KENYA - TreatyBody Internet



| |

|KENYA |

| |

|Assessment of the Implementation of the Previous Concluding Observations on Kenya (CCPR/CO/83/KEN) at the time of the Review of the Third Periodic Report |

| |

|Report prepared by Federation of Women Lawyer’s Kenya (FIDA Kenya) |

| | |

|Place and Date |August 5th 2011 at Nairobi, Kenya |

|Article(s)/ |Concluding Observation* |Implementation |Current Status or Additional Comments |

|issues | | | |

|Article 2 |Incorporate the ICCPR into |The 2010 Constitution of Kenya contains a provision |The Constitution in Article 261 provides for consequential legislation |

|(Incorporation of the ICCPR |domestic law |in Article 2(5) 2(6) stating that: “Any treaty or | |

|into domestic law) | |convention ratified by Kenya shall form part of the |In terms of Article 261 (1 & 4) and the 5th schedule of the Constitution the Ratification of Treaties |

|[CCPR/CO/83/KEN paragraph 8]| |law of Kenya under this Constitution.” |Bill, 2011 has been submitted to the Attorney General for drafting and subsequent publication.[1] The |

| | | |Bill is for an Act of Parliament to make provision for the ratification and domestication of |

| | | |international instruments and for related matters. |

| |Take appropriate measures to |As stated above, Article 2(6) of the Constitution | |

| |allow Covenant rights to be |has the potential to make Covenant rights | |

| |invoked in the domestic |justifiable after the enactment of the Treaties | |

| |courts |Bill. | |

| | | | |

| | |Also see Article – 22 on enforceability making the | |

| | |rights justifiable | |

| | | | |

| | | | |

| | | | |

|Article 2 |Ensure that all individuals |The 2010 Constitution of Kenya addresses this issue.|The National legal Aid and Awareness program (NALEAP) was officially launched in 2008 where six pilot |

|(Access to judicial |subject to its jurisdiction |Article 22(1) states that “Every person has the |projects were created to carry out its mandate. |

|remedies) |have equal access to judicial|right to institute court proceedings claiming that a|The pilot sites are based within organisations that traditionally provide legal aid services while the |

|[CCPR/CO/83/KEN paragraph 9]|and other remedies |right or fundamental freedom in the Bill of Rights |NALEAP Secretariat is involved in matters of policy and guidance of the sites. The programme design is |

| | |has been denied, violated or infringed, or is |aimed at assessing the provision of legal aid services through the pilot sites after which the programme|

| | |threatened. |shall be rolled out countrywide. |

| | |Kenya has recently also enacted the | |

| | | |Without a comprehensive legal aid system, many Kenyans will have no means to legal services that would |

| | | |assist in institution of proceedings. |

| | | | |

| | | |Moreover, court delays limit the practical benefit of Article 22(1) of the Constitution and the new |

| | | |civil procedure rules 2010. |

| | | | |

| | |See article 22(3) – Chief Justice is to make rules |The chief Justice has been appointed, the rules have not been put in place |

| | |providing for court proceedings under the Bill of | |

| | |Rights provisions. | |

| | | | |

| | | | |

| | | | |

| | |Institutional Reform | |

| | | |We have ongoing judicial reforms that seek to address concerns that are deemed of importance to delivery|

| | | |of justice. Among these is the new court structure that has been set up, which includes for the first |

| | | |time a Supreme Court. A new Chief Justice and Deputy Chief Justice; There will be vetting of sitting |

| | | |judges to determine their suitability to continue serving as judges. The process of interviewing judges |

| | | |for eventual appointment to serve in the High Court is ongoing. |

|Articles 2, 3, 23, 24, & 26 |Provide constitutional |The Constitution of Kenya 2010 under Article | |

|(Discrimination against |protection against |10(2)(b) provides for National values and principles| |

|women) [CCPR/CO/83/KEN |discrimination in relation to|of governance which shall apply to all persons | |

|paragraph 10] |women |including state organs and state officers and public| |

| | |officers – these values include the principle of | |

| | |equality, non discrimination. It thus provides for | |

| | |de jure gender equality in all areas. | |

| | | | |

| | |Article 27(3) outlines the equal rights of men and | |

| | |women in the enjoyment of economic, social and | |

| | |cultural rights. | |

| | | | |

| | |Article 27(8) | |

| | | | |

| | |Article 172 – the JSC shall in carrying out its | |

| | |mandate be guided by among other principles, gender | |

| | |equity | |

|Articles 2, 3, 23, 24, & 26 |Address gender disparities |Articles 97, 98 and 100 of the 2010 Constitution are|The Government is required to take legislative and other measures, including affirmative action |

|(Discrimination against |and intensify efforts to |aimed at increasing the number of women holding |programmes[2] to redress past discrimination. Despite past acknowledgement that affirmative action is |

|women) [CCPR/CO/83/KEN |ensure the protection of |office in Parliament. |required, by the drafting of an Affirmative Action Bill in 2000, there are few, if any, affirmative |

|paragraph 10] |women, whether through the | |action programmes relating to recruitment currently operating in Kenya, either within the public or the |

| |National Commission on Gender|Further Articles aim at ensuring an element of |private sector. |

| |and Development or otherwise.|gender equality in the devolved governments. | |

| | | | |

| | |Article 27(3) of the Constitution requires that the | |

| | |State shall take legislative and other measures to | |

| | |implement the principle that not more than | |

| | |two-thirds of the members of elective and appointive| |

| | |bodies shall be of the same gender. | |

| | | | |

| | |Under Article 59 the Constitution provides for a | |

| | |Kenya national, human rights and Equality | |

| | |Commission, which is a merge between the current | |

| | |National Commission on Human rights and gender | |

| | |Commission | |

| | | |A comprehensive anti-discrimination and equality law based on Articles 10, 20 and 27 of the Constitution|

| | | |should be enacted so as to establish an independent, well funded National Human Rights and Equality |

| | | |Commission with a mandate to enforce all aspects of anti-discrimination. It must have sufficient powers |

| | | |to receive complaints undertake investigations, summon witnesses have evidence produced and make |

| | | |findings. |

|Articles 2, 3, 23, 24, & 26 |Adopt without delay the draft|Article 45(3) of the 2010 Constitution provides for|Schedule 5 of the Constitution sets the deadline for enacting legislation on family law at five years. |

|(Discrimination against |bill that eliminating |equality between parties to a marriage and requires |It is recommended that the Government sets priority to enactment of family law legislation and enact the|

|women) [CCPR/CO/83/KEN |inequality of spouses with |Parliament, by February 2012, to enact legislation |Marriage Bill, the Matrimonial Property Bill and the Family Protection Bill within the time limit |

|paragraph 10] |regard to marriage, divorce, |to regulate the recognition and protection of |provided in Schedule 5 to the Constitution. |

| |devolution of property and |matrimonial property and in particular the | |

| |other rights |matrimonial home both during and on the termination |The following are some of the enabling laws that are yet to be finalized |

| | |of marriage. |-Draft Environment and Land Court Bill 2011 -An Act of parliament to establish a superior Court to hear |

| | | |and determine disputes relating to environment and the use and occupation of, and title to, to land |

| | |Article 60(1) of the Constitution provides that land|pursuant to Article 162(2) of the Constitution. |

| | |in Kenya shall be held, used and managed in a manner|-Minerals and Mining Draft Bill 2011- Act of parliament to govern mineral exploration, prospecting, |

| | |that is equitable, efficient, productive and |mining and deal lings in Kenya and for related purposes. |

| | |sustainable, and in accordance with the principle of|Draft Land Bill (2011) and the Land Registration Draft Bill (2011) |

| | |elimination of gender discrimination in law, customs| |

| | |and practices related to land and property in land. | |

| | | | |

| | |Article 68 of the Constitution requires legislation | |

| | |to revise existing land laws including in relation | |

| | |to the matrimonial home and to protect the interests| |

| | |of dependents including spouses of deceased persons.| |

|Articles 3, 7 &10 |Adopt effective and concrete |Government priorities the enactment of the Family |According to the KDHS[3] 2008-9: 39% women experienced Gender Based Violence since the age of 15 (KDHS |

|(Domestic Violence and |measures to combat domestic |Protection Bill 2007 to protect victims of domestic |2008 - 09); 25% experienced violence in the 12 months preceding survey. The survey found that spousal |

|Sexual Violence) |violence against women and |violence and to provide for protection orders |violence was widespread, in particular marital rape which is not criminalized under Kenyan law. |

| |sexual violence. Sensitize | | |

|[CCPR/CO/83/KEN paragraph |society as a whole on these | |The Sexual Offences Act failed to create an offence of marital rape. This deliberate gap in the |

|11] |issues | |criminal law [4] has not yet been corrected. It is recommended that the Government amend the Sexual |

| | | |Offences Act to delete section 43(5) to allow for prosecutions of rape between married couples. |

| | | |The Sexual Offences Act does not create an offence of marital rape. It is recommended that the |

| | | |Government amend the Sexual Offences Act to delete section 43(5) to allow for prosecutions of rape by a |

| | | |spouse. |

| | | | |

| | | |To encourage reporting, section 38 of the Sexual Offences Act, which currently criminalized the making |

| | | |of false allegations, should be repealed This section contains highly punitive sentences for those who |

| | | |falsely accuse another of a sexual offence, up to life in prison. However, the Penal Code already |

| | | |criminalizes false accusations, with less severe penalties. FIDA – Kenya has argued in a Constitutional |

| | | |challenge that section 38 discriminates against women because it contains more severe penalties than |

| | | |those under the Penal Code. Additionally, it may discourage victims from filing complaints, out of fear |

| | | |that they too will be charged in the event of an acquittal. |

|Articles 3, 7 & 10 |Ensure that perpetrators are | |Currently, services for victims of gender-based violence are mainly provided by non-state actors.[5] |

|(Domestic Violence and |prosecuted and provide | |The Government must develop nationwide emergency shelters to provide accommodation, medical care, |

|Sexual Violence) |assistance and protection to | |counselling and advice for victims of gender-based violence. This is essential because many women are |

| |victims | |economically and emotionally dependant on their abusers. They cannot leave without support |

|[CCPR/CO/83/KEN paragraph | | | |

|11] | | |All too often, police simply dismiss reports of abuse, terming them a family or private matter. This |

| | | |must be addressed. Victims of domestic violence should be encouraged to report incidents to the police |

| | | |and the police should continue to undertake training on dealing with such gender issues. |

| |Enact as soon as possible the|Not enacted |Enactment of the gender bills, including the Family Protection Bill has not been prioritized by |

| |draft Family Protection | |Parliament. The Fifth Schedule of the Constitution requires that they be enacted within five years of |

| |(Domestic Violence) Bill | |promulgation but it is recommended they be passed within one year, by August 2011[6]. |

| | | | |

| | | |The definition of ‘violence’ in the Bill should include abuse derived from cultural and customary |

| | | |practices including female genital mutilation, forced marriage, child marriage and forced wife |

| | | |inheritance (Family Protection Bill 3(2)(k)) |

| | | | |

| | | |The Bill does provide for Protection Orders to be issued by courts; however, it does not criminalize |

| | | |domestic violence but only describes it as “unacceptable behaviour” (Family Protection Bill Section |

| | | |5(a). |

|Articles 3 & 7 |Increase efforts to combat |The Children’s Act prohibited FGM for all girls | |

|(Female Genital Mutilation) |the practice of FGM |under 18. | |

|[CCPR/CO/83/KEN paragraph | | | |

|12] | | | |

| |Prohibit FGM for adults |The Female Genital Mutilation Bill 2011 has gone | It is recommended that the Prohibition of Female Genital Mutilation Bill be enacted to criminalize FGM |

| | |through the second reading |in adult women |

| | | | |

| | | |Further, it is recommended that the Bill also create an offence of discriminating against, harassing or |

| | | |otherwise treating a person in an unfavorable manner for the sole or main reason that a person has not |

| | | |or refuses to undergo FGM. |

| |Step up the awareness | |Enactment and implementation of the bill is insufficient as it may lead to situations where the practice|

| |campaign by the Ministry of | |is continued but under cover or where the practice is discontinued but women are ostracized and |

| |Gender, Sports, Culture and | |abandoned by their community. |

| |Social Services. | | |

| | | |The practice of paying compensation to the relatives of a woman who has undergone FGM to settle the |

| | | |matter is common. No legal action is taken by the police, her family or community against the mutilator |

| | | |or those who allowed the woman to undergo mutilation.[7] |

| | | | |

| | | |The Government must engage with communities to build awareness about the negative effects of the |

| | | |practice and to develop alternative rites of passage in order to eradicate the practice. |

|Article 6 |Consider abolishing the death|Article 26(3) of the Constitution, 2010 still gives |Courts continue to impose the death penalty, although no execution was reported. |

|(Death penalty) |penalty de jure and acceding |room for taking of life when the Constitution or any| |

|[CCPR/CO/83/KEN paragraph |to the ICCPR’s Second |other written law permits. However Articles 29(f) |There has been effort made through superior court decisions in the cases of Godfrey Ngotho vs. Republic |

|13] |Optional Protocol |provides for the right not to be treated in or |[2010] eKLR .The sentencing on the case declared that the mandatory application of the death penalty |

| | |punished in a cruel, inhuman or degrading manner. |for the crime of murder is unconstitutional as it is “antithetical to the Constitutional provisions on |

| | |Article 25(a) of the Constitution provides that |the protection against inhuman or degrading punishment or treatment and fair trial” |

| | |freedom from torture and cruel, inhuman or degrading|The court expressly stated that the reasoning behind its rejection of the mandatory death penalty for |

| | |punishment as part of the fundamental rights and |the crime of murder might also apply to other capital crimes such as treason, robbery with violence and |

| | |freedom that shall not be limited. |attempted robbery with violence. |

| | | |The court ruled that the death penalty is constitutional. |

| |Remove the death penalty from|The Constitution at Article 2(6) provides that any |Courts continued to impose the death penalty, although no executions have been reported. The death |

| |the books for crimes that do |treaty or convention ratified by Kenya shall form |penalty was retained in the new Constitution. |

| |not meet the requirements of |part of law of Kenya under the Constitution. Kenya | |

| |article 6, paragraph 2 |has ratified the ICCPR and this applies to Kenya | |

| | |vide Articles 29 & 60 of the Constitution. | |

| |Ensure that the death |Between the years 2001 and 2005, over 3700[8] |In Kenya, execution has not been effected since the late eighties[9], but the death sentences continue |

| |sentences of all those on |persons were sentenced to death in Kenya |to be imposed. Nevertheless, political leaders had earlier indicated the possibility of abolishing death|

| |death row whose final appeals| |penalty. President Kibaki commuted to life over 4000 death sentences in 2010[10] thus signaling that an |

| |have been exhausted are | |official abolition is a possibility. |

| |commuted | | |

|Article 6 |Adopt measures to improve |The Constitution of Kenya 2010 in Article 43 (1) | As part of its national health goals, the Government of Kenya aims to increase the use of family |

|(Maternal Mortality) |access to family planning |(a)explicitly includes the right to the highest |planning to 70 % of women ages 15 to 49 by 2015.[12] |

|[CCPR/CO/83/KEN paragraph |services for all women |attainable standard of health, the right to health | |

|14] | |care services, including reproductive health care |Access to family planning stands at 46 per cent for married women representing an unmet need of 54 per |

| | |and the right to emergency medical treatment.[11] |cent. Modern methods of contraception are commonly used (39 per cent) than traditional methods (6%)[13].|

| | | | |

| | | | |

| | | |The government’s policy is that maternal healthcare, healthcare for children and family planning |

| | | |services should be free however Health centers have defied the above ministry’s policy[14]. |

| | | | |

| | | |Article 43 of the Constitution, obligates the Government to take legislative, policy and other measures |

| | | |to realize the rights guaranteed in the Constitution including the right to health. The Government |

| | | |should therefore act quickly to enact the relevant legislation to implement the reproductive health |

| | | |rights outlined in the Constitution |

| |Review abortion laws to bring|Previously, abortion was only permitted to save the |Abortion is prohibited. However see exception to abortion rule in Article 26(4) |

| |them into conformity with the|life of the mother. In Article 26(4), the |In light of this, one could make a case for abortion in cases of sexual assault, rape or incest – |

| |ICCPR |Constitution now extends this protection by allowing|considering the mental health of the mother |

| | |abortion to protect a woman’s health and when | |

| | |permitted by any other written law. |It is further recommended that the Government lifts its reservation to Article 14(2) (c) of the Maputo |

| | | |Protocol. |

|Article 6 |Take measures to ensure that |Article 27 of Constitution 2010 protects individuals|Section 26 of the Sexual Offences Act 2006 and section 24 of the HIV and AIDS Prevention and Control Act|

|(HIV Treatment) |all those infected with HIV |from discrimination on the basis of their health |2006 are discriminatory in their criminalization of transmission of HIV. For conviction, it need not be|

|[CCPR/CO/83/KEN paragraph |have equal access to |status. |proven that the person was negligent, had received a medical diagnosis and understood how to prevent |

|15] |treatment. | |transmission. |

| | |The HIV and AIDS Prevention and Control Act 2006 | |

| | |also include an anti-discrimination provision in |The government should develop a comprehensive HIV/AIDS policy which includes promotion of awareness, |

| | |section 31). |prohibits compulsory testing, guarantees the right to privacy, outlaws discrimination, and provides |

| | | |healthcare for those who are HIV positive. |

|Article 9, paragraph 3 |Ensure that those accused of |By Article 49(f) of the Constitution, 2010, an |Courts in Kenya have upheld this requirement and many accused persons have been acquitted due to the |

|(Time within which the |the capital offence of murder|arrested person has the right to be brought before a|violation of this requirement by arresting authorities. |

|accused must be brought |fully benefit from the |court as soon as reasonably possible, but not later | |

|before a judge) |guarantees of article 9 (3) |than (i) twenty four hours after being arrested; or | |

|[CCPR/CO/83/KEN paragraph |of the ICCPR by being brought|(ii) if the twenty four hours are not ends outside | |

|17] |before a judge promptly (the |ordinary court hours, or on a day that is not an | |

| |current limit is 14 days) |ordinary court day, the end of the next court day. | |

|Article 9 |Guarantee the right of |This is taken care of by Article 49(c) of the | |

|(Access to a lawyer during |persons in police custody to |Constitution which states that an arrested person | |

|detention) |have access to a lawyer |has the right to communicate with an advocate, and | |

|[CCPR/CO/83/KEN paragraph |during the initial hours of |other persons whose assistance is necessary. | |

|17] |detention. | | |

|Articles 2, 6, 7, 9 & 10 |Take more effective measures |Article 51 of the Constitution, 2010 guards the |Kenya has provisions in its legal system that aim at prohibiting torture and other cruel, inhuman or |

|(Torture and ill-treatment |to prevent abuses of police |rights of persons detained, held in custody or |degrading treatment or punishment. The legal regime as it exists barely prohibits torture but do not |

|in police custody and |custody, torture and |imprisoned. These rights include the retention of |provide sufficient punishment. It is therefore important that Kenya enacts legislation to criminalize. |

|abusive use of police |ill-treatment |all the fundamental rights and freedom in the Bill | |

|custody) | |of rights to the except that right is incompatible | |

|[CCPR/CO/83/KEN paragraph | |to the fact that he/she is detained, held in custody| |

|18] | |or imprisoned. | |

| | |These persons also have the right to habeas corpus | |

| | |This Article of the Constitution also directs | |

| | |parliament to enact legislation that | |

| | |-Provide for the humane treatment of the persons | |

| | |detained held in custody or imprisoned; | |

| | |-Takes into account the relevant international human| |

| | |rights instruments. | |

|Articles 2, 6, 7, 9 & 10 |Strengthen training for law |There is a task force on police reform appointed by |The task force has come up with recommendations on how to improve service delivery by the police |

|(Torture and ill-treatment |enforcement personnel |the government to look into issues that will improve|officers. The task force has also developed curriculum to be used in training police officers. |

|in police custody and | |service delivery by the police officers. | |

|abusive use of police | | | |

|custody) | |There are 3 Bills in parliament on police reform |The Bills are yet to be passed by parliament and enacted into law. If enacted, the performance of the |

|[CCPR/CO/83/KEN paragraph | |that are meant to improve the services offered by |police will definitely improve |

|18] | |the police officers. These are: The National Police | |

| | |Service Bill; The National Police Service Commission| |

| | |Bill; and the National Police Service Oversight | |

| | |Authority Bill. | |

|Articles 2 & 14 |Give priority to combating |The vetting of judges Act has been enacted to |The appointment of Chief Justice and Deputy Chief Justice has been lauded as being transparent and the |

|(Administration of justice) |corruption in the judiciary |provide guidelines in the assessing of the |vetting process was recommended for all public positions. |

|[CCPR/CO/83/KEN paragraph | |suitability of judges to hold positions in the |See also what we had provided for on Judicial reform - above |

|20] | |judiciary and to stump out corrupt judicial | |

| | |officers. | |

|Article 17 |Develop transparent policies |Article 43 of the Constitution of Kenya 2010 |Those in informal settlements are vulnerable to forced evictions for government projects or private |

|(Forced evictions) |and procedures for dealing |provides for the right to accessible and adequate |development and such evictions violate international law standards.[15] Up to 127,000 people in Mathare,|

| |with evictions |housing. |Huruma, Kiambiu, Korogocho, Mukuru and Kibera are living with the threat of forced eviction after they |

|[CCPR/CO/83/KEN paragraph | | |were given twelve hours to move out of their homes. [16] The matter has gone to court under a |

|22] | | |petition[17] whereby the communities are seeking among others an order restraining the from evicting |

| | | |them prior to agreed alternatives and suitable location in Nairobi or its outskirts and a declaration |

| | | |that the respondents have a duty to formulate, with the citizens participation regulations and standards|

| | | |of eviction so as to avoid undue declaration and violations of any other person within the jurisdiction.|

| | | |The petitioners were granted conservatory orders and are to remain in the occupation of their informal |

| | | |settlement areas pending hearing and determination of the case. The judge further recommended for a |

| | | |formulation of a housing policy which responds reasonably to the needs of the most desperate and |

| | | |provides at least temporary shelter for those with no access to land. |

| | | | |

| | | |The slum upgrading project was poorly funded and implemented and has not resulted in the successful |

| | | |resettlement of slum residents into adequate housing. |

| | | | |

| | | | |

| | | | |

| | | | |

| | | | |

| | | | |

| | |The government has undertaken an extensive slum | |

| | |upgrading project. | |

|Article 17 |Ensure that those affected by| | See the above petition and [18] |

|(Forced evictions) |evictions are consulted and | | |

| |appropriate resettlement | | |

|[CCPR/CO/83/KEN paragraph |arrangements made before | | |

|22] |evictions can occur | | |

| | | | |

| | | | |

| | | | |

| | | | |

|Article 21 |Guarantee the right of |Guaranteed under Article 37 of the Constitution |Even though the Constitution provides for freedom of assembly, the Government restricts this practice. |

|(Authorization of public |peaceful assembly and impose |which states; Every person has the right, peaceably |Organizers of must notify the police in advance for planned meetings and authorities sometimes cancel |

|meetings) |only restrictions necessary |and unarmed, to |such gatherings characterizing them illegal especially if they are planned public demonstrations. |

|[CCPR/CO/83/KEN paragraph |in a democratic society |assemble, to demonstrate, to picket, and to present | |

|23] | |petitions to public authorities | |

|Article 24 |Raise the minimum age of |There has not been any effort to raise the minimum |The Kenyan Government should amend the Children Act 2001 and the Penal Code to increase the minimum age |

|(Age of criminal |criminal responsibility (the |age of criminal responsibility in Kenya, it still |of criminal responsibility from 8 years to 10 years. |

|responsibility) |current age is 8 years) |remains at 8 as provided for under section 14 of the|The only instance that the minimum age of criminal responsibility is raised is with regard to male |

|[CCPR/CO/83/KEN paragraph | |Penal Code |persons committing sexual offence. Section 14(3) A male person under the age of twelve years is presumed|

|24] | |The Criminal law amendment Act of 2003 which was |to be incapable of having carnal knowledge |

| | |intended to address this issue had no effect since | |

| | |it did not change the legislation relating to | |

| | |minimum age of criminal responsibility | |

| | | | |

|Articles 8 and 24 |Adopt specific |The Constitution contains specific provisions which |Trafficking in persons, especially in women and children is still rampant in Kenya. Statistics show |

|(Trafficking) |anti-trafficking legislation,|should protect citizens from human trafficking |that women and children in Kenya are increasingly being trafficked for exploitation. Some of the forms |

| |including for the protection |including Article 28 – right to dignity, Article 29 |of exploitation include slavery, prostitution and forced marriage. |

|[CCPR/CO/83/KEN paragraph |of the human rights of |– right to freedom and security of person, Article | |

|25] |victims |30 – freedom from slavery, servitude and forced |Despite the Counter Trafficking Act, being enacted there is need to put in place proper implementation |

| | |labour and Article 39 – freedom of movement and |plans. |

| | |residence. |The State should come up with proper mechanisms to assist victims of trafficking. These mechanisms |

| | | |should move a step further to provide repatriation for the victims. They should provide psycho-social |

| | |Section 3(1) of the Counter Trafficking In Persons |counselling, temporary shelters and economic empowerment to the victims in order to re-integrate them |

| | |Act 2010 creates various offences, including |onto the society. |

| | |physically recruiting, transporting and harbouring | |

| | |persons for the purpose of exploitation, financing, | |

| | |controlling or aiding and abetting trafficking, and | |

| | |acts that promote trafficking. The minimum | |

| | |imprisonment sentences and substantial fines are | |

| | |significant penalties. | |

| | |The Children Act also aims to protect children from | |

| | |trafficking, sexual exploitation and torture, cruel | |

| | |treatment or punishment and deprivation of liberty. | |

| | |The Sexual Offences Act prohibits trafficking for | |

| | |purposes of Sexual exploitation | |

|Articles 8 and 24 |Actively investigate and |Implement policy for the eradication of trafficking | |

|(Trafficking) |prosecute these offences |and the provision of support to victims of | |

|[CCPR/CO/83/KEN paragraph | |trafficking. | |

|25] | | | |

|Articles 8 and 24 |Intensify efforts to combat |Article 53(1) d of the Constitution of Kenya read |Despite The Children Act, child labour is common in Kenya, with 26% of children aged 5-14 involved in |

|(Child Labour) |and reduce the incidence of |together with section 10 of the Children act |economic activity or domestic work[19]. |

|[CCPR/CO/83/KEN paragraph |child labour, particularly in|prohibits child labour | |

|26] |the commercial agricultural | |Child labour is common in provinces where commercial plantations are common. It is recommended that the|

| |sector where it is most | |Government ensure that all such plantations adhere to the terms of the Employment Act and the Children |

| |prevalent | |Act.[20] |

| | | | |

|Articles 17 and 26 |Repeal section 162 of the | Section 162 of the Penal Code has not been repealed|Repeal sections of the Penal Code, CAP 63 of the Laws of Kenya(Specifically 162, 163 and 165) that |

|(Criminalisation of |Penal Code criminalizing |and is still effective to date. |criminalizes homosexuality[21] |

|homosexuality) |homosexuality | | |

|[CCPR/CO/83/KEN paragraph | | | |

|27] | | | |

|Submission of the Third |Submit its third periodic |Submitted in August 2010 | |

|Periodic Report |report by sets 1 April 2008 | | |

|[CCPR/CO/83/KEN paragraph | | | |

|28] | | | |

|Submission of the Third |Circulate the report for the |Not Circulated | |

|Periodic Report |attention of NGOs operating | | |

|[CCPR/CO/83/KEN paragraph |in the country. | | |

|28] | | | |

|Dissemination of the State |The State party’s second |Not published | |

|report and Concluding |periodic report and the | | |

|Observations |Concluding Observations | | |

|[CCPR/CO/83/KEN paragraph |should be published and | | |

|28] |widely disseminated | | |

Summary

The Human Rights reviewed the Second Periodic Report of Kenya in March 2005.

The Concluding Observations adopted at that time included the 34 recommendations or subjects of concern listed above.

From the information given above it appears that

● 12 have not been implemented or addressed

● 16 have been partially implemented or addressed

● 6 have been fully implemented or addressed

*The recommendations listed here paraphrase rather than quoting the Committee’s Concluding Observations (CCPR/CO/83/KEN). Every effort has been made to accurately reflect the Committee’s concerns and recommendations, but this should not be treated as an authoritative summary of the Concluding Observations

-----------------------

[1] Source:http:

[2] Art. 27(6)

[3] Kenya Demographic and Health Survey 2008-9

[4] The offence of rape is explicitly excluded from applying to married couples in section 43(5)

[5] ‘Constitutional Opportunities for Redressing Gender-based Violence by Non-State Actors’, Lucy Minayo, ‘Every Mile Counts, Building a Legacy of Women’s Rights Protection in Kenya’, FIDA Kenya Annual Report 2010, pages 55-61 at 61.

[6] See the CEDAW concluding recommendations to Kenya that were published in February 2012.

[7] Death of a Girl by Genital Mutilation in Parwa Location, Central Pokot District’, Walter Walchli, Sentinelles, 15 March 11, page 4

[8] Call for abolition as Thousands Award Execution

[9] Ibid

[10] Supra Note 1

[11] Article 43

[12] The Ministry of Health, The Second National Health Sector Strategic Plan of Kenya ( NHSSP 11-2005-2010(Nairobi: Ministry of Health, Health Sector Reform Secretariat, 2005)

[13] Kenya Demographic and Health Survey 2008/2009

[14] Samuel Siringi, Daily Nation Newspaper, 25 May 2011, page 19

[15] Human Rights Live Here, STOP Forced Evictions in Africa’, Amnesty International, April 2011, page 9.

[16]

[17] Susan Waithera Kariuki & 4 others vs. Town Clerk, Nairobi City Council & 2 others -Petition Case No 66 of 2010

[18] ‘Haki Zetu, ESC Rights in Practice – The Right to Adequate Housing’, Amnesty Intl page 13.

[19].(2009 UNICEF Statistics – Kenya, Child Protection available through UNICEF website at

[20] Review of Progress towards the World Fit for Children +5 Goals in Kenya, UNICEF, March 2007, page 27.

[21] See The outlawed amongst us , A study of the LGBTI community search for equality and non discrimination in Kenya by the KHRC Kenya(2011)

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download