, the right to justice of victims, to know the truth, to receive reparations, and to be protected from recurrence of violations are of paramount importance.  To this end, transitional justice mechanisms can be successfully explored to help achieve communal reconciliation.  If carried out purposefully, with utmost clarity and with the best interest of victims in mind, these processes can also re-establish the confidence of citizens in the public institutions which have direct bearing on the protection of their rights.  

In the United Nations system, my Office has the leading role in all issues pertaining to transitional justice.  Accordingly, we support coherent and comprehensive approaches to transitional justice, comprising a broad range of both judicial and non-judicial processes.  The nature of such processes and mechanisms should take due account of the national context and views of national stakeholders. 

It is important to point out that the chosen vehicles of transitional justice must be in conformity with international legal standards and obligations.  These include the duty to undertake effective investigations and prosecutions of gross violations of human rights and serious violations of international humanitarian law which constitute crimes under international law.  Amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity, and gross violations of human rights.   

Ultimately, the aim of transitional justice is to protect and restore the dignity of the large numbers of individuals whose rights have been seriously violated.  Their outcome must reflect the broadest spectrum of the stakeholders’ views. This is particularly important in addressing the plight and rights of women who are all too often among the most affected by violence. Indeed, the inclusion of a gender perspective also widens the scope of transitional justice and offers the possibility of addressing potential imbalances at the very beginning of a reconciliation process.  Advocating for the rights and meaningful participation of victims has been a central aspect of OHCHR’s work. To paraphrase the wise words of a distinguished Kenyan colleague, women may have been battered and abused, but they were still able to produce human rights jurisprudence and social change.

Various countries around the world have established truth commissions to uncover patterns of past violence and unearth the causes and consequences of destructive events. 

I am aware that Kenya’s own newly created Truth, Justice and Reconciliation Commission was off to a bumpy start.  I exhort the Government to ensure that the high expectations raised with the creation of the commission are not dashed.  The victims of historical injustice and abuse have a right to be heard. I wish to assure you that, in partnership with our UN colleagues and with the support of the international community, my Office stands ready to assist the Government of Kenya in its efforts to establish a functioning and credible transitional justice process. 

In the task of establishing the truth and providing justice, States can benefit from the assistance of independent national human rights institutions.  These institutions play an important role in reinforcing justice mechanisms and scrutinizing government action or omissions. Some national human rights institutions, such as the Kenya National Commission on Human Rights, which has set a gold standard among its peers, has also proven to be of invaluable help to the ICC.  Most importantly, this NHRI is often the port of first call regarding a whole range of human rights problems.  It has been bestowed with the special powers to conduct investigations- at its own initiative- into human right violations.  Where its inquiries disclose a violation of human rights, this institution has also the power to recommend to the Attorney General or any other relevant authority the prosecution of a person suspected of human rights violations.  Such special powers of NHRIs carry substantial weight because they can compel action from the prosecutorial authority and hold those authorities to account if they fail to act appropriately.

Besides justice reinforcement, NHRIS help develop trust among different stakeholders and contribute to ensure that justice is delivered by gathering information about violations, documenting human rights abuses, and ensuring preservation and protection of information. 

Ladies and Gentlemen,

Whether justice processes are international, hybrid or national in nature, witness protection is one of its indispensable components.  Securing the testimony of witnesses and victims is essential to ensure that victims obtain justice, and those responsible for human rights violations are held to account, and that potential abusers are deterred.  We know that most witnesses involved in investigations and prosecutions of human rights and international crimes cases have good reason to fear retaliation. They often live in volatile and insecure environments where their human rights could be violated.  But they do come forward.  They are willing to take such risk in order to shed a light on events and obtain justice.  It is, therefore, literally vital to create appropriate safety nets for the protection of witnesses, and of their physical and psychological integrity, as well as their privacy, dignity, and reputation.

Let me be absolutely clear on one crucial point: the protection of witnesses is a responsibility that falls primarily upon States.  Indeed, from a human rights perspective and in general terms, the protection of the life, physical and psychological integrity, privacy and reputation of those who agree to provide information is required under relevant provisions of human rights treaties, particularly the International Covenant on Civil and Political Rights. 

       Those are both the framework and building blocks that shape our action when my Office conducts its own investigations.  The protection of our sources and witnesses is an integral part of the inquiry’s design from conception, to application, to follow up.  For example, in order to minimize risks to the safety and physical and psychological well-being of a witness,  we conduct a preliminary risk assessment evaluation to determine what level of protection is appropriate to the monitoring and investigative tasks. Once a determination is made, we follow this guidance.

       The fundamental principle and outcome of witness protection, irrespective of the nature of the inquiry, must be “do no harm”. A distinction must always be made between protecting victims and protecting witnesses in order to minimize risks of intimidation and reprisal.

I am aware that the Government of Kenya has taken the initiative to establish an independent witness protection authority.  I hope that, with the necessary support of the international community and Kenyan institution, Kenya’s witness protection authority will provide necessary shield and assistance to witnesses, victims and their advocates.

         Similarly, the Government’s commitment to the reform of the security sector is to welcome as it promises to create a system that truly offers protection to the rights of people.   I believe that an overhaul of the security sector is one of the cornerstones of the national reform process and I look forward to receiving further information about progress in the future.  

I take this opportunity to convey my concern and, indeed, alarm, regarding the killings of, disappearances and threats of reprisals against witnesses to crimes, activists, and human rights defenders.  Based on the findings of his February 2009 mission to Kenya, the Special Rapporteur of the Human Rights Council on extrajudicial, arbitrary or summary execution urged the Government to take urgent steps to end impunity for what he defined as “systematic, widespread and carefully planned killings.”  This independent expert reported the alleged responsibility of law enforcement officials in these attacks.

I urge the Government to carry out serious investigations in all cases of abuse and violence and ensure that perpetrators are brought to justice.  Particular attention must be paid to cases of sexual attacks.  Accountability for past and current abuses should be the rule, rather than the exception. But let me state unequivocally that the best strategy is prevention of violence.  I exhort the Government to do its utmost and exercise maximum foresight in order to protect the vulnerable.

Let me conclude by noting as an African and a human rights advocate that, in devising our national strategies to build trust, develop institutional capacity to deliver justice and promote reconciliation, States should draw inspiration from the African Charter on Human and Peoples’ Rights: one of Africa’s pioneering instruments and a pivotal contribution to the advancement of international human rights.  It is the pillar on which rests the continent’s commitment to upholding all human rights under the rule of law.  The rapid adoption and coming into force of the Protocol on the Rights of Women, as well as the establishment of the African Court on Human and Peoples’ Rights add to the framework for the protection and promotion of human rights in Africa.  These developments have occurred together with the commendable advances made in combating impunity and in protecting all human rights.   In this regard, I call on the Government of Kenya to give effect to the ruling of the African Commission on Human and Peoples’ Rights and pay heed to the land complaint of the Endorois community.

To implement international, regional and national human rights frameworks, Governments should also work shoulder to shoulder with an ever more assertive, committed and informed African civil society. 

Your presence here is proof of this assertiveness and commitment.  Your vigilance and engagement are essential to help ensure that reforms become meaningful for every woman, man and child in this country and make a difference in their lives.  OHCHR stands ready to work hand in hand with you.

Thank you.