By Jeremiah Surface
Early in June, President Uhuru Kenyatta handed out cheques worth Sh828 million in Kisii and Nyamira counties for 16,000 people displaced by the post-election violence 10 years ago.
Would this money be part of the Sh6 billion set aside for the Internally Displaced Persons integrated into various communities at the time of the conflict in Kenya? If the answer is in the affirmative, the President’s action would not only be a violation of a High Court order, but it would also seem to be using the money as a bribe to voters ahead of the August 8 elections.
Since the eruption of widespread violence in 2007/8, which resulted in the loss of over 1,100 lives, the displacement of 660,000 people and the long-term injury of thousands of others, the government has been under immense pressure to repair the lives of victims. Although reparations have been paid to some, thousands more still wait for justice a decade later.
Until 2012 when Parliament passed the Prevention, Protection, and Assistance to IDPs and Affected Communities Act, much of the official assistance to victims was couched as government charity. The law provides for a rights-based response to internal displacement in line with the Great Lakes Protocol and Guiding Principles on Internal Displacement. It requires the government to consult IDPs when creating programmes to help and protect them, and sets a 30-day period within which the government must profile displaced people after a crisis. The law also imposes a Sh5 million fine and a 10-year jail term on anyone falsely claiming to be an IDP. Finally, the law establishes the National Consultative Coordination Committee on Internally Displaced Persons to help the government to deal with IDPs and creates a fund – a restructuring of the Humanitarian Fund -- to assist IDPs, to which allocations are made each year.
Although a fund for IDPs has been created, there remains a deal of confusion though on how they are to be compensated or even how many have received compensation so far. On April 25, 2016, Devolution Cabinet Secretary Mwangi Kiunjuri stated that the government had spent Sh17 billion on 193,000 IDPs. Deputy President Ruto similarly announced that the government had spent Sh17.5 billion on 28,924 IDP households since 2008, with 20,170 households being resettled in the past three years alone.
The government has been working closely with National Coordination Consultative Committee on IDPs (NCCC) to verify that the individuals receiving money are in fact IDPs. In December 2016, the chairman of NCCC announced that the government had compensated all 19,000 individuals who had lived in the 80 different camps and was subsequently shifting focus to the 90,000 integrated IDPs, for which it had set aside Sh6 billion.
Controversy has erupted over who qualifies as an integrated IDP. On April 19, 2017, the High Court allowed the application of the Internally Displaced Persons Support Initiative (IDPSI) and issued a temporary injunction preventing the government through the Ministry of Devolution from releasing funds. In an affidavit on behalf of the IDPSI, Mr Stephen Mbogwa stated that the government had not explained the mechanism to ensure proper beneficiaries would be compensated. The Initiative sought from the government the full list of beneficiaries, in order to be assured that those listed were IDPs and that they actually received the money the government promised them.
Though the injunction was meant to force the government into being transparent, it has not had that effect. The injunction was raised against the Principal Secretary, Ministry of Devolution and Planning, Principal Secretary Ministry of Interior and Co-ordination of National Government and the Attorney General, but it has not stopped the President from dispersing these funds to different communities while on the campaign trail.
While IDPs have had greater success in receiving reparations from the government, it seems that this money has lacked proper oversight and is currently being used in an attempt to influence voters. After a decade of pleading for reparations, the government is finally paying the final 90,000 IDPs while at campaign events. Such actions speak to the government’s lack of true empathy for those displaced by the violence of 2007.
Litigation and mounting pressure brought by non-governmental organisations against the State regarding the injustice committed against survivors of sexual and gender-based violence have forced President Kenyatta to respond. During his State of the Nation address in March 2015, the President formally acknowledged and apologized for the long-standing injustices suffered by Kenyans. In order to remedy these injustices, he announced the creation of a three-year, Sh10 billion restorative justice fund for the victims of all violations.
This was the first time in eight years since the tragedy that SGBV victims had hope of receiving reparations for the violence committed against them.
Unfortunately, the government has since failed to take action to implement this fund. A year later, during President Kenyatta’s State of the Nation address, no mention of the fund or material efforts to create it was made. Since 2015, no significant progress has been made towards the creation of the fund and no one within the government has been appointed to manage it to ensure it gets to the victims. The Truth, Justice, and Reconciliation Commission filed a report in 2013 calling for such a fund as well, and Parliament has failed to approve it.
Although promises have been made to the survivors of SGBV in 2007/2008, the government has failed to deliver on them. Ten years later, the victims are left without any way to pay for the ongoing expenses due to medicine or doctor’s visits.
While the government is working to abide by the 2012 Prevention, Protection, and Assistance to IDPs and Affected Communities Act, it is failing to do so in a way that is transparent or ethical. As the last distribution of reparation to IDPs demonstrated, there is limited knowledge on who the money is being paid to and how they are being paid. The government seems to be ignoring the injunction placed on the fund to curry favour with local voters.
Mr Surface is a student at Seattle University School of Law, Seattle, on an exchange programme at the Kenya Section of the International Commission of Jurists.
By Terry Jeff Odhiambo
Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.
The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.
Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan, to the Central African Republic to Egypt and Ethiopia, abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.
The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders.
Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo, Rwanda and Niger are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.
Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries.
The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31). They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.
The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa.
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