Living dangerously: Kenyan human rights defenders increasingly targeted

With the referendum on the constitution only a few days away, has assessed the security situation for Kenyan human rights defenders. The conclusion is grim: Recent months have seen an upturn in cases of harassment, threats, legal persecution and outright violence. There is reason to ask if Kenyan authorities want to tighten its grip on civil society and warn off human rights defenders in particular from being too vocal? Right, Stephen Musau, one of the human rights defenders considered too vocal.

It is quite possible that there is more to this than ’just’ a few random incidences. Traumatic, though, the 2007 elections were, Kenya has already shifted its attention to the next elections, scheduled for December 2012. In between, there is the referendum on the new constitution, to take place already on the 4th of August, in other words, in only a matter of days.

But let’s backtrack a little. While the vast majority of victims during the election-related violence early 2008 were civilians, Kenyan human rights defenders were clearly targeted for threats, including death threats. Already at the end of January that year, Amnesty International produced a list of human rights defenders and pro-democracy activists who had received such threats. The list included the names of Maina Kiai, left, then Chairman of Kenya National Commission for Human Rights, Muthoni Wanyeki, Executive Director of Kenya Human Rights Commission, and Haroun Ndubi, human rights lawyer and member of Kenya Domestic Observers Forum. But there were many more.

All but one on AI’s list are Kikuyus, the ethnic group expected to support the incumbent President Mwai Kibaki. Hence, the threats, all made anonymously, included accusations of ’treason;’ that the ones receiving them were traitors to their ethnicity. Four of the human rights defenders AI listed were also named on anonymously authored pamphlets circulating within the Kikuyu community, both in print and electronic versions. The four were part of a list of more than 25 names, all of Kikuyus, who it calls ”traitors who live among us in peace,” with a veiled threat that they should be killed.  

5 March 2009, only days after Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, had left the country, Oscar Kamau King’ara and John Paul Oulu were shot dead on State House Road near the University of Nairobi Halls of Residence by people believed to be police officers. The same night, and innocent university student, Godwin Ogato Gisairo, was also killed by a police officer.

King’ara and Oulu worked for the Oscar Foundation, an independent organisation that, among other things, for years has issued reports on the human rights situation in Kenya. King’ara and Oulu were among those Alston had spoken to during his visit to Kenya. The assassinations came merely six hours after the government spokesperson Dr. Alfred Mutua had announced that the government was planning ”to deal with the officials of the Oscar Foundation” for allegedly funding the so-called Mungiki sect, an illegal politico-religious movement accused of numerous killings. The opposite accusation; that the sect is being used by the government to rid themselves of ’enemies,’ has also been made, both before and after the murder of King’ara and Oulu. More recently, it has even been speculated that the sect is being used to clear away possible witnesses in the forthcoming ICC trials against those found responsible for masterminding the election-related violence of early 2008. Supporting this theory are Mungiki massacres in which such possible witnesses have actually been among the victims.

Either way, the Prime Minister soon contradicted Dr. Mutua. While this may indicate that the command lines within the top segment of the Kibaki regime are insufficiently established, it could very well also have been a deliberate ploy to make any possible investigations more difficult, thus securing impunity. However, no real attempt has been made to identify the killers and bring those responsible to justice. Instead, according to Amnesty International’s annual report for 2009, no individual police officers or security personnel were brought to justice for unlawful killings and other violations committed in 2009 or the years before. And both the Prime Minister and Dr. Mutua remain in office. In addition, it is worth noticing that the double murder also generated significant ’collateral damage,’ in the human rights community. Many went into hiding, some even felt the need to leave the country. Self-censorship increased, and the independent human rights community kept a low profile.

The incident made bad publicity for Kenya at a time when the opposite was desperately needed. The long-standing image of Kenya as the economic engine of East Africa and one of the few beacons of hope for democracy for the entire continent had taken a serious blow with the massive outbreak of violence in the wake of the very obviously falsified election results late 2007. The international community took note then, and now, with these two killings, it certainly did again. These were the first two killings of human rights defenders since the shift from dictatorship to democracy, as the 2002 elections are often remembered. While the hope that came with the promise of democracy had long since given way to despair, for some even well-founded fear, few had foreseen that the Kibaki regime would not even shy away from killing its critics. Cause this is the general understanding: King’ara and oulu were killed by order of the authorities, and as a direct consequence of their reporting on these very same autohrities, and their role in numerous extrajudicial, summary or arbitrary executions.

Since the abdication of Daniel arap Moi after close to a quarter of a century’s brutal rule, this was a first. A journalist had been killed the year before, probably as a consequence of his investigative reporting, and some other journalists, human rights defenders and whistle blowers had been forced to go underground or leave the country, most notably Kibaki’s own appointed corruption czar John Githongo, whose investigations clearly came too close for comfort for Kibaki and many of his cronies. Even so; killing is of a different order. Kenyan civil society came together for a joint statement, vowing to take all necessary steps to ensure the killers were brought to justice. So far, though, whatever attempts have been made, have failed. The killers are still at large. And so are those who contracted them.

There was time for damage limitation. Kenya was soon up for review before the UN Human Rights Council, the elections were still far away, and the constitutional referendum should be possible to come through relatively unscarred as far as respect and reputation was concerned. With the opposition now being brought in as part of government, the authorities’ greatest fear, their focus in terms of damage limitation, shifted to the independent human rights community. And with a political mindset all geared towards thinking in opposite extremes, with no room for nuance, as in ’friend or foe,’ or the ’either you’re with me, or you’re against me,’ independent human rights organisations now found themselves filling the role the opposition left behind, namely, the role of the enemy. In the mind of the authorities, if the human rights community could be kept kept under control, everything would be just fine.

There is more to this, however. Following the elections of 2002, the independent human rights community went through what some of its members identified as a crisis of identity. Such was the optimism, such was the expectation that the new NARC government, the so-called Rainbow coalition had built, that it took a good while for the independent human rights sector to realise that the new Kibaki regime simply failed to deliver. Meanwhile, this new regime had ’headhunted’ close to 30 of the human rights movement’s most experienced leaders. First, this was seen as evidence of a new climate of cooperation, of the bridging of the state – civil society divide. But after a while, it dawned upon both those now in parliament and those left behind, so to speak, in the organisations, that it didn’t work like that, and probably never would. With a grossly overgrown and obscenely overpaid government, parliament and whole state bureaucracy, the lucky 30 had been spread so thinly across the entire system that there was no chance of them ever pulling together for anything. Besides, some suggest, with their massive pay rices, at least some of them had also been bought into loyal, passive silence.

Bitterness spread, but the organisations were weakened. ’Eventually, we found ourselves back on the confrontation line,’ a representative of those who stayed behind summed it all up.     For some of the previously strong organisations, however, the damage suffered was beyond repair. They simply withered away. Others took years to recover and re-emerge. And when they did, it was, of course, with a new leadership. A generational shift had taken place.

It is this new breed of leaders in the independent human rights sector that is now being targeted and tentatively brought under control, with harassment, threats, legal persecution and outright violence. Consider the following cases:

In January 2009, journalist Francis Nyaruri of the independent newspaper Weekly Citizen was abducted and brutally murdered. Nyaruri had written a series of articles exposing financial and other malpractice by the local police department in western Kenya, including their alleged involvement in a public tranbsport racket. Nyaruri had received threats from police officers in his area, and had told friends and colleagues that he feared for his life. Nyaruri’s family lawyer has also received threats and been subjected to police harassment, while a policeman involved in the investigation has reportedly also been threatened by fellow police officers. The murder remains unsolved.

Between July 2007 and September 2009, the President of Kenyan PEN was arrested four times. On 18 February 2009, she and another Kenyan PEN member were detained while protesting against the alleged corrupt sale of maize by government operatives to neighbouring countries at a time of famine in Kenya, and were assaulted and threatened with death while in police custody. Both required hospital treatment following their release on bail and were denied the right to make a complaint about the senior police officer who attacked them. The president of Kenyan PEN now lives in exile.

In September 2009, human rights defenders Samson Owimba Ojiayo and Godwin Kamau Wangoe were abducted by Kenyan security forces and subjected to ill-treatment. Following their their release on bail, both have been threatened and harassed. Ojiayo and Wangoe were released on 16 and 18 September respectively.

Ojiayo and his family have received threats and been harassed by the security forces. It is reported that a senior police officer called Ojiayo and demanded to know what he had disclosed to cllleagues about his abduction. Police officer in plain clothes also visited his home twice asking about his whereabouts. On the day of his release, unidentified men approached his 12-year-old daughter, and asked her about her father’s whereabouts. Police have also visited his mother’s home asking about him. On 19 and 20, police officers in plain clothes also visited Wangoe’s home, asking where they could find him, despite the fact that he has already been charged and that a case against him is pending.

In a separate incident, an unidentified individual, impersonating a member of the grassroots movement Bunge La Mwananchi, called a colleague of Ojiayo, asking him to organise a meeting between him and Ojiayo so that the latter could be evacuated from Kenya. When members of Bunge La Mwananchi called the person who had been impersonated, they found that he had not made any such call.

In a Frontline update on their case, dated 22 september 2009, it is suggested that the harassment and threats suffered by Wangoe and Ojiayo and their families are directly related to their work in defence of human rights as witnesses during the investigations on extrajudicial killings by the police squads which took place following the disputed December 2007 elections.

On Thursday 22 April this year, human rights defender Keneth Kirimi Mbae was arrested and detained without charge for nearly three days. During detention, he was subjected to torture and ill-treatment.

Much of Kirimi’s interrogation concerned the work of his fellow human rights defender Stephen Musau, right, the Executive Coordinator of the human rights organisation Release Political Prisoners (RPP). In addition to being Musau’s colleague at RPP, Kirimi is also an active member of Bunge La Mwananchi, whose aim is to fight social injustice and promote accountable leadership at all levels in Kenya.

On the morning of 22 April, plain clothed police officers arrested Kirimi and two others who were with him on Thika Road in Nairobi. The arrest occured near the headquarters of the General Services Unit (GSU), a special unit of the Kenyan police established to deal with special operations and civil disorder. One of the two arrested together with Kirimi alerted Bunge La Mwananchi immediately after his release, at approximately 2:45 pm the same day. He reported that they were forced to enter a vehicle and driven around Eastlands, a part of Nairobi, for a few hours, while being interrogated. The officers addressed most of their questions to Kirimi, and released the two others one by one.

From the moment the second of his companions was released, Kirimi’s whereabouts were unknown. According to a Frontline news release, developed in close co-operation with members of the independent human rights community in Nairobi and dated 27 April, Kirimi was detained in Thika, before being blindfolded and sedated and taken to another isolated house in Suswa, in the Narok district, where he awoke two days later, on Saturday 24 April. During his detention, Kirimi was subjected to various forms of torture and ill-treatment, including sexual assault, intimidation through gunshots being fired in a small room, being beaten and threatenedd that the police officers would sleep with his wife if he did not own up.

According to Kirimi, the interrogation concentrated on getting him to confirm the accusation about links between the RPP and the Mungiki sect, his roles in RPP and Bunge La Mwananchi, Stephen Musau’s work, and the organisation generally with regard to its engagement with the military operations in the western district of Mt. Elgon. This dates back to incidents that took place there from early March 2008. In the highly charged atmosphere of the election-related violence that was going on at the time, a local unit called the Sabaot Land Defence Forces (SLDF) was accused of carrying out attacks on villages, killing people, stealing cattle and destroying homes. The Kenyan army was deployed to clamp down on this, but according to the human rights organisation Independent Medico-Legal Unit, the military operation resulted in mass arrests and subsequent prosecution of over 1.200 persons, with most of them complaining that they were tortured by the army.

Kirimi was also questioned about Musau’s and RPP’s work on extrajudicial killings and the subsequent sharing of their report with Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. Kirimi was further pushed on why Musau is so vocal regarding such killings, and so concerned with government operations on matters of security. Three days after he disappeared, on Sunday 25 April, Kirimi was found at Suswa market, reportedly in serious physical pain. He was soon taken for treatment at the human rights organisation Independent Medico Legal Unit. There is reason to believe, concludes Frontline, that the arbitrary arrest, detention, alleged torture and ill-treatment of Kirimi is directly linked to his legitimate work in defence of human rights. Frontline expresses serious concern not only for Kirimi’s security, but also for Stephem Musau’s, since the interrogation so much concentrated on him and his work. Musau alerted colleagues and went into hiding.

Kirimi’s arrest and forced disappearance was followed by a number of threats against colleagues of his, both in RPP and Bunge La Mwananchi. Most notably, Stephen Musau received numerous anonymous telephone calls harassing and threatening him in various vays. The day after Kirimi’s arrest, George Nyongesa, who works for Bunga La Mwananchi’s website, also received an anonymous call threatening to silence him ”if he did not close it and if he keeps doing noises”. Nyongesa was particularly asked to pull the organisation’s website down. Lawrence Maina, who also works for Bunge La Mwananchi’s website, also received two similar calls the same day, asking him to pass on the same request, to close the website.

A few days later, on 4 May, at approximately 4 pm, the Officer Commanding Police Department came to the Jevanjee Garden in Nairobi where a meeting was organised between members of Bunge La Mwananchi to discuss on the state of the nation and the post-election violence. According to an OMCT release, dated 7 May, the officers ordered the 200 persons present at the meeting to leave and arrested four activists of Bunge La Mwananchi. The four were Jacob Odipo, Francis Wethuka, Ruth Mumbi and Jebtekeny Tariq. All four were subsequently released, after arriving at the police station without charges.

The problems suffered by Kenyan human rights defenders and their organisations have many roots, but seemingly, few obvious or immediate solutions:
· First and foremost is the near total impunity enjoyed by the Kenyan police, army and security forces, no matter how severe their violations. By far the largest number of extrajudicial killings in Kenya happen at the hands of the police. As the UN Special Rapporteur Philip Alston concluded; ”Kenyan police are a law unto themselves. They kill often, with impunity”.
· A second problem is the seemingly deliberate and endless delay in ridding oneself of the deeply discriminatory colonial legislation in areas including libel, defamation, and state security, all serving to undermine freedom of expression and contradict Kenya’s international obligations in these areas. It remains to be seen to what extent a possible new constitution will help resolving this issue and accellerate the process of amending the actual legislation as well, to bring it in line with Kenya’s constitutional commitments and international obligations alike.
· The third, and most serious problem in need of solving, is the deeply rooted ethnic divisions in Kenyan politics and society at large. As was seen in the election-related violence, it instantly also affected the country’s human rights defenders, on the kneejerk assumption that whatever they do and don’t do, is ethnically motivated.   


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