Justice for torture victims possible with the new laws
What you need to know:
- Local civil society groups have long pressed for anti-torture laws to be enacted in response to rampant killings and torture by police.
- The Prevention of Torture Act and the National Coroner’s Service Act provides harsh penalties of up to 15 years in prison for those implicated in torture.
- Under the new law, the coroner’s office would investigate all suspicious deaths not caused by police and forward findings directly to the Office of the Director of Public Prosecutions for action.
In the past month, Kenya’s parliament adopted two laws that could help address some of the most serious human rights concerns.
The Prevention of Torture Act and the National Coroner’s Service Act aim to improve accountability for security forces abuses, a long-standing concern in Kenya.
Local civil society groups have long pressed for these laws to be enacted in response to rampant killings and torture by police.
The Prevention of Torture Act, which President Uhuru Kenyatta signed into law on April 13, provides for reparations to victims of torture and cruel, inhuman or degrading treatment.
Families of victims who die from torture will also be entitled to compensation.
The new law provides harsh penalties of up to 15 years in prison for those implicated in torture, and further empowers the Kenya National Commission on Human Rights (KNCHR), a constitutional body funded by the Kenyan government, to receive and investigate cases of torture, and inhuman and degrading treatment.
Although Kenya has ratified the UN Convention Against Torture and the African Charter on Human and People’s Rights, both of which outlaw all forms of torture, the authorities have failed to effectively investigate and ensure justice for torture by state security agencies.
If Kenyan authorities enforce the new law, it will provide an effective remedy for these abuses, especially given that the law mandates the Kenya National Commission on Human Rights to monitor the government’s compliance.
The commission has in the past worked closely with other human rights groups and successfully challenged in court state laws and policies that contravene Kenya’s international obligations.
Under this act, the commission’s role has expanded to include advising the government and working closely with other government institutions to ensure that Kenya enforces laws against torture.
Yet the commission has faced challenges in the past. Some security forces – particularly the military – have at times failed to respect its authority and disregarded the commission’s summonses or requests for information on rights violations by officers.
There have also been reports of security officers threatening the commission staff.
In 2013, some of the commission’s staff told Human Rights Watch that military officers had threatened them while they were investigating the shooting to death of a Moyale human rights activist, Hassan Guyo, who was believed to have been executed.
Despite numerous appeals by local human rights groups, Kenyan authorities have neither investigated Guyo’s killing nor the threats against the Kenya National Commission on Human Rights staff.
Parliament also adopted the National Coroner’s Service Act in March, but Kenyatta has yet to sign it.
The bill would establish an office of the national coroner to investigate deaths in state custody as well as homicides.
The responsibility to investigate these deaths has in the past fallen on the Kenya police or, in the case of death in police custody, on the Independent Policing Oversight Authority (IPOA), a civilian police oversight institution.
Both institutions have found it difficult to fulfill these responsibilities.
Kenya’s police do not have a good record of adequately investigating homicides and their investigations have rarely led to successful prosecutions.
While IPOA has successfully investigated some killings by police since its founding in 2013, it has been overwhelmed by the sheer number and geographical scope of the cases requiring its attention.
Granted, a coroner’s office will not be the solution to all of these challenges.
While it would provide more capacity, there is still a need to strengthen the oversight authority’s ability to carry out its responsibilities.
Under the new law, the coroner’s office would investigate all suspicious deaths not caused by police and forward findings directly to the Office of the Director of Public Prosecutions for action.
But the law still requires the coroner to forward the file for a death in police custody to the Inspector-General of Police and the Independent Policing Oversight Authority, which means this new office will not necessarily help resolve IPOA’s workload problems.
Despite the challenges ahead, these two laws are milestones for victims of security force abuses in Kenya.
The fact that the coroner’s office would conduct independent investigations into suspicious deaths means that chances of justice for families of the victims will improve.
Unlike in the past, torture victims, or their families, can now seek compensation with the full and clear backing of the law.
But Kenya will first need to overcome the long-running enforcement failures if these new laws and offices are to make a difference.
Torture survivors have had difficulty getting justice even though numerous national laws – including the Independent Policing Oversight Authority Act, National Police Service Act, the National Intelligence Service Act and Kenya Defence Forces Act– expressly prohibit torture.
A significant difference is that these new laws create mechanisms for monitoring compliance, establish independent offices for investigating abuses and introduce sanctions for failure to comply.
The president should move swiftly and sign the coroner’s law, then all authorities need to enforce both laws so that Kenyans can finally see improved investigation of killings and people who have been tortured or their families can get justice.
Otsieno Namwaya is Africa researcher at Human Rights Watch.