Civil Society Condemns Immunity for Sitting African Leaders Accused of Serious Crimes

 African Union Commission Chairperson Nkosazana Dlamini-Zuma

Legal Link International,Nairobi beaural — Mary Wacu lived in the Rift Valley region for 10 years prior to the 2007/08 post-election violence that rocked Kenya after a disputed general election.

"My husband was shot with a poisoned arrow, and my children hacked to death. Everything was burnt to ashes, I barely escaped with my life," she tells IPS.

According to human rights organisations, the violence in this East African nation left an estimated 1,500 people dead and resulted in the rape of 3,000 women and the displacement of 300,000 people.

From her shanty in the sprawling Kibera slums, in Nairobi, Kenya's capital, Wacu follows the proceedings of the cases for crimes against humanity levelled against President Uhuru Kenyatta, his deputy William Ruto and journalist Joshua Sang at the International Criminal Court (ICC) in the Netherlands.

But here in Kenya, like many who bore the brunt of the unprecedented violence, justice remains beyond Wacu's reach. It is a scenario that is all too familiar in Africa's conflict-prone countries like Sudan and the Democratic Republic of Congo.

Against this backdrop, civil society organisations (CSOs) in Africa as well as international ones working on the continent, have opposed the recently-adopted Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights by the African Union (AU) member heads of states in June.

The protocol extends criminal jurisdiction to the African Court, and offers immunity to serving heads of states and all senior government officials during their term of office for serious crimes. The African Court was established by African countries to ensure protection of human and peoples' rights on the continent.

A source from Malawi attending the just-concluded meeting to promote ratification of AU treaties, which was held in Nairobi by the AU Office of the Legal Counsel on the 25 and 26 of August, explains to IPS that the amendments include an immunity provision for heads of states or governments and certain senior state officials for serious crimes against humanity.

The contentious article 46A categorically states that no charges shall be commenced or continued against any serving AU head of state or government, or anybody acting or entitled to act in such capacity.

"Lifting immunity for sitting officials for serious crimes committed is an assurance to African leaders that they are above the law," the source says.

AU officials at the meeting, however, refused to comment to IPS on the protocol.
Malawi has taken the lead in mobilising other CSOs across Africa to tell their governments that the immunity provision is a blatant disrespect for human rights.

The source says that with a number of African leaders already under the radar of the ICC, "an immunity provision is offering African leaders the licence to abuse their people. It will further entrench dictatorship since many leaders will be afraid of being indicted when their term ends."

The civil society community says that the African Court was moving in the right direction, until now.

Edigah Kavulavu, of the Kenyan Section of the International Commission of Jurists, tells IPS that the adopted protocol is the first legal instrument to extend a regional court's authority to criminal jurisdiction "regional courts often deal with human rights issues, which are matters of a civil nature."

He says that the African Court can now try cases of a criminal nature, including genocide, war crimes, and crimes against humanity.

He points out that the main bone of contention with the protocol is the immunity provision. Article 46A, Kavulavu says, is in breach of the principles that govern human rights.

"Through ICC and other regional courts such as the Special Court for Sierra Leone, these courts complement each other so that they can bridge the impunity gap," he explains.

James Gondi of the Kenyans For Peace With Truth and Justice, a coalition of over 30 Kenyan and East African legal, human rights, and governance organisations, tells IPS that international criminal law and international justice demand that "those bearing greatest responsibility are often head of states, heads of military and high level elites who plan, finance and coordinate criminal acts [be held to account]. The amendment is meant to serve the interests of these three categories of people."

The human rights lawyer further says that immunity negates the principles of transparency and accountability, respect for the rule of law and for humanity.

He says that the immunity provision is a display that African leaders are immune to the criminal justice system.

Gondi says that the objective of the criminal justice of which the African Court now has mandate is and should be to "deter future atrocities and to end impunity."

The lawyer says that the regime of law has developed such that immunity for heads of state is lifted in many national and international laws where crimes committed are so heinous that the law cannot turn a blind eye.

African countries with national laws that rule out immunity for sitting officials for serious crimes include Benin, Kenya, Burkina Faso the Democratic Republic of Congo and South Africa.

Gondi says that while the general principle of the law is that "we cannot give immunity for crimes against humanity because they are so grave. The law is an issue of politics and politics are defined by impunity and political will."

Moving forward, Gondi says that there must be a concerted international and regional effort to end impunity and the political will to drive these efforts, "citizens must also demand for accountability from their leaders."

The Malawi source urged CSOs to lobby, protest and campaign to have their governments reject the adoption and continue with sustained campaigns.

Homeless Children Face Violence, Exploitation in UGANDA

 

Legal Link Iternational Beural-Nairobi. Uganda is failing to protect homeless children against police abuse and other violence, Human Rights Watch said in a report released on 17th July 2014. Street children throughout Uganda’s urban centers face violence, and physical and sexual abuse. National and local government officials should put an end to organized roundups of street children, hold police and others accountable for beatings, and provide improved access for these children to education and healthcare.

The 71-page report,"Where Do You Want Us to Go?" Abuses against street Children in Uganda documents human rights violations against street children by police and local government officials, as well as abuses by members of the community and older homeless children and adults. Police and other officials, including those from the Kampala Capital City Authority (KCCA), have beaten, extorted money from, and arbitrarily detained street children after targeted roundups. In police cells children have faced further beatings and forced labor, including cleaning the cells and police living quarters. On the streets, homeless adults and older children harass, threaten, beat, sexually abuse, force drugs upon, and exploit street children, often with impunity.

“Ugandan authorities should be protecting and helping homeless children, not beating them up or throwing them in police jails with adults,” said Maria Burnett, senior Africa researcher. “The government should end arbitrary roundups of street children and protect them from abuse.”

Over half of all Ugandans are under 15, and children are the single largest demographic group living in poverty. According to independent groups, local government officials, and police officers from the Child and Family Protection Unit (CFPU), the number of Ugandan children living on the streets is increasing, though the total number is not known.

Human Rights Watch interviewed over 130 current and former street children from December 2013 to February 2014 in seven town centers throughout Uganda. Human Rights Watch also interviewed 49 members of organizations providing assistance to street children, health care workers, international humanitarian and children’s organizations, police, and local government officials.

Human Rights Watch documented how police and officials threaten street children at night, and beat them with batons, whips, or wires to extort bribes or as a punishment for vagrancy. Some children hand over whatever small sums they have to avoid further abuse or detention. Scores of street children told Human Rights Watch that they fear the authorities and that police are a source of violence, not protection.

Children have sometimes been detained in police stations with adults and mistreated by cellmates. Many were released back to the streets after several days, or in some cases weeks, often only after paying a bribe or being forced to do work for the police. Other children have been transferred to one of the country’s national remand homes for juveniles accused or convicted of crimes or to the Kampiringisa National Rehabilitation Center, a juvenile detention center, even though they did not face any charges. Kampiringisa, outside Kampala, has been criticized by local nongovernmental organizations and parliament for inadequate staffing and deplorable detention conditions.

A 16-year-old boy from Jinja district who has lived on the streets of various towns for seven years told Human Rights Watch, “These police have to give us our rights. They should make us a home where we can be taken, but let it not be a police station, let it not have policemen so that it is not a prison. This is our country too. Let us not be strangers in our own country.”

Homeless children also are at risk of beatings and forced drug use from older homeless children or adults. Both boys and girls living on the street reported being raped or sexually assaulted by men and older street boys. In some instances, community members also harass, threaten, beat, and exploit street children. When a suspected or actual theft occurs, communities have converged on street children, occasionally carrying out mob violence.

Organizations working with street children told Human Rights Watch that police do little to investigate crimes against street children. Street children told Human Rights Watch that they rarely reported crimes by their peers or adults to the police for fear of reprisals, or that the police would beat or arrest them instead.

Because street children are often the first suspects for a crime, such as theft, police frequently arrest the children and detain them, often without charge. The Ministry of Gender, Labour and Social Development and local government officials periodically order general roundups of street children throughout the country. These roundups usually occur ahead of special events, official visits, or international conferences, or are a way for the ministry to be seen to be doing something about the perceived “problem” of street children. The head of the CFPU, a police unit tasked to address child abuse and neglect, told Human Rights Watch that, in Kampala, police are asked to provide security during roundup operations.

To find food to survive, children reported working as vendors, porters, domestic help, or laborers in homes, small restaurants, and other businesses. They were paid little for long hours of physically demanding and difficult work. Some children were victims of commercial sexual exploitation, reliant on sex work to survive.

“Instead of being able to turn to the police or local government officials for help when they’ve been abused, children find themselves living in fear of the authorities meant to protect them,” Burnett said.

The Ministry of Gender, Labour and Social Development is charged with protecting children and has created multiple programs and policies intended to protect the rights of vulnerable children. Uganda has also signed a number of regional and international child protection conventions and has put in place a legal framework designed to protect children’s rights, including those of street children. However, key state child protection agencies are failing to respond adequately or effectively to the needs of these children or to stop the abuses at the hands of the police and local authorities.

One staff member from an organization that helps street children told Human Rights Watch: “Government structures should not just be there in name. They should function. In Kampala, apart from beating them up, the government is doing nothing [for street children]. If all systems were working, you would not see these children suffering.”

The government of Uganda should end roundups and abuses against street children and investigate violence directed at homeless children. Rather than vilifying street children, the government should investigate and prosecute those responsible for abuse, including police and officials. The Uganda Police Force leadership should increase the number of officers working in the Child and Family Protection Unit to ensure there is ample staffing and resources to improve protection of vulnerable and homeless children in all districts. The government should ensure that street children have the same rights and protections under domestic, regional, and international standards as all other Ugandan children.

International partners should actively denounce roundups and police abuse of street children and coordinate with government and nongovernmental groups to carry out child protection systems. Donors should consider supporting organizations and activities throughout the country that help street children.

 “For children to be effectively protected and cared for, the government should ensure that all children, including those on the streets, can find shelter and get an education,” Burnett said. “They should be treated with dignity and have the opportunity to find a safe way off the streets.”

Selected quotes from the report:

“There is a tradition – kwercho – that the police use as a way of punishment in threes: the first beating is to open your eyes; the second is to show you the way home; the third is to send you home. They say this to you [as they beat you]…. They kept us in rooms where we were caned … from the back to the buttocks. On the third day they opened the gate and we were caned as we left.”
—15-year-old boy living 10 years on the streets of Lira, December 2013

“Government should look for a better solution for street children instead of beating and arresting us. The more you beat us the more we get hardened with life and it does not solve the problem. They want us to go back home but some of us do not even have homes. Others do not know where our parents are. So when they beat us to go home, where do you want us to go?”
—15-year-old boy who lived four years on the streets in Masaka, December 2013

“[The policemen] take money from us. If you do not have money they beat you so much…. Last week on Saturday, police came in the night and beat me when I was sleeping with three other children. The policeman beat me on the thighs with a rubber whip. He then hit my knees with a baton. He beat me until I gave him 1,000 shillings (US$0.40) and left me.”
—13-year-old boy living two years on the streets in Lira, December 2013

“We don’t report these things to police. I don’t think that they would listen to us. They will ask us ‘Are you not an adult? If they raped you so what?’”
—14-year-old girl, Masaka, December 2013

Contributed by Human Rights Watch.

POWER AND PROFILING TORTURING KENYA'S SOMALIS

Analysis

The ongoing Kenyan government security sweep against Somalis has generated reactions both serious and comical. In May, the visiting Chinese Prime Minister, Le Keqiang, vowed to help Kenya in its efforts to repatriate illegal Somalis back to their country.

Beijing's offer was an attempt to curry favor with the Kenyan government, with which it then signed a trade agreement worth several billion dollars. The premier reiterated what his hosts wanted to hear: illegal Somalis and those suspected of having ties with Al-Shabaab must be deported from Kenya.

Even more absurd was the statement by Somalia's State Minister for Foreign Affairs, Buri Hamza, in its dangling of the khat card (a mild stimulant plant known in Kenya as miraa).

In an interview with one of Kenya's papers on June 1st, Hamza alluded to the possibility of a trade war between Mogadishu and Nairobi. "If we stop importing miraa," the minister stated, "so much the better." Many in Somalia are addicted to khat, and it would be a herculean task - not to mention political suicide for the Mogadishu regime - to ban its importation from Kenya.

On a more serious note, the security sweep exposed fissures in Kenyan society and added controversy to the ongoing debate about the role and position of Kenyan Somalis in the country.

The Somali factor in Kenyan politics is paradoxical. On the one hand, Somali Kenyans have been gaining increasing power in politics and business, but they have also become victims of periodic profiling and mistrust.

In the 1960s, Kenya's first president, Jomo Kenyatta, became increasingly frustrated with the persistence of the Shifta fighters in the predominantly Somali-inhabited region of the Northern Frontier District - now the North Eastern Province - who were agitating to secede from Kenya and join their brethren in Somalia.

Kenyatta saw no difference between the Shifta and ordinary Kenyan Somalis - he was known to repeat the aphorism: "mtoto wa nyoka ni nyoka" (a child of a snake is still a snake). Kenyatta came up with his own solution to the problem when he told them plainly: "Pack up and go, but leave us the land." The Somalis understandably shunned this directive and stayed.

Five decades later, Kenyatta's son, President Uhuru Kenyatta, has cast a dragnet aimed at Somalis which directly and indirectly affects not only the country's large contingency of refugees and immigrants but also Kenyan Somalis.

Kenyan Somalis inhabit a vast north eastern territory which is one of the poorest and least-developed regions in Kenya and are also concentrated in the Eastleigh district of Nairobi.

The Somali Kenyan population has grown from several hundred thousand in the 1960s to approximately 2.3 million now, but still represents a minority among the country's 43 million people.

In 1989, two years before the onslaught of Somali refugees in Kenya, the Kenyan government singled out Somali Kenyans to carry a pink ID card in addition to the identity document issued to all Kenyan citizens.

This pink card, which highlighted the government's discriminatory stance toward Somalis, was declared unconstitutional in 2003, but, even so, Somalis still remain the target of harassment and extortion. In Eastleigh, police officers, whether assigned there or not, routinely make money by stopping and harassing Somalis, legal or illegal. Somalis in Nairobi call themselves "Human ATMs."

The label gained credibility when a large number of Somalis, briefly detained in the security sweep, secured their release by bribing police officers. Oddly, some elected Somali officials in the Kenyan parliament were themselves stopped and briefly detained, even though they had shown the police their Kenyan and parliamentary IDs.

Ali Abdi Bule, a Tana River senator, was stopped and detained for half an hour because police officers said his papers were false. The police then released him. In another incident, Senator Billow Kerrow's house was searched in clear contravention of his parliamentary immunity.

On the flip-side, Somali Kenyans are experiencing a golden age in terms of their high representation in the corridors of political power. They have solid representation in Uhuru's Jubilee Coalition Government, with three cabinet portfolios - foreign affairs, industrialization, sports/culture and arts--which are headed by Somalis.

A Somali is serving as the chairman of the Independent Electoral and Boundaries Commission (IEBC) and two are sitting judges in the country's highest courts: One in the Supreme Court and the other in the Appeals Court. President Uhuru's legal advisor is also Somali.

In the past, ethnic Somalis have held important positions, including Minister of Defense, Chief of Staff of the Armed Forces, National Chief of Police and Head of the Election Commission.

The number of Somali parliamentarians on the legislative branch has increased from 13 a year ago to 32 today. Aden Bare Duale, a politician known for his bombastic rhetoric, holds the post of the National Assembly majority leader. He told a Somali audience in Eastleigh in April that elected Somali officials were, for all practical purposes, in control of the government. "We know how to unlock this government," he boasted.

In business, Eastleigh has become a residential haven and a booming business hub for Somalis. The district is the umbilical cord and the economic center of the Somali community and Duale asserts that Somalis manage most of the real estate developments in the country and 80 percent of the fuel trade; they own 80% of all of Kenya's imported goods, and one of every five cars. Many Somalis from the diaspora have also invested heavily in Kenya, particularly in real estate.

Is the increasing prominence of Somalis in politics and business the reason law enforcement is profiling and targeting them? Somali politicians and opposition figures have argued that the security campaign is an attempt to disenfranchise Somalis as a group.

The Secretary General of the Orange Democratic Movement (ODM) opposition party, Peter Anyang' Nyong'o, suggested that the security crackdown was a case of ethnic profiling with the goal of wining back the trust of the West and flushing successful Somali businesses out of the country.
Somali Senator Billow Kerrow also questioned the real motive behind the government's campaign. Somalis, stated Kerrow, are known globally for their business acumen, and the current security dragnet is "an economic war and not a fight against terror."

After almost three months of the campaign, the government has yet to arrest any suspected terrorist or dismantle a cell. In addition, Uhuru's government has been dragging its feet to appoint an independent commission to investigate the Westgate Mall terrorist bombing.

While human rights organizations have condemned the campaign, the dragnet has also shown the political divide among Somali leaders in Kenya and their ambivalent approach to security issues bedeviling the country. While all these leaders condemn terrorists, some have issued statements that further aggravated the situation and made some Kenyans question how committed Somali leaders are in the fight against terrorism.

In a televised speech, Duale told an audience in Eastleigh that those responsible for the bombings in that district should bomb elsewhere. Then, he oddly mentioned Machakos, a town and major urban center 64 kilometers southeast of Nairobi, as an alternative target. "Had the bombers targeted Machakos," Duale added, "Eastleigh would not have been harassed." Duale later denied making the statement.

The former deputy speaker of the Kenyan Parliament, Farah Moalim, has alleged in the media that the government, not Al-Shabaab, is behind the bombings in Kenya. Moalim subscribes to the conspiracy theory that the United States Government actually finances Al-Shabaab.

But not all Somali politicians in Kenya have spoken against the security sweep. For instance, the Somali cabinet ministers in the government and the former Minister of Defense, Senator Yusuf Haji, have yet to issue a statement about the crackdown.

Somali Kenyans exist in a precarious position. As a group they are prominently represented in politics and business, but they have also become a football, frequently kicked by the country's president, his deputy, and the security establishment. Some Kenyans still view Somalis as aliens who are business rivals and a security liability.

The dragnet is creating a climate of fear in the Somali community but we do not know yet whether this is a long-term trend or a consequence of the enduring success of Al Shabaab in Somalia and increasingly Kenya.