Louise Edwards
Programme Officer – Access to Justice (East Africa)
Commonwealth Human Rights Initiative, New Delhi

The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Philip Alston, presented his detailed report on Kenya at the recent 11th Session of the UN Human Rights Council.  In an extraordinary week of political maneuvering, reinforcing the internal tension that plagues Kenya’s Grand Coalition Government, the Kenyan delegation responded with an oral statement to the Council that contradicted their earlier written response. Having initially denied Professor Alston’s accusations of the widespread and systematic use of extrajudicial killings by the Kenya Police Force, the delegation conceded that there is a problem, but stopped short of acknowledging Government complicity.

The proceedings and outcomes at the 11th Session have received much local and international press.  Now, two weeks later, the focus must shift to action taken by the Kenyan Government to address the issues raised by Professor Alston and the fall out from the publication of his report, which included the killing of two human rights defenders that had previously cooperated with his mandate.  Despite the eventually positive response from the Kenyan delegation in Geneva, early signs of action are not necessarily promising.

Professor Alston’s report articulated what concerned local and international organisations have been saying about the Kenya Police Force for many years and which the Government failed to acknowledge until their oral statement to the Council – that extrajudicial killings are part of the policing landscape in Kenya. The oral statement also contained a public acknowledgement of Kenya’s weak police oversight mechanisms, the need to establish a local independent police commission and assurances that no human rights defenders would be intimidated or harassed as a result of their cooperation with the UN Special Procedures mandate-holders.

Nevertheless, it remains to be seen whether the promising outcomes in Geneva will translate into credible action in Nairobi.  Successive promises of reform articulated in a number of strategies and processes over the past 10 years have not been completed or sustained by the Kenya Government.  Kenyans continue to be policed by an organisation that lacks sufficient accountability structures, fails to protect or uphold basic human rights and is continually subject to illegitimate political interference.  Millions of dollars have been invested in the development and publication of commission reports, task force findings and reform strategies without any genuine steps by the Government to implement systemic reform.

The concerning state of policing in Kenya has received significant national and international attention over the past 18 months.  The police response to the 2007 post-election violence brought the issue of political partisanship, impunity and brutality to the fore.  The Waki Commission report into the violence strongly recommended comprehensive reform of the Kenya Police Force and Administration Police and Professor Alston’s report reinforced the brutal and corrupt practices that have been permitted to flourish by the unreformed, colonial policing model. 

Police reform is a daunting and long term process.  It requires substantial law reform, a radical shift in policing culture from one of impunity to accountability and the restoration of trust between police and the community.  None of these urgent reforms will happen in Kenya without the political and financial commitment of the Government to undertake reforms of this scope.  The recent establishment by the President of a special Police Reform Task Force represents a positive step towards delivering credible advances.  However, the Government must translate the Task Force’s recommendations into actual reform that goes beyond improving operational capacity to address governance, accountability and legal structures.  Otherwise the Task Force, for all its good intention, will become another failed reform vehicle.

Drawing on the previous recommendations and those foreshadowed to appear in the current Task Force findings, the Government should implement the following minimum reforms:

• Constitutional and legislative amendments that clearly separate the operational control of the police from the direct control from the political Executive and provide for transparency in monitoring police performance and conduct,
• Strengthening internal and external oversight mechanisms, including the enactment of legislation and budgetary allocation to give full effect to the Police Oversight Board plus the establishment of an independent complaints mechanisms,
• Establish a clear demarcation between the role of the Kenya Police Force and the Administration Police,
• Improve police human rights training and resourcing to strengthen human rights compliance and operational effectiveness in the prevention, detection and investigation of crime, and
• Establish clear legislative guidelines on the use of force, torture and adherence to basic due process that accord with Kenya’s existing obligations under international law.

If the Government is serious about reforming the police, a commitment to implementing past and current recommendations is not enough.  It must also take immediate steps that both demonstrate its firm commitment to reform and restore public confidence in the reform process.  A positive first action should be the investigation, prosecution and punishment of those police officers who commit or acquiesce to illegal acts including, but not limited to, those responsible for the 2007 post-election violence and the perpetrators of extrajudicial killings.

Other immediate steps must include measures to implement the Government’s guarantee of protection to individuals who have been intimidated or subject to retribution for their cooperation with the UN Special Procedures mandate-holders.  Human rights defenders, including members of the Kenya National Commission on Human Rights have been subject to threats and some have been forced to flee Kenya.  The high profile execution of two prominent human rights defenders, who cooperated with Professor Alston, and the failure by the police and Government to identify those responsible, highlights the inadequacy of protection and security for human rights defenders.  While Kenya has a witness protection programme, reform is urgently required to ensure the integrity of its internal processes (including accountability, Executive control and information storage and sharing) before those who are most in need of protection will have confidence in the systems that are designed to deliver it. 

The 2007 post-election violence, followed by the findings in Professor Alston’s report, and the tragic consequences for human rights defenders who cooperated with his mandate, have kept the problems with Kenyan policing firmly in the international spotlight.  Whether the political will to commit to genuine reform is present in the Grand Coalition Government remains to be seen, but what is clear to the international community is that the need for police reform is more crucial than ever.

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international NGO working for the practical realisation of human rights in the countries of the Commonwealth.
www.humanrightsinitiative.org

When the appointed time  for  the Ggwanga Mujje Boston meeting came last Sunday, those who came to replace Rev. Kaasa Nakabaale’s executive and confirm the Ttabamiruka date change could not get what they wanted. And the reason was because the special elections they wanted to hold were illegal according to the Ggwangamujje constitution.  According to the constitution of Ggwangamujje a meeting that will have a vote to change the Executive must be announced 30 day in advance.

Approximately 100 Baganda met in Waltham (Boston suburb) expecting to see a verbal fight that would end with the replacement of the current executive  with one that is more friendly to the objectives Museveni funded UNAA. However, the election could not happen because although Nakabaale’s opponents had done a solid underground lobbying (kakuyege) they had ignored the the constitution.  The situation was similar to elections in President Museveni’s  Uganda, where all the rules are ignored during the campaign and arguments about what is legal and what is not start during vote counting. They were also similar to President Mwai Kibaki’s Kenyan politics because, after agreeing that the elections cannot take place the Boston meeting “compromised” for  Mr. Mayanja Buwembo to “share” the Chairman’s powers with Rev. Nakabaale until elections in December.

The Ttabamiruka ’09 date change is expected to be looked at again after the association gets the new Executive. If Nakabaale loses in December, however it is expected that the UNAA and NRM teams will be the winners and they will push their agenda to kill Ttabamiruka much more easily. Note that not all UNAA diehards are NRM operatives but the two share the goal to kill Ttabamiruka.

During a controversial October 26, 2008 general meeting  of Gganga Mujje Boston,  attendees voted to change the Ttabamiruka ’09 meeting date from September 2009 to a much less practical July 2009, to the benefits of the UNAA Convention in Chicago. They also agreed on a special meeting on November 9, 2008 to replace the current Executive led by Rev. Kaasa Nakabaale. Notable, when  the minutes of the October 26, meeting were written by Vice Chairman Moses Bukenya (not the secretary who was also present)  they omitted the names of UNAA’s Moses Kalemba and a few others who had put up strong arguments for changing the Ttabamiruka date.

Members of the Ggwangamujje Boston Executive include Reverend Nakabaale (President), NRM’s Bukenya (Vice President), Prof. Lugira, Kato Kajubi, Samalie Kajubi, Ssali, Mark Kizza, Mayanja and Dan Nvule. Historically, the Boston chapter of Ggwangamujje has suffered from NRM manipulation, placing a cloud of doubt over the overall loyalty of Boston Baganda to their Kabaka and nation. The immediate past president of Ggwangamujje Boston is a strong NRM Abdul Kimbugwe who simultaneously held that position with Chairmanship of UNAA.  Also historically UNAA receives funding from President Museveni’s government.  Mr. Museveni’s funding activities have been independently reported in the India Ocean Newsletter of October 27, 2008. And have has been admitted to in email exchanges between UNAA officials and Moses Byaruhanga of  Uganda state house which this reporter has seen.

Under international law, an agreement is legal only if the associated transaction is legal. On Tuesday October 28, 2008, President Mwai Kibaki dragged Kenya into Museveni’s long illegal campaign to give away Buganda land without authorization from Parliament, City Council or Baganda. Kibaki and Museveni signed a protocol that would give the Kitante Courts land on Yusuf Lule Avenue to the Republic of Kenya. However a prominent Ugandan historian told us that the public land in Mulago area, including the piece that Museveni gave away to Kenya, is owned by Buganda and only under lease to Kampala City Council, according to agreements made in the 1950s and before. The Kitante Courts land is currently occupied by President Museveni’s notorious and dreaded Chieftaincy of Military Intelligence (CMI) organization.

If Kenya takes up Museveni’s offer, then she will be joining what many Baganda believe to be Mr. Museveni’s conspiracy to import and offer stolen Buganda land to so many foreigners that Baganda are overwhelmed and rendered too weak to fight back. Only last year, Museveni tried to take the Kitante Courts land for himself and his family by gifting it to one of his closest business associates, Sudhir Ruparelia but he dropped the transaction after it became too controversial. Mr. Museveni not only insists that Kampala is not part of Buganda but he is also pushing plans to expand it by at least 5 times in area.

A Muganda international law expert that we contacted explained that the legality of this transaction is tricky but it also smells corruption. “The smart thing for Buganda and others who may have an interest in this land to do would be to publicly register their opposition to the transaction. In particular they should petition the Kenyan government to desist from concluding this transaction ‘because the involved is stolen native lands’. And copies should be given to the UN Secretary General, members of the UN Security Council, Tanzania, etc. The question is, do Walusimbi and Makubuya have the spine to risk annoying Museveni?”

Kenya and Uganda are among the most corrupt countries in the world, according to Transparency International. Both Mwai Kibaki and Yoweri Museveni remain presidents in their respective countries thanks to massive election fraud that was proven in courts of law. And the presidents of the two countries, especially Uganda, are known to be surrounded by legendary corrupt officials. In Uganda, Mr. Museveni’s closest confidant, Patrick Amama Mbabazi is in the middle of a special investigation by Parliament where overwhelming evidence has emerged that he illegally sold his land to Uganda’s National Social Security fund so he could strengthen his own personal bank. Yes, his personal bank where his partners include the Governor of Uganda’s central bank Tumusiime Mutebire and the minister of finance Ezra Suruma.

There are not enough details on Museveni’s Kenya land giveaway yet to indicate if Mr. Museveni and Mr. Kibaki will personally benefit from the multimillion dollar transaction. It is also not clear if Kenya’s Prime Minister, Oginga Odinga, known to be friendly to Buganda, supports the controversial deal despite its potential to alienate Baganda round the world.

Kenya’s Government can be reached via the following government officials: gowuor@mfa.go.ke  or mnyambura@mfa.go.ke or jbahemuka@mfa.go.ke. or kenrep@mweb.co.za.