Addressing Torture in Kenya

The nature and character of state perpetrated torture in Kenya has acquired a new dimension under the National Alliance for Rainbow Coalition (NARC) Government that took over the reign of power four years ago. Unlike during the Kenya African National Union regime, where the main targets of torture were rival politicians, civil society activists, and academicians who were perceived as enemies of the state, the NARC regime has witnessed an increasing in the number of cases of human rights violations targeting the poor – living mostly in rural areas – as well as persecution of minorities including women and children. To date, the average number of people reporting cases of torture is 400 people for the year 2005-2006.

Poverty and ignorance acts a double-edged sword for victims of torture. While on one hand it makes victims more vulnerable to such atrocities, on the other hand they have to wait for years should they decide to seek justice through the courts. But the most worrying trend is the delay in delivering judgments (especially where victims do seek justice through the courts) and the reluctance by the government to compensate survivors should the courts award compensation. This is very frustrating, not only for the judicial officers, but more so for the survivors and human rights defenders who spend thousands of shillings and time to have the state admit liability. Indeed in the last 10 years, the Independent Medico Legal Unit has only been able to secure compensation for three survivors, out of the more than 3000 cases handled.

The reluctance by the government to compensate torture survivors is a violation of several international conventions to which Kenya is a signatory. Despite Kenya’s membership of the United Nations, the Commonwealth and the African Union, which mandate the right for torture survivors and their families to obtain reparations, Kenya’s domestic courts have been reluctant to invoke these international legal instruments, because Kenya is yet to domesticate any of the treaties on torture.

Adding to this problem is the fact that section 74 of Kenya’s Constitution outlaws torture, though it falls short of defining torture. Instead, it considers torture as an assault offence. This then means that torture is not considered a serious crime in Kenya and this has impacts on how perpetrators are disciplined and awards arrived at in courts. Suffice to say that the existing legal provisions guiding the prosecution of torture perpetrators are flawed because any criminal charge be brought against a public official must receive formal consent from the Attorney General, which often takes years. Although there exists legal procedures for investigating and prosecuting perpetrators, it is ultimately civil society that pushes many of the cases, despite lacking the professional capacity to properly investigate as well as to document such cases.

The difficulties faced by civil society in taking up cases is made worse by the reluctance of torture survivors and their families to pursue the cases for fear of retribution in the absence of protective laws in the country. Torture is solely investigated by police officers who are often the perpetrators, who prepare files for the Attorney General to give consent to prosecute and eventually are the prosecutors in cases against their colleagues.

In short, the lack of access to courts of justice, ignorance of basic human rights laws, fear of retribution, lack of resources to pursue justice, ineffective legal systems and insufficient evidence coupled with by poor police investigations hamper the finalisation of the criminal justice process.

This is not only the case in Kenya -a similar pattern exists in the rest of East Africa. This is largely because most of East Africa are in a period of transitional justice. In this context, both international organisations and civil society organisations need to exert pressure on their governments to domesticate international instruments relating to torture and human rights to which they are a party. The culture of impunity and lack of respect for the rule of law as exhibited by government officers is a recipe for political instability in these countries. Despite the fact that the domestication of this law into national laws has stalled, all of East Africa – including Kenya - has made modest progress by putting in place national human rights bodies to help curb abuses. However, much remains to be done.