The pains of defending human rights in Kenya

[EDITOR’S NOTE: Ruth Mumbi, a human rights defender in a Nairobi slum, delivered this speech during the International Parliamentary Conference on Human Rights in the Modern Day Commonwealth at West Minster London, United Kingdom, on 4 February 2015.">

Honourable members of parliament present today, distinguished guests, ladies and gentlemen, all protocols observed.

Today, I am humbled to be among the diverse group of people from diverse backgrounds, to talk about protection of individual rights at all levels and the role of human rights defenders.

I will mostly focus on the work and experience of grassroots human rights defenders (GHRDs) in Kenya and share my personal experience as a defender, who is based in one of the largest slums in Kenya called Mathare, defending the rights of both the majority poor and grassroots defenders.

In December of 1998, the UN General Assembly passed a resolution commonly known as the UN Declaration on Human Rights Defenders that defined “a Human Rights Defender (as) a person or a group of people who, individually or with others, acts to promote or protect human rights.” The definition also states that to be a human rights defender, a person can act to address any human right (or rights) on behalf of individuals or groups.

The declaration basically affirmed the legitimate role of human rights defenders in the society and the need for the state to protect individuals that carry out human rights work. As such when in 2010, the people of Kenya voted for and promulgated a new constitution, which we consider one of the best and most progressive constitutions in the world in terms of human rights of individuals, integrity provisions for public officers and devolving of some functions of the central government to the regions, there was joy and belief that as a country, we were ushering in a new era of respect for human rights particularly by the ruling class.

However, we are still grappling with achieving full enjoyment of the various provisions. At the grassroots level, where the majority poor reside, the protection of the rights of the individual is largely non-existent as the state (duty bearer) ignores individual rights. This is compounded by lack of the necessary skills by majority of grassroots human rights defenders to make demands on the state to respect and protect human rights. However, in areas where grassroots uhman rights defenders have linkages with national networks, meaning that they have access to training and other resources, they are capable of defending and protecting individual rights in a more effective and strategic way. The Kenyan constitution has several clauses that provide for defence of human rights. These include Article 1, which states that sovereign power belongs to the people and Article 3 that states that every Kenyan has an obligation to defend and protect the constitution. Other provisions are in Chapter 4 of the Bill of Rights.

Sadly the above rights are often not realized partly due to a lack of awareness by rights holders. Human rights defenders have tried to bridge the gap by educating the citizenry about their rights as well as defending individual rights.

In many instances where grassroots human rights defenders have stood to defend the rights of individuals they have also seen their own rights violated with impunity by state and non-state actors. It is more practical to expect that any active human rights defenders at the community level will be personally attacked, arrested arbitrarily or faced with criminal charges that are trumped up whenever they uncover malpractices by state officers or non-state actors.

The challenge is that even judicial cover-ups are not uncommon and yet state officers are willing to paint a rosy picture of the state of human rights in Kenya. A case in point is during the recently concluded 21st session of the Universal Periodic Review submission held on the 22 January 2015. The Kenyan government delegation led by Attorney General Githu Muigai eloquently stated that the government has been supporting human rights defenders and their work. The attorney general added that there is no single human rights defender incarcerated in any of the Kenyan prisons. What he failed to point out, however, is the fact that many grassroots human rights defenders are facing maliciously trumped up charges and are basically out on bail. These malicious charges are meant to frustrate the fighting spirit of human rights defenders and make them less outspoken. In December 2014 alone, 10 human rights defenders were arrested, beaten, and detained in police custody before being charged with the crime of engaging in unlawful demonstrations. These were peaceful protesters, two of who happened to loudly condemn the police for attacking 6-year-old school children with tear gas when they protested the grabbing of the school play field by powerful individuals.

To further illustrate, I would like to share my own story. On the 28 February 2011, alongside other women human rights defenders I was arrested and charged with inciting the public to cause violence. This was because I had participated in a peaceful protest. We spent two days in a women’s prison, because we were unable to raise the hefty bail terms slapped on us. We were asked to pay Ksh120,000, equivalent to £876, money unaffordable to a human rights defender who survives on less than a dollar a day. I remember the mother of one of the defenders was present during our court appearance and she fainted when our bail terms were spelt out.

The peaceful protest had been provoked by the alarming numbers of pregnant women that had died at one maternal clinic in one of the urban poor slums. As concerned women we were demanding better services that would reduce maternal deaths at the facility. This is a basic requirement of our constitution in the Article 43(1), which states that every person has the right to the highest attainable standard of health, including reproductive health care. What is more, the Millennium Development Goals 4 and 5 aim to curb child mortality and maternal deaths. Kenya is party to the MDGs.

I can also share with you the events of 15 October 2013. Myself, and other civil society organizations organized a peaceful march to petition parliament on Kenya’s unjust tax regime that favours the rich elite and big corporations at the expense of ordinary poor Kenyans. We assembled in downtown Nairobi at around 10am. The police arrived almost immediately and demanded that we disperse, accusing us of holding an “illegal assembly”. Armed with the constitution, we resisted, pointing out that Article 37 of the constitution guarantees us the right of assembly, demonstration, picketing and petition.

A senior police officer at Nairobi’s Central Police Station in charge of riot operation promptly ordered his men to arrest us. The officers used brutal force to arrest us. Out of eight human rights defenders arrested, I was the only woman. One of the arresting officers sexually molested me by grabbing my private parts before shoving me into a waiting truck full of anti-riot police who had been brought to disrupt our peaceful protest. We were later released with no charges preferred against us due to international pressure and local support. That very immoral act still disgusts me.

I have actually attempted to demand justice for this very incident. Through the intervention of the East African Law Society, a letter of complaint about sexual harassment and use of excessive force against me was sent to the then Inspector General of Police Mr. David Kimaiyo. Despite the fact that Mr. Kimaiyo acknowledged receipt of the letter, to date no further communication, investigation, apology or any form of action has been taken against the police officer in question.

These are not the only stories that I can share with you of a dream of human rights that has not yet been realized. I recall the 17 February 2014 at approximately 11am. Seven members of the Highway Self Help Group, a community-based organization that carries out economic empowerment programs of the youth through garbage collection, were attending a routine group meeting to discuss their internal welfare issues. They were holding their meeting at Kiamaiko, an informal settlement in the low-income neighbourhood of Huruma in Nairobi. The group was confronted by police officers from a nearby police station who demanded a permit for the meeting despite there being no such requirement in the Kenyan law. Article 36 of the constitution guarantees the right of assembly and association. Sarah Ashina, a grassroots woman human rights defender from the Highway Self Help Group, courageously told the police that notification for assembly gatherings is not required under the law and that to the best of her knowledge no such law exists. One of the police officers feeling provoked by Ms Ashina’s statement slapped her on her face telling her to shut her big mouth up. They then arrested her and the rest of the members of her group.

During the arrest the police officers who were all men used excessive force on the human rights defenders. Sarah Ashina, who was at the time eight months pregnant, was mercilessly hit and pushed to the ground. Other human rights defenders were also physically assaulted by the police. Apart from physical manhandling, the police officers also verbally abused the human rights defenders with obscene insults as they dragged them to the police station.

When they arrived at the station they were not immediately booked in and instead one of the arresting officers scribbled their names on a scrap of paper, contrary to the laid down standard of police regulations. This irregularity was a mere tool to intimidate the arrested human rights defenders in order to give bribes in exchange for their freedom. Since the human rights defenders were not willing to give bribes, they were detained in the police cells.

The following day, they were taken to court and charged. Ms. Sarah Ashina was charged with assault, obstructing and resisting arrest. She denied the charges and was released on a Ksh 10,000, equivalent to £73, cash bail. The five male human rights defenders who were also in the meeting were charged with “drunkenness”. The latter who all lacked legal representation, opted to compromise and plead guilty to avoid being remanded. They were fined Ksh 400 (3£) each.

National Human Rights organizations and institutions such as the National Coalition of Human Rights Defenders-Kenya (NCHRD-K), Independent Police Oversight Authority (IPOA), Independent Medico-Legal Unit (IMLU), Rights Protection Program (RPP), Bunge la Mwananchi (BLM), Coalition for Constitutional Implementation (CCI), Bunge la Wamama (BLW), to name but a few, have been providing avenues for defence and protection of human rights defenders.

At the national level, limitations of these organizations’ good work come from the state crackdown on them. The law limiting foreign funding, smear campaigns against civil society organizations as agents of foreign agendas, and the overwhelming cases of judicial harassment has been quite a great challenge and has thus limited the organizations’ ability to meet all the needs of Kenyan human rights defenders.

As a way forward, there is a need for stakeholders to start capacity building workshops and in-depth trainings targeting grassroots human rights defenders working in remote areas so that they can be linked to other HRDs and networks worldwide. This will help in having an empowered population that can in turn defend and protect individual rights.

In conclusion, I appreciate the learning opportunity and exposure granted to me by the Centre for Applied Human Rights (CAHR) at the University of York where I am participating in the protective fellowship for human rights defenders at risk. With great humility I thank the UK government for granting me a visa. I have been able to network and acquire new skills, but at the same time I would humbly request the UK government to issue visas to other HRDs at risk with ease in order to support them in their work in difficult circumstances across the world.

I would like to acknowledge the efforts of international Non-Governmental Organizations that have been working closely with us in making sure that we are able to overcome all these challenges. As human rights defenders, we feel protected and empowered. The Peace Brigades International (PBI) volunteer observers in Kenya have been walking with us and giving us protective accompaniment that has made us feel less vulnerable. We give gratitude to Frontline Defenders (FLD) for always being there to bail out HRDs who face judicial harassment. My appreciation too goes to Amnesty International who have created a grassroots platform for us to engage with the police in order to create better understanding between the police and the communities at local level.

* Ruth Mumbi is a Visiting Fellow at the Centre for Applied Human Rights-University of York

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