We are currently in the midst of one the most crucial periods in Kenya’s history. The events of 2007-08 shook the country to the core. In such a fragile situation, it is essential that the right steps are taken to bring about quick recovery.
There is a need for healing of the injuries inflicted on individuals and entire communities, and a need for profound reform of the system – so that what happened before does not happen again.
There is no institutional reform more profound than the reform of a nation’s constitution. A good constitution, which respects the rights of all individuals and provides a template for good governance, is the bedrock of society.
It is not for me, as UN High Commissioner for Human Rights, to tell Kenyans how to vote in the forthcoming referendum on the proposed new Constitution. You will note that I am studiously avoiding wearing green or red! But I warmly welcome the fact that a referendum is taking place on a matter of such importance to each and every Kenyan.
As High Commissioner for Human Rights, I also warmly welcome the fact that the proposed Constitution contains a comprehensive Bill of Rights that is sound on fundamental freedoms, especially in the key area of non-discrimination, and includes a strong platform for bolstering economic, social and cultural rights. Also very important is the fact that the Bill of Rights is designated as one of the elements that cannot be tinkered with by governments or parliamentarians who suddenly find it personally or politically inconvenient. Once enacted, it can only be changed by another referendum. So if the people decide to pass the Constitution, the people will own the Bill of Rights.
Once a Constitution is adopted, it is of course the beginning of a process, not the end of it. It needs to permeate the entire legal system, as well as the institutions that make the legal system work – the police, the prosecutors, and all levels of the judiciary. As a result, if properly implemented, it becomes a powerful engine of reform. If it is not properly implemented, it remains a powerful tool for combating a government’s failings.
At present, the shortcomings of the Kenyan police are a matter of major concern, not just to me, but to virtually everyone I have spoken to – ranging from senior members of Government to members of civil society whom I have met during my visit, as well as private individuals.
While I do not underestimate the extreme difficulties they are facing, because of widespread criminality and the alarming number of guns in both rural and urban areas, some police officers are taking illegal short-cuts, allegedly including carrying out extra-judicial killings. I was informed by the Government that around 30 cases are being investigated, and I sincerely hope those investigations are swiftly and effectively concluded, so that those against whom there is sufficient evidence can be prosecuted. The police, of all people, cannot be allowed to get away with serious crimes.
I have also been informed by the Government that it intends to bring in a series of reforms aimed at improving police performance, including improved salaries, a revised training curriculum, a complaints mechanism and a proper authority for police oversight. The intention, I was told, is to make it a police service, that provides protection to the people, instead of law enforcement alone.
There have been many reports suggesting that during the post-election violence police officers committed a range of criminal acts, including rape, which have not even begun to be properly investigated, which brings me to the wider question of accountability.
The involvement of the International Criminal Court (ICC) is a major development in the fight against the current almost total lack of accountability for the terrible events that took place in the wake of the elections. However, it is important to understand that the role of the ICC is limited. The ICC will, for practical reasons and as a matter of policy, only be able to address a small number of high-profile cases of people suspected of war crimes, crimes against humanity or genocide.
With some 1,300 people believed killed, widespread rape, arson, robbery and other crimes to account for, the ICC cases will not be sufficient to draw a line under the post-election violence. For this reason, I have urged the Government to try once again to establish a Special Tribunal, along similar lines to past proposals, in order to spread the accountability net wider. I have been assured that this option is still open.
In addition, as both the Speaker of Parliament and the Minister of Justice pointed out yesterday, there is no good reason why acts such as rape and murder, which are crimes under existing laws, cannot be dealt with by existing institutions. The question they both posed – why have there been virtually no prosecutions? – is one I am asking too. The ICC is just one avenue. Its arrival on the scene does not justify paralysis of the others.
Kenya’s newly established Truth, Justice and Reconciliation Commission has so far been a disappointment to many, and I have urged the Government to take swift and decisive remedial action to ensure that the hopes raised when the Commission was created do not turn to bitterness and contempt.
Another vital issue is witness protection. Securing the testimony of witnesses, including some of the victims, is essential to ensure justice is done, those responsible for human rights violations are brought to account, and potential human rights abusers are deterred. In Kenya, several would-be witnesses have been murdered and their killers have not yet been found and jailed. This further undermines confidence in the police and the justice system.
The Government is primarily responsible for protecting witnesses, as well as human rights defenders who have also been harassed, threatened and killed. Ministers have informed me that the Government is going to establish an independent witness protection authority. This is a matter of great urgency and I hope it is up and running with a minimum of further delay. There is a lot at stake.
The subject of arms and disarmament was also a major issue in Uganda, which I visited just before coming to Kenya. Cross-border cattle raids have become a plague, driven nowadays more by commercial interests than tradition. A strong law and order programme, coupled with disarmament, is clearly necessary. Given that the problem is spilling back and forth across borders not just with Uganda, but also South Sudan, Ethiopia and Somalia, a regional approach drawing on international experience elsewhere, might be the best way to proceed.
A key element of such an approach would be to ensure that the rights of the local people are not ignored or trampled on by military or police actions. Disarmament will not work unless the local community is engaged and supportive of the process. A blunt disarmament and law and order programme that does not differentiate between people committing crimes and people trying to protect themselves will ineveitably fail.
As mentioned already, reform of the security sector will be crucial, as will the maintenance of the independence and integrity of the judiciary. However, equally important is that a concerted effort is made to grapple with Kenya’s huge social and economic problems, including extreme poverty that has resulted in the World Food Programme having to provide between one and four million people a year with food aid, educational and health deficits, and the many problems facing refugees and unregulated migrants. Here, I would urge the international community to lend more support, whatever misgivings they may have about the current political situation.
The difficulties facing Kenya are serious, but definitely not insurmountable, as the country enters this critical period encompassing the referendum on a new Constitution, widespread reforms, and the 2012 election. I urge everyone – politicians, religious figures, media, ethnic leaders as well as the general public – to think about what is best for Kenya, what gives Kenya the best chance to come out of this tense and difficult period of its history with its head held high.
This is not a time for self-interest, for strategies that appeal to narrow constituencies, not a time to put personal ambition and finances before the good of the country. It is the moment to take the necessary steps to build solid legal foundations, reform malfunctioning institutions, and impose accountability. If enough people focus on what needs to be done, rather than allow themselves to be driven by fear of loss, Kenya can re-establish itself as one of the most successful, peaceful and prosperous democracies in Africa.
For a more detailed discussion of some of the issues raised above, see a speech delivered by the High Commissioner at the University of Nairobi: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10122&LangID=e