Kenya National Commission on Human Rights KNCHR
Open. Accountable. Responsible
Contents |
Introduction |
| Authority |
Though a 'Successor in title' Commission, the KNCHR is a fully independent Commission with full powers as conferred under Chapter 15 of the Constitution of Kenya 2010. |
| Roles and Functions |
Furthering the promotion and protection of human rights in Kenya |
| Composition |
The KNCHR has 5 Commissioners. |
Introduction
The Kenya National Commission on Human Rights KNCHR, was formally known by the same name before the enactment of the Constitution of Kenya 2010, and as the Standing Committee on Human Rights between 1996 and 2003. It is a 'successor in title' Commission created from the constitutional Kenya National Human Rights and Equality Commisson, KNHREC.
The COK2010 is awash with details and specifics on the Bill of Rights, and declares in its preamble, the aspirations of the people of Kenya with regard to their rights:
PREAMBLE: We the people of Kenya RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights .......
As an independent Commission, it is the duty of the KNCHR to promote and protect these freedoms, rights and liberties of the people of Kenya. These rights and the attendant mandate to protect them is summarised by Article 249. (1) The objects of the commissions ........ are to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.
Authority
Though a successor Commission, the KNCHR is fully independent and inherits the status and the powers of its 'parent' Commission (the KNHREC) as they are outlined in Chapter 15 - Commissions and Independent Offices of the Constitution of Kenya 2010. (For a generalised discussion of all Constitutional Commissions under Chapter 15, click here.)
These powers are therefore assigned to the KNHRC in the following manner: pursuant to Article 59 of Chapter 4 - The Bill of Rights, Part 5 - The Kenya National Human Rights And Equality Commission; excerpts-
59. (5) If Parliament enacts legislation restructuring the Commission under clause (4)–– ........ (b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and (c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.
Roles and Functions
The primary role of the KNCHR is to promote respect for human rights and develop a culture of human rights at both the individual and institutional levels. Excerpts from Article 59:
59. (2) The functions of the Commission are— (a) to promote respect for human rights and develop a culture of human rights in the Republic;
Hence the Commission must continuously formulate, implement and oversee programmes intended to raise public awareness of rights and obligations in the Constitution. It will do this through various channels and fora that may perhaps include but will not be limited to school curricula, media, and awareness campaigns. In a nutshell, to make sure everyone knows their rights and enjoys those rights.
The KNCHR is also expected to promote the protection and observance of human rights in the daily interactions between the people of Kenya and how they are governed. Excerpts from Chapter 1 - Sovereignty of the People and the Supremacy of this Constitution:
10. (2) The national values and principles of governance include–– (a) ......... the rule of law, democracy and participation of the people; (b) human dignity, ......... social justice, inclusiveness, ......... human rights, ........
In line with Article 10 above and in order to carry out its broad mandate that includes checks and balances, the Commission is expected to keep a keen eye on the goings-on in State organs and especially in those that have historically been found to be notorious in the habitual abuse of human rights, such as the courts, the pubic service, security organs, and Parliament, among others. Article 59, excerpts:
59. (2) The functions of the Commission are— (c) to promote the protection, and observance of human rights in public and private institutions;
Further to that regard, the Commission will set the standards of compliance with respect to human rights for all State organs:
(2) The functions of the Commission are— (f) on its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;
Even before the enactment of the 2011 Act that established the present KNCHR, the Commission had investigated and published what is perhaps its most important report to date entitled, On the Brink of the Precipice: A Human Rights Account of Kenya's Post 2007 Election Violence, a report that documented the horrific violence that led to the deaths of more than 1000 people, with many more injured, and the displacement of more than 400,000 people in 2008. The Commission has also steadfastly led in the pursuit of justice and fair compensation for those that were affected by the violence.
A similar report detailing the atrocities meted out on the general population of the people of Mt Elgon by the Kenya Defence Forces as they pursued members of the illegal and often violent Sabaot Land Defence Force was released in May 2008 under the document name, A Mountain of Terror.
Jointly with the similar-sounding non-governmental organisation (NGO) the Kenya Human Rights Commission, the KNCHR investigated the behaviour of the political elite, their agents, and their parties in the run up to the 2005 Referendum for a new constitution. The report known as the Referendum Report, and released in September 2006, highlighted the human rights violations committed at the time and which stood in the way of a free and fair exercise of the vote by the people.
Since its formation in 2011 through the enactment of the Kenya National Commissions on Human Rights Act 2011, the present KNCHR has conducted studies on various rights enshrined in the Constitution of Kenya 2010. For example, in 2011, it published A Human Rights Audit of the Mental Health System in Kenya that focused on this vulnerable and marginalised group.
The following year, in April 2012, it published a report of a Public Inquiry into Violations of Sexual and Reproductive Health Rights in Kenya as they apply to the young and to the female gender in particular.
In the same year, the Commission investigated and and made public its findings following the violent clashes that occurred in the River Tana Delta in a report titled 29 Days of Terror in the Delta.
In July 2014, the Commission made public its findings on the extent to which Persons With Disability (PWDs) were treated by the others and by public and private institutions especially with regard to their to full enjoyment of all human rights in a report titled A Status Report on Implementation of the Rights of Persons With Disability in Kenya.
The Commission has also carried out investigations on historical and corruption-laden land injustices that go back many years and which were perpetrated by individuals and state firms. For example, in a joint 2002 report with the Kenya Land Alliance, the Commission published its Unjust Enrichment: The Making of Land Grabbing Millionaires, arguing that corruption, and in particular grand corruption, is a human rights issue.
In a unique report, the KNCHR made the case that, "Until all necessities are accessible to all members of our community, no one should live in luxury using public resources", in an investigative report dubbed, Living Large: Counting the Cost of Official Extravagance in Kenya, jointly with Transparency International - Kenya.
Though much remains to be done, no doubt the work of the KNCHR has yielded positive results. In Kenya today, almost all advertisements for jobs contain the refrain on equal opportunity employment. Furthermore, employers can no longer discriminate against those with mental health issues. Indeed, employers are required to assist them to perform their duties.
The same goes for those with disabilities: Commercial building owners and employers as well are required to put measures in place that allow PWDs to move around the work place with ease.
The Commission's watchdog roles extend to ensuring that the State, as well as its organs and its servants, respect international treaties and conventions touching on human rights to which Kenya is a party:
59. (2) The functions of the Commission are— (g) to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights;
This is important especially when one recalls that Parliament has in the past been accused of passing unfair legislation, or that the State has habitually ignored human rights granted by international law.
Like its sister Commissions such as the National Gender and Equality Commission NGEC, and the Commission on Administrative Justice CAJ, the KNCHR has been empowered by Article 252 to initiate investigations based on suspicions or claims of denial, infringement or abuse of a right;
252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;
Although the KNHRC was not directly involved in the Court case, a member of the public successfully petitioned the High Court on the 24th of April 2015 for the registration of an association to advance the protection of the rights of gay and lesbian people. As it were, in 2013 when the petition was lodged, homosexuality remained a criminal offense under the Penal Code, despite the fact that the Constitution of Kenya 2010 is very clear with regard to the protection of the rights of all irrespective of their differences or diversity. Chapter 4 - The Bill of Rights, Part 2––Rights and Fundamental Freedoms:
36. (1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Ruled the Court, "We hereby declare that the words “Every person” in Article 36 of the Constitution includes all persons living within the republic of Kenya despite their sexual orientation."
To facilitate its investigative role, the Commission can invoke the authority of a Court to summon a witness in the course of such investigations:
(3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations— (a) the Kenya National Human Rights and Equality Commission;
Upon the conclusion of such investigations, the Commission must pursue the path of a peace maker as a first course of action:
(1) Each commission, and each holder of an independent office— (b) has the powers necessary for conciliation, mediation and negotiation;
The public expects full disclosure from the Commission on any matter under investigation, especially on what course of action it is taking to ensure that there is not a repeat or continuation of the violations in question:
59. (2) The functions of the Commission are— (j) to report on complaints investigated ......... and take remedial action; ........
In summary, the KNCHR will essentially define and protect human rights at the personal, the social and the national levels by providing key leadership in moving the country towards a human rights state and to act as a watch-dog over all levels of Government in the area of human rights.
Composition and Tenure
Kagwiria Mbogori, Chair of the KNCHR
The Kenya National Commission on Human Rights has 5 Commissioners when fully constituted, serving on a full-time basis. They will serve for a period of six years and will not be eligible for appointment. Therefore their terms come to an end in 2018.
References:
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. Kenya National Commissions on Human Rights Act 2011. National Council for Law Reporting. The Attorney-General.
3. Various reports from the Website of the Kenya National Commissions on Human Rights. Retrieved October 2014 -.
4. Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR. National Council for Law Reporting. The Attorney-General.
