HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF KENYA’S REPORT ON COMPLIANCE WITH COVENANT ON CIVIL AND POLITICAL RIGHTS

Human Rights Committee

Eighty-third Session

2256^th & 2257^th Meetings (AM & PM)

HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF KENYA’S REPORT

ON COMPLIANCE WITH COVENANT ON CIVIL AND POLITICAL RIGHTS

Experts Press for Greater Resolve by Government Regarding Troubling

Reports of Prisoner Mistreatment, Violence against Women, Forced Evictions

Although a Kenyan delegation today defended its Government’s commitment to craft a new constitution that would “widen the democratic space” and ensure fundamental freedoms throughout the country, a panel of United Nations human rights experts pressed for even greater resolve in light of troubling reports of persistent ill-treatment of persons in police custody and prisons, violence against women, and the forced eviction of people living in informal settlements.

Wrapping up consideration of Kenya’s second periodic report on compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee stressed the critical duty of governments to guarantee liberty and the security and dignity of the person.  The experts pointed out troubling gaps in Kenya’s legal aid system, denial of access to detainees, poor training of judges, stereotypical perceptions of women and homosexuals, and wobbly press freedoms.

The 18-member, Geneva-based Committee, which is meeting in New York through 1 April, monitors worldwide implementation of the Covenant and its two Optional Protocols -- the first allows individuals to submit complaints to the panel, and the second seeks to abolish the death penalty.  The expert from France, Committee Chairperson Christine Chanet noted the panel’s overall concern that 25 years had lapsed since Kenya’s initial report.  The experts were, nevertheless, gratified at the delegation’s frankness, as well as its diversity and plurality.

Despite many positive points, including the great efforts that had been made to end torture, combat corruption and turn back the HIV/AIDS scourge, several concerns had been raised, she said.  Among them was the failure to fully integrate the Covenant in domestic legislation.  And while the delegation had pointed out that Kenya’s system was not the same as the United Kingdom’s -- since it had a written text and, thus, could not proceed in the same way -- whatever Kenya’s legal system, and particularly since it was crafting a new constitution, the Committee would likely recommend that the Government find a way of assuring citizens the recourse set out in article 2, on impunity, before the country’s courts.

The point that caused the greatest concern among her colleagues had to do with the status of women and violence against them, in short, everything the Committee had heard about the unequal rights of women and men, some of which was enshrined in the Constitution, she said.  She cited as examples physical violence, family violence, genital mutilation, and abortion-related deaths –- an extremely high number of women died because of the severity of the anti-abortion law, and they were often Kenya’s poorest women.  That was a very considerable problem, which ran counter to the State’s obligation.  Indeed, it was incumbent upon States to combat those cultural and religious beliefs that perpetuated such problems.

Saying that presenting his country’s report and hearing the response to it had been “sort of an emotional moment”, Amos Wako, Attorney-General and Head of Kenya’s delegation, said that, from the outset, his delegation had felt that it had taken too long to present it, and felt, therefore, that it should be as open and candid as possible before the Committee.  Citing the struggles in implementation was not intended as an excuse -- it meant that the State was sharing some of the difficulties it faced at home in implementing the Covenant.  That was why he had valued the members’ comments and probing questions.  In fact, there was nothing that the Chair had said with which he had disagreed.

He said he was here to see how he could enhance implementation of the rights enshrined in the Covenant.  So the issues of integrating the provisions of the Covenant into the Constitution regarding the death penalty, women’s position, and so on -- issues to which he was committed -- would remain the focus of the Government’s action plan for the next few years until it submitted its next report, which would be on time.

The Committee officially opened its session yesterday, with the election of Ms. Chanet, as well as Vice-Chairs Maurice Ahanhanzo Glele of Benin, Elisabeth Palm of Sweden, Hipólito Solari Yrigoyen of Argentina, and Ivan Shearer of Australia, as Rapporteur.

Also, new members, Ms. Palm, Michael O’Flaherty of Ireland, and Edwin Johnson Lopez of Ecuador, pledged the Committee’s solemn oath under article 38 of the Covenant.

The Committee will reconvene tomorrow morning at 11, to take up the further periodic report of Iceland on compliance with the International Covenant on Civil and Political Rights.

Background

The Human Rights Committee met today to continue its consideration of Kenya’s second periodic report (document CCPR/C/KEN/2004/2).

Introduction of Report

Presenting his country report yesterday to the Committee, AMOS WAKO, Attorney-General and head of the delegation of Kenya, said it had been 25 years since his country had submitted its initial report, but that should not be construed as a lack of commitment to the promotion and protection of human rights.  Apart from the constraints of insufficient financial, technical and human resources, his Government’s attention had been focused on urgent political, constitutional, legal and economic reforms.  That left no room for anything else.  The Government had now trained professional staff able to draft the reports required under the various international and regional human rights instruments, to which Kenya was a party.  Presentation of the report, therefore, marked a new chapter in Kenya’s renewed commitment to the full implementation of its obligations under the various international and regional human rights instruments.

He said that when the initial report was presented, the “stirrings for the movement agitating for the multi-party democracy” had begun.  At that time, Kenya was a “de jure” one-party political State with the Kenya African National Union as the only recognized political party.  Since then, many enabling developments had led to the full enjoyment and protection of human rights.  After reviewing those developments in detail, beginning with the amendment to the Constitution in 1991 to allow for multi-party elections, he explained that the constitutional review had been guided by respect for the universal principles of basic human rights, gender equality and democracy.  The review had resulted in a draft constitution, which had been produced by the National Constitutional Conference, which was still the subject of a debate in Parliament.  The final constitutional bill would then be subjected to a referendum.  Although there were some contentious issues in the bill, the chapter dealing with human rights was not one of them.

In addition, he said, his Government had also embarked on an ambitious legal reform programme, for which it had set up more than 15 task forces and committees.  That had resulted in legislation, which had created “more democratic space” and had enhanced the protection and enjoyment of human rights.  The stakeholders and the civil society had been involved in drafting the new legislation.  The Kenya Commission on Human Rights Act 2002 created an independent commission, whose members enjoyed security of tenure.  It was empowered to investigate complaints about human rights abuses, visit prisons and detention centres, educate the public about human rights, and recommend measures to promote human rights and formulate and implement programmes to promote human rights.  Among his other examples was the Criminal Law Act 2003, which prohibited courts from accepting confessions unless they were made in court.  The extraction of confessions to crimes from suspects was the single most important motivation for police torture.  The act also prohibited corporal punishment.

He said that other reforms had included:  the children act; persons with disabilities act; the National Commission on Gender and Development Act; the preservation of public security act; the penal code; and the police act.  The Government had also initiated a process of signing and ratifying all relevant international and regional human rights instruments.  During his current visit to New York, he intended to deposit the instruments of ratification of the Rome Statute.  In other developments, Kenya had been one of the first four countries to have signed up to be reviewed by the peer review mechanism of the New Partnership for Africa’s Development (NEPAD).  Also, most of the recommendations made by the United Nations Special Rapporteur on human rights concerning the situation of torture in Kenya had been implemented.  His Government was currently considering making a declaration contemplated in article 22 of the Convention against Torture, whereby the relevant committee could receive individual complaints from persons alleging non-compliance with the Convention.  The Government was also considering ratifying the Optional Protocol to the International Covenant on Civil and Political Rights, which would enable the Committee to receive individual complaints.  Moreover, the Nyago House torture chambers, which were custom-made torture dungeons in the 1980s, had now been opened, and the Government was in the process of turning the chambers into a “movement of shame”, to ensure that the acts which took place there would never be repeated.

Questions and Comments by Experts

Opening the discussion this morning, PRAFULLACHANDRA NATWARLAL BHAGWATI expert from India, said that, although 25 years had elapsed since Kenya had presented its first periodic report, he was heartened by the delegation’s stated strong commitment to implementing the Covenant and keeping up with the reporting schedule.  He was, nevertheless, concerned that the Covenant’s priorities were not significantly incorporated into the country’s domestic laws.  He also wondered if Kenya’s judges had been trained in the Covenant -- there was no indication that they were familiar with the rights therein or even aware of ways to incorporate them in the laws of the land.  The expert hoped that Kenya’s new Constitution contained a chapter incorporating the tenets of the Covenant.

Mr. BHAGWATI also expressed concern about the effect of the decisions handed down by Kenya’s Human Rights Commission.  What was the Commission’s reach?  Did that body devote any of its attention to changing the cultural attitudes of the general citizenry in order to build and maintain a real democratic society?  He was also concerned about statutes regarding rape, as well as inheritance and property laws, particularly whether women enjoyed those rights on equal footing with men.  He was further concerned about lack of access to contraceptives, and, since he believed that abortion was illegal, he asked the Kenyan delegation what steps were being taken to curb the rather large number of “back alley” abortions performed by “quacks”.  Had there been any thought to legalizing abortions in some cases?  On the high prevalence of female genital circumcision, he asked what steps were being taken to educate rural populations about the dangers of that practice.

EDWIN JOHNSON LOPEZ, expert from Ecuador, asked what measures were being taken to eradicate corruption, particularly in the judiciary system.

The expert from Ireland, MICHAEL O’FLAHERTY, was concerned about the nearly 240,000 refugees in Kenya, and wondered to what extent the Government had been active in protecting and promoting their rights, including efforts to ensure their return to their countries of origin.  He noted that if a Truth, Justice and Reconciliation Commission were to be established, it could use the Covenant as a point of reference, particularly in outlining a scheme to provide reparations for past human rights violations.

RUTH WEDGWOOD, expert from the United States, praised the Kenyan delegation for its frank responses about the “culture of excessive force” throughout out the country’s law enforcement agencies. She noted that 19 cases had been taken up but wondered how many of the perpetrators had been prosecuted.  She added that she had been astonished that, even after the passage of a relevant law, some 3,400 people had died in custody in Kenya last year.  Had anyone been prosecuted and convicted in any of those instances?  If a truth commission were established, would there be a programme to disqualify any police officers who had been implicated in such acts?  Finally, even understanding prison overcrowding, she said that there seemed to be simple ways to ensure that prisoners got enough food.

She also asked what progress was being made to curb violence against women, particularly providing counselling or housing for battered women.  She wondered also what Kenya was doing to bring down the “Holocaust-like” number of yearly HIV-related deaths and offered as an example the successful AIDS awareness and disease-reduction campaigns under way in Uganda.

Delegation’s Response

Mr. WAKO said that Kenya’s anti-corruption Commission had been created by an act of Parliament to initiate or receive complaints from the public or Attorney General on cases for investigation.  It was an independent, transparent body, with an advisory board that did not include any Government representatives.  Jobs on the Commission had to be advertised.  The Government, which was committed to “zero tolerance” regarding corruption, had provided funding for that Commission to carry out its investigations and function effectively.

Concerning accession to human rights instruments, he said that Kenya’s national commitment to human rights had been an act of parliament, in which there were various provisions for appointments made independently of the Government.  The National Assembly advertised those posts, the persons applied and were interviewed by a committee of the National Assembly, which then made recommendations to the President.  So, the President was only involved at the very end of the process.  The Commissioners, in turn, elected the chairperson and vice-chairperson.

Responding to a general concern about the Covenant’s place under national laws, he said he had agreed entirely with Mr. Bhagwati -- Kenya did subscribe to the principles of the Covenant, but that had not been domesticated as a document under the law.  Nevertheless, the rights under the Covenant were actually in both the Constitution and the laws.  Thus, the way that could be referenced was through judicial interpretation of existing rights.  Although Kenya’s jurisprudence had not made much reference to the Covenant to date, he was confident that, in the future, interpreting those rights under the Constitution would enable the courts to reference the Covenant.  His Government was now implementing the Covenant, but once it ratified the Optional Protocol, individuals would have the right to appear before the Committee; the courts would become even more aware of the Covenant’s provisions; and they would begin applying them.  The legal profession was presently geared towards establishing norms, including in the human rights field, but he was sure the Covenant would have a place in the country’s jurisprudence.

He went on to say that, even if the rights enumerated in the Covenant were to become integrated in the legislation, they would constitute “second class” rights because they would not be part of the Constitution, only part of the legislation.  So, the best way to proceed was the way his Government was already headed, namely to include a human rights chapter in the draft constitution, which incorporated all of the rights enshrined in the International Covenant.

Turning to a series of questions about gender-based discrimination, he said that, if the draft constitution failed to be adopted, the Government would be forced to amend it to conform to the Covenant.  That did not mean that the Government discriminated against women in its policies and legislation.  It was very clear that the issue of women’s rights was moving ahead legislatively and policy-wise, even through affirmative action, to ensure that women enjoyed their rights on an equal footing with men.  The National Commission on Development had been tasked with ensuring women’s full enjoyment of their rights, and on that point, the proposed article 44 of the draft constitution stated that women and men had an equal right to treatment, including equal opportunity in the political, economic, cultural and social spheres, and that they had equal right to inherit and have access to and control over property.  That article also stipulated that any law, custom or tradition which undermined the dignity, welfare or status of women was prohibited.  It also entrusted the State with protection of women and their human rights, including women’s natural maternal role.

MARY WAMBUA, Deputy Director, Department of Gender, Ministry of Gender, Sports, Culture and Social Services of Kenya, added that the private sector, Parliament, the educational sphere and decision-making processes had made positive gains.  The Government had acknowledged that women’s role was very important in national development.  A unit within the department of social services, called the Women’s Bureau, to ensure women’s participation in the development process, had been elevated last December to a department of gender.  She cited several recent statistics of women’s involvement in the nation’s development, including primary school enrolment of girls and boys, which was not nearly equal.  At the private university level, more than 45 per cent of the students were women, although that number was slightly lower at public universities.  Women’s involvement in public administration was gaining momentum, however slowly.

MAINA KIAI, Chairman of the Kenyan National Commission on Human Rights, said the Commission’s mandate was broad and incorporated both civil and political rights, as well as economic, social and cultural ones.  The Commission set its own agenda -- its strategic plan had been published in 2003 -- and had cited traditional cultural attitudes as one of the major impediments to implementation of the Covenant’s tenets.  “As a way in”, it had decided to tackle women’s rights, particularly women’s property and inheritance rights as a way to push cultural change.  The Commission was also actively tackling broader social attitudes that impeded progress in the area of human rights.

Of course, lack of capacity and lack of funding was a major hindrance to the Commission’s work, he said.  Further, because it was a new institution that was supposed to serve as a Government watchdog, the Commission often encountered resistance from State institutions, particularly from police and law enforcement.  In all this, one goal was to become financially independent, and the Commission was trying to resist efforts aimed at making the body a part of any regular Government Ministry.

DOROTHY ANGOTE, Permanent Secretary in the Kenyan Ministry of Justice and Constitutional Affairs, described a sector-wide programme to reform and strengthen Government institutions affecting over 30 departments.  The aim was to move from narrow institutional thinking towards a broader, implementation-oriented approach.  Training of judicial officials, police officers and prison officials in the promotion and protection of human rights as they carried out their duties was a top priority.

On the declaration of a state of emergency in Kenya, Mr. WAKO urged the experts to consider the Constitution as a whole.  That guiding document listed the rights that could not be derogated from, which were consistent with the Covenant’s requirements.  He noted that sections of the Constitution that had been enacted during wartime had been repealed.  Other reforms were under way to ensure procedural safeguards in murder and capital punishment cases, among others.

He stressed that the Government had never given police forces an express right to “shoot to kill”.  Any use of arms or force must follow legal guidelines.  Human rights training programmes were under way for police officers, he said, adding that the police department had perhaps gone farther in this regard than other State agencies by allowing civil society groups -- particularly women’s advocates -- to come into their precincts and conduct or participate in that training.

On prison life in Kenya, Mr. WAKO said he could not give the current figure of the number of prisoners on death row, but the Government was very aware that such prolonged confinement could be cruel and unusual punishment.  Many such sentences had been commuted to life imprisonment.  He said that the Government was actively rooting out officers or prison staff that had been implicated in prison deaths.  He added that courts could exercise their discretion when sentencing convicted criminals.

On some of the experts’ other concerns, he said that the Government was aware of some 19 current “land clash” cases, which generally involved disputes over competing water and land resource use.  The Government was aware that concrete land rights and property rights laws were required.  He said that a task force on the creation of a truth, justice and reconciliation commission had compiled a report and submitted it to the Government.  Abortion was prohibited, except where the life of the mother was at stake.  He was aware that there were civic actors campaigning to make abortions easier to obtain.  But he added that there was also a very strong lobby led by the country’s Catholic and Muslim communities to have abortion ruled out altogether.  “How this debate will end, is anyone’s guess”, he said.

He acknowledged Kenya’s staggering number of HIV deaths.  The Government had begun an active campaign to sensitize people to the breadth of the pandemic, and a national AIDS Control Committee had been created and was functioning smoothly.  It had reported that the infection rates were decreasing, but had also noted the steep costs of treating the disease for the general population.  He assured the experts that Kenya’s laws prohibited female genital circumcision for persons under 16.

Experts’ Comments and Questions

NIGEL RODLEY, expert from the United Kingdom, drew attention to his understanding that anyone suspected of robbery or armed robbery was effectively incommunicado for several days, and that that was a “de jure” incommunicado detention, and not even “de facto” incommunicado detention.

On the right to legal assistance, he said the Covenant was very clear in article 14 that there existed a right to legal assistance in the interest of justice.  He found it inconceivable that it was only in murder cases that the Kenyan Government envisaged that the interest of justice required legal assistance if the person could not afford it, and the new Constitution seemingly did not affect that dimension of things.  What would happen if the death penalty was abolished in Kenya, did that mean that nobody would be entitled to legal assistance if they could not afford it? he asked.  How was that compatible with article 14 of the Covenant?

He also asked what was going on in terms of police compliance with access, given the non-cooperation of the Kenyan police to which the Chairperson of the Commission on Human Rights had recently referred.  What measures were being taken by the State to ensure compliance with the detention law? he asked.

RAJSOOMER LALLAH, expert from Mauritius, said he had similar queries to those raised by Mr. Rodley.  Regarding terrorism law and the very useful material that had been gathered, he suggested, given Kenya’s obligation in that regard under the Covenant, that the Attorney-General also use material from the Committee’s concluding comments in its examination of States parties compliance.

MS. WEDGWOOD, expert from the United States, asked if anybody had been convicted for the wrongful death of a prisoner in custody.  Similarly, had anybody ever been convicted for a wrongful police shooting?  Also, since, as the Attorney-General, Mr. Wako was responsible for putting people in jail, had he looked into the issue of adequate nutrition and food for people held in custody, either in pre- or post-trial?

Delegation’s Response

MR. WAKO thanked Mr. Lallah for his advice, which would most certainly be followed.  In the failure to comply with the rights of access, he wondered whether the Commission Chairperson had explained that that was not widespread, that not in every police station or prison were detainees denied access.

Concerning the right to legal assistance, he said that Kenya was not in contravention of that particular right, and it should be recalled that Kenya was a developing country, which meant, at times, that the right to legal assistance could not be afforded.  But, a 1992 amendment to the Constitution had stated that legal assistance must be provided to indigent persons and, since that time, his Government had been trying to learn what it could do to ensure that it observed the rights enshrined in article 14 of the Covenant.  A number of suggestions had been made in that regard, including possibly following Zambia’s lead, where a department had been established to deal with people’s protection rights.  That model appeared to have “caught the eye” of the Constitutional Conference.  For example, there would be a defender’s office, and various projects were being carried out around the country to see how full compliance could be achieved.  In addition, some legislation on legal aid had also been drafted.

He knew he was obligated to provide legal assistance to indigent persons.  Hopefully, in his country’s next report, it would be able to say, “we have now achieved it; this is what’s happening”, he added.

On the right to hold an opinion and on freedom of expression, he explained that most people who had been denied licenses to gather under the former regime now had such licenses and registration, so that was no longer as much of an issue as it was prior to the general election in December 2002.

It was true that publishers were required to purchase a bond before issuing any publication, he said.  It was also true that that fee had been increased by 100 per cent.  The purpose of those regulations was to ensure that publishers furnished the location of their operating premises.  His Government had sought to regulate the publishing industry by compiling a registry of addresses; that requirement had not been intended to “muzzle” the press.  It was essential to know the publishing address because when somebody wanted to sue those papers for libel, for example, the physical address of operation was not always known.  Any reasonable person in the press should be able to supply that information.  He also had not thought that the bond amount was too high, but was an amount that should be able to be paid by any reasonable publisher.  Moreover, the new law did not apply to existing publications, but only to those that were not in place at the time the law took effect.

He added that the law on freedom of assembly and freedom to associate had been substantially changed in 1992.  Prior to that, the freedom to assemble had required a license from the administration, which often was not forthcoming.  The current law stipulated that meetings such as family gatherings, weddings, and so forth could be held without a license.  Political meetings held in big places such as stadiums required prior notification.

On child labour issues, Mr. WAKO said that most children worked in both rural and urban areas, mostly in commercial industries.  The Government was addressing concerns with the International Labour Organization (ILO).  He also said that the age of marriage was 18, although under some tribal practices, young girls were married when they reached puberty.  But the Government was aware of such practises and, when officials were alerted to specific cases, those girls were returned to school.

Experts’ Questions

IVAN SHEARER, expert from Australia, joined others in expressing concern about Kenya’s judiciary system, and he asked for specific information on the powers granted to lower court justices and magistrates.  In addition, he agreed with other experts that there was an obvious gap in legal aid and what should be provided under the Covenant.  While he understood the financial constraints of developing countries, such issues needed to be dealt with in a comprehensive manner.

The expert from Benin, MAURICE GLELE-AHANHANZO, continued the questioning on Kenya’s judiciary, wondering if all persons there were equal under the law, regardless of religion.  Turning to housing issues, he expressed concern about reports of massive expulsions from settlements in certain areas.  He also asked for a copy of the judicial training programme the delegation had described.

ALFREDO CASTILLERO HOYOS, the expert from Panama, was also concerned about forcible evictions and noted that, in some areas, X’s had been drawn on the doors of families that were to be thrown out of their homes.  Would those people be compensated?  Where would they go?

RAFAEL RIVAS POSADA, expert from Columbia, had concerns about freedom of speech and expression, particularly the apparent manipulation of media access passes and applications for assembly.  He was also very concerned about child labour, as well as the huge numbers of children drawn into the netherworld of child prostitution and drug trafficking.  The Government’s response did not provide enough concrete data on the country-wide statistics in these areas, he added.  He was also shocked that the age of assuming criminal responsibility was eight years old.

ROMAN WIERUSZEWSKI, the expert from Poland, expressed concern that the country considered homosexuality an unnatural act and had enacted laws to that effect.  Did the country consider this to be inconsistent with the Covenant’s non-discrimination clauses?

HIPOLITO SOLARI-YRIGOYEN, expert from Argentina, asked if Kenya had mandatory military service and, if so, was there an option for the exercise of conscientious objection.  Did the country offer any other ways to fulfil military obligations?

Mr. O’FLAHERTY, expert from Ireland, was also concerned with the issue of prejudice regarding homosexuality and asked what was being done to address them.  On children’s rights, he expressed concerns about corporal punishment, which had been outlawed but was reportedly still widely practiced in the country.

Afternoon Session

Opening the afternoon meeting, Mr. BHAGWATI asked what steps were being taken to improve women’s representation in parliament.  Was the Government taking affirmative action steps, with a view to improving women’s representation?  He also asked if discrimination in marriage, inheritance and adoption existed and whether that was reflected by the Constitution.  If so, did the Government have any plans to abolish that discrimination, or did it wish to perpetuate it?

He said he had learned that, in some parts of Kenya, women had to undergo a cleansing procedure upon their husband’s death, whereby she was forced to have sex with a hired person in order to free her spirit of her dead husband.  If that was true, what steps were being taken to eliminate that “abominable” practice?

Turning to article 14, concerning the right to fair trial, he asked what steps were being taken to increase the number of judges and to equip and train them properly.  He had learned that there was a lack of equipment and frequent transfers of judges, which led to delays in the disposal of cases.  He also asked whether any alternative dispute mechanism had been established and, if so, was it obligatory upon the parties to go to such a mechanism before the case was actually taken up for trial.

A further set of questions concerned the division of property upon the dissolution of a marriage.  He had understood that, by Kenyan law, all property acquired during marriage was matrimonial property belonging to each spouse equally.  Was that so in practice?  Was that implemented, or merely at the stage of a legal provision? he asked, adding that that would surely improve women’s status.

NISUKE ANDO, expert from Japan, returning to the right of association, said he understood that trade union activities had been very strong, even before the country’s independence, but that, sometimes, their registration was cancelled or refused.  What were the grounds for refusal to register a new trade union or the cancellation of an existing one?  Kenya had ratified many of the model International Labour Organization (ILO) treaties, but it had not ratified Convention number 87, which contained essential protection for trade unions.  Was there any particular reason why not, and were there plans to ratify it?

Ms. WEDGWOOD, expert from the United States, building upon Mr. Ando’s question, said she noted with concern some materials received from others about the physical intervention of the police in suppressing strikes, particularly the allegation that, in the case of some textile companies in the export process zones in early 2003, there had been physical violence by the police against strikers who were otherwise pacific in their behaviour.

On freedom of association, she recalled that the delegation had said that the police must be notified in the case of political meetings, and asked whether that had applied to meetings held indoors, as well as outdoors.

She explained that many of her questions had arisen from an earlier difficult time, but the habits of police “died hard”, so even giving notice to the police of a meeting might be “chilling”.  She said those habits would be especially difficult to change, absent statistics on current police behaviour.

She asked whether it was possible to exempt oneself from the regimes of the Hindu, Christian and Muslim courts, in cases of marriage, divorce and inheritance.  Or, if you were Muslim, for example, were you always bound by those courts?

Noting that all persons from peasant to president now had to file reports of income, she asked how it was possible to change social habits regarding income disclosure.  Fighting corruption had to be done with accountability at all levels of government, she stressed.

Delegation’s Response

Mr. WAKO addressed the structure of Kenya’s judicial system -- from the magistrate level to the higher courts.  On the “Khadis courts,” whose jurisdiction extended to the determination of Muslim law in certain matters, he said that those bodies handled private matters such as marriage, divorce and succession.  In order to come under the jurisdiction of those courts, persons must be Muslim.

He said the issue of evictions was very complex.  Slum clearance programmes had been initiated -- mainly to alleviate the dire circumstances of the people living there -- but their overall structure and effect were still largely under discussion.  Evictions also touched on road building and construction, as well as environmental issues.  By example, he noted that the Government had acted to ensure that water catchments areas and forests overrun by informal settlement dwellers were protected.  “Unless we protect our water supplies, Kenya could become a desert”, he said.  So, while eviction issues were complex, he assured the Committee that such programmes were carried out according to international standards.  Still, he stressed that the Government could not evict people on a selective basis, particularly in internal disputes over land rights.

Further, he said that polygamy was recognized under Kenya’s customary marriage laws.  While homosexuality was not “an issue” per se, all the tribes and customs of the country, as well as the churches, abhorred the practice.  The movement appeared to be towards tolerance, but the Government would watch the issue closely, particularly as the Anglican Church was currently struggling with the matter.  On other issues, he noted that corporal punishment had been outlawed in the country.  On the representation of women in decision-making spheres, he said the new Constitution would set specific guidelines increasing the number of women that must be elected to Parliament and the National Assembly.

Much education was required to eradicate the “cleansing” practice of women being forced to have sex with a hired person in order to free her spirit of her dead husband, he said.  He noted that, in one instance where a woman had come directly to him after police failed to take action after she reported an incident, he had ordered that the perpetrator in the case be prosecuted.  But she had subsequently expressed trepidation about testifying in court and had asked that the case be dropped.  That was a major impediment to efforts to eradicate the practice.

Responding to the questions about trade unions, Ms. ANGOTE, the former Registrar-General, said the trade unions were governed by the Trade Unions Act.  Any person or group of persons of not less than six could apply to the Registrar-General for registration.  A trade union might be cancelled or suspended for obvious reasons if, for example, registration was obtained by fraud or misrepresentation.  Upon cancellation, the Registrar-General was compelled to give notice in writing at least two months in advance as to why it intended to cancel the registration.  Within that time frame, the affected trade union could show cause in writing against the proposal.  So, the Trade Unions Act gave adequate time, under the law, for any trade union to contest the proposed action.

Mr. WAKO said the issue with ILO convention number 87 had been about whether civil servants should be registered as union.  When he assumed his position, that had been an issue, but now civil servants were registered as a union, thereby fulfilling the ILO obligations in that regard.  Kenya, thus, was no longer in breach of that convention, he explained.

Chairperson’s Closing

Concluding consideration of Kenya’s report, CHRISTINE CHANET, expert from France and Committee Chairperson, explained that the Committee’s final observations would be addressed to the delegation through its Permanent Mission, but she would summarize the Committee’s points.  First, there had been excessive tardiness in presenting the second periodic report, but members were gratified at the delegation’s frankness and openness, as well as its diversity and plurality.

She said that other positive points had included that Kenya had been very cautious in “tiptoeing” around the terrorism law and engaging in consultations and making use of the experience of other States that had rapidly adopted legislation.  It had, thus, avoided falling into any extreme and had found a good balance between the fundamental rights of the Covenant and the need to suppress terrorism.  Great efforts had also been made to end torture.  The fact that only confessions made in court before a judge had validity was another very positive development, as were efforts under way to combat corruption and the HIV/AIDS scourge.

Several concerns had been raised, she said.  Among them was the integration of the Covenant in domestic legislation.  Whatever Kenya’s legal system, and since it was crafting a new constitution, the Committee would probably recommend that the Government find a way of assuring its citizens the recourse set out in article 2, on impunity, before all the courts of the land.  So, by whatever means he chose, the obligation set out in article 2 had to be respected, and Mr. Wako was too skilled a jurist not to notice there were some gaps in the Constitution with respect to legal guarantees.  It had also been accurately pointed out that there was a problem of legibility in the current Constitution.  In the next constitution, it would be a good idea to be as clear as the Covenant.

Regarding the death penalty, Committee members had highlighted the disadvantage of the “de facto” moratorium, namely the people who had been pitifully abandoned in the death rows since 1988.  That was very serious.  As for deaths while in detention, there had been a stupefying number of such deaths, and Mr. Wako, who led the prosecutions, knew better than anybody how many prosecutions had proceeded and how many sentences had been handed down in that regard.  So, he knew best the State’s obligation.  He had told the Committee that Kenya was moving towards substitute or alternative sentences.  That must be encouraged, in order to relieve the overcrowding in the jails, which was at the root of the tremendously high number of deaths in detention.

The point that caused the greatest concern among her colleagues had to do with the status of women and violence against them; in short, everything the Committee had heard about the unequal rights of women and men, some of which was enshrined in the Constitution, she said.  She cited as examples physical violence, family violence, genital mutilation, and abortion-related deaths -– an extremely high number of women died because of the severity of the anti-abortion law, and they were often Kenya’s poorest women.  That was a very considerable problem, which ran counter to the State’s obligation.  Indeed, it was incumbent upon States to combat those cultural and religious beliefs that perpetuated such problems.

She said it was not even in the State’s interest to treat women that way; that could only serve as a “drag on development”.  That same applied to children who worked when they should be in school, whose health was damaged by “slaving” rather than being schooled when they were young.  Working children might supply a short-term benefit but, in the long run, that was another break in development and ran counter to the rights guaranteed by the Covenant.

Delegation Response

Mr. WAKO said that presenting his country’s report and hearing the response to it had been “sort of an emotional moment”.  From the outset, his delegation had felt that it had taken too long to present it, and felt, therefore, that it should be as open and candid as possible before the Committee.  Citing the difficulties in implementation was not intended as an excuse; that meant that the State was sharing some of the difficulties it faced at home in implementing the Covenant.  That was why he had valued the members’ comments and probing questions.  In fact, there was nothing that the Chair had said with which he had disagreed.

He said he was here to see how he could enhance implementation of the rights enshrined in the Covenant.  So the issues of integrating the provisions of the Covenant into the Constitution regarding the death penalty, women’s position, and so on -- issues to which he was committed –- would remain the focus of the Government’s action plan for the next few years until it submitted its next report, which would be on time.

* *** *