By Sari Long ’13
My heartfelt thanks to IntLawGrrls for the opportunity to contribute this introductory post.
This month, the Committee against Torture will meet in Geneva to conduct a review of Kenya’s progress in meeting its obligations under the Convention against Torture (UNCAT). I worked with Physicians for Human Rights to submit an alternative report in April on Kenya’s efforts to comply with UNCAT. The report highlights Kenya’s inability to address torture stemming from unchecked gang activity, its failure to stop the torture of domestic violence, and its de facto acquiescence to torture in the form of female genital mutilation.
Kenya submitted a report describing its own progress and challenges faced in ending torture. Other nongovernmental organizations submitted reports about Kenya’s efforts to address the insidious, destructive problem of torture within its borders. The independent observations of NGOs are central to the UNCAT reporting process, offering alternative perspectives to the self-serving reports submitted by the states.
PHR, while largely known for its cutting-edge forensic work exposing human rights abuses, is also home to the Asylum Program. The Asylum Program is a unique model that provides direct services to asylum seekers while advocating for improved conditions in immigration detention centers and documenting human rights abuses suffered by immigrants. To document torture suffered by asylum seekers in their home countries, the Asylum Program pairs volunteer physicians and mental health experts with asylum seekers in the U.S. The medical professionals perform evaluations, prepare affidavits based on those evaluations, and submit the affidavits along with the asylum seekers’ applications, providing medical documentation to support claims of torture and abuse.
In writing the report to the Committee on behalf of PHR, I read all the medical affidavits for asylum seekers from Kenya since 2008, written by professionals affiliated with the Asylum Program. (2008 was the last time Kenya participated in the reporting process to the Committee; the Committee had been requesting a report from Kenya for each of the preceding nine years, and the country finally complied for the first time in 2008).
The affidavits make up a stark narrative of torture and ill-treatment suffered by Kenyans at the hands of the mungiki, a criminal gang that has terrorized the country with impunity for decades. Rape, genital mutilation, and beheadings characterize its violence. Despite its status as an illegal organization, Kenya has been powerless to put a stop to the mungiki’s torture and has even harmed innocent civilians in its efforts to address mungiki violence. The government allegedly formed a secret police force to kill members of the mungiki on sight. When Kenyan activists began to investigate these extrajudicial killings, the police then began targeting the activists to silence their investigations. Staff of human rights organizations faced threats and beatings from police for their work in exposing the execution-style murders of suspected mungiki members.
Forced female genital mutilation remains a problem in Kenya, despite the fact that the government has passed legislation making the practice illegal, with as much as 96% of the females in the Kisii ethnic community undergoing circumcision. There are 2.2 million Kisiii in Kenya, making up about 6.4% of Kenya’s total population. The Kisii live mostly in the western part of the country in the densely-populated city of Kisumu.
Another area of torture that the Kenyan state has failed to stop is domestic violence. There are no specific laws addressing domestic violence, and police often dismiss or ignore victims, telling them to handle their own “private family matters.” Victims fear reprisal from the torturers living in their own home and thus do not report the abuse to law enforcement officials. Reports of severe beatings, burnings, stabbings, and other atrocities are not uncommon. The state’s failure to take effective measures to stop such torture amount to violations of women’s human rights and acquiescence under international law. By failing to prevent domestic violence with adequate legislation, failing to thoroughly investigate allegations of domestic violence, and failing to provide protection and redress to victims of domestic violence, Kenya acquiesces to this torture.
PHR’s report offered a list of recommendations to Kenya based on the information contained in the reports from asylum seekers. First, Kenya should amend its Criminal Procedure Code and Penal Code to specifically define and forbid torture and cruel, inhuman, or degrading treatment. The Codes currently do not even mention the word “torture,” let alone provide a working definition for law enforcement officials to rely on and understand.
Second, Kenya should provide more comprehensive efforts to train medical and law enforcement personnel on Istanbul Protocol standards. The Istanbul Protocol is a set of guidelines for investigating and documenting torture, enabling forensic experts to produce medical evaluations as key evidence in torture cases. PHR was instrumental in helping draft the Protocol, which has been adopted by the U.N. as an important tool in ensuring that torturers are held legally accountable.
Kenya should also enact and vigorously enforce legislation to provide protection to victims of torture from domestic violence as well as victims of gang torture. It is also important that Kenya ensures victim protection in bringing action against those who perform FGM and provides incentives to ensure that law enforcement officers vigorously investigate allegations of torture.
NGOs play a very important role in addressing the problem of torture. NGOs can provide on-the-ground reports from victims and offer an alternative perspective to the state’s self-interested documentation. Some critics claim that the alternative reports and the work of the Committee itself are ineffective at ending torture and impunity for torturers, that there are no “teeth” with which to adequately punish wrongdoing states. However, naming and shaming, providing hard evidence that contradicts official reports, and highlighting specific gaps in a state’s efforts to stop torture are nevertheless effective in bring global pressure to bear on a particular country. And ultimately, it is the contribution of NGOs in the form of alternative reports that serves to provide credible, counterbalancing information about the prevalence of torture in the states under review. Without these opposing voices, the UNCAT reporting process would become nothing more than a self-serving exercise for participating states.