Mr President, I want to begin by acknowledging that the Kenyan Government deserves full credit for  having invited me to visit. It is also a credit to Kenya that the Waki Commission was established to investigate post-election violence. 

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That Commission did a superb job and its report remains an indispensable guide to the reforms needed to prevent a repetition of that violence when the next elections are held. In addition, a police reform Taskforce has recently been established and, last Friday, a new judicial reform initiative was announced. I am also encouraged by the presence today of a large delegation representing Kenya which attests to the vigorous debate on these issues within the Government and the society as a whole. In relation to my report on Kenya, the Council needs to ignore much of the background noise that has been generated, and to focus its attention on four issues which I hope all parties agree need to be resolved:
(i) Post-election violence. Well over 1,000 persons were killed following the December 2007 general elections. Those responsible, including police officers and politicians, remain immune from prosecution 18 months later.
(ii) Police shootings. These occur in large numbers on a regular basis, and are not publicly recorded or accounted for. In one five month period in 2007, the Kenya National Commission on Human Rights (KNCHR) documented approximately 500 people who were killed or disappeared. The report of a police whistleblower, Bernard Kiriinya, subsequently assassinated in October 2008, documents in great detail 24 separate occasions on which one particular police death squad extrajudicially executed some 58 suspects, mostly in cold blood. The testimony clearly implicates senior officials, including the Police Commissioner. No action has been taken.
(iii) Mt Elgon. There is compelling evidence that in 2008 at least 200 persons were killed or disappeared by the security forces in the Mt Elgon area. The military has produced no serious response to these allegations and a report by the police was a whitewash.
(iv) Human rights defenders. Before, during and after my mission, human rights groups and individuals were systematically harassed and intimidated. Many defenders have gone into hiding, others have gone into exile, and two were assassinated shortly after the mission.

Mr President, my report on the situation in Kenya was very critical. The reason is that, for all its strengths, Kenya has a major problem of extrajudicial executions and it is one which has not yet been adequately acknowledged and addressed. This is no secret to anyone in Kenya and in most respects I am simply retelling the story that I heard from the great majority of my interlocutors. I am also greatly encouraged by the goodwill that I have witnessed here in Geneva on the part of the politically heterogeneous Kenyan delegation.

This does not yet mean, however, that the crisis has been resolved. The police in particular remain a major stumbling block. Their attitude is reflected in the views expressed earlier this week by a member of the Government delegation to the Council, the Police Spokesman, Mr Eric Kiraithe. Earlier this week, he publicly called me a “bigoted activist”, and claimed that my report is a “baseless fabrication devoid of even an iota of fact”. In his view, and that of the Police Commissioner for whom he speaks, it “provides little beyond wild allegations”, is based on work plagiarized from local activists, includes “inexcusable falsehoods”, and manifests “an astonishing disregard for due process”. He accused me of having taken all of my recommendations from “activists keen to attract donor funding” and who were, “therefore, neither interested in truth nor accuracy”. Unsurprisingly, the response fails to address substantively any of the key concerns I raised.

This personal attack on the Special Rapporteur is unfortunately typical of the response by the Kenya Police in such contexts. Their approach has been to attack the messenger rather than address the issues raised. This is consistent with a longstanding practice of responding to alleged human rights violations by attacking the source of the allegations.

Mr President, attacks on those who document abuses do not absolve a government of its obligation to investigate, prosecute and punish those responsible for extrajudicial executions. This will not, however, be achieved while the current Police Commissioner is in charge of investigations and prosecutions. Instead, impunity for official killings will continue while the deck chairs are reshuffled and more character assassinations are launched.

I am happy to be able to report that there are others in government who have fully recognized the scale of the challenges that Kenya faces in this area. The Prime Minister, and several other Cabinet members have acknowledged the central message of my report. Martha Karua, the then Justice Minister with whom I dealt, has urged the Government to accept the recommendations, observing that “Alston is saying what Kenyans on the ground are saying”. Indeed, most of the relevant civil society groups have been strongly supportive of the report. Public opinion, predictably, has been mixed. A great many comments have lamented the extent of unrestrained police killings. Most importantly, there is considerable public insecurity as a result of the threat posed by criminal gangs, along with some questioning of the role of an outsider (the UN Special Rapporteur). A good example is “sam7” who noted in a post to the Daily Nation website on May 28: “Why are we even listening to this yellow teeth pale skin guy. What report does he have about the victims of Mungiki . . . or was he only concerned by the killings of these thugs who have no respect for human life?”

Sam raises two issues, leaving aside my need for dental renewal. The first concerns the issue of why a UN Special Rapporteur needs to be the one to raise these issues. This concern was echoed in the  Government’s official response which claims that my report questions the “very basis of the Kenyan state” and thus “impinges on sovereignty”. But it bears repetition that my report revolves around two concerns: killings by Government officials and subsequent impunity. Much of the information that I have brought to public attention was already available within Kenya but had, at least until recently, been ignored by the Government.

• • The response to a detailed and balanced Parliamentary report on the killings at Mt Elgon is dismissed on the grounds that the Committee Chairman (MP Fred Kapondi) was under investigation.
• • Another report on Mt. Elgon, coming from the International Committee of the Red Cross, is rejected because the ICRC “lack investigation ability, mandate, expertise and capacity.”
• • When two human rights defenders with whom I met are assassinated in broad daylight and the evidence points to the police, the only substantive response to date is reject international assistance with the investigation and for the police to announce that one of those killed was under investigation and that the car he was driving was probably stolen.
• • When the Kenyan National Commission on Human Rights produces reports detailing police killings, they are dismissed on the grounds that Commission members have been bribed.
• • When the Western Kenya Human Rights Watch’s meticulous accounts of killings are dismissed, and virtually all of their staff intimidated and harassed by government officials, the response is that the organization is alleged to have bribed witnesses to criticize the Government.
• • And when a former member of a police death squad describes in compelling detail the killings he and his colleagues were directed to undertake, the Police response (Annex IV to its report to the Human Rights  Council) is first to hint darkly at the “known antecedents of the Whistleblower” and then to say that his testimony is “not only false but also irrational”. His “narrations … are imagined” and they are thus “not  witness accounts that can be properly investigated.” Therefore, no investigation of any sort is undertaken.

My decision to call for the dismissal of the Police Commissioner and to suggest that the Attorney-General might wish to resign after many years in office reflects my conclusion that these two officials are the key individuals with direct responsibility for the current state of affairs. Ultimately, of course, it is the  Government as a whole which bears responsibility. I would note that the Prime Minister has roundly condemned extrajudicial executions, while the President has yet to do so. On May 15 this year, President Kibaki announced that he had “appointed a national Taskforce to fast-track Reforms in the police  department …”. My sincere hope is that this Taskforce will produce a blueprint for the sort of  comprehensive reform that is needed.

The second issue raised by Sam is the one that is uppermost in the minds of many members of the public. It relates to the climate of fear and insecurity generated by the activities of criminal gangs, including the Mungiki. Since my visit, a further 44 people have been killed, either by the Mungiki or in vigilante-style responses to that gang’s extortion activities. In my report, I roundly condemned the Mungiki.2 The challenge is simple. The Kenyan Police need an effective strategy for responding to this threat. Hyper-active death squads have brought no relief. They have only succeeded in undermining the rule of law, distracting the police from their protection and investigative roles, fuelling the cycle of violence, and  tarnishing Kenya’s reputation. It is urgent that a detailed and convincing strategy for combating violence,
extortion and other crime by gangs, including the Mungiki, be given the utmost priority. Statements that they will be ‘crushed’ or ‘smashed’ provide no meaningful reassurance that such efforts are underway.

Finally, Mr President, I want to end my observations on Kenya with three succinct comments. The first is to hope that the herculean and admirable efforts of the coalition partners to craft a joint statement today presage a new era in Kenya’s approach to extrajudicial killings. The second is to express the hope that the international community will be fully supportive of any comprehensive and good faith plan prepared by the Government’s Taskforce, provided it wins the support of civil society. And the third is to call upon the
Government to reign in the campaign of violence against human rights defenders and to permit the safe return of the many who have fled into exile and to guarantee that they shall not be killed as a result of their efforts to remind all Kenyans that their future lies in a society which transcends the scars of the past and respects the human rights of all individuals and groups within society.

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