CAPÍTULO II. LAS INFRACCIONES
Artículo 10. INFRACCIONES MUY GRAVES
The 2010 constitution was the fruit of civil society efforts towards constitutional reforms going back over a couple of decades. As I have shown, the human rights and governance sector, through organizations like the KHRC and RPP, played a particularly important role in that process, especially throughout the 90s (Mutunga, 1999). Although these efforts stalled in the immediate post-2002 years, the post-PEV mediation agreement renewed the momentum for constitutional reform. Civil society actors took advantage of that by ensuring that comprehensive constitutional reform would feature prominently in the final agreement, and later by acting as election observers during the constitutional referendum to safeguard the process from
manipulation (Nasong’o, 2014). Partly due to these long-standing endeavors, the constitution embeds human rights and its underlying principles in how it envisions the exercise of power by the state, it includes an expansive bill of rights that provides for both civil and political, and economic, social and cultural rights, and it promotes good governance, integrity, transparency and accountability as principles of governance. Moreover, the constitution stipulates measures for institutional reforms according to these principles. These include the framework for a
reformed judiciary, and guidelines for the transparent appointment and removal of individuals in key public offices, including that of chief justice. Partly as a result of this strengthened
framework, Willy Mutunga, a reputable advocate and one with an impeccable record as a long- standing human rights activist throughout successive dispensations in Kenya, was appointed
Chief Justice in 2011. Under his leadership, reform in the judiciary, although incomplete and at times marred by corruption scandals, nevertheless achieved key milestones, such as the vetting of existing judges and the appointment of new ones, the training of judiciary staff, encouraging jurisprudence and clarifications of constitutional provisions (Ghai, 2014: 134).
A combination of relevant provisions in the constitution and a judiciary able to interpret and apply those provisions in an impartial manner have proven to be the civil society and media sector’s most invaluable ally in their struggle to resist government efforts to clamp down on civic space. Favorable decisions in cases brought by civil society actors against the state often rely on constitutional provisions, especially those in the bill of rights. Some of the most relevant
examples include the High Court’s 31 October 2016 decision in the PBO Act case, which invokes an infringement of the constitutional right to freedom of association and assembly by successive Cabinet Secretaries’ refusal to operationalize the Act (The Observatory for the Protection of Human Rights Defenders, 2016). More recently, a section of the Penal Code that created the offence of criminal defamation and which was increasingly used by state actors to criminalize and punish critical reporting, was declared unconstitutional by the High Court, which found that this section was an unjustifiable limitation of the right to freedom of expression (Article 19, 2016). Similarly, eight clauses of the controversial 2014 Security Laws
(Amendment) Act (see Section IV) were declared unconstitutional, among them clauses concerning the rights of arrested persons and the right to media’s freedom of expression (Ogemba, 2015)62.
The constitution has also been upheld in cases relating to individual organizations that have been the target of administrative harassment in recent years. On 11 November 2015, the High Court in Mombasa declared that a government order to gazette Haki Africa and Muslims for Human Rights, two prominent human rights organisations from the Coast, as terrorist entities and the subsequent freezing of their accounts was unconstitutional (The Observatory for the
62 However, in a decision seen by many as a set-back to media freedom, following a case brought by a coalition of
media stakeholders challenging the constitutionality of the Media Council Act and the Kenya Information and Communication Act (see footnote 4), the courts have decided that the acts are constitutional (save a couple of clauses in the former). Many now fear that the media will self-censor to avoid the possibility of punitive fines if found in breach of a government-dictated code of conduct contained in the Media Council Act (Kadida, 2017).
Protection of Human Rights Defenders, 2015)63. Similarly, on 27 May 2016, the High Court,
ruled that a decision by the NGO Board which threatened to cancel the KHRC’s registration certificate and to freeze its accounts was unconstitutional and “riddled with improprieties and procedural deficiencies” (KHRC, 2016)64.
These favorable decisions are an incipient sign that the constitution is a “major source of empowerment for reform activists” (Nasong’o, 2014: 109). These decisions also point to a stronger judiciary, more willing and able to assert its role in the protection of human rights in Kenya and the values enshrined in the constitution more broadly. Nevertheless, these gains, however important, remain limited in a context in which old values remain etched on political culture and leadership in Kenya. This is illustrated by repeated assaults on the constitution by political actors since its adoption (see Murunga et al., 2014), by the enormous challenges of reforming other state sectors, such as the security sector, which continues to be heavily involved in perpetrating human rights violations in Kenya (see Ruteere, 2014), and by persistent high levels of crime and violence perpetrated by non-state actors.
4.3. Conclusion
Many of the recent state-led measures to clamp down on civil society, which have
occurred at least in part as an unintended consequence of the ICC intervention, are reminiscent of the Moi era repression. In the new context, however, they are further complicated by the new, widespread, informal means of violence, which the Kenyan state created during the 90s and after, but which continued to exist outside of its control afterwards. The contemporary environment for human rights defenders, then, can be understood as an overlap between
continuities with the past history of repression, and changes that have occurred in the past couple of decades. Both these continuities and changes are deeply interconnected with the
transformations in the nature of the Kenyan state after independence, and especially its monopoly on violence.
63 See Chapter 2, footnote 19, pg 45.
64 The KHRC had been one of 957 organisations threatened with immediate de-registration by the NGO Board on 29
The combined effect of these trends is to complicate the context in which the protection regime in Kenya is embedded, with important implications for the protection of defenders. In particular, the widespread, high-rate of crime from the 80s and especially 90s onwards, translated into a readily available set of tools for state actors to disguise politically motivated acts of
reprisals, especially against individual defenders. On the other, however, politically motivated violence, whether openly so or under the guise of crime, co-existed with purely criminal, non- state violence which often affected especially human rights defenders active in socio-
economically marginalized communities such as informal settlements in urban areas or locations beyond the boundaries of the capital and the bigger cities.
At the same time, this particular group of human rights activists has also emerged as a particular category of activism within the human rights community, as the latter too has undergone its own transformations in recent years and became increasingly differentiated, especially along lines of class. In the next chapter I will survey these transformations, with a focus on how professional activists and grassroots activists in Kenya interact with each other within protection practices. I do that within a framework that also seeks to explore the outcomes of the tension between normative civil and political rights, and socio-economic claims.