Introduction
On 11 July 2024, Kenyan President William Ruto has announced the dismissal of almost his entire cabinet and consultations to form a “broad-based government” following widespread anti-government protests. President Ruto said his decision would apply to all ministers but it excluded the Foreign Minister Musalia Mudavadi. President Ruto said the dismissals followed “a holistic appraisal of the performance” of the Cabinet.
The demonstrations started on 18 June, and for a week were peaceful, but in the early afternoon of 25 June, they took a violent turn. A number of demonstrators breached police barricades and stormed the precincts of Parliament. They set parts of the building on fire, destroyed legislators’ offices and carted away properties. On 26 June, the Kenya National Commission on Human Rights (KNCHR) reported that 39 people had been killed in the protests since they began.
Against this backdrop, this contribution focuses on the main breaches of human rights that have occurred until now and to what can be done to avoid/pose an end to them.
Alleged violations of the right to life
The 2010 Kenyan Constitution, considered one of the most progressive in Africa, says legislation should come to the floor of Parliament only after “public participation” (Article 18(1)(b) “Public Access and Participation”). However, during the protests the KNCHR has noted the breach of important human rights guaranteed in the country.
As above-mentioned, the protests have produced fatalities and injuries. The right to life is consecrated in Article 26 of the Constitution, proclaiming that “every person” has this right. Paragraph 3 clarifies that an individual shall not be deprived of life intentionally, with the exceptions authorised by the Constitution or other written law. Presently, Section 24(a) (“Punishments”) of the 1930 Kenyan Penal Code (Cap. 63) (amended on several occasions) provides for the death penalty as one of the punishments that can be inflicted by a Kenyan Court. Following Section 25 is dedicated to “Sentence to death”. The KNCHR, however, considers the death penalty as the ultimate violation of human rights.
Abductions and arbitrary arrests
Another right that has been infringed by the recent unrest concerns abductions and arbitrary arrests. Reports with the KNCHR indicate that there have been 32 cases of enforced disappearances and 627 instances of arrests of protestors in the first weeks of protests. The Penal Code (Cap. 63) does not recognize the crime of enforced disappearance. Rather, it prohibits kidnapping and abduction (Sections 254-263). Abduction, however, does not capture all the complexities involved in enforced disappearances, such as the involvement or acquiescence of the Government and refusal to acknowledge the deprivation of liberty and the situation of the disappeared person. Kenya has signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in 2007 but has yet to ratify it. Consequently, the KNCHR has called upon the Government to ratify the ICPPED. According to the KNCHR, this ratification is essential to strengthen the legal framework and ensure accountability for these crimes. Additionally, the KNCHR urged the Government to expedite the enactment/amendment of legislation to explicitly criminalise enforced disappearance within the national legal framework.
During the turmoil of these weeks the KNCHR has also continued to condemn the violence inflicted on protesters, medical personnel, lawyers, journalists, and on safe spaces such as churches, medical emergency centres and ambulances. The KNCHR has maintained that the force used against the protestors was excessive and disproportionate.
Freedom of assembly and association
Unfortunately, this is not a novelty in the Kenyan scenario. For example, in the recent years there has been evidence in the country of violence or threats of violence against journalists and substantial interference with the freedom of peaceful assembly and freedom of association, including harassment of nongovernmental organizations and activists. Although the Constitution provides for the freedoms of assembly and association (Articles 36 and 37), the Government sometimes restricts these rights. Government failure to investigate or prosecute attacks on human rights defenders and peaceful protesters led to restrictions on freedom of assembly and association. In a 2023 report, the KNCHR highlighted that Kenyan authorities have an obligation under both international and national laws to respect the right to peaceful assembly. This obligation requires the Government to refrain from interfering with the exercise of the right to peaceful assembly by: unilaterally banning the public participation in lawful assemblies, refusing to accept notifications from organizers or preventing picketers from accessing public spaces; where they intend to hold their assemblies. This report was published after Kenyan authorities declared illegal the protests guided by the Azimio la Umoja One Kenya Coalition (Azimio Coalition) against, among other reasons, the escalating cost of living and the enactment of the Finance Act 2023, perceived to be punitive to the public. Since March 2023, Police Inspector General Japhet Koome and some senior police officials declared that they would have used the force to disperse protesters. The peaceful protests have often turned violent after police used tear gas to disperse demonstrators. In several instances, police fired tear gas inside houses, causing deaths of children through suffocation. In this sense, I do not see a lot of difference in what has been happening in the last weeks.
The maintaining of national security should not be carried in violation of human rights
Finally, about the deployment of Kenya Defence Forces (KDF) to assist national policing in these hectic weeks, the KNCHR has reiterated the provisions of Article 238(2)(b) (“Principles of National Security”) of the Constitution, providing that national security should be pursued conforming with the law and with the respect for the rule of law, democracy, human rights, and fundamental freedoms. The KNCHR is monitoring compliance to this constitutional obligations reiterating that the Government has an obligation to facilitate the rights of protesters through the provision of security to ensure law and order. In this sense, the National Security Council (NSC), established by the 2012 National Security Council Act, according to its Section 3 (“Guiding Principles”), fulfils its mandate under the Constitution, upholding the Bill of Rights contained in the Constitution, and observing the values and principles of governance contained in Article 10(2) (“National Values and Principles of Governance”), the values and principles of public service in Article 232(1) (“Values and Principles of Public Service”) as well as the principles of national security of the abovementioned Article 238 of the Constitution. Similar principles are also at the foundations of the 2012 National Intelligence Service Act that commits to “comply with the constitutional standards of human rights and fundamental freedoms” (Section 3(1)(c) (“Guiding Principles”)).
Yet, in the middle of the unrest, on 26 June 2024, the Law Society of Kenya (LSK) lodged an urgent application in court to challenge the deployment of KDF. The High Court in Nairobi, however, the following day declined to stop the deployment and instead ordered the Government to publish the terms of the deployment, coverage and duration. The Government published a gazette notice confirming a whole country’s military coverage and terms of engagement according to the law. The deployment would ‘continue until normalcy is restored’.
Final reflections
The human rights at stake during the recent protests have not been undermined for the first time in Kenya. In the short term, I believe that preventing more deaths should be the priority as protesters continue to spread out into the streets. There is no doubt that the police have breached the law in recent weeks, both by brutally dispersing unarmed protesters and by abducting protest leaders. Kenyan authorities should start repairing the damage by directing police chiefs to stop harassing peaceful campaigners and making clear that those who pass the line will be subject to prosecution. Moreover, under the 2003 Public Order Act, the police must uphold public safety and facilitate peaceful protests while enforcing regulations to prevent disruptions, having restrictions to the use of force because “the degree of force which may be so used shall not be greater than is reasonably necessary for that purpose” (Section 14: “Restrictions on Use of Force”).
Against this backdrop, at the end of June, the High Court sitting in Malindi has issued temporary orders stopping security agencies from using water cannons and tear gas against persons protesting in the streets. Justice Mugure Thande said police should also not use any live ammunition, rubber bullets or other cruse weapons or any form of violence against protestors until a case filed by former Azimio Coalition (the same that hit the streets in 2023) leader Saitabao Ole Kanchory will be determined.
