Decisions on Communications

Year of Decision: 2016
Session: 19th Extra-ordinary Session
Related Country: Kenya
Outcome: Decidido quanto ao mérito
Summary: In Communication 385/10, the African Commission on Human and Peoples' Rights held that Kenya violated Articles 1, 5, 6, 7, and 23(1) of the African Charter following a military operation codenamed "Okoa Maisha" in the Mount Elgon District between 2006 and 2008. The complaint, brought by ICJ-Kenya on behalf of thousands of residents (primarily from the Sabaot, Teso, and Busuku communities), alleged that state security agents, alongside the Sabaot Land Defence Force (SLDF), committed summary executions, torture (including beatings, sexual violence, submerging victims in sewage, hanging them from helicopters, forcing them to crawl on razor wire and swallow sand), arbitrary arrests and detentions without charge, and destruction of homes and property. The Commission declared the communication admissible, finding that the violations were serious and massive in scale (over 3,000 directly targeted, tens of thousands displaced), making exhaustion of local remedies impracticable, and that Kenya had not shown effective or sufficient remedies. On the merits, the Commission found Kenya responsible for torture and cruel, inhuman, and degrading treatment (Article 5); arbitrary arrests and detention (Article 6); denial of the right to have one’s cause heard due to failure to investigate and prosecute perpetrators (Article 7); and violation of the right to peace and security (Article 23(1)). Kenya was ordered to establish an independent investigation mechanism, prosecute state agents and SLDF members responsible, provide psychosocial care for affected civilians, compensate victims for property losses, and report on implementation within 180 days.

Decisões sobre Comunicações

Communication 385-10 Kenya section of ICJ v Kenya

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AFRICAN UNION UNION AFRICAINE ~J""' .}6...,~\ Afn·can Commission on Human & Peoples' Rights <~_;) 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 ~ ~. ~4~-:~-:::-. t:~~~:\\ ··················································'-1\ Hon. Cornrnissiona- Faith Pansy Tlalmla Cbairpcnon ofthe Aftican Commission. on H1J1D1D and Peoples' Rights IA \~~I •••••••••••••• T.f."~.,.............. ~•~~~;t;,->' 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 1', ';;, ". > (Complainant) on behalf of, and for the benefit .Pf' Keiif@s, especially those •··· ,,.,., resident in the Mount Elgon District of Kenya. 1 !) ,, 2. The Complainant alleges that between 2oq~:aricJ.~ggs, Stli.te.1;,ecu'ffty Ag1Wts'of the :;;:Ji,_ ,,, 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. ,J,c :· ,,,,,,,,_ -,,,,L,_ ; .:'''l!llll11li." .. ;;: Hilliii. . 3. ,,,,, , .. , , , . ';lii!Ji' 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. /1 :i 4. qi;;tl::,, The Complai11ant all~~!f/l,/;hat, the Respondent State deployed joint-security forces d'. djljli 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. I;_ j,j. 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 I I Page

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 -'' •,. 1-,1,, s;, ,:; ,> ,"l., 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 ;} 'H'.\' .. ;)' , _;,,,, both by the forces of the Responde~t Stau!'and the ~LDF. In relli!!ffln' to violations :llL :, ,,!: 'Jlil' that allegedly occurred on 15 anflltL'(llljlfcember '7?{[, some of the 1¥'ictims allegedly lost cash, livestock and housi,hold gotitf;~ ''lliih, 1 1 1 '" ,/ll!ii:,. 7. _,,.·!'.;11 1 . ·,qll!Ji:t';· 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 1i' pros1et:ution of any6tl!i} 1lllll!lji'i: j1iljHJfllP1 - -" "jli:111llll!i !) : ; '' "'' ! ; ·;;ii::;,:;; :l ;;l;' - Articles alle~,d to Jiavi, been violated: "' 11 • IL.,;;' 8. ''" i'.Hu;" ;;;;,' 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. ;;:;, 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 , ... -. '.__ "> •. ; .. ,_ ,L:. '. " . ., 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.''!'( H, •• . •· nl rn!_ 13. -:,_ :)!;;:· - 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 '' ' ? ,:!ITTij,,nth. ··• •• • • ' ;11h_ -lqhli!!lllll1:1i 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. ii 1 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 3 I Page

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 'PL q declare it admissible. The Parties were informed of the •decisioi)" on 26 March 2014. :JHlli!Hli ;t1l!tq;r 1", .. ,. ' 1HlliJJi:;,:11,. 1 • 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:' <;,;,, .;i" 20. 'lilif!, • ·;: -_ '1!lilll1i The Complainant submitt;<;!f:liR!l the Merits12tthe CompiUll.ication on 17 June 2014. ,"",e;/;1_ ':i', 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!:. ,:1·•,c;n;_ 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 '1i}j);; 1 . "H]!ill;> _ _;!!j' 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 'i .,H' Ti::· 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 1 1 where a Complaint is in the supreme interest of tht11~ ~ ~pml!~f!a state, there is no ,; ;J \ ,l ,H; requirement that the consent of the Victim be sough'tll?!lfore a ~pmplaint is filed. '\' "}"' 1 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. "" ,:C" ;;;c;J ,:flJlliliL ';jl!j;, The Complainant argues further in rel!il:J,<;m to Arfiijlt 56(4) of the African Charter d 1"'"· '·'!" 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; !• 1 such as the Kep.yan National Co.ssion on !Human Rights and the United Nations (UN) SJj*dal Rapporteur on ~~-;Jffdicial Killings. 1 26. ' 27. \Ilk , ; 'll';;. ;i , \ 1 :I/' 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 l any Wrongsj;" i) ·11; 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, 5 I Page

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 ,( ,, " 11111 h 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 1' • •!lliil r,;111 1 •• r 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 1jjjj', ·,,<. State. •1 nl1L i1!Hl 'q ,il!J, '!l!IJ' The Complainant argues fur~ that,with'sp~i:;ific reference to torture, enforced ;, "1i'.'·. ·., ·1·nL ., 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 1 "' 1 ' llWl' national law. .,:milllt 31. 32. ,):1:i:11, 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. 'lk .. JliJH !!11' 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 :; 1,1, ';jjiL. dlllnil1; 35. J i, llllhLiill ll!lilll!11qh . , 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. '!HIik ,,I 36. ' 11 1n:1111:,, <nnn:; 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 ,,,.,:_ -T ( ,, '. attached to confirw;thatthe C:~p!Ainant hasnaµthority to act on behalf of the alleged Victims. I i" • ': iiJJ:,, • llll , ' 1 lllj_-· !t' 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 ;;< 1ll1j1 human rights. The Respondent State adds ithati;as stat~8. in its national r:.' :. l", jurisprudence, the right of access to the Kenyan _HigWl~ilµ,r! ~Ye1:1mi;isive and the 1 Complainant could have approached the ~gn'<:<:i~r:tfo/t~~t~rs oll. t11mm~ts'. '.u;;:, '!hm •il l11 0 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. ;:._ ·,,. '", 41. 42. 1!( , ··mlL. The Responden~~tate submits further'~~td1part from judicial remedies, a number of quasi-judicial'~~!Iledies are available «jll:hin the Kenyan legal system which the Ji,\•, ·, !· 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 'lli 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. .ii. .r11lw . i'' ',""' ''lijill!L •... • '"'Ii' _,;pl1 !' ..... . ·:·,_,; 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 ;;;: ,jj""'; 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 ']1:i/-_-,, '"'!llli". _ ::\J' that tHfl Qqffl,munication'hil~ltn?~isatisfied some of the requirements in Article 56 of the African Ch~ter and should be declared inadmissible. ,j ,/ ,·,, 'Ji; 1dji' .:,:qHHl!P;' Complainant's C::~inments ott'Respondent State's Submissions 45. 11]; 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 .. ,,:, .. IP ,., :•,.. -;nll!!11:, / - .. -:::;,,, 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

Created 15 de abr. de 2026 · Edited 11 de ago. de 2026

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Communication 385-10 Kenya section of ICJ v Kenya

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