Kenya: Ensure due process on ‘Terrorism List’

(NAIROBI, APRIL 13, 2015) – The Kenyan government should urgently review the inclusion of human rights organizations on an official list of alleged supporters of terrorism and ensure full respect of due process, Amnesty International and Human Rights Watch said today.

The list is comprised of 86 individuals and entities, and includes two human rights groups, Muslims for Human Rights (MUHURI) and Haki Africa. The list was published in the official government gazette on April 7, 2015, days after the attack on Garissa University College in northeastern Kenya in which 147 people, including 142 students, were killed. The militant Islamist group, Al-Shabaab, claimed responsibility for the attack.

“The Kenyan government list raises many questions as well as serious concerns that Haki Africa and MUHURI are being targeted for their important work documenting human rights violations committed by the security forces,” said Leslie Lefkow, deputy Africa director at Human Rights Watch. “Kenyan authorities should ensure due process for all persons and entities included in the list and guarantee that human rights organizations are not targeted for their legitimate work.”

Haki Africa and MUHURI are highly respected groups that have focused on documenting human rights violations by the Kenyan security forces, including in the course of counterterrorism efforts. In November 2013, MUHURI and the Open Society Justice Initiative published a report that documented extrajudicial killings and enforced disappearances of terrorism suspects and Muslim clerics in coastal areas by the Anti-Terrorism Police Unit. The then-executive director of MUHURI, Hussein Khaled, received credible threats to his life soon after the report was released.

The publication of the list raises serious concerns for due process, including proper time and opportunity to contest the designation and the right to be informed. The directors of Haki Africa and MUHURI told Amnesty International and Human Rights Watch they received no official communication and only heard about the order against their organizations through the media. The gazette notice gave listed entities and individuals one day’s notice to demonstrate to the authorities “why it should not be declared as a specified entity.”

Being declared a “specified entity” has wider implications beyond bank account freezes. Under the Prevention of Terrorism Act (POTA) of 2012, “specified entities” are equated with “terrorist groups.” Membership in a terrorist group is punishable by up to 30 years’ imprisonment.

Kenya’s government should urgently reconsider the listing of Haki Africa and MUHURI and ensure that human rights defenders and organizations can perform their work effectively and without fear of reprisals.

According to international standards regarding counterterrorism measures, governments should ensure a transparent listing and de-listing process, based on clear criteria, with an appropriate, explicit, and uniformly applied standard of evidence, as well as an effective, accessible, and independent mechanism of review for the individuals and entities concerned.

The POTA does not provide a mechanism for appealing the decision of the committee, which may violate both the Kenyan constitution and international law. Article 47 of Kenya’s 2010 constitution provides for fair administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. International law prohibits the imposition of government sanctions without adequate due process.

“This order places the burden of proof on the accused with almost no notice or opportunity to appeal, in direct contravention of Kenyan and international standards,” said Muthoni Wanyeki, regional director for East Africa at Amnesty International. “States have a duty to protect their population from violent attacks, but must ensure that all counterterrorism measures are implemented in accordance with international human rights and humanitarian law.”

Immediately after the list was published, the Central Bank of Kenya instructed banks to freeze the accounts of those listed, including the human rights organizations. The POTA, which the sanctions are based on, prohibits the organizations from receiving new funding from any other source.

The act’s provisions also allow the cabinet secretary, either on his or her own motion or at the request of a new committee known as the Counter Financing of Terrorism Inter-Ministerial Committee, to “make an order freezing the property or funds of a designated entity, whether held directly or indirectly by the entity or by a person acting on behalf of or at the direction of the entity.”

The act requires that listed organizations and individuals are informed of the reasons for the decision. Both organizations learned of the listing through the media and confirmed that when they tried to go to the bank to withdraw funds, they were told that they had received a directive from the Central Bank of Kenya that their accounts were restricted.

Haki Africa and MUHURI announced on April 10, 2015, that they will challenge in court the listing and freezing of their bank accounts.

Amnesty International and Human Rights Watch are concerned that the listing of Haki Africa and MUHURI may represent broader hostility towards civil society by the administration of President Uhuru Kenyatta, which has had difficult relations with human rights groups since coming to power two years ago.

Human rights organizations inside and outside Kenya have expressed concerns about efforts by the ruling Jubilee coalition to restrict civil society space and curtail the work of human rights groups. The Jubilee manifesto proposed limiting foreign funding for nongovernmental organizations, and a law proposing such a cap, as well as other restrictive amendments, was defeated in parliament in December 2013. There are concerns that the government may attempt to reintroduce the measures.

For more Human Rights Watch reporting on Kenya, please visit:
http://www.hrw.org/africa/kenya

For more information, please contact:
In Amsterdam, for Human Rights Watch, Leslie Lefkow (English): +31-6-2159-7356; or [email protected] Twitter: @LefkowHRW
In New York, for Human Rights Watch, Jehanne Henry (English, French): +1-917-443-2724 (mobile); or [email protected] Twitter: @jehannehenry
In Nairobi, for Amnesty International, Abdullahi Halakhe (English): +254-732-574-499; or [email protected]
In Nairobi, for Amnesty International, Mildred Ngesa (English): +254-0-732-495-215 (mobile); or [email protected]