PRESS STATEMENT ON THE CURRENT ANT-TERRORIST AND SCREENING OPERATIONS

In response to acts of terrorism that have intensified in Kenya in the recent past, and also in view of the response that has been put in place by the Kenyan government to address incidents of terrorism, we members of the Kenyan human rights community, who work on the promotion of human rights, would like to make a number of observations in relation to the recent developments. First, there are sections of the Kenyan public which have concluded that criticism of shortcomings on the part of the government in the management of its counterterrorism programme constitutes support for terrorism and a lack of concern for the victims of terrorism. We would like to clarify that we care about, and are greatly horrified by, terrorism in all its forms. The terrorist attacks that have gone on in Kenya in the recent past, and which have led to the death and serious injury of many innocent people, call for unreserved condemnation. Terrorism is a serious crime. Terrorism is a cowardly and facile act. It hurts innocent people and also fails to address the supposed political or ideological reasons that make it a choice for the terrorists. Secondly, something must also be said about the contribution of the Muslim community to the countrys counterterrorism effort. For long periods, Kenyans have harbored an unfounded view that Muslims are accountable for acts of terrorism carried out in the country, since these often purport to use their religion as justification. Recently, however, there is a healthy public debate about the role Muslims in the prevention of terrorism and as part of this Muslims have taken their public and national position in expressing opposition to terrorism. We take cognizance of the fact that terrorist groups act of their own accord and that they do not represent Muslims. We acknowledge that Muslims have also been victims of terrorism. Thirdly, we applaud the courage displayed by Kenyan security forces who continually place themselves in harms way to protect the public. The Westgate terrorist attack, for example, provided opportunity for the display of courage on the part of the countrys security forces, which directly contributed, to the avoidance of more deaths than would have otherwise been the case. In the process they put themselves in great danger to secure the safety of the larger public. Regrettably their bravery has sometimes been overshadowed by the actions of some of their colleagues e.g. during the Westgate attack. The discovery of a cache of explosives in Mombasa, which appear to have been intended for use in the perpetration of a major terrorist attack in the city, is also an example of proactive law enforcement, which avoided a major terrorist incident and contributed to making the public safe. Amid the problems that are obvious in the management of the countrys counterterrorism programme, which this statement discusses next, it is important to acknowledge these rays of hope and to salute the efforts of those that have exercised diligence and exposed themselves to danger in order to keep all of us safe. As indicated there, however, are a number of problems with the manner in which the country has carried out its counterterrorism activities. The first is the extra legal and summary executions including of those already in court on terrorism related charges. 1

This has led to the conclusion that extra-judicial execution has become a method of law enforcement. The only way in which the government can exonerate itself of accusations that it bears responsibility for deaths of those executed is by carrying out speedy and independent investigations into extra-legal killings, with a view to apprehending the culprits. . The second concern is in relation to activities carried out in Eastleigh and its environs, which have seen the arrest of hundreds of people that were suspected to be in the country illegally. As a matter of principle, the profiling of people along ethnic or religious lines, which the Eastleigh expedition represents, constitutes discrimination contrary to the provisions of Article 27 of the Constitution. Further, it undermines the objectives of law enforcement by eroding the relationship between the police and the communities they are meant to serve. In addition, a scrutiny of the security operation raises several issues including the following: (a) The authorities need to make clear that the legal position that extra-legal execution is outlawed under all circumstances. (b) We have received complaints that several of those arrested in Eastleigh and who had documentation that proves their right to stay in Kenya had the documentation confiscated by police, which then rendered unable to support their claims for the right to stay in the country; (c) Independent human rights monitors have observed serious overcrowding of the cells where those arrested were taken. Pangani and Kasarani Police stations are some of the most affected been noted. In this situation the legal requirement to separate male and female detainees was not complied with. In addition, pleas for humanitarian assistance for those in urgent need of medical help have reportedly been ignored. Two cases of women giving birth in a public and congested place have been reported; (d) Independent human rights monitors have recorded errors in the deportations conducted to Somalia with allegations of Kenyan nationals of Somali descent having been deported. The severity of these allegations goes to the very nature of the right to protection by the state protected under the Constitution. (e) Independent monitors have reported cases of asylum seekers being deported as part of this operation. It should be noted that the UN Convention relating to the Status of Refugees bars states that host refugees from compelling them to return to their countries of origin, where they might face persecution; (f) The intention of the government to relocate all urban refugees into camps goes against the well established right to freedom of movement. It is noted that this is not the first time that the government has tried to compel refugees to live in designated camps. A similar directive issued in 2012 was successfully challenged in the High Court, whose judgment affirmed the right of

(g) refugees to live in any part of the country. The new directive goes against the established right, and also against the express judgment of the High Court. (h) The directive by the Cabinet Secretary decreeing the closure of all urban refugee registration centres and the eventual forceful encampment of urban refugees clearly violates the order of the court made on 26th July 2013 in the High Court. Forced encampment is not a sustainable or acceptable solution. (i) There have been claims of extortion by law enforcement in the context of the Eastleigh operation; (j) Complaints have also been received of sexual harassment of women during arrest and sexual assaults in detention. (k) Independent monitors, including those from the Kenyan National Commission on Human Rights have been prevented from accessing the Kasarani Stadium where those arrested from Eastleigh are being held. In the circumstances, it has been difficult to independently make an informed assessment of the actions of the government in relation to the operation. In its nature the operation is classified as ordinary law enforcement by the police. Under ordinary procedures, persons held by the police have access to relatives and legal representation. In the case of the Kasarani operation, these have been denied, leading to much opacity around the operation. If, as asserted, the government has nothing to hide, access to independent advisors and to family should be afforded to those held at Kasarani;

(l) Independent monitors have reported cases of loss of contact between those arrested and members of their families, leading to anxiety about their safety and whereabouts. This anxiety is both unnecessary and avoidable. The government should commence an information centre where those seeking contact with missing relatives can make reports. Also the government should document and give access to independent scrutiny, of all the individuals arrested and the decisions made in their cases; We stress that the entire operation is not only unconstitutional but in violation of the rule of law; the state is acting in the absence of any legal framework as required by Article 10 of the constitution and is also in direct contravention of the above-mentioned judgment made by Justice Majanja. The Eastleigh operation, even without the problems noted above, constitutes ethnic profiling against the Somali people and is therefore unconstitutional. The accompanying problems which reveal highhandedness and brutality on the part of the police, will lead to avoidable resentment against law enforcement such as is likely to harden attitudes and further complicate the law enforcement context. Going forward we call on the government to do the following things: (a) Take steps to bring a responsible and quick end to the operation going on at Kasarani stadium; 3

(b) Allow independent monitors to observe what is going on in Kasarani; (c) Put in place measures that will independently investigate complaints resulting from the Eastleigh operation; (d) Convene a national conference that will bring about an inclusive conversation about how to manage the problem of terrorism which the country is currently facing; (e) Appoint an independent commission of inquiry into the Westgate Mall attack, as it has previously said it would; (f) Invest in an evidence-led counterterrorism programme, which should be discussed by stakeholders. Issued at Nairobi, the 16th day of April 2014, by the following organizations: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. The Kenyan Section of the International Commission of Jurists The Kenya National Commission on Human Rights Transparency International Kenya MUHURI Amnesty International Africa Centre for Open Governance Kenya Human Rights Commission RPP Kituo cha Sheria FIDA-Kenya HIAJ NCHRDK Equal Rights Initiative Muslim Human Rights Forum Katiba Institute Coalition for Constitutional Implementation Bunge la Mwananchi

KNCHR April 16, 2014.