Dear Secretary Kerry,

Your forthcoming visit to Kenya scheduled to take place on 22 August 2016, comes at a time when the country is faced with significant human rights and rule of law challenges. In that regard, we undersigned human rights non-governmental organizations wish to draw your attention to the continued violation of human rights by Kenya’s security agencies in the course of maintaining national security and combatting terrorism.

These human rights violations are characterized by impermissible restrictions on civil society groups’ operations and independent media, enforced disappearances and extrajudicial executions, and violations of the rights of asylum-seekers and refugees, among other fundamental breaches of the country’s international human rights obligations and commitments.

These violations and disregard for international human rights law on the conduct of counter-terrorism should be of particular concern to the United States, given Kenya’s position as an ally in the promotion of security and stability in East and Horn of Africa, and because they also undermine the fight against terrorism by creating trust- deficit between communities and security agencies, especially when due process is not followed.

The human rights concerns detailed below are particularly pressing because of their potential to both undermine and become exacerbated before and during the upcoming 2017 General Elections, which are due in less than 12 months. We urge your intervention specifically on the following concerns and recommendations:

Threats to Civil Society and Media

Human rights defenders (HRDs) and members of the media face increasing harassment, intimidation, threats, and criminal charges when they exercise their constitutionally guaranteed right to freedom of expression. Despite the High Court’s annulment of some of the most restrictive provisions of the Kenya Communications and Information Act (KICA) in April 2016, bloggers continue to face prosecution under different legal regimes. Provisions of the KICA and the Media Council Act 2013 regarding threats to national security, as well as defamation provisions in the 2015 Parliamentary Powers and Privileges Act, have been used to harass and intimidate the media and stifle the right to freedom of expression and association.

The Public Benefits Organizations (PBO) Act was enacted in 2013, following extensive consultation with civil society, however, to date it has not been operationalized. Instead, there have been attempts to amend the law to introduce restrictive clauses. Moreover, NGOs continue to suffer administrative harassment – in October 2015 the NGO Coordination Board threatened to deregister over 900 NGOs.

We therefore urge you to:

• Publicly acknowledge the critical role that civil societies play and pledge support to HRDs, journalists, and human rights NGOs
• Urge Kenyan authorities to end official and non-official actions such as threats, harassment and intimidation aimed at silencing HRDs, bloggers, human rights NGOs, and the media, especially those urging for government accountability;
• Call on the Kenyan authorities to respect, protect, promote, and fulfill human rights including by effectively upholding the United Nations Declaration on HRDs through among others adoption of legislation that protects HRDs and stipulates accountability measures for those who threaten, harass, and intimidate HRDs, NGOs, and journalists;
• Urge the Kenyan authorities to operationalize the current PBO Act, and refrain from amendments that unduly restrict civic space;
• Call on the Kenyan authorities to ensure that regulatory bodies such as the NGOs Coordination Board adhere to due process in all matters involving the rights to freedom of expression, peaceful assembly and association in accordance with the Constitution of Kenya and the country’s international obligations and commitments.

Enforced Disappearances and Extrajudicial Executions

Undoubtedly Kenya faces genuine security challenges, particularly those emanating from the Al Shabaab group in Somalia. However, the authorities’ responses have often been unlawful, ineffective, and marred by serious human rights violations and abuses. Security agencies, especially the specialized units, have been involved in egregious human rights violations. These violations have been well-documented by local and international human rights groups and media organizations. The kidnapping, torture and eventual killing of human rights lawyer Willy Kimani, his client Josephat Mwenda and taxi driver Joseph Muiruri by police following a court appearance on 23 June 2016 is another illustration of systemic disregard for the rule of law within the police service. Despite these well documented human rights concerns, Kenyan authorities have both failed to address the systemic problem and to establish a safe and effective framework for victims to access justice. In most cases the police leadership have denied the findings of these reports and dismiss them altogether.

We therefore ask you to:

• Urge the Government of Kenya and police leadership to promptly, thoroughly, independently and transparently investigate reports of human rights violations by security forces and bring to account anyone suspected to be responsible.
• Call on the Government of Kenya to establish a Judicial Commission of Inquiry to investigate these cases of human rights violations and abuses and ensure criminal accountability and equal access to truth, justice and reparations for victims.

Electoral Reforms

Public confidence and trust in the Independent and Electoral Boundaries Commission (IEBC) has suffered due to allegations of corruption and partiality in the 2013 elections. In 2016, the United States Government played a key role in facilitating the establishment of a Joint Parliamentary Select Committee to guide requisite reforms in the IEBC. While the Select Committee has secured an agreement for the voluntary exit of current IEBC commissioners, there is no progress on accountability for impropriety during their tenure.

Parliament is yet to legislate to ensure that not more than two-thirds of elected representatives at all levels shall be of the same gender, and also to increase political representation of marginalized groups. The absence of these key laws threatens to further entrench gender equality and socio-economic exclusion through the next election. The Government has not made concerted efforts to increase voter registration by marginalized communities.

Moreover, the government repeatedly violated the constitutionally guaranteed right to freedom of assembly during demonstrations against the IEBC, including through excessive use of force and attempts to ban protests, which calls into question whether sufficient safeguards exist for the upcoming electoral period.

We therefore ask you to:

• Urge the Government of Kenya to urgently convene a multi-stakeholder national dialogue on the 2017 elections that addresses gaps in the electoral process that require reform;
• Call on the Government of Kenya to establish a strong accountability mechanism for the IEBC to ensure electoral transparency and integrity as a way of restoring citizens’ confidence in the body.
• Call on the Government of Kenya to take all necessary measures to ensure that all eligible voters are enabled to register to vote before elections in 2017, particularly through the issuance of identification documents.
• Urge the Government of Kenya to refrain from use of excessive force against protesters and protect the rights to freedom of expression, association and assembly, respectively.

Violations of the rights of asylum-seekers and refugees

The government of Kenya continues to restrict the rights of asylum seekers and refugees on grounds of national security. Somali asylum seekers have been disproportionately targeted by counter-terrorism response activities. In 2014, through the Security Law Amendment Act a number of provisions of the 2006 Refugee Act were amended to restrict asylum on the basis of nationality, particularly targeting Somalis. On 6 May 2016 the Kenya Government announced that it will shut down the Dadaab Refugee Camp by November 2016 and subsequently disbanded the Department of Refugee Affairs (DRA), all in effort to forcefully return Somali refugees back to Somalia. The Kenyan authorities claim that Dadaab has lost its humanitarian character and that it is used as a training ground for terrorist.

We therefore ask you to:

• Remind President Kenyatta that Kenya needs to abide by its international obligations to provide protection for refugees, in particular the obligation not to return anyone to a place where they would be at risk of persecution or other serious human rights violations (obligation of non-refoulement).
• Urge the Government of Kenya to develop a comprehensive legal and policy framework that grants international protection to all those who need it, ensures the respect, protection and fulfilment of their rights and allows refugees to progress towards a formalized system of self-reliance and sustainable durable solutions.

Sincerely,

Africa Centre for Open Governance (AfriCOG)

Civil Society Reference Group (CS-RG)

Coalition for Constitution Implementation (CCI)

Constitution and Reform Education Consortium (CRECO)

Development Through Media (DTM)

Freedom House

HAKI Africa

Inuka Kenya Ni Sisi Ltd

Kenya Human Rights Commission (KHRC)

Kenyan Section of the International Commission of Jurists (ICJ)

Kenyans for Peace with Truth and Justice (KPTJ)

Muslims for Human Rights (MUHURI)

National Coalition of Human Rights Defenders – Kenya (NCHRD-K)

Protection International

Society for International Development (SID)