KEN 001 / 0705 / OBS 047.1
Arbitrary arrests and detentions / Releases on bail /
Judicial proceedings
New information:
The Observatory has been informed by the Kenyan Human Rights Commission (KHRC) about the arbitrary arrests of human rights defenders urging for constitutional review process.
According to the information received, on July 16, 2005, a group of government-friendly Members of Parliament (MPs) met in Kilifi, a Kenyan coastal town, and decided to make far-reaching changes to the Draft Constitution of Kenya (commonly known as the Bomas Draft Constitution), which was adopted by the National Constitutional Conference on March 15, 2004. These changes were planned to be presented before Parliament on July 19, 2005.
Following these events, on July 18, 2005, human rights NGOs, opposition political parties and other civil society members called a press conference to oppose this move and to announce the beginning of mass action to resist Parliament’s attempt to change the draft. Civil society organisations also drafted a petition, which was presented to the Speaker of the National Assembly as per the Standing Orders.
On July 19, 2005, protesters, including members of civil society, marched to Parliament to protest the move and to defend the supremacy of the Constitution and the rule of law. The police, the security forces of the General Service Unit and other armed forces had cordoned off Parliament and other roads around it to stop the protesters from reaching Parliament. They dispersed the demonstration by firing teargas and water cannons on citizens, and also arrested Messrs. Ojiayo Samson, Ole Kina, Fred Odhiambo, John Odada and Sheikh Ahamad, five members of the Yellow Movement of the Multi-Sectoral Forum (MSF), an organisation pressing for a people-driven Constitutional review process. The five men were taken to police custody at the Central Police Station, before being released on bail of 15,000 Kenyan Schillings (163 euros) each. They were reportedly charged with "taking part in an illegal demonstration".
On July 20, 2005, protesters again marched towards Parliament, which was beginning to debate on the Kilifi draft. However, they were prevented from approaching the Parliament building insofar as security was even tighter and the security officials more menacing and brutal. Eight people were arrested and at least two others were seriously injured, one of them being a renowned human rights activist, Mr. Otieno Ombok, Constitution and Land Coordinator at Chemchemi Ya Ukweli (Wellspring of Truth), an ecumenical and human rights NGO. One member of the public was killed, allegedly shot dead by the police.
On July 21, 2005, eight human rights NGOs activists, whose NGOs are belonging to MSF, were arrested in Nairobi as they were to address a public rally in town, and detained at the Industrial Area Police Station in Nairobi. They are: Mr. Cyprian Nyamwamu, Executive Director of the National Convention Executive Council (NCEC), a pro-reform coalition of political parties and NGOs, Mr. Kepta Ombati, national Coordinator of the NGO Youth Agenda and a member of NCEC, Mr. Paul Angwenyi, Mr. Evans Owiti, Mr. Kelly Musyoka, Mr. Koitamet Ole Kina, member of Bomas Katiba Watch (BKW), Mr. Elkanah Odemba, Convenor of BKW, and Mr. Sheikh Ahamad. They were released on bail on July 22, 2005 but charged with "causing disturbance and holding illegal demonstrations".
The Observatory is concerned about these arbitrary arrests and detentions of these defenders, and fears for their physical and psychological integrity as well as for the security of all human rights defenders in Kenya. The Observatory recalls article 12.2 of the Declaration on Human Rights Defenders adopted by the UN General Assembly on December 9, 1998, which states that "the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually or in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration".
Background information:
The Observatory recalls that Mr. Ojiayo Samson and Mr. Mithika Mwenda, also a member of MSF, were arrested and beaten up on June 18, 2005 while attending a procession in Maua on the occasion of the launch of MSF Maua Chapter. The procession was aimed at extending MSF to the regional parts of the country to allow Kenyans to decide their next steps and future in the constitution process.
Mr. Samson was held at the Njiru Police Station in solitary confinement while Mr. Mwenda was admitted in Maua Hospital, chained to his bed and on police guard.
On June 21, 2005, Mr. Ojiayo Samson and Mr. Mithika Mwenda were released on bail. Both men are facing charges for "offensive conduct conducive to a breach of the peace in a public place" (Section 94(1) of the Penal Code), "behaving in a disorderly conduct in a police building" (Section 60 of the Penal Code, which relates to the offence of administering unlawful oaths), and "refusing to permit finger prints to be taken" (Section 21(3) of the Police Act - Cap 84 Laws of Kenya). Their trial will begin on September 26, 2005.
The MSF Yellow Movement is a civil society-led initiative that provides leadership towards the completion of the Constitutional review process. It is a network of human rights civil society organisations which are pressing for a people-driven constitution review process of the whole society. It therefore regroups representatives from several categories, including NGOs, social movements, political parties, religious organisations, trade unions and other special interest groups.
Actions requested:
Please write to the Kenyan authorities and ask them to:
i. Guarantee, in all circumstances, the physical and psychological integrity of Mr. Ojiayo Samson, Mr. Ole Kina, Mr. Fred Odhiambo, Mr. John Odada, Mr. Sheikh Ahamad, Mr. Otieno Ombok, Mr. Cyprian Nyamwamu, Mr. Kepta Ombati, Mr. Paul Angwenyi, Mr. Evans Owiti, Mr. Kelly Musyoka, Mr. Elkanah Odemba, Mr. Koitanet Ole Kina and Mr. Mithika Mwenda, as well as of all human rights defenders in Kenya;
ii. Ensure the unconditional release of Mr. Ojiayo Samson, Mr. Ole Kina, Mr. Fred Odhiambo, Mr. John Odada, Mr. Sheikh Ahamad, Mr. Otieno Ombok, Mr. Cyprian Nyamwamu, Mr. Kepta Ombati, Mr. Paul Angwenyi, Mr. Evans Owiti, Mr. Kelly Musyoka, Mr. Elkanah Odemba, Mr. Koitanet Ole Kina and Mr. Mithika Mwenda, and that they be granted a fair and impartial trial so that the charges against them be dropped, as they aim at sanctioning their freedom of assembly and are as such arbitrary;
iii. Comply with the provisions of the UN Declaration on Human Rights Defenders, in particular its article 1, which states that "everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels", its article 6.a which states that "everyone has the right to know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems", and the above-mentioned article 12(2);
iv. More generally, conform with the provisions of the Universal Declaration on Human Rights, and with all other international human rights instruments binding Kenya.
Addresses:
H.E. Mr. Kiraitu Murungi, Minister of Justice and Constitutional Affairs, Harambee Avenue, P.O. Box 40112 / P.O.Box 30083, Nairobi, Kenya, Fax: + 254 231-5105
H.E. Mr. John Michuki, Minister of State in charge of internal security, Office of the President, P.O. Box 30510, Nairobi, Kenya, Fax : +254 233-7340
Mr. Amos Wako, General Attorney, State Law Office, Harambee Avenue, P.O. Box 40112, Nairobi, Kenya, Fax: +254 231-5105, +254 221-1082
Ambassador Amina C. Mohamed, Permanent Mission of Kenya to the United Nations in Geneva, Av. de la Paix 1-3, 1202 Genève, Switzerland, Fax: +41 22 731 29 05, E-mail: mission.kenya@ties.itu.int
Please also write to the embassies of Kenya in your respective country.
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Paris - Geneva, July 26, 2005
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
The Observatory, a FIDH and OMCT venture, is dedicated to the protection of Human Rights Defenders and aims to offer them concrete support in their time of need.
The Observatory was the winner of the 1998 Human Rights Prize of the French Republic.
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