AFRICAN UNION
UNION AFRICAINE
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Afn·can Commission on Human & Peoples' Rights
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UNIAO AFRICANA
Commission Africaine des Drafts de /'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Western Region,P. 0. Box 673, Banjul, TheGambia
Tel: (220) 4410505/ 4410506; Fax: (220) 4410504
E-mail: au-baniull"'africa-union.orn· Web www.achor.ora
Communication 385/1 O
The Kenyan Section of the International Commission of Jurists
(I CJ-Kenya)
V
Kenya
Adopted by the
African Commission on Human and Peoples' Rights
during the Ji/1' Extra-Ordinary Session,from 16 to 25 February 2016
Banjul, The Gambia
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··················································'-1\
Hon. Cornrnissiona- Faith Pansy Tlalmla
Cbairpcnon ofthe Aftican Commission.
on H1J1D1D and Peoples' Rights
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Dr. Mary Mabc:mc
Sccrctary to the Aftican C-0rnmisaio11 on
Human and Peoples' Rights
Communication 385/10 - The Kenyan Section of the International Commission of
Jurists (ICJ-Kenya) v the Republic of Kenya
Summary of the Complaint:
1.
The Complaint is brought against the Republic of Kenya (the Respondent State) by
the Kenyan Section of the International Commissiop.
:Of Jurists - ICJ Kenya
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(Complainant) on behalf of, and for the benefit .Pf' Keiif@s, especially those
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resident in the Mount Elgon District of Kenya.
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2.
The Complainant alleges that between 2oq~:aricJ.~ggs, Stli.te.1;,ecu'ffty
Ag1Wts'of
the
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Respondent State "jointly and/ or seve~~l!Nnvith otl.i~t1non-st(l~~ctors" carried out
executions, acts of torture, cruel~,• inhu~. andiJcJ.egrading11~ff!l)ment against
thousands of Kenyan citizens (tl.ieiM~tims) wliqlwe¥e resident ll1;1fte Mount Elgon
District. Most of the Victim~. allegeti[jil~pme fr~1iill!tre Sabaot, Teso and Busuku
1
ethnic communities that maRe up the p6~iilation of ffie1Mount Elgon District.
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Between 1965 and 19;1'µ~,/fe Co)X\R/,ainant alle&~~pturther, the Respondent State
decided to resettle the Dorobos (a'is,'11?:-group
o(lfte Sabaot) in the lower parts of
!;,J:;
Mount Elgon. 11tls move led to a series!l!>f;ev,:,pts that included the springing up of
land disputes and also resulted in the errim3gence of an armed militia group known
as the Sabaot Land pefence Force (~LDFf The Complainant states that the SLDF
got iniyplved in terr~Rf~i{tg and e~kcuting the Victims between 2005 and 2007,
culm~afu}gjn the 2008'pi>Wt1el~tfon violence in Kenya.
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4.
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The Complai11ant all~~!f/l,/;hat, the Respondent State deployed joint-security forces
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to the Mou,nt Elgon Dj~trict area in an operation code-named "Okoa Maisha" and
that the Security Agents of the Respondent State during this operation "jointly and
severally" execqf;ed tortured or treated residents of Mount Elgon cruelly and
inhumanely. The Complainant further alleges that many residents lost their lives
while those who survived were tortured by government forces.
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5.
The Complainant also alleges that in the use of what it considers to be excessive
force to flush out the SLDF, the security forces set up by the Respondent State
committed human rights violations and atrocities including indiscriminate
burning of houses and food storage facilities and the killing of innocent people.
Some of these deaths are allegedly attributed to the SLDF. The security forces of
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the Respondent State are also alleged to have engaged in indiscriminate arrests of
residents without any information on the reasons for the arrests. They were also
responsible for the beating of innocent people in a bid to extract information on
the activities of the SLDF. The Complainant also alleges that the security forces
engaged in extortion of money from residents to procure the release of those
arrested.
6.
The Complainant alleges that residents of Mount Eigo~ :"'e,i;e subjected to sexual
violence and other forms of torture. They wer~,!fbi~~~ll~l,whip each other,
subjected to food and sleep deprivation and had tl\~fr arrr41Jlmd limbs broken.
They were also submerged in sewage, hanged
up~~q!l,
dqWi;.,J:1;om a moving
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helicopter, forced to crawl on razor ;Y!trl!':and':twcedllij*lj,sJ~li~iW,l!MMtitJ.. The
prin~~l
targJ~;iqf
these violations
Complainant alleges that civilians W!l!'.~li!he
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both by the forces of the Responde~t Stau!'and the ~LDF. In relli!!ffln' to violations
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that allegedly occurred on 15 anflltL'(llljlfcember '7?{[, some of the 1¥'ictims allegedly
lost cash, livestock and housi,hold gotitf;~
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The Complainant claims thatltl\~,Respottdenl;ffltffte has,nb statistics on these events
but that in conjunctiort',~ith 'ill,%~itdependJrt.ijl!M,edico-Legal Unit (IMLU), the
Complainant has,'been able' to gefi~hl~ements frpfu residents on these violations.
1j
The Complaint :further alleges that the,j~1;~pondent State has failed to properly
investigate thesJj~olations and that, a re~811t documented by the Kenyan National
Commission on Httmwn Rights on th,ese \fiolations has not resulted in the arrest or
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pros1et:ution of any6tl!i}
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Articles alle~,d to Jiavi, been violated:
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8.
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The ComplM)nant alleges that the Respondent State has violated the rights of the
residents offylount Elgon as guaranteed in Articles 5, 6, 7 and 23 of the African
Charter.
Procedure:
9.
On 11 May 2010, the Secretariat of the African Commission on Human and
Peoples' Rights (the Secretariat) received the Complaint which was dated 30 April
2010. By letter dated 21 May 2010 the Secretariat informed the Complainant that
the Complaint had been registered as Communication 385/10 lCJ Kenya v Kenya
21 Page
and slated for consideration by the African Commission on Human and Peoples'
Rights (the Commission) at its 47th Ordinary Session.
10.
On 23 June 2010, the Secretariat wrote to both Parties to inform them that the
Commission had considered the Complaint at its 47th Ordinary Session and had
decided to be seized of it. The Secretariat also requested the Complainant to
forward its Submissions on Admissibility in accordance with the Rules of
Procedure.
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11.
Between 30 September 2010 and 26 May 20'1~(!iJhe s~2rrtariat exchanged
correspondence with the Parties concerning}he su'i.J~ssiorji of, tl}eir resp.ective
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arguments on the Admissibility of the .~ommunicatioriO Qn 14 July,JJgP11, the
Complainant's Submissions on AdmissiPJ,'\ity wereireceived at:the Secretariat and
duly transmitted to the Responden~State.
12.
On 11 November 2011 the R".spondertt$tate's Obse.rvations on the Admissibility of
the Communication were,rec:eived by the:~cretariata.t,tl}e 50 th Ordinary Session
of the Commission. <;?p 19 iJ:1.tl).~ 20~:?-) ari6t/;\~ copy of the Respondent State's
Observations on thenA\ilmissibility, •bf the Con:in\unication were received by the
Secretariat as an,~fuail attachment.''!'(
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13.
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In accordance w,iW,-i the Rules of Proce4µte of the Commission, a copy of the
Respondent Stat~~lilf2bservations ;pn Admissibility was transmitted to the
Compli!}nant on 16 N~Y:2012 along with a request to submit any comments thereto
withiri'''lli!i
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14.
Between 'ff6 ,,Noverrib~~i,,2012 and December 2012, the Secretariat exchanged
correspond~p~e with the Complainant regarding the Complainant's request for
extension ofl;ime within which to submit its comments on the Respondent State's
Observations 4!ll:Admissibility.
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15.
On 18 January 2013, the Secretariat informed the Parties of the Commission's
decision to grant the Complainant's request for an oral hearing at the 53,ct
Ordinary Session of the Commission.
16.
During its 53,ct Ordinary Session, the Commission heard the oral presentation of
the Parties, admitted the Complainant's comments on the Respondent State's
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Observations on
Communication.
Admissibility
and
deferred
the
consideration
of the
17.
At its 54 th Ordinary Session held from 22 October to 5 November 2013, the
Commission decided to defer consideration of the Communication due to time
constraints. On 11 November 2013, the Secretariat informed both parties via a
Note Verbale and letter notifying them of the Commission's decision.
18.
During its 15 th Extra-Ordinary Session held from 7 t8!i~I!, March 2014, the
Commission considered the Admissibility of the°COJ:l1lllunidl.~on and decided to
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declare it admissible. The Parties were informed of the •decisioi)" on 26 March 2014.
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19.
The decision on the Merits of the C[]Jll~IHnicatio"rJ:jwas d~kir~\f during the 55 th
Ordinary Session of the Commission; pendirtg,subrriillsions on 'IBijlM:erits from the
Complainant and both Parties well~lauly inforW~<.11~~ 29 May 201l:'
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20.
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The Complainant submitt;<;!f:liR!l the Merits12tthe CompiUll.ication on 17 June 2014.
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The Secretariat acknowledged"ireceiptqfthe!i~pmissiohs and forwarded the same
to the Respondent State on the s1rrie;d~te, with1~~ indication of the timeline for the
State's observatidhs on the Merits, th'atis, sixty (60) days, in line with Rule 108(1)
of the Commissidn' s Rules of Procedii~MJ!:.
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21.
On 11 March 2015!i!the Secretariat il;tfor1T1ed both Parties that the decision on the
Meritiuyas again dJfu~ted at the Cd/nmission's 17th Extra-Ordinary Session which
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took pla'c~i:fiBw 19 to 28 1FebRtfl1mt'2015, in Banjul, The Gambia, pending the State's
submisiliqn~!iiJfiiitl:w..Merits, and that 30 Calendar Days had been granted to the
State to iliake,i~•l~ii!,#li~siOns on the Merits to enable the Commission proceed
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with a dedsi'on on the )1/1:erits of the Communication at its next Session.
22.
Up to the time of handing down this decision, the Respondent State had not
submitted on the Merits, despite reminders to that effect.
The Law on Admissibility
Submissions of the Complainant
41 Page
23.
The Complainant submits that the Communication satisfies all the requirements
for Admissibility as set out in Article 56 of the African Charter and should be
declared admissible.
24.
In relation to Article 56(1) of the African Charter, the Complainant submits that
the violations alleged in the Communication are serious, massive and systemic. In
such cases, the Complainant argues, there is no requirement to seek permission
from the Victims before a Complaint is filed. The Comp~ajni)p.t argues further that
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where a Complaint is in the supreme interest of tht11~
~ ~pml!~f!a state, there is no
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requirement that the consent of the Victim be sough'tll?!lfore a ~pmplaint is filed.
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25.
With reference to Article 56(2) of the Afyjcaiti1~11rte;: ~tlijJi~~W1a~rsubmits
that the Communication is in line with!ifue objectl~~ of thM!;Mrican Union (AU)
and alleges violations of provision~lrf the '.l\!fm~\111 cij~rter.
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The Complainant argues further in rel!il:J,<;m to Arfiijlt 56(4) of the African Charter
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that the information rel~~llff,fon in ~M!lftip,mmurri%~flP was obtained from a
number of sources ,µicludifig,, dir!l(,]f'' iritef™\~Ws '}tith Victims, documented
reliable and attested sources
investigations, an<i,repti~~pre~iit~~!by well fdti~!J\!ld;
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such as the Kep.yan National Co.ssion on !Human Rights and the United
Nations (UN) SJj*dal Rapporteur on ~~-;Jffdicial Killings.
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26.
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27.
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In relation to ArtiW:~:56 (5) of the Pjfrican Charter, the Complainant submits that
the ijnffN,~rement to ex,l}ftffSt locali':temedies does not apply where the alleged
violati(/ft$1~'lfiff. occurre~!o~iffi~ge scale. The Complainant argues further that in
such ca~n'' iHill~~il;t,ions are well documented nationally and internationally over
a period o(~~g' si:tch:~fft'the State already has sufficient opportunity to remedy
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28.
Citing the juri;sprudence of the Commission, the Complainant submits that in
cases where th~re are many victims, as alleged in the present Communication, it is
neither practicable nor desirable for victims to pursue internal remedies because
the process will be unduly prolonged. The Complainant contends further that
where the on:ly effective remedy would be criminal investigation, prosecution and
punishment of the perpetrators, and the Victims have done what is necessary to
initiate proceedings, the requirement to exhaust local remedies is satisfied. This,
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the Complainant submits, applies to this Communication because reports were
made to agencies of the Respondent State yet no action was taken.
29.
The Complainant also submits that the Kenyan Police investigated the allegations
in this Communication and submitted a report which the Respondent State relied
upon while responding to enquiries made by the UN Committee Against Torture
(CAT) in reaching its concluding observations. The Complainant submits that the
Police report focused on land conflicts and did not add~~Sl!,M!e complaints alleged
111
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in the present Communication.
30.
The Complainant submits that the Kenya Nati()I)-a; ~~~ssiJ~;\lR,Jiuman Rights
11
also conducted its independent inve~tifilltions 11 ljlthd ' 'm~\!tijiii'[specific
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recommendations that touched on; '1i\,\\, issul!JJ!pf torfflll~l, However, the
recommendations made by the KeI)-y'a Natl~~lll Commission on'!ttllfflan Rights in
1
its report on the alleged violatiofi~jlm\\re ne~Mi'ililplemented byl the Respondent
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State.
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The Complainant argues fur~ that,with'sp~i:;ific reference to torture, enforced
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disappearances and witness pr<;tection, therJli~re,no domestic remedies as the
Respondent Stat\\:itself acknowledge~!~ a report to the CAT that torture and other
cruel, inhuman i~nd degrading treatrrl.~!l\t1,?r,,punishment are not defined by any
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national law.
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31.
32.
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Furth;i;r, the ComJfatl!iant submi~! that the majority of the residents whose
relatives :w~~e actual ViOOms::~µllfretain fear of the Respondent State's security
forces sucI-tthati they ca~ot report violations to those same forces. The
Complairiant concltides,,that the Communication falls under the exception
applicable t():serious anlmassive violations and should therefore be considered to
have satisfie<l the requirement to exhaust local remedies.
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33.
In relation to irticle 56(6) of the African Charter, the Complainant argues that
there has been no unreasonable delay in submitting the Communication. The
Complainant submits that although the events complained of occurred between
2002 and 2008, the Kenyan Police began and carried out investigations for nearly
two years. Thus, the Complainant had to await the outcome and implementation
of the investigation before coming to the Commission. It was the failure to
prosecute perpetrators after two years of the submission of various reports to the
61 Page
Respondent State that has warranted the submission of this Communication. The
Complainant therefore concludes that the Communication satisfies the
requirements of Article 56(6) of the Charter.
34.
Regarding the requirement in Article 56(7) of the African Charter, the
Complainant submits that the Communication has not been brought and is not
currently before any other international body. The Complainant therefore urges
the Commission to declare the Communication admiss~ble ...
Respondent State's Submission on Admissibility
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35.
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In its Observations on Admissibility, tl\fl!lRiHitj~!1;dent'fliffite coYiteh.~~i~hat the
Communication is not admissible 1J11~u~e it 'H~ not!l~~lli'fy som~ of the
requirements set out in Article 56 of,tl\e Aft'i~ Cha~tbr.
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36.
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With regard to Article 56(1) 9f the Af~lll~ Charter;Jtre Respondent State submits
that there is no relationshi,~ 111Jetween tl}~iJfi;omplaiilliffitu~d the alleged Victims.
The Respondent State :subn\.it!H,furth11r:lthati10
list qfialleged Victims has been
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attached to confirw;thatthe C:~p!Ainant hasnaµthority to act on behalf of the
alleged Victims. I i"
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37.
The Respondentlm~te argues further tha~jtite Communication ought to have been
submitted in the ~W of the Victim~. Where personal submission by the Victim is
not pqs,~ible, the R~iippµc,ient State1rtrgues that the Victim ought to authorise the
submi~~ij~l?fi ~' Compfahifb,tJ.~,n<"; such authority is shown by the Complainant.
The ReffpoRti~lli?:~~te contends further that the Complainant has not
demonstr~~e1 ~V'hasl!#h~,./ocus standi to lodge the Communication, or that it has
1
been instnl.~d by speiifically named individuals who are Victims of the alleged
violations. fie Respondent State also submits that for failing to mention and
identify the 'l~eged Victims of the violations in the Communication, the
Complainant h~s not satisfied Article 56(1) of the African Charter.
38.
With regard to Article 56(5) of the African Charter, the Respondent State contends
that local remedies have not been exhausted and that the exception applicable in
cases of massive violations is not a general rule and it does not apply to this
Communication. The Respondent State submits that the alleged violations in this
Communication, if any, are not "widespread and out of control" but only restricted
71 Page
to an area covering Mount Elgon District where threats have currently been
eliminated.
39.
The Respondent State submits further that local remedies exist within its legal
system which the Complainant should have exhausted before bringing the
Communication to the Commission. In this regard, the Respondent State submits
that the Complainant should have filed a constitutional reference to the High
Court of Kenya in accordance with Section 84(1) of the.fl<enyan Constitution since
that court has constitutional powers to hear, deterrill~~"JKiJiliredress breaches of
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human rights. The Respondent State adds ithati;as
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in its national
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jurisprudence, the right of access to the Kenyan _HigWl~ilµ,r! ~Ye1:1mi;isive and the
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Complainant could have approached the ~gn'<:<:i~r:tfo/t~~t~rs oll. t11mm~ts'.
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40.
Regarding the legislative framewo,r/.< ;~/~~11nroted,ffbn of th!!l"~~~tlid rights, the
Respondent State submits that th1r'iright to lif~lltl;\'e' right to propetty and the right
to freedom from torture, cruel, inhurri~p;;md de'g}l!.~ing treatment" are recognised
and protected by the Kenyat1,Constitutiijjjffii1e Re~Jbttg~nt State argues therefore
that Kenyan courts have arH:ibligati91;-tlto 'J:lfmt~ct rights and several courts have
done so.
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41.
42.
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The Responden~~tate submits further'~~td1part from judicial remedies, a number
of quasi-judicial'~~!Iledies
are available
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the Kenyan legal system which the
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Complainant sho'iil~J1ave first exh~usted. The Respondent State lists the Kenya
Nati\:mi!l. Commissi/lfi!Jll\:n. Human,jRights, the Truth, Justice and Reconciliation
Com~~~W}!!J~e Nati6Wml~Htl;i~$'1Sn and Integration Commission and the Kenya
Nationdi1iLaWal~,mmission as other bodies that should have been exhausted by
the Compla,in~rit. •
The Respondent State adds that the Kenya National Commission on Human
Rights visited the Mount Elgon District area, carried out investigations and
published a • report with recommendations which the government is
implementing. The Respondent State contends that the remedies it has listed are
capable of redressing the Complaint and it is incumbent on the Complainant to, at
least, attempt those remedies before coming to the Commission. The Respondent
State concludes that the Complainant has failed to exhaust local remedies in
relation to the Communication.
81 Page
43.
Regarding Article 56(6) of the African Charter, the Respondent State submits that
the government is still dealing with the issues within the Mount Elgon District.
The Respondent State contends that this means that local remedies have not been
exhausted and the Complainant ought to bring the Complaint within a reasonable
time from the time local remedies are exhausted.
44.
In relation to Article 56(7) of the African Charter, the Respondent State submits
that the root cause of the dispute was "land allocation,g<m,e
awry" and that that
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issue has been resolved. Thus, the Respondent St\\te"ar'giiij~IJ:hat the matter has
been resolved and dealing with the Communicatltl~j~ill "rJ~en the underlying
.• , ,'i.) ,) ;
issues" and complicate or hinder the resol~.~~r,,of th~~~)~~'~*~·r1Jf~"~espondent
State submits further that the issu~1-P'sowgji~, to ''1ml!._addtes!ltiifl'i by the
Communication have also received the,a~tion of~~ UN High,~ommissioner on
Human Rights. The report of j:he Hi~h, .Commissioner i:&njaini.ng specific
recommendations was receive(i:''br\the G~"~rnment and is' currently being
implemented.
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The Respondent State ,submillliifurtheJ1~atflmi~ssues $. the Communication have
also received the <1.~enl:i~n of ffiijllff~l:t Afric~11.ii!f!9µtt of Justice (EACJ). The case
before the EACf was fil~d on :2i!UwY 2010 -~~ IMLU, a Non-Governmental
Organisation b~~d
in Kenya. The R~lJilbJ;ld~nt
State concludes that the issues in
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the Communicatjon have been cqnsid~~/Jcl. or are being considered by other
competent instihitioi;is and that j:he implementation of recommendations on
aspecm, of the Conili[Wmication mai1/es it moot. The Respondent State concludes
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that tHfl Qqffl,munication'hil~ltn?~isatisfied some of the requirements in Article 56 of
the African
Ch~ter
and should be declared inadmissible.
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Complainant's C::~inments ott'Respondent State's Submissions
45.
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46.
In response tdllillle Respondent State's observations, the Complainant submits that
in spite of th{ Respondent State's argument that the Communication relates to
land allocation in the Mount Elgon area, the land conflict is not the subject of its
interest. The Complainant avers that the Communication is concerned with the
incidents of torture, summary and extra-judicial executions, disappearances and
other forms of cruel, inhuman and degrading treatment allegedly meted out to
over 4000 civilians by agents of the Respondent State and other non-state actors.
Hl
91 Page
The Complainant argues that the issues are therefore not moot issues as claimed
by the Respondent State.
47.
48.
Regarding the Respondent State's observations on Article 56(1) of the African
Charter, the Complainant responds that both the letter of the Charter and the
jurisprudence of the Commission indicate that all that is required is for the names
of the authors to be indicated on the Complaint and not necessarily the names of
the Victi~s. On this _point, the Complainant refers ~rn~m;rmssion to Bakwer~
Land Claims Committee v Cameroon,1 Gunme e~,al v Cn~roon 2 and Malawi
African Association and Others v Mauritania. 3 .. ,,:, ..
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The Complainant submits further that th~i!A'fiic'art,Chal~l~oes
'RH~ ~!l»:lilin
any
,hi
• !;)"
•11-P,
•• ,
Victim requirement nor does it requt~~l~p;or au~~risatioril~Y1Yictims before a
Communication is brought. The C91ftplairiarit a~gu~ifthat it has'~frefore satisfied
)'
Article 56(1) of the African CharteHi!l!iJ1c
1
'1lfji;
49.
In reaction to the Respond~t State's~H~ei-vation'3rul~rticle 56(5) of the African
:t'1i1:ij,>
.q:f':t;.
·!,;pp·
Charter, the Complainaht
cil~wds
t~t
s~me,of
the
jrkmedies identified by the
;:
·l,·ill
:j;'
'i:,H,
1
Respondent State weril\,~t avail~ifllat the tin\'elifuff1events occurred. Accordingly,
the Complainanfargues further, if~~~!P. not ha,~Wbeen expected to exhaust those
non-existent r{tnedies. The Comp~~~t argues that the High Court
Constitutional review procedure under 9,e<:Hon 84(1) of the Kenyan Constitution
• "·
L
.•
suggested by the ,,Respondent State orily came into existence under the 2010
Keny~ ~?nstitution, some two ye~k after the events.
; ii"
,;:;;·':
50.
The Coinpl~in:int argues that the Section 84(1) provision that was available under
the previous Kenyan Constitution was only available to an individual on his own
behalf or ori behalf of some other person in detention. Arguing that the previous
Section 84(1) gave no option to enforce rights in the public interest, it would have
meant that in'each case an applicant would have had to demonstrate a personal
interest in the matter before a Kenyan High Court. The Complainant contends that
exhausting the constitutional reference remedy would therefore have required
every single Victim to approach the court individually and this was impractical.
J
t Communications 260/02-Bakweri Land Claims Committee v Cameroon (2004) ACHPR.
Communications 266/03 - Gunme et al v Cameroon (2009) ACHPR.
Communications 54/91, 61/91; 96/93; 98/93; 164/97; 196/97; 210/210 - Malawi African Association and
Others v Mauritania (2000) ACHPR.
2
3
10 I Page
51.
While conceding that the Kenyan Police carried out investigations into the matter,
the Complainant submits that the Police investigations did not address the issues
of torture as it should have. The Complainant submits that recommendations in
other reports by the Kenya National Commission on Human Rights, the Kenya
Peace and Reconciliation Commission and the UN Special Rapporteur on ExtraJudicial, Summary or Arbitrary Executions as well as concluding observations of
the United Nations Committee Against Torture were alsqJ;1qt implemented by the
Respondent State.
'
52.
The Complainant submits further that even as~,t1ming'~j11V~A~~,A<,>t1ld approach
the Kenyan courts, that fact alone could,/!lbt"pip~~e r~Hlj~~i' 't~'r'tl\lbll!;P,Fe of the
Complaint. This, according to the C9m~Jntnant,''~li/,>ecau~~llfu~, Communication
relates to the failure of the Respo~1'ent Stl't~:~? ex~r:cise due cii~~~rtte to prevent
the violation and the failure to in\i~~gate, pr6s~m1t:e and punishlthe perpetrators.
The Complainant argues ti)at
post ')ll~fltcivil
;~~c;lies
including constitutional
<
lpp,,
,.,•:c,
references do not lead t11ume prosecutl~~l~f perptlij~tf;>IS and are therefore an
,.
'\"'."'"
.;; -p,,,.
insufficient remedy in ,the circ~tan5~ll;
1
53.
::,·
\,,. \li;)1;{
'11i/
Reacting to the, 1,Respondent State'~Ji/ipntentiortPthat the alleged violations are
neither massiveJjµor
serious, the C~~la,in<)Jlt
submits that the violations were
;,,;
.l,,,q,,·
both massive anc;l:perious as all peol?les qiil:he area of Mount Elgon were affected,
Citing reports bylflfFan Rights watch and figures allegedly released by the
Ken}lllJJ,,Military, the ~Pl?:'\l?lainant,llvers that at least seventy-two (72) people died;
peoplill#t~tc(j'!filissing while thousands were detained. The
thirty' 1
Complajµarit"fuftl;i,e,r cites a report by the Kenyan National Commission on
Human Righ!f' ~hfcliliffWled that between 66, 000 and 200,000 people were
displaced as'at April 2008. These statistics, the Complainant submits, indicate the
serious and massive nature of the alleged violations,
!ijJim;J:imf)
54.
The Complainant in summary urges the Commission to find that local remedies
were either not available or if available, were insufficient and could not have been
exhausted. The Complainant argues further that the exceptions to the requirement
to exhaust local remedies apply because of the massive and serious nature of the
alleged violations.
11 I Page
55.
Regarding the Respondent State's observation on Article 56(6) of the African
Charter, the Complainant contends that the requirement to submit within a
reasonable time does not apply where the exception to the exhaustion of local
remedies rule is invoked. Citing Interights (on behalf of Pan African Movement
and Citizens for Peace in Eritrea) v Eritrea and Ethiopia, 4 the Complainant argues
further that the reasonable time requirement is rendered inapplicable where it is
found that no domestic remedies were available to the Victims. The Complainant
contends that the present circumstances warrantii:Uie, suspension of the
requirement in Article 56(6) of the African Chart!!i"'in"r~l~tion to the present
Communication.
;1lllll11
1,
',,J,u,
,
"{iljl 1
56.
'
i
Concerning the Respondent State's obs~r;vilttYJlill~Pii ~;Wb~~::~~/~\li@iili;\~;!African
Charter, the Complainant submits that tli.e;settlemijtlof the 1!1:ltttallocation issue is
different from the issues raised in ,tli.~ pr~~Mft~ito~unicatiori!llfine Complainant
argues further that it is not a paxty,itp the ca~lll»~f,ore the EACJ a'nd that that case
has no bearing on the present Comrilti:qic;ation. '1b1~,Complainant submits further
qll1,
'.I:'(;
that the EACJ does not have a human ~TT/rr,iurisdi~#Rli\ 1and proceedings before
that court cannot be c<JveredJ ~y,,Ar~fil!{56(~)iJpf the #ltican Charter. Citing Bob
Njoku V Egypt, 5 ~~:Ctdfuplainarttlft~lfus. up that.flfl!far as a_ decisio~ on ~e merits
has not been rel!ted, the Commufil,~rim~n meets'the reqmrement m Article 56(7)
of the Charter. ,
'dJu,
' Ht,
L
' .JI!'
The Commission's Anaif~Js on AdmissiJ?ility
;;""'"
57.
jj
?H!::.,
·:;;!Hllli;,_
.,1W
The O?;~iX\l!fl-i\?,ation is l,to~gl)t:iltider Article 55 of the African Charter dealing
with Co\nmt1fil1cations other than Inter-State Communications therefore it needs to
1
satisfy the,sev,¢R 2dnditipns for Admissibility set out in Article 56 of the Charter.
The Commj.M~ion notJs that the Respondent State has not challenged the
Complainant•~ claims and arguments concerning the requirements in Article 56 (2)
(3) and (4) of tJM~:African Charter.
j;"
58.
The Commission's own assessment of the Communication indicates that the
conditions in Article 56(2), (3) and (4) of the African Charter are satisfied. The
Commission particularly notes that it can only consider Communications that 'are
• Communication 233/99 - Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v
Eritrea and Ethiapia (2003) ACHPR.
s Communication40/90,-Bob Ngozi Njoku v Egypt (1997) ACHPR.
12 I Page
not written in disparaging or insulting language directed against the State
concerned and its institutions or to the Organisation of African Unity. The
Commission does not find such insulting or disparaging language in the
Communication. Consequently, the Commission's analysis will focus on the
requirements set out in Article 56(1), (5) (6) and (7) of the Charter.
59.
Article 56(1) of the African Charter provides that Communications submitted to
the Commission should 'indicate their authors ,f,]~PlllM, the latter request
requirement since
anonymity'. The Complainant argues that it has 5t\l:Psfied''tfim,
, .. "
h,"
the provision does not require it to show that it has'lt/ntconse~flor authority of the
Victims especially where the alleged violation is of a se't~s arttl;,mijssive nature as
.
.
. .
,,dl!HJ;,,,
<Jh!t;:!1 "H1llJ!H!!1!1n•,,.,, ,
1s the case m the present Commumcation.,;,tl''"·'<lii!h
,,,, ,
·<,,!ml,,,1
;:,;
;
: ";'
1
60.
,/Hil!1::,,_
:q;11
n!!l!1;; ,
The Respondent State disputes theJ/:omplaip,a,nt's
claim
regardmg,:l\.'tticle
56(1) of
'iiC_
1'-)>,i
.,
";;i
the African Charter and instead,,ailgi!.l!s that th'e,C:omplainant has not satisfied the
requirement since it has not ~hown filij~qthas a~yir~l,ationship with the Victims of
not atta~hij~l@Y
listaij!fui!,alleged
Victims in order
the alleged violations and,fuk
,,:i,;mJi,
d!llJlm,
n!q!to confirm that it has
auililtNif:.Y to i!flF'on'~fflf beha\fl"
,
'Illil!ll!!;~
1
,
'j!!!lJllw
1' •
61.
The Respondent$tate argues furtni?ijJM)~t Artic,e 156(1) of the Charter requires the
Communication/to have been subrrii~ in the name of the Victims but the
Complainant hasifailed to do so. ,Th~,:~"r~ondent State also submits that the
.1_.-1
l
.:·
alleged Victims oug!Jrt to have authprised the submission of the Communication
;!,:,;,
"
and u:l;,~e absence b~i§p,~h author}Jly, the Complainant has failed to demonstrate
that iii~i~r;locus ~tal\W~1~11!ll9d~e the Communication. The Respondent State
contends,,thete(#~~, 1,that the Complainant's failure to mention and identify the
alleged \,\~~si~~6~1fi1~0 a failure to satisfy the requirement in Article 56(1) of
,p
the Africant<I!harter.
,:
62.
The Commis~iqn notes that Article 56(1) of the Charter requires that a
Communication should not be submitted anonymously. As this Commission has
noted in its earlier decision in Malawi African Association v Mauritania, 6 Article
56(1) of the Charter demands that any person submitting a Communication to the
Commission must reveal his or her identify. It does not necessarily require that the
6
n 3 above, para 78.
13 I Page
author(s) of the Communication must be the Victims of the alleged violation or
members of the family of the alleged Victims.
63.
In Gunme et al v Cameroon/ this Commission reaffirmed that Article 56(1) of the
African Charter only requires a Communication to indicate its authors and not
necessarily the Victims of the violations alleged in the Communication. The
Commission also recalls that it has previously held that it adopts a liberal
approach_to !ocus stan~i under_ the_African _charter. 8 1ilff~~fl~.~ly, in submitting a
Commurucation allegmg a v10lation of nghts ~tranteijdilJW- the Charter, the
author need not be the Victim or a member of the'lv'~jmfn's farfillty. The author of a
Communication does not also need any speci11I .auth<lt1;i}'. tq:14fll16l~ behalf of the
·"'.,lll.H1,_
.,,_ :l>11l L,11,:"d !1'"- .. -r
Victim and does not need to show any .f;l\rHHm:#tJiiftteres~lff1 orctl!rifu'lf1ualify to
submit the Communication. The .. G;~~ssicl~!i; therefo~ffll1ifinds that the
Communication satisfies the require,ment ili!mf;~cle ~6(1) of the Aff.l-;:an Charter.
•1
64.
1:;1
1:
!/
Article 56(5) of the African .charter P~ffires th~;i§f?l?munications 'are sent after
i~~,obvioui11Jtj11t,this
procedure is unduly
exhausting local remedies,;i{!imy,
unless 1,,,·,;ni:,
.. --.,:,<:
P!n1
1
prolonged'. The ComJ;1lainanlJonten~g \:ha~jthe Combtunication satisfies Article
56(5) of the Africa,n1 d-larter eJ);/{i@\l;ugh no
was made to exhaust local
remedies. The JlJomplainant sui:\rtlim, that th{ requirement to exhaust local
!l:
:jl,;L
remedies does 1)Ipt apply where the .l.lJl~rS\c!d,,.violations have occurred on a large
""
"l''l''
scale. The Comp)~~~ant cites earlierjurh/~rudence of the Commission and argues
that where there ~t';$~any Victims qf the violation alleged in a Communication, it
is neil;li\~r practicabi~!r\p~ desirabl~ ,fu pursue local remedies as the process will be
Jti~,mpt
'1; >'
illjljif,.
l;
undu1YJ!P~4J!~/i1.&ed.
"lL
65.
-,,ql:il1;,
·,:ml!;:,;:>_
The Comr,laip:aht ""argues in addition that the nature of relief sought in the
Communi2.\..ij~n cann~f'be provided by a civil action before the national courts
1h
since those 'iftoceedings do not result in the investigation, prosecution and
punishment ot!netpetrators of human rights violations. It is also the Complainant's
argument that° the local remedies identified by the Respondent State in its
observations were either not available at the relevant time for it to be exhausted or
would not have been sufficient to redress the alleged violation. The Complainant
7 n 2 above,
8
1il:
para 67.
Bakweri Land Claims Committee v Cameroon (2004) ACHPR para 46.
141 Page
therefore contends that the exceptions to the requirement to exhaust local
remedies apply to the present Communication.
66.
The Respondent State concedes that an exception to the requirement to exhaust
local remedies is applicable in cases of serious and massive violations of human
rights. However, the Respondent State contends that the exception is not a general
rule and does not apply to the present Communication because the violations
alleged are not widespread or out of control but are resµ,;~<;t1,d to an area covering
the Mount Elgon District.
••
67.
The Commission recalls its earlier jurisprudence th~t F.:~i~Ni~1;1s involving
serious and massive violations of human rights> Wis impraqR~able arld1~µgesirable
to require the Complainant to exhau1,tllpcal remed.ies beforij;foming before the
Commission. 9 However, the Comi:11ifsion hqte~ thatwhile the P~fws agree on the
applicable legal principle, there ts~IH/l>pute of fa.sf regarding the question whether
the present Communication involvet~~rJ.ous and-massive violations such that the
exception to Article 56(5) sl;\quld apply.
0
68.
Although the Con;wiissiop has:iliti~;escribed the criteria for determining what
constitutes seriqµr and massive '{ll~tions of human rights under the African
Charter, the e~k,ting jurisprudenc~IIJ~t the Commission provides sufficient
guidance for ma.Uktg such a detenvJ.na~. As represented in the Commission's
decision in SudlnjJ:[uman RightJj Organisation & Another v Sudan, 10 this
Co~sion conside~~:;,toth the ~~le and nature of the alleged violations in
;!,idh,
;,,1,:,;;,
-11;
deter~gi,W,hether the v:lcll~m<itl~ are serious and massive.
'"
ljj;
69.
,,i,,,.
''11:!j!Jj;;;;,
In terms'\¼ t±\•ili~~lr~,>th~};:iommission believes that violations are massive where a
~~~ber of p~ople are targeted either within a specific area or across the
significant 1-r,.
territory of 1k State Party. In terms of the nature, the Commission considers
violations to 1ltu!!' massive where they are the product of a consistent and
predetermined:' action that impacts on a right or a combination of rights
guaranteed under the African Charter.
Communication 25/89, 47 /90, 56/91, 100/93 - Free Legal Assistance Group & Others v Zaire (1995)
ACHPR; Communication 279/03 - Sudan Human Rights Organisation & Another v Sudan (2009) ACHPR.
10 n above, para 100.
9
15 I Pugc
70.
In the present Communication, the Commission notes that over three thousand
(3000) persons are alleged to have been directly targeted while another group
comprising of tens of thousands of people was allegedly displaced. The
Commission notes further that a number of rights some of which touch on the
dignity of the human being are affected. The Commission believes that this
constitutes a prima facie case of serious and massive violations. In such situations,
as this Commission has previously observed, 11 it is both impracticable and
undesirable to require the Complainant to exhaust locaLr~edies.
, • !,'11lli"IJ
',' )1; "H
,lll!tl !
"lljn!;
71.
The Commission further recalls its jurisprudence tha'.t!pnly loc:aJ remedies that are
1nl,,
.,,·
available, effective and sufficient are requiredto be ellfi.lJMsW4,fll}f) 1~ 1 Complainant
corning before the African Commission.12,11;~tthis '''>',
G9mml.Mj«Sii.
hJ;WYiMttlP,t~viously
'1"'':
,j
held, where a Complainant contends,,~~~ it haJi!~ipt exhUli~t~.d local remedies
because they do not exist and the ~¢spond~n\StateJ~tgues otheifuli~e, the onus to
prove their existence lies on the ReSP,P,ndent Staf~d!'The Respon&~ii.t State has not
'ii,'\
';,
established satisfactorily how the local!~i:nedies th~t;tt identified could have been
effective and sufficient inthe particula?llh:cumstar{J~!iil{Jhe
violations alleged in
,;p•;i',,
,Jlqp
this Communication.14
,,
:w
,,·,<
72.
The Commissionl!~lso recalls that\Ite,reference to local remedies in the African
Charter relates t~l judicial remedies cifl~tm~fiies of a judicial nature that hold the
promise of a bin'qJn,g obligation of enforq~fuent by a State Party. The non-judicial
remedies that tit~jj~espondent State has listed such as the Kenya National
Commission on Hilman Rights .'and the Kenya Truth and Reconciliation
Commission fio not have tliatjudicial character and need not be exhausted by the
Complaihant.'i~nJt)1e absence of effective and sufficient local remedies, the
Commission find~'that tlie exceptions to tlie requirement to exhaust local remedies
apply to t1:te;c~mmunication.1s
73.
In relation t&1:the requirement in Article 56(6) of tlie African Charter, the
Complainant ~ubmits tliat it was after tlie failure of tlie Respondent State to
Sudan Human Rights Organisation & Another v Sudan (2009), Malawi African Association & Others v
Mauritania (2000), Free Legal Assistance Group & Others v Zaire (2000).
12 Communication 147/95 -149/96 - Jawara v The Gambia (2000) ACHPR para 35.
13 Communication 284/2003 - Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v
Zimbabwe (2009) ACHPR 102.
14 Communication 275/2003 -Article 19 v Eritrea (2007) ACHPR.
1 s Communication 221/98 Cudjoe v Ghana.
11
161 Page
implement the recommendations that it took the decision to come before the
Commission. The Complainant argues further that in any case, in the absence of
local remedies, the requirement to submit a Complaint within a reasonable time
after exhaustion of local remedies does not apply to the present Communication.
74.
The Respondent State argues that the Complainant has not exhausted local
remedies therefore time should not start to run as envisaged in Article 56(6) of the
African Charter. In other words, the Respondent StaJ\'.iifflht-r~ the view that time
-11,11,111:d,,,
does not start to run until local remedies are exnausf/-!<l,!!Jt is therefore the
1
Respondent State's position that the Commuhi~;gon is :pot even ripe for
;:::;.
submission.
'' n
75.
Article 56(6) of the African Charter, provides th~t Comri\jmications shall be
considered if they 'are submitted 'Yithin a r~w;onable period fiiqmi:the time local
remedies are exhausted or fromi'the date 't1te' €bmmission is;l'seized with the
•
dji)j,
>y:,
matter'. As the Commissioni'has notii<:l::jp its jurisJn;udence, the African Charter
does not define what coi:111#t!Vites a reasb~lj.)n,~ periciffil#f::~me. 16 Accordingly, even
in cases where local reJ,UediesiKR\'. req1-1µ'~d 'fol~, exha1;1Yted and are exhausted, the
Commission cons~f!,ers'eas\1 ca~~im11jits own rri~r~t:/,n'determining what constitutes
a reasonable per~d. of time.
'il!llii,,
,
76.
The CommissioU11~ of the opinion, th~!t!)ili situations where it is undesirable or
impracticable for l~Ui;;tims to exhaust local remedies because such remedies are
unav'ajli!ble, ineffe~ffij~iqr insuffici,erit or are unduly prolonged, the submission of
,'.-fl:h.
·,,l;-·
_
-':'
a Corrlpl~ijmlf~po longer tied ;to; file exhaustion of local remedies. Accordingly, the
Commi~tSJHil,tp11~ 1,,not agree with the Respondent State's view that the
Complaiilltrt,8,itiriiltl~jpg the Communication until local remedies are exhausted.
·::;1,'
77.
1'
·iw
The Commissjon notes the Complainant's submission that the alleged violations
occurred be~~en 2002 and 2008 but the Communication was filed in 2010 because
the results of'several investigations were being awaited. The Commission also
notes the Complainant's claim that it had to give the national authorities time to
try to implement the recommendations that followed those investigations. The
Commission is aware that in certain situations involving serious and massive
Communication 310/2005 - Darfur Relief & Documentation Centre v Sudan (2009) ACHPR para 74.
171 Page
violations, the challenges involved in entering the area and collecting required
evidence may be higher than usual.
78.
The Commission also notes that the Complainant did not stay idle during this
period but explored other avenues to trigger the implementation of the
recommendations that it considered relevant for redressing the alleged violations.
In the particular circumstance of this Communication, considering the nature of
government business at the national level and the diffo;ulties associated with
processing complaints involving serious and massive' ti~1!Jll~~s, the Commission
believes that the Complainant has not unreasonabl_y, 1.~elayii#;in submitting the
Communication. The Commission therefore finds that1l~r:~c!~l56(6lpf the African
Charter has been satisfied.
''llii!i
' ::H:,r'Hlli!W
\i;n,,p
'
-,,,,
.,
.,
-,il!jp.
79.
Regarding Article 56(7) of the Afric;m
• the RUspondeni:'~i~mifontends that
the Communication falls foul of,ili~ln}.rticle b~~f~ the root cauM~ of the dispute
was land allocation which pas be~liii~i"solved:'il~h~tates that dealing with the
Communication will "re-cm~);l.the unde~fyihg issue~:J~t)~ complicate or hinder the
,:· '"''Pi
·ii··;;;,:,
,,,;
resolution of those issues. Tl\~:State fµrthef!lhrgues tnat the matter received the
-<:H
'
"l""·
'
attention of the EACJ, in a case'filed'by the INitU on 2 July 2010. In rebuttal, the
, J;',
, ,
, ' ; ! _:i .''
Complainant suHmits that the settIEl»i11snt of the eland allocation issue is different
from the issues ltfiised in the present '<ilU~unication; it is not a party to the case
1\iL
'jil::':
before the EACJi;md that the case qeforetthe EACJ has no bearing on the present
'.:'.ii,
L
,i
Communication. Tl\~:!=omplainant ijlso alludes to recommendations made by the
UN S,p~cial RapportiWlti9p. Extra-Jl\4icial, Summary or Arbitrary Executions which
have ~lscJ:rio~ been impWlli.i~mf1:iilf the Respondent State.
I;- •
80.
The Co~tssiori ~Iso):\?Ws that some of the issues in the Communication were
brought toithe attention of the CAT, a fact which was not addressed by either
Party in thefr submissions under Article 56(7) of the African Charter.
81.
Article 56(7) of the African Charter provides that Communications before the
Commission shall only be considered if they "do not deal with cases which have
been settled by those States involved in accordance with the principles of the
Charter of the United Nations, or the Charter of the Organization of African Unity
or the provisions of the present Charter." In Gunme et al v Cameroon, 17 this
t7 n 2 above, para 84.
181 Page
Commission noted that Article 56(7) of the African Charter bars the Commission
from entertaining cases that have been settled by another international settlement
procedure, and the Treaty or Charter body dealing with the matter should have
taken a decision which addresses the concerns, including the relief being sought
by the Complainant.
82.
The import of the requirement under Article 56(7) is therefore, that the matter in
contention, which must relate to the same facts and, iil?lJ.~t,ies, must have been
1
"settled" - it must no longer be under conside,f1!-tl6;;_·• H!»ll1,r an international
dispute-settlement procedure. 18 Also, the priotisijf:lilementlmf the matter must
have been by a body "capable of granting de,clarato"ty!iin: cqp;ipensatory relief to
victims, not mere political resolutions and,1d~c:Ialr~li\ons;;q~»iis, "an international
adjudication mechanism, with a humap.iri~~t~ mand~te" .19 •••
83.
At this point, it is imperative fqr~Jfommis~i~1;1;t~ ascertain wh~ilier the matter
before the EACJ and the CAJ has beeh:r,settled' or,ti<Jt. The immediate question to
be answered is whether the ~ACJ and the <µAT are bod,ie,s envisaged under Article
56(7).
.
.)L
i!)i ,;, ,,
,;,,
84.
18
'
The EACJ is a R~ional Court with.a):mman rights mandate, while the CAT is a
UN Treaty Body-created under inteljQa,tiopal human rights treaties, with a
L<,
-:;jj"!
complaint handl1);ig mechanism. In,this ~~gard, the EACJ and the CAT fall within
1
the purview of A~~ije, 56(7) of the }\fri~an Charter. Having established this, can
we ~~}!1 for a fact' tli~t, these bogiks 'settled' the matter currently before the
Comrrijt~tn iii Ill fl
85.
,,
j
• • •
qlnI! m1H ni!1 n
Regard~~,~~:fllAl=J~ipie, Commission notes that the Respondent State has not
indicated illJ!_\'.the present Complainant is involved in the case before the EACJ- it
only made rijterence to the IMLU. The State has also not demonstrated that the
case before th~!l;<)ACJ involves the same human rights issues as presented in this
Communication, nor indicated that the case before the EACJ has been settled on its
merits as envisaged by Article 56(7) of the African Charter. This notwithstanding,
the Commission agrees with the Complainant that it is not a party to the matter
before the EACJ, and without any evidence from the Respondent State to state
n 5 above paras 54-56.
Sudan Human Rights Organisation and the Centre on Housing
Rights and Evictions vs. Sudan (2010) ACHPR, para 105.
1, See Communication 279/03, 296/05 Qoined),
191 Page
otherwise, the subject matter of the present Communication is not the same subject
matter before the EACJ which already eliminates some of the conditions for
establishing that a matter has been 'settled'. Additionally, the matter resolved by
the Respondent State is the issue of allocation of land which is not the subject
matter of this Communication and which has no bearing on the same.
86.
On the recommendations made by the UN Special Rapporteur on Extra-Judicial,
Summary or Arbitrary Executions, firstly, the latter is 1:Wlta,T,reaty or Charter Body
as contemplated under Article 56(7) of the Charter.,~t!tbriatyilkl!e Commission has
averred that settlement of the matter must hav~li~.en by '~j body "capable of
granting declaratory or compensatory relief ·"iif'.'.t·
to victirrim,,,,"
rillhrecommendations
,:l'j'_ .;ll;d;H
by the UN Special Rapporteur on Extra-Ju,qie!UWsummaryi~fi,.AibitraryI;R~t'utions
di:
-,.·;
'lj,":
•
do not fall within this context.
i!l'J!i ,
.I
!Jill
c.
!L.if
,;il
87.
,'_:,.
,,IV
,
:;J;,_ ,-·
•11m(·
With respect to the CAT, tl),eiif!tpi;nmissiori!ii~6tes that th,:/1' matter in this
Communication was broug~t to the"a'tieption oP!ittlriEAT through a State Report
by the Respondent State dtl.)1ing CAT's 4l'11t?ession''fi'.9m,3 to 21 November 2008,
and Concluding Observatiohs were made'•~e.refrom.d'There was no Complaint
brought before the,,QA'J',!apd no a~ljjldication ·~rbcess per se. The recommendations
referenced by th~'Complainant, addllwhich have•allegedly not been implemented
;;:
·1mq
by the Respom!lent State are recomntendations made by the CAT following
consideration oi!llhe State Report. 1Accdtdingly, the Commission finds that the
Communication ~h.tisfies the condition in Article 56(7) of the African Charter
because the subject 'matter of the Communication has not been 'settled' as
anticip~ted by Article 56(7) of,~erAfrican Charter.
0
on Admissibility
Decision of the,\LConititl~~i<>n
,;:I·
·:g,;
88.
In view of fr\e above, the African Commission on Human and Peoples' Rights
declares this C<immunication
Admissible. 20
i!f'
Merits
89.
The Complainant alleges that the conflict in Mt Elgon started in 2006 through to
2008 when the people of Mt Elgon were attacked repeatedly by a rebel group, the
2015 1h Extra-Ordinary Session from 7 to 14 March 2014.
20 I Page
Sabaot Land Defence Force (SLDF). The attacks continued in 2008 when the State
sent in a security operation aimed at bringing peace, but instead launched more
terror on the civilians. According to the Complainant, civilians were the principle
targets for murder, abduction, forced recruitment and displacement as both militia
groups and the army besieged villages abducting, re-abducting, and arresting
civilians and committing atrocities and indiscriminate killings.
90.
The Complainant submits that the Victims were J1nl?iff~ted to massive and
systematic violations of human rights. They were a~!?ittitil.y!J~ffested by the army,
detained, tortured and robbed then released witlilfl~~ charge~! The Complainant
states that the Victims were principal targets of' ilxturderf abduction, forced
,
,;:'._; .,,1,:;1 ! :H;,,, .
·'·
recruitment and forced displacement in the conflic~
that
'eJ\Sfed
betwee;I:\
:tpe
State
'
,;;
and State security agents.
'
91.
•< E:
The Complainant.submits that this co~H~ct ~iolated articles 5, 6, 7 and 23 of the
African Charter. 1The Commission notes"that in its Complaint the Complainant
5, R, 7 and 23 (1) of the Charter. However
allege// violations· 'tjfi!:~rticles
1 /t)d,L
HjiL
,,;
substai'lfi.:~.-.-"
its.·.
meritsllll)i~Wl;~fs
--Tn ·1nf1;;;,
,iffll7Tif,,,. address Articles 5 and 6. Substantially, the
Commi~~ionill-»[/M .. draw arguments from the initial Complaint to buttress
1"'
1""'''
allegation;rLof.ri~o1iltio,~s,f9:LArticles 7 and 23(1).
1
hll1'
ijL
'll
The Complainfiq~isubmits that the Commission should find the Respondent State
in violation ofllirticles 5, 6, 7 and 23, of the Charter and direct the government of
Kenya:
a) To invite the Commission to establish an independent investigations
mechanism to effectively go into Kenya and in Mount Elgon to conduct an
extensive investigation of the alleged violations;
b) To provide adequate and efficiently coordinated security personnel in all parts
of Mount Elgon;
Relief Sought
93.
',,',
It also alleges that the Victims h<1ye been deajed a remedy t~':W;e violations as
there are no current goveq:unent 'stiitistics tli&(;reflect the number of those
displaced, dead, or even aRtttal residentsi~f)his regiokWi14 that although the cases
·l' < ) ,, .
'';; •. '.
•. ' '.
were reported there yVete nq1;ip:vestigiltions; by the Respondent State, and even
where investigati~n~::W,er,e card~l;l,;biit thentl\~s, ..nelther been prosecution nor
willingness to arr,~~t the p~rpetratbt~ p[ the viole~c~ .
. '.
92.
'
21 I Page
c) To immediately, diligently, genuinely and effectively investigate and
prosecute SLDF and state security agents, soldiers and any other persons who
violated the rights of citizens in Mt Elgon and serve the Commission with a
progress report;
d) To establish an independent agency to conduct thorough investigations, set
recommendations for those to be prosecuted immediately, in respect of civilians
whose rights have been violated. A progress report should be lodged with the
Commission at reasonable intervals;
, (lit,
e) To declare that the recruitment of militia groups
a~~li\:llt!if'to
a violation of the
P
l
Charter for which the government of Kenya is respdi:Jiiible; '; ',
1\
'
f) To adopt measures such as provision of psycho!!{loi\11 c :re tacilities for the
\ "
' !
,li 'i,l' d
rehabilitation of all civilians affecte~ ,,by' th~!!liolenc~,:~n 'b\:Plet1: historical
11
injustices in Mount Elgon including militias.
'
J
!
1
)j
94.
1;
1
l
The Complainant also urges the,Clii:IIµl1ission fil!mt/'ry out a fact-finding Mission to
Kenya in order to come up w,ith a la,~l:ilig solutioif~a!lh,e predicament of the people
of Mount Elgon pursua.nti· to the pro~is,ions ;f!J\rtide 45(1) whereby the
,><;Jll1t
;'"'flllli_
·):!;!
Commission may "use ~ny a'p~fppria te:fueflijj\~\i?f investigating any matter falling
1
1
ill;'!, ,
within the ambit ofthe present Cli'arter".
1
The Commission's Assessment on the Merifs!i. ,.
. ::
:'!l!JPP
,:,L
,,,
95. The Commissioll:\~.salled upon to determine whether the Respondent State, in
alleg~dly failing tcie,ti5:~re the security of the people of Mount Elgon, targeting
them 'fot murder, abdtl~tion,forced recruitment and displacement, and failure to
prevent!miiiti~!~ffiliips fr~~ b~sieging villages abducting, re-abducting civilians
and committin1fau~1;tl~~· and indiscriminate killings, and to investigate such
attacks, vi6l{ltJd provi~t6hs of the African Charter.
96.
The Commissioi:1,notes from the onset that the Respondent State did not make any
observations ori the Complainant's submissions on the Merits despite several
reminders to that effect. In the absence of specific observations on the Merits from
the Respondent State, the Commission has relied on the Complainant's
submissions on the Merits, as well as the Respondent State's submissions on
Admissibility which addressed aspects of the Merits of this Communication.
Alleged Violation of Article 5
221 Page
97.
The Complainant attributes several acts to the Respondent State perpetrated
against the Victims and argues that these acts amounted to torture in violation of
Article 5 of the African Charter. These acts include sustained beatings with sticks
and army boots, stripping naked and beating people while naked, frog-marching
and forcing people to roll on the ground while being beaten.
98.
The Complainant points out that the right to freedom from torture is absolutely
prohibited and protected under the African Charter. 21JJ7:'1ifomplainant refers to
the Commission's decision in Communications 137,{lllt;'139A00)54/96 and 161/97,;HL
·11!n
International Pen, Constitutional Rights Project11'l#tflr;ights oYftlbehalf of Ken Saro
Wiwa v Nigeria 22 wherein the Commission fo~nd to;~~,to i,lmw:J..e:
,;11t1in11111Lt.
' 11 11w 1:·,,l::,ii:•
Actions which cause serious physical!' or p;y~¢1ogical'l~4ffering or
,"1::;;.
'"i
·,:· \·
humiliate the individual or force wm'ol':h~r to actakainst his ori~r will
or conscience.
,,
'i;:,i'..
99.
.1.·
·'!!lJP
·.:
The Complainant explains Jhat the m~fuf?ds of torttfre used by the Respondent
State's security forces c;i;litt~ij~ ,serious jp,.f~fi\~1s and e~~iv'though the cases were
1
,il,1i
_,.,
'"'"',,
reported, there have bf:1f!n no 1'$~te mv~stigatl.~w,, prosecution nor willingness to
arrest the perpetr11tors;bfth~ viJrJl«!¼:.
iijj;
'
1!!"
'l!llt,
'!'.
'Jlilh
1l;lJL
:;1
100. Further, the Cqmplainant avers that' 1il1.lif11iling to collect or possess data and
'.lJB
·rn:
records of these:1N';\9lations, the Gqverl'\fuent of Kenya has shown lack of due
1
diligence to prev
yiolations esrl~cially those committed by its officers and
contJ%\~ 1tpat this cgi\~ijtutes a vipj~tion of Article 5 of the Charter.
i
~~t:
'ir;:'.ll1H!il11ui1h.
,. : ·HnnJ'niw
101. The Co~plairi~~1ti11rJf}~~nds that the State failed to exercise its duty to protect
civilians Hm:i1 1ivarioi.l'~mpnduct and vices detrimental to the enjoyment of their
1
rights as Wf!.~ articulated by the Commission in Social and Economic Rights
Action Centi(!, (SERAC) and the Center for Economic and Social Rights v
Nigeria. 23 In th,!,t decision, the Commission stated that the state is required:
to protect right-holders against other subjects by legislation and
provision of effective remedies. This obligation requires the state to take
Communication 225/98 Hurilaws v Nigeria ACHPR para 41.
Communications 137/94, 139/94, 154/96 and 161/97 International Pen, Constitutional Rights Project,
Interights on behalf of Ken Saro Wiwa v Nigeria para 79.
23 Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights v Nigeria (SERAC) and Another v Nigeria ACHPR (2001) para 46.
21
22
23 I Page
measures to protect beneficiaries of the protected rights against political,
economic and social interferences. Protection generally entails the
creation and maintenance of an atmosphere or framework by an
effective interplay of laws and regulations so that individuals will be
able to freely realise their rights and freedoms. 24
102. The Complainant cites General Comment No 20 of the United Nations Human
Rights Committee (UNHRC), which places an obligation on States to investigate
asa6'Jll~se;
qf ,
allegations of torture, ill-treatment or executions, in
with the Principles
on the Effective Prevention and Investigation,,
Extra:n~gal, Arbitrary and
1
Summary Executions and the Principles on th~!l!l!lffectiv~i'Investigation
and
1
Doc~mentation of Torture and Other Crueklnh~an 3U!~jf~~Jlli.gfif~flflW1ent or
': 1!11'
Pumshment.
'l', '
••
103. Further, the Complainant cites th,e;i#ecision ~f tli~,~;er-Ameri~~W!court (IACHR)
in Velasquez Rodriguez v Ho¥id~l¼~i,(VelasqliijM!i,Case), 25 in ~hich that Court
'111!1,
enunciated state responsib,\Uly for its 0'i\.:h actions'ialff!t those of third parties and
stated:
,,dlil!JlllL
:;/i \:L,_
·q!l!JP;'
Thus, in principle, :a1,1y vio1l~~n pf Jlghts ;~sei:I 'by the Convention
1
carried out by.·;~ ~ct bf pubYft!l~~thority or tly,Jp~~sons who use their
position of alithority is imputabliito,the State'."However, this does not
define all the!'; circumstances in whlcl\H,1:State
is obligated to prevent,
:;1::p
investigate alj<!l punish or human rigl:).ts violations, or all the cases in
which the St1t~lfuight be found rcispo~sible for an infringement of those
";tig!;its. An illegdil~~t;which viohitb human rights and which is initially
ribt ~!'lstly imput11>1~·ttra,sta~ (for example, because it is the act of a
priv,ate1't,~f~<m.):>ecause the person responsible has not been identified)
;,
,,;:pi;n,
can lead t9,irtte'tll~ti9nal responsibility of the State, not because of the act
'",j:p:i;,
> :ii'
itself, bur because qpthe lack of due diligence to prevent the violation or
to respcitld to it as required by the Convention.
,"
:Ci\'.,
104. The Complainant argues that the absolute prohibition of torture and ill-treatment
is a peremptory norm, 26 recognised in many international and regional
Supra.
Inter-American Court Of Human Rights, Judgement of 29 July 1988 (Series C) No. 4, para 172.
26 Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 23
November 2007, UN doc. CAT/C/GC/2/CRP.1/Rev.4, para.1 (excerpted in the Annex); International
Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Furundzija 10 December 1988, case No
IT-95-17/1-T, paras 153-154 (excerpted in the Annex).
24
25
241 Page
instruments including the CAT 27 and as expressed by the Commission in its
jurisprudence 2s and in its Guidelines and Measures for the Prohibition and
Prevention of Torture, Cruel, Inhuman or Degrading treatment or Punishment in
Africa (the Robben Island Guidelines), where the Commission underlined that:
Circumstances such as a state of war, threat of war, internal political
instability or any other public emergency, shall not be invoked as a
justification of torture, cruel, inhuman or degrading treatment or
punishment.29
<1!1;;:;
,1 ;ll ;t; Hj ilj !J !!:
105. In addition, the Complainant states that the threa,tt~11sed by\~Xrorism, an issue in
the present case as in others recently adjudicated else~l)t!re, d9ts not affect in any
way the absolute prohibition on torture f1nq i.lhtreatirt~1).t"~nciilthlcl,:~ff!guards
necessary to give it meaningful effect.30
• ', •
• ,.,
"'' •
obligatioµs to prevent,
investigate
106. The Complainant notes that the po$~tjve
.,·,' ,,
•..,;'.
and punish torture are as important '\IS the negative obligation to refrain from
torture and ill-treatment. It ~rgues that saf~guards sush as a,ccess to counsel, courts
and medical personnet 'a~~Jthe inadµtrJiji)?Mity of eviclence obtained through
,,11
';,i:;,,
'
torture are inherent1nff)fn\~ts ofi;tff1Ydpiohibitioi)l1Pif:t~orture and ill-treatment, and
that where tortuff! or ill-treatment1~1fiys arise, th~istate is obliged to respond with
1
effective investig~tion and remedial abm;w as a deterrent but also to ensure proper
documentation. ijJh,
'11:ljJJH/
1
'
,
··;i,L
'tr
107. It is 1,te Complaili:a,tjf~,,contention!that the obligation to prevent torture or illtreatili.ff~linfil~er the_ AB:i;~f?n\i~llrr~~r, de:ives from the undertaking given by the
States Pfi~fieslilflH~~ticle 1 of the Charter to adopt legzslatzve or other measures to give
effect" to'the
rig)lts contained in the Charter. Further it contends that the value of
1l
.l··
• : . ,,•;!:iii'
such mea·s~~s, as th~;ljt1risprudence of the Commission suggests, is in their
preventive ~ction. 31 ,.
;Ii.
1lll 1'
1
Art. 2(2) CAT.
zs Communication 225/98 Hurilaws v Nigeria ACHPR para 41.
29 Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
treatment or Punishment in Africa, adopted by the African Commission on Human and Peoples' Rights
at its 32nd Session, 17-23 October 2002 (hereinafter "Robben Island Guidelines"), para. 9.
,o Citing the European Court of Human Rights in Saadi v. Italy (App. No. 37201/06), ECtHR (Grand
Chamber), and judgment of 28 February 2008.
31 Communications 48/90, 50/91, 52/91 and 89/93-Amnesty International and others v. Sudan ACHPR
(1999).
27
25 I Page
108. The Complainant submits that in meeting its obligations to protect rights in
accordance with the norms that prohibit torture, the State is required to put in
place specific measures to ensure that civilians are protected and enjoy those
rights enshrined in the Charter. It states that the rationale behind this duty of
states is a settled rule of international law that enjoins states to protect civilians.
109. It concludes that, the very fact that the government has failed to protect civilians
and further violated them by sending in the army and,,~lffi~ ~}ate security agencies
is sufficient evidence of the violation of the duty to,J!1r6tecfasi~p.visaged by Article
Y'l
5 of the African Charter. Further, it contends that,tlllil~tate
has'r11iled
to conduct an
,HnL
a.;
effective investigation into these alleged acts of tortu~l!md il1itre<1j:ment, and has
made no diligent attempts to hold anyone.to ~c~J/lih,t. ''il!jpl:' fl!!lJli,Ji!nn, '
T""
·:ql!ih
,in:
;:"'1t;:;: .
pit
·,!: :.
·•'.j!l!k
•
110. The Commission notes that the Af~~n Charterdoe~jl-iot defineilfl1~1meaning of the
''';'
"'
Ji'
''''
words, or the phrase "torture Of;'~~~ding tr~m\ent or punishiiient". However,
·; !d ,, .
• 11,Jj,
the Commission has previously statedl!that Article!l?,,is aimed at the protection of
both the dignity of the hUffif!I?: person, ar\ti t:J;ie phy~lHijlJfip.d mental integrity of the
1
1
fi:lJ,
,!:
individual". 32
111. Substantive norms and internatiottij~ d\Hisprude~l:e and practice in respect of the
nature of the pr~pibition of torture ~nl:l,cru~l, inhuman and degrading treatment
and the obligati6,ii~ of a State to prqtect its,citizens against such treatment are also
within the Conv~~~in1 Against Torh),re (CAT) defining torture as:
, !! d;;'
';
':;'any act by whiolil~evere pain o~lsuffering, whether physical or mental,
i~ irttjj11p?nally infliHb'i:t.~m 1~tJJ!lf~on for such purposes as obtaining from
him or 1~1~ff)'erson lrlfdr'ir{~tion or a confession, punishing him for an
act h~ or ;~ i
person has committed or is suspected of having
comttlf~rlf or i~i.lijdliting or coercing him or a third person, or for any
reason 11:j¥1sed on discrimination of any kind, when such pain or suffering
is inflict~!!, by .or at the instigation of or with the consent or acquiescence
of a publi~~¥ficial or other person acting in an official capacity."33
'tJ#r,f,
112. The Commission has also stated that torture is;
32 Communication 279/03-296/05: Sudan Human Rights Organisation & Centre on Housing Rights and
Evictions (COHRE) v Sudan.
Article 1 of the Convention against Torture and other Cruel, Inhuman or degrading treatment or
Punishment, Adopted and opened for signature, ratification and accession by General Assembly
resolution 39/ 46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1).
33
26 I Page
"the intentional and systematic infliction of physical or psychological
pain and suffering in order to punish, intimidate or gather information"
or "a tool for discriminatory treatment of persons or groups of persons
by state or non-state actors, with the intention of controlling such
populations by destroying individuals, their leaders and frightening
entire communities",3 4
113. In its previous assessments, the Commission has found that treatment such as
shackling within a cell and denial of access to medi~~JIHil~~~!ttfffre in contravention
ciilJHjpistances
in which
of Article 5. 35 Further, the Commission also follXltfiithat
d"lilj!l,
1
individuals held in the custody of the State,
1,beatffilc forced to make
statements, and denied the opportunity of 5,\!JEJR/Ji1g,am()'rll#hr,~fi~l8rtw;EJ.36 .
1 1'
wer;~
'ii'[:ji.
,)!;;,
"'i""
'ljlllh.
114. The Commission notes from the ~jldi,''iqfi:.tis caw~ that ili~l!¥,~Y, an official
component of the State, acting inj~!pfficiaft\j.J;liJ,C,\W to allegedlyJ"uproot terrorist
'">);;,.
,"!"
·!'
elements" arrested the Victims; frb~µi.arched'IPifuers to Bungoma centre, and
forced them to roll on thei~ound willi~:tey w~~~lffm;11g,beaten with sticks and
army boots. The Victims,we~~mlso subi,~Ft~jtf? sexualtfplence, others were forced
to whip each other, suJ.,merge'ci:ip ~EJivage, W~ged upside down from a moving
dHlllnll:.
q,1;;;1'
>L<!n,:'
helicopter, forceci 1td crawl'on razo.rwire and oth~s were forced to swallow sand.
Some of the arr~~ted Victims were IIi,maded m' their cells, chained to the walls,
and beaten unti'.\!/±teir arms and limbs '¼r,e,;e'broken. They were also deprived of
sleep and food.
e assaults causec,l serious injuries.
1
'fiNm
1
\; ,. .
l
!11ll1
1 11
!
'hlh
'
115. The q:~s.sion als3!ltt!fi,~~ll~\'. ~pmplainant's argument that the State failed to
1
meet it/i, oblj.~·Mtf?;11 to prof~ct'When it did not act to protect civilians in Mount
Elgon from abu~~iilnd, 7iiolation at the hands of militia groups. The Complainant It
11 1
also sub~t.~ ~~t
b"i\ile affected suffer serious psychological damage, which
;, 1
if!
needed to b!j, addressetl once peace returned to this community but government
has not pro~i.,c,le4 any counselling or rehabilitation services to civilians who
escaped or we~i/ rescued from the SLDF. The Complainant states that the only
th~
34 Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights (2009)
ACHPR Para 164.
35 Communications 68/92 Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi.
"Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98 Malawi African Association,
Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme and RADDHO,
Collectif des veuves et ayants-Droit, Association mauritanienne des droits de !'Homme v Mauritania.
~o~-~~~•~·~-- ~
/}.;,',f. tC.f.lH,R1,r ~fo,, ~,.
;lfl ~ •~-,,.,\
27 [ Page
-~! ® ~~I
0
;\ L1
• •i
services available were from NGOs, who are/were not given any fnnding by the
government.
116. The Commission considers that the Complainant has submitted adequate evidence
to support these allegations in the form of reports with affidavits detailing the
experiences of the Victims. The reports are substantiated by the inquiries made by
other human rights authorities including the Office of the High Commissioner on
Human Rights, the Committee against Torture, the ~~~ffl~\: ~apporteur on Extra
1
Judicial Killings and Enforced Disappearances at1d'"the ·~~hya Human Rights
~tompted
an official
Commission. These reports, at the very least shdilX<l;,have
Hj1'!,
_, ••
investigation of the allegations of torture from the stateliU1,. ik
1
.:1nn:::::;::H1L '111 ill1lt
:
117. The Commission recalls that Article 5 <#l~~,Chart~~~rohiblt!J'~9f only torture, but
also cruel, inhuman or degrading tt!]ll.tmetlt!~cludii\g actions «.nlll!l-"cause serious
physical or psychological sufferiti~l!<!Ild thCJ~~'!J:l:i~t humiliate
individual or
force him or her to act against his wiii!~filfronscieri~~ft"
tiJ~
1
.,t;.:
·,:;lllh,__
' ll!U1iw;'
In Communication 279/03-296/05- Sud{#/Huln.a1,1 Righi~lbrganisation & Centre on
Housing Rights, the,cdhunissionstatiid that th~:tn;a~ent of the Respondent State
and its agents, wl)e n it participated ih ;tne forced,~iiction of the civilian population
from their homes' and villages and its °£.H;t1ire to protect the victims against the said
;\i!m;l
violations while :fighting the armed gr9ups as part of its counter insurgency
strategy amounted 'to cruel and ihhuirian treatment and threatened the very
essence of human •di.gmty. 38 In ;tnis case, the Respondent State rounded up
civiliaris from their h~ri\.JYlijtx<!lrntibJ'ected them to treatment which had the effect of
degradirig theii',h,umanity s~ch as eating sand, frog marching and crawling
'
·'' <·'·'\\·
instead of walking. 1ii;f!li1, 1""
0
",'.-,I'
H. ;:
;,
': l!!J;l'
119. The Commii;sion finds that the totality of the treatment narrated in the facts,
which was petp,etrated by state security agents against civilians,' amounts to both
psychological ·~nd physical torture, and degrading and inhuman treatment. The
Commission also is of the view that even if the State was fighting alleged terrorist
activities, fighting terrorism is not and can never be a justification for subjecting
civilians to torture, cruel, inhuman and degrading punishment and treatment. In
37 Para 79.
38 Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights (2009)
ACHPR Para 164.
28 I Page
that regard, the Commission reiterates the non-derogable nature of the prohibition
of torture; namely that the prohibition of torture is considered to be jus cogens, that
is, peremptory norms having the force of law for the international community.
Consequently, the prohibition applies to all States, whether they have signed the
Convention Against Torture or not; torture is universally condemned and "no
exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a
justification of torture. 39
120. In light of all these reasons, the Commission
State violated Article 5 of the African Charter.
Alleged violation of Article 6
,,{
H
>
\1iJill
!! \;"
121. The Complainant submits that !;ltel~,tate rn1,,.,u.xo·11rc~te,ct the right to liberty and
security of the person of the .Victi~ \,y:hen it usecl several places of custody and
detention centres such as ",'\l
c;hwele
Police Station,
Chelebnei
and Kapkota, Cheskaki
,!,
- -:-:i:.-,
• , -·. :'
Police Station and Ch~.rr<{i.Be¢<W1PS t9-0efam11rfviliansia~rested by the army. The
1:~:W!l}'ete
physit~lilM!d'
psychological abuse. Newly
civilians were then.i.u~ted
i"
,,,,
,,,,,,·,
"<''"
arrested individµals were"' routineiyjiJj:,eaten wtffl tree branches, butts of guns,
1H
'111p.
handles of mac);i:etes and other weii~TI~ by security agents in order to instil
id
'"i'l"i'
discipline and g~~:information on SLDF'.l~l:ist of these people were subsequently
dJ!1.
"
•
released without cl}~~Pe.
'
'l!Jd:!::,
.:l
'"·
'll!! 11i11111111:,.
•'<! ;' H!:Pii!"
122. Article ·~jfffllijl~ffitfi~ Charter states:
Eve1l}1rin~h-ri'llliRl!"hrul;have the right to liberty and to the security of his
persoiijl~o one m~~ibe deprived of his freedom except for reasons and
conditi~s previously laid down by law. In particular, no one may be
arbitraril~ \\~rested or detained.
al' -
123. The Commission's assessment will, in the first instance assess the leg of this right
relating to liberty of the person and in the second part, security of the person. The
Complainant submits that the Victims' right to liberty was contravened when the
Victims were 'unlawfully' detained. The Commission notes that the legality of
arrest is critical to proving whether detention is lawful or not. The principle of
39 Article 2(2) of the United Nations Convention against Torture.
291 Page
legality provides that "deprivation of liberty must in all cases be carried out in
accordance with the law". In other words the arrest or detention must be carried
out in accordance with procedures set out in domestic legislation; however such
domestic law must be compliant with international standards. 40 Lawful detention
must involve denial of liberty on reasonable grounds of suspicion that the suspect
committed the offence, for which he or she is detained.
124. Detention is arbitrary if it is "based on a random choise 1q~ 1Fersonal whim, rather
than any reason or system." Detention is alsq :'
if it consists of
"unrestrained and autocratic use of authority." 41 Th,~11rord afl:iitrary imputes bad
faith, recklessness and disregard of system~ in. th~ lijPffi?u,c1:::?if:1nrrest. In other
words, where arbitrary arrest occurs, th~fe' is rt~!lf~as~tl.ij~~tjusfili61~qp for the
arrest; the arrest is unmotivated, un~~$kmable, •it~~tionaC •illflgical, groundless,
,fn
'1·nn
1 1
" "
unjustifiable, unjustified and wanton:
i:1·
:1 H
i ji
.!
_;,lllljllhi.
.,
~ibll\lijt!t:,
\:;,
q;JlL
125. The Commission's jurisprm,lence sffi~. that wil.ll~~ the arrest or detention is
1
motivated by discrimin3rll\~lk:2 is ind~~t~~3 ana' W4IB,riJe are detained without
charges and without ~~'pos•s~f~ pai1,44t!iT/Jtthos~jcrrcumstances are arbitrary
1
and consequently cortstini,t~ a vi<lJffffl?n of Artidij1Rii!' 1
~f
1
• ,
•
'1111!!(
)P"
126. The Complainant has indicated that, n;ierr)l>ers of the security forces of the
Respondent Stat~;through its army, ,arres~\ifmany residents of Mt Elgon and took
them to Cherkube Camp and Kapkota, among others, where they were detained,
subjected to various forms of ill-b'eatrnent amounting to torture, then released
without !Jhfrges and without ra:tlr medical assistance. There is no indication of
what la"'s ivete'i:cited to justify these arrests. The Victims were also released
without charge;l~riat6~fi!lg that there were no reasonable grounds to connect them
to a specifl{l'trime. Tlif Commission also takes into account that most of those
n
OHCHR, Human Rights in the Administration of Justice, A Manual on Human Rights for Judges, Prosecutors
and Lawyers, Chapter 5 Human Rights and Arrest, Pre-Trial and Administrative Detention,
40
Oxford University Press, Oxford Advanced Learners' English Dictionary, 2009.
Communication 27/89, 46/91, 49/91, and 99/93, Organisation Contre Ia Torture and Others v.
Rwanda, Communications Nos (1996), ACHPR, para. 28.
43 Communications Nos. 25/89, 47 /90, 56/91 and 100/93, World Organisation against Torture and Others
v. Zaire, (1996), ACHPR para. 67.
44 Communication No. 102/93, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria,
(1998), ACHPR para. 55.
41
42
30 I Page
arrested were beaten and subjected to other forms of ill-treatment to obtain
confessions on the "terrorist activities" of their relatives who remained at large.
127. Although the Commission appreciates the legitimate concern of the Kenyan
Government in view of the threats to its national security posed by the attacks by
the SLDF on civilians' to stem such elements, the arrest of an individual who has
not committed a crime in order to force the one who has committed the crime to
hand themselves in remains a gross violation of the xi~t,to liberty. It must be
,lf\;ii,i,''.i'.1
incumbent upon the State, within its resources to c~fjtY··outliij}t:~stigations as to the
whereabouts of those suspected of committing'l'ffi~1.crime}litather than to use
innocent civilians as pawns to get the suspects to su;i~q.~r. ~individual should
:!'''\:;·; ,,
only be arrested for his or her personal sHJp!lbu,lty1,in thijifff?mmission qf a crime
hence when an individual is arrested;Ji~Hn: she ~~t be wg~roed, at the time of
of a1/iyipharg~W'against
hi~:qr,her"
.45
arrest, of the reasons for the arrestllll<Wcf
i'
'"'"
,,
,, ''
: : ' ' " " ' ',
'•q!\1,
0
;,, .. ,,mh,
',' •,1!
(lf.
128. Detention pursuant to lawful arrM~t:iiµmst no~:irnly be "lawful" but also
"reasonable" and "necess~frtt and it i~'illi~!fespon~ili>Tuf:Yi,Pf the Respondent State
to show that these fac;t~rs a'rijiiflfesent11in eaq:i ~ase. T);iis has not been done. The
Commission, takn;igninto. consiliijh~tibn the maryA~r in which the Victims were
arrested en mas~¥} without layingllffllffividual charges to each person and the
indiscriminate r#ifure of the detention.s.Ja.f~ed at forcing individuals to confess to
crimes or to thell#'i\!ereabouts of thqse stispected of committing crimes, finds that
both the arrest an'dj~tention of civiljans were arbitrary.
: "i'
'iiilHt;;,
''.\!:: ·"
.,d:
129. The ~~ffr,\on also fu;i\l.~ii1'il~f° the arrests were indiscriminate and as the
Compla4?an.t111~'1tW:ts "the army on various occasions went into the villages on a
spree o(~ol~µJ~;' 1arresting all men on their way, beating up women in homes
'j' ' ; "
,'
where the~'Were no i;nen and destroying all property that they could not carry
ll.
with them."i!When members of a community are arrested without warrant or
H
summons, kep~i/n detention without any court order, and then released without
charge, the Commission is compelled to conclude that such actions amount to a
violation of the right to freedom from arbitrary arrest and detention set forth in
Article 6 of the Charter.
45
See Article 9(2) of the International Covenant on Civil and Political Rights provides.
31 I Page
130. The second part of the Commission's analysis will relate to the notion of "security
of the person." This notion has a wider field of application beyond the mere
protection of the liberty of an individual. Other human rights bodies with a similar
mandate to that of the Commission, such as the Human Rights Committee have
held that the right to security of the person places an obligation on a State party
not to ignore threats to the personal security of detained and non-detained persons
subject to its jurisdiction. 46 The State cannot ignore known threats to the life of
persons under its jurisdiction, just because the person)/ijfll\ltarrested or otherwise
detained. Instead, the state should take reasonable!ii/Ra'~~P,rqpriate measures to
1i k
protect all individuals. 47
' ;;iillb
"_;]!:;,,
"'illlJ1ih1, ,,/lmllilii;n,
131. The Complainant submits that the goverpmlilitilqflltre Rl!SP/P{ldeWt'Stlite' riot only
failed to protect civilians from the military wlH~h
unlel~d
its force and
t:ff
'tllq,
1
terrorised civilians but also that itJailed t9JJRr,otedt' them aga'fusrmilitia groups
especially those manned by Sabaot Land D~~r\ce Force (SLDF). It submits that
civilians were subjected to brutality' ~q,,as a resu1t;were raped, kicked, slapped.
,, 1 ,,
_
'ii !l L
·', il!.
Some lost their livestock:):V~i/~ others ~j1t~)!fken by £~tff~1by the militia group.
:,,
·,ql!IIJ1. _ ,11(·
·, :HH!:-
)Ji
132. Further, the Complairta'Qt,statesj~~t' the Resj,q~4e,rtt State allocated insufficient
army personnel ,to stem the rebeili~n,rendering11it incompetent to prevent raids
resulting in further violations against'llie,;fe~idents of Mount Elgon by the militia
group. The Cortip,Iainant also alleges tWa1t the army and other state security
agencies did notlJt,~~pond with the urgency required by the exigency of the
situatl\:!!')- wheneve/~!@Mt,ia raid w,~s reported to them.
i'.:i!:··
133. The Corrt~iJ~i~~i)JilS pron~~~ced itself clearly on the meaning of the right to
security oft}li;;Pi~~dnMi':,ne,n it stated :48
Securi\i; 1bf the per~h can be seen as an expansion of rights based on
prohibitions of torture and cruel and unusual punishment. The right to
security of,,the person includes, inter alia, national and individual
security. National security examines how the State protects the physical
integrity of its citizens from external threats, such as invasion, terrorism,
Communication No. 711/1996, Dias v. Angola (Views adopted on 20 March 2000), in UN doc. GAOR,
A/55/50 (vol. II), p. 114, para. 8.3.
47 Communication No. 195/1985, W. Delgado Paez v. Colombia (Views adopted on 12 July 1990), in UN
doc. GAOR, A/ 45/ 40 (vol. II), p. 47, para. 5.5.
46
4B Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights (2009)
ACHPR Para 174-175.
321 Page
and bio-security risks to human health. Individual security on the other
hand can be looked at in two angles - public and private security. By
public security, the Jaw examines how the State protects the physical
integrity of its citizens from abuse by official authorities, and by private
security, the Jaw examines how the State protects the physical integrity
of its citizens from abuse by other citizens (third parties or non-state
actors).
134. In light of these facts, the Commission finds that the S,fflle~flllrr,d to comply with its
obligations to ensure protection of its citizens ~~l[llowirl.gjlwrivate persons, in
particular the SLDF to act freely and with impunity~~Jhe dJ#Jjment of the rights
of others recognised by the Charter contrarxnl9i/ITT!l p;d~il')i9~!QftJ:?-YJ,<;=liarter. The
f;:i""•'•lti;i:
•::.:,:
Commission further finds that the State !l~a:cerba'til{l.: 1t1ie irisilH\ffity by carrying out
indiscriminate arrests and subjectinif~!L•rrsidenijl!of MoillW Elgon to torture,
inhuman and degrading treatment 1lJ'
,,.
••••
'"1'' 1 '
'
•
1
135. The Commission therefore fjPrds a vi~fl~q!,1; of Artitilijifi of the Charter.
,'.iii:
' .dJL
'HiiL.
Alleged Violation of Article]
,.;,,
,11P'""
'\[H::;
,.,
argues
that
the
Victims'
right
to be heard, guaranteed under
136. The Complainanl!
!q
·;,;,;
Article 7(1) of
African Charter has p~en violated due to the failure by the
Respondent Stat~i~9 investigate a11d prpsecute its agents and the third parties
responsible for th~l~l;luses. The Cotnplainant alleges that the State, through its
tf
~ffi!fi~~~~
po~i(:e~l~,f~,~ecutio_n
~l)i~h are ~uppose~ t~ investiga~e, prosecute and
ad1ud1qi.te :a;µ~giitions of wrongs •done, derued the Victims protection of the law.
' ' ' i j; i; i ' "'
137. The Co~i~atpai~t· ~u~~!fuat the Victims were denied the essential safeguards
against to;fure and mJifeatment, including through failure of the State to act on
reports of to~l;1,J.re and to conduct an effective investigation into these alleged acts
11'
of torture andi,;ll-treatment. The Complainant submits that the Respondent State
I'
made no diligent attempts to hold anyone to account and although the cases were
reported, there have been no state investigations, documentation, prosecution nor
willingness to arrest the perpetrators of the violations.
138. Article 7 of the Charter provides that:
1. Every individual shall have the right to have his cause heard. This
comprises:
33 I Page·
a) The right to an appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in force;
b) The right to be presumed innocent until proved guilty by a
competent court or tribunal;
c) The right to defence, including the right to be defended by counsel of
his choice;
d) The right to be tried within a reasonable time by an impartial court or
.. ,11!U1li 11i1 1
1
1
tribunal.
2. No one may be condemned for an act or omi~Ji~~•·~!\Wh
did not
j
".' •'
constitute a legally punishable offence at the tirtWHtl!was co~ihitted. No
penalty may be inflicted for an offence for which no "br~yision. was made
', n
i1m,i1;-r,
' r 1 Jlll" 11
1
1
' 'and ~llri \li!'i', ,,
at the time it was committed. Punishment:'is'~erso
,,lj
'n;,
"
imposed only on the offender,
1: ,
'' 1 1 ,
: 1 !'
l
'
'
,, ;'L
both ;.tli.e ,a :!ability a~d.'. accessibility of
139. The right to be heard comprises\of
-:·· -,,,,
-,dn:.
procedures and tribunals capable ot:giving a 0clmplainant the desired remedy,
01
This means an individuaL 1~ust have !a~fl~Ss to 1t!JtliiJ;i;dependent and impartial
tribunal. The competence' ot!¾fl courts inlliliijlffi~spond~~t'state to mete out justice
is not in question. What the Cdfuplfinant has 'a],~g~</, is both the unavailability of a
remedy, whereby;tlass actions We~e unavailabJ~lp'rior to the passing of the new
Constitution and pow the whole system o.f justice ground to a halt when it came to
moving the investigation, prosecutiori°'atlci trial of perpetrators despite the
availability of detailed reports showing how these violations were perpetrated.
The Commission c6risiq.ers that, "~here the competent authorities put obstacles
on the. 'way, which· &tJ~c~e!i;i,p/'event victims from accessing the competent
tribunals, they would be h~ld'llable." 49
-
'
,,
• •i:.:;;;1w,'
140. Further, the ComplafrUlnt alleges that several of the Victims were detained for
days in terrible conditions and released without charge. In Communication 225/98Huri-Laws (on' behalf of the Civil Liberties Organisation) v. Nigeria where the victims
had been detained for weeks and months respectively without any charges being
brought against them, the Commission held that the failure or negligence on the
part of the security agents of a State party to "scrupulously" comply with the
requirement to submit reasons for arrest and to inform the persons arrested
"Communication 294/04 Zimbabwe Lawyers for Human Rights and IHRDA (on behalf of Andrew
Barclay Meldrum) v Zimbabwe para 106.
341 Page
promptly of any charges against them, 50as well as the failure to bring the victims
promptly before a judge or other judicial officer for trial was a violation of the
right to a fair trial as guaranteed by the African Charter.51
141. Accordingly, the Commission considers that in failing to put in motion, the
relevant procedures of investigation and prosecution that would bring the
Victims' cases on allegations of torture, inhuman and degrading treatment,
insecurity and enforced disappearances, before the cpillpetent bodies and in
tortured civilians
failing to bring competent charges against det\l,ined
following indiscriminate arrests, the RespondentiiS,a~e viol~\~d Article 7 of the
Charter.
•• ,,,
:;;
~4:
.
.
iillj!liilllllillil! i :"!li111::::!lili!l!illiiiliill!P'
.
l
d,Hilir 1.
Alleged v10lahon of Article 23 (1)
'lli
l
'lll:lii,
~~i:g,
142. The Complainant submits that thei~e~po~ju~~1$ta: through
agents and
''il ,l,'
'I,'";';'
,l
by failing to address the actions of,~~ SLDF -s-cibjected the residents of Mount
Elgon to insecurity. The ,Miolence aitdjj;msecurity has been well documented
: • t" '.:;
. • '. :l L
indicating that some ~f the'v;\f:wns h~~ tn~iITT~mes attacked amidst a barrage of
arrests and violen~~::WihH,~ thel~mnrion vari01:1~1f~sasions went into the villages
arresting all men, beating' up wcltij.)!l)
in home~lwhere there were no men and
1
,':
n1j!L
J·
destroying prop~rty that they could 'n~:s~rry with them. Coupled with the threat
;·.
j,,q .. , .J
and actual atta:~ from the rebel grotiplrl!lifie SLDF, which committed the same
l1,•1
,
,l'
atrocities, the vill~g~fS
lived
in
perpltual
fear
and insecurity.
......
I
f;
0
:::, ,.
:i1n1:11;._
-:1r
143. The R.-~~ff~?i~~t Stat~''argu,~qttfflitlthe ins~cu_rity crea~ed is the responsibility ~fa
terronst 1170U,zl)!tfuat the Respondent State s mterventions were targeted at domg
1 !'
'l! '.'' !11
away wi~ a t~,i;i{lri.$~it!M'fmt and that its efforts were limited to finding members of
this group.i1.1.,,:1'
'!i''
;i
144. Article 23 (1),~~J/;ie Charter states that" All peoples shall have the right to national and
international pe)i~e and security." The right to peace and security is the foundation
on which the edifice of the institutional, social and political frameworks for the
pursuit and protection of all other rights are built. While the assurance of the right
to peace and security creates the necessary conditions for the enjoyment of the
Communication 225/98- Huri-Laws (on behalf of the Civil Liberties Organisation) v. Nigeria, (2000)
ACHPR paras. 43-44.
51 Ibid para 46.
50
35 I Page •
other rights guaranteed in the African Charter, the breach or lack of the right to
peace and security not only enables but also produces the violation of these rights.
145. The right of all peoples to peace and security encumbers, as envisaged in Article
23 of the Charter, encumbers States with both positive and negative obligations.
Accordingly, the positive obligations entail that States put in place the necessary
legal and institutional infrastructure to provide security for all individuals and
communities in their territories. This infrastructure JMlliU?R!Y entails putting in
place accountable law enforcement bodies, crimina~iJU~tic~1!l.~ffiinistration system,
dispute, resolution mecha~sms a~d ~ati~nal d~i~#HL b~t ';~~so ensuring these
systems proper and effective functionmg m a<;~ordartileiw1th':ful!n1;i.1le of law. The
positive obligations additionally require. suH:em!t!liJtak~ 'U9tl.9,n:"illgjJJm.g. 'against
third parties, which pose a threat to th!! J1eace iti~ 1securifj!iklf communities, to
guarantee such security and adopt co;;ilHfty;e m~~sures to"~ilktore peace and
security and redress breaches of the p~ace atliJ.ilj~~~ity of affected individuals and
communities.
".ll~JI!;
". ·:.);;,
:: ', ,r
.:;:: it
,w;
African Charter involve
146. The negative obligatiOJ)S of States un~~l-"Affihle 23 of
the duty to refrain,~iengagi11g)11iactions that 1:JMfi!ltten the peace and security of
individuals or c~l'nmunities and !..~!Jiff, the emet~~nce of conditions that would
result in its se~~rity agencies engagillig, in, .actions that disturb the peace and
security of indiv1l4µals or communities violation of their duty and the right to
'.1·i.
j,
peace and security: This means that the State should ensure that when security
agencies take actions against indivi4uals or groups disturbing peace and security,
they fuustconduct th~fu~elves;,in ~ccordance with the law and comply with the
requirements'ciF;ril!<;fi!,Ssity, proportionality and distinction.
ill'
,1l 1P'' 1!! :i 1' •
147. States henc(have a dU:ty in terms of Article 23 (1) both to allow and enable
communitiesi1to live peaceful and secure lives free from fear and the threat or
actual occurre~¼:,e1bf violence.
148. In this case, although the Respondent State justifies its actions as constituting valid
actions to destroy terrorist elements, evidence has been presented to show that
agents of the Respondent State were in fact also responsible for creating insecurity.
Even if it were the case, that the SLDF alone created such insecurity, the State still
had the responsibility to restore peace using means proportionate to the danger
posed by the SLDF and least disruptive to the lives of innocent civilians. The
361 Page
failure of the State to ensure that its security agents conducted their operations
along those lines constitutes a breach of its obligations as outlined in the foregoing
paragraphs.
149. The Commission previously stated that "unprovoked attacks on villages constitute
a denial of the right to live in peace and security" and that the State has an
obligation to protect citizens from such attacks. 52 Given the facts of this case, the
Commission finds that despite explanations by the. ~~~pondent State to the
contrary, several other entities such as the Kenya fiuma11 Rigll/5 Commission, the
UN High Commissioner for Human Rights a.rtd several i]1JGOs provided a
consistent narrative that shows the Respond~nt St~te:,~as ~Jj\qf!~ible both by
;'<,J:ii',,
i: ,:,. 'i' J,,,'.d""flq,,
commission and omission for the situatiqr,: 1ofii:'i$ec;urity t:imtpi-e\l'aillill:!in. Mount
Elgon. The probability of these narr11ti~~~!. backe~; by
and ~itnesses'
testimonies, being false is very low 11 The irt~!;l;latioJilithat the sillij}ii;i.Vailed did not
establish that the State took ,dli'¢!11care fo~ 1l~PJ?liring that itslj!~ecurity agents
conducted their operation )n corrii~~n~e wifililJl;\1~ principles of distinction,
and tfr~l!~qmmis~lo\!1
proportionality and nec11~ty
11 ,did not thus find the
,1,'<J,p;,
,;;,'1lJ!i:,,
-!!,;:,
explanations the State offeredlt!like co1wfucil1g!;,
,V
ViHtmif
·:l;,i
'lllll!!ll;'.''
''.filiW' '
Commission firiGl!JMJ~t the Ri;spondent State violated Article 23
,·i•",:
t\1f
150. Consequently,
(1) of the Charter!
,,
1iJi!J1,
1
::pl!!;;i
Violation of Arti~JeJ
1jjl;; ,
':H!lll!it,,,
, :;(
1
151. Artid~~lqf
t;he
Chartet
e~tijkl;i1>Ji\lll1!ihat:
,,, 1;1,l,'.1\, __
''ll'"'-,'"·l''
~, M~njl);';fi~t~tes of t\,1Jttb'rganization of African Unity parties to the
presiJpt c:narl'e~ijiWiWN,, recognize the rights, duties and freedoms
enshi-W;~ff"in this 1~pter and shall undertake to adopt legislative or
other m~asures to give effect to them.
has held in previous Communications that a violation of any
152. The Commissmfi
,.
provision of the Charter by a State Party automatically engages its responsibility
under Article 1.s3 This is because the Commission considers that if a State Party
s2 Malawi African Association and Others v. Mauritania, African Commission on Human and Peoples'
Rights, Comm. Nos. 54/91, 61/91, 98/93, 164/97 a 196/97 and 210/98 (2000) ACHPR para 140.
53 Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and
Evictions (COHRE) / Sudan (2010) ACHPR, para 227.
37 I Page
fails to respect, protect, promote or fulfil any of the rights guaranteed in the
Charter; this constitutes a violation of Article 1 of African Charter.
153. In the present Communication, the Commission has reached the conclusion that
the Respondent State's conduct is in violation of Articles 5, 6, 7 and 23 (1) of the
Charter. The Commission therefore finds, as a consequence, a violation of Article
1 of the Charter.
Decision of the Commission on the Merits
,,,;JW1i,
·,,;
154. Based on the above, the African Commission on HuiRlffimnd Pi;9ples' Rights:
i.
Finds ~at the Republic of Kenya has vip~~jflffJtrtl~t~~i(::\:~Jiij!IV, flfffniITp (1) of
the African Charter on Human and Pl?oples Rl!gbts; 1
1
,,,,,:' .,
ii.
1
'!ill
Requests the Republic of Keny:a'to:
'"
1
a) Immediately: establi.sh an 09Jective,' n11mrsparent and independent
investigations ml?Fhanism to
,tively;''l'tff:,/xtensively: investigate
treatment, arbitrary:
alleged violations of.torture, inhiim~i).l",;.
1 and degrading
.,
arrest and d>'
~l?t~r,tion
and, inse\:'urity
in Mo4I1t
Elgon;
.
·,
. -- •
'fl~~7
:
• , ,.
. , i,
·,
:;•
b) Take m~N~ures to remedy: lli.l1k1?,violations including through prosecution
of SLDFl 1and state security ag/mi:s responsible for violating the rights of
civilians ,Mt Elgon;
lll
'c) . Provide psychosocial care f~r the rehabilitation of all civilians affected by:
'· the violence and 8tli'er:h'is~~rical injustices in Mount Elgon; and
d) Compensate th~ Victims of Mount Elgon for the losses suffered due to the
destriiction of their homes and property consequent to the actions of the
Resp\:mdent State's security forces and the militias.
e) Report!fo the Commission within 180 days on the measures adopted to
implement the above recommendations; and also include in its next
periodic report measures taken to give the Victims the relief granted by
this Commission including compensation, prosecution and provision of
psycho-social care.
38 I Page
Done in Banjul, the Islamic Republic of the Gambia during the 19th Extra-Ordinary
Session of the African Commission on Human and Peoples' Rights held from 16-25
February 2016.
39 J Page