Kenya: Combined 8th -11th Periodic Report, 2008 - 2014



The Government of the Republic of Kenya has the honor to submit to the African Commission on Human and Peoples’ Rights, its combined 8 th -11th periodic report covering the period 2008- September 2014, in conformity with Article 62 of the African Charter on Human and Peoples’ Rights (hereafter the “African Charter” or simply the “Charter”). The Report has been prepared through wide consultation between Government officials, Civil Society Organizations and independent national human rights institutions. The report is divided into three parts: I. Part A outlines information concerning the general framework within which the human rights recognized by The Charter are protected in the reporting state. II. Part B outlines specific information on each of these rights, duties and fundamental freedoms in relation to appropriate individual articles of The Charter. III. Part C outlines specific information on economic, social cultural rights as outlined in the Charter. Part A 1. The Government of Kenya has since the presentation of the last combined report, made remarkable progress in safeguarding the rights, freedoms and duties of its people as enshrined in the Charter. The most important achievement has been the enactment of a new Constitution through a referendum in 2010. The Constitution has for the first time codified national values and principles that must underpin the review, formulation and implementation of public policies, administrative decisions and procedures, and enactment and application of the law. The values and principles, which include human rights, equality, non-discrimination, social justice, inclusiveness, protection of the marginalized, rule of law, democracy, participation of the people, human dignity, good governance, integrity, patriotism, national unity, sharing and devolution of power, bind all State organs , State officers , public officers and all persons.

2. Chapter four of the Constitution adopts an elaborate Bill of Rights which provides a stronger legal, policy and institutional framework for the protection and promotion of the civil and political rights as recognized in the Charter. The right to a fair trial, freedom of the media, freedom of expression, assembly, religion, freedom from torture are but some of the rights that the Government of Kenya as the primary duty bearer is committed to uphold…

3. The Bill of Rights applies to all law and binds all state organs. Article 21(1) stipulates that the state has the fundamental responsibility to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of rights. This means that whenever state and public officers perform their duties they must comply with the Bill of rights. 6 4. The Constitution of Kenya, 2010 allows some limitation of rights but moves away from sweeping drawback clauses that were a major characteristic of the former Constitution. Article 24 (1) sets up a general limitations clause with clear criteria that have to be met by each limitation before it can be allowed to stand. The Limitation clause specifies that any constraint upon a human right or fundamental freedom should be done through legislation, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom taking into account relevant factors.

5. Article 58 (6) of the Constitution provides that any legislation enacted in consequence of a declaration of a state of emergency may limit a right or fundamental freedom in the Bill of Rights only to the extent that the limitation is strictly required by the emergency, and the limitation is consistent with the state’s obligations under international law that is applicable to a state of emergency.

6. The Courts have affirmed their willingness to apply rights by directly invoking treaties that Kenya is a state party to. This position has now been reinforced by Article 2(6) of the Constitution of Kenya, 2010 which provides that any treaty of convention ratified by Kenya becomes part of the law under the Constitution. There is now a growing jurisprudence where the courts have invoked the provisions of various human rights treaties that Kenya has ratified to enforce basic rights. For example, in Muigai vs John Bosco Mina Kariuki & Jerioth Wangechi Muigai (2014) eKLR, the Court of Appeal relied on international instruments that prohibit discrimination against women to wit, the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural rights, the Convention on the Elimination of all forms of Discrimination Against Women and the Covenant on Civil and Political Rights, to state that the yoke and burden of discrimination should not be worn by the female gender anymore because, under the Constitution, the general rules of international law form part of the Laws of Kenya.

7. Article 23 (1) of the Constitution of Kenya 2010 gives the High Court jurisdiction to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Article 23 (2) mandates Parliament to enact legislation giving original jurisdiction to subordinate courts in appropriate cases to grant remedies for human rights violations. The Kenya National Commission on Human Rights (KNCHR) holds quasi judicial powers to investigate any complaint on any matter relating to human rights in any public or private office or private institution. The Commission on Administrative Justice (CAJ) also has powers to investigate and report on any act or omission in public administration in any sphere of government.

8. Where there is a violation or infringement of a human right, Article 22 of the Constitution provides that an individual or group may apply before a court for any of a number of remedies. Article 23 (3) enumerates the types of remedies that may be available to a litigant. These are: a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that violates any of the rights in the Bill of Rights, an order for compensation, and an order for judicial review.

9. Other measures taken to safeguard civil and political rights include the preparation of several pieces of legislation and policies. Examples of these are; Persons Deprived of Liberty Bill 2013, Victims of Offences Bill, and Prevention of Torture Bill 2014 which are in various stages of development. 7

10. Strong constitutional institutions have been established to safeguard and uphold the principles of democracy and human rights, These are: the Kenya National Commission on Human Rights (KNCHR), the National Gender and Equality Commission (NGEC), the Commission on Administration of Justice (CAJ), the Independent Electoral and Boundaries Commission (IEBC), the Ethics and Anti Corruption Commission (EACC), the Independent Police Oversight Authority (IPOA) and the independent Office of the Director of Pubic Prosecution( ODPP).

11. To further guarantee that the people of Kenya enjoy their rights in a meaningful way, the Government has developed Sessional Paper No. 3 of 2014 on the National Policy and Action Plan on Human Rights, which gives effect to the Bill of rights in the Constitution. The National Policy provides a comprehensive and coherent framework that elaborates broad human rights principles to guide government and other actors in carrying out programmes, strategies and plans that will enhance the realization and enjoyment of rights by the people of Kenya.

12. The National Action Plan, which is an integral part of the Policy, includes specific targets and indicators to measure progress made in ensuring the enjoyment of rights in the country. It also clarifies responsibilities among the state actors who bear duties in the area of human rights.

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