Prof Philip Alston, a UN human rights official, on Thursday released his final report in which he accuses top police officials of running death squads and describes Kenyan courts as “slow and corrupt”.
Describing the state of Kenyan justice system is “terrible”, Prof Alston said: “Investigation, prosecution and judicial processes are slow and corrupt.”
There are no major departures from the conclusions that the human rights rapporteur presented after his tour in February and the report will now be debated by the UN Commission on Human Rights, before possibly being sent to the Security Council, the top organ of the United Nations. Kenya’s response will be incorporated in the report.
The report could seriously damage Kenya’s reputation with the government expected to launch a diplomatic offensive next week to limit the damage.
Foreign Affairs minister Moses Wetang’ula said Kenya will present its position to the UN Human Rights Commission in Geneva next week.
Describing the procedure that is followed in the face of UN Rapporteur reports, Mr Wetang’ula said the final report that will go to the Security Council must include a government response to Prof Alston’s findings.
“This is the first time that the preliminary report has come out. Kenya will go before the commission in Geneva to present its position and it is only after that presentation that a final report will be prepared,” he said.
The Kenyan delegation, which leaves on Monday, will include Cabinet ministers George Saitoti (Internal Security), Mutula Kilonzo (Justice) and Mr Wako.
The government will take an aggressive line in its defence, according to documents seen by the Nation. It will accuse Prof Alson of going beyond his mandate and conducting himself improperly. It also rejects his recommendation to sack officials, which it argues infringes on Kenya’s sovereignty.
“The Government expresses grave concern regarding the allegations contained in the report by the Special Rapporteur. His questioning of the very basis of the Kenyan state and in particular its institutions is totally unacceptable, and impinges on Kenya’s sovereign rights,” says the report prepared by the government.
It accuses Prof Alston of failing to understand the unique circumstances which the country has faced after the post-election violence.
“He failed to understand the country’s peculiarities, recent political problems and the challenges it faces in its healing and reconciliation process after the post election violence,” the report states.
But Prof Alston maintains his earlier recommendation that Police Commissioner Maj-Gen Hussein Ali be sacked and Attorney-General Amos Wako should resign and police reforms be undertaken.
Parts of the report are likely to be criticised for not demonstrating a strong enough sympathy for Kenyan realities. For example, one of the recommendations is that “the Mungiki should immediately cease their harassment, abuse and murder of Kenyans.” It was not clear how this recommendation would be implemented.
On the night of April 21, for instance, 28 people were hacked to death by members of the outlawed Mungiki sect, who raided Mathira Division. The violence started when wananchi ganged up to resist attempts by the Mungiki to expel all residents of Kirinyaga from Karatina.
Reports indicated that the Mungiki had been demanding a Sh500 monthly protection fee for brick houses, Sh200 for timber houses and a litre of milk daily from each dairy farmer.
They were also demanding Sh20 for every trip made by motorcycle taxi operators, Sh50 per day from matatu operators, Sh700 from restaurants and bars every month, Sh100 from retail traders, and a Sh100,000 one-off fee from wholesalers who wish to operate in the area.
The UN official, who spent 10 days in the country, reserves particularly sharp criticism for Maj-Gen Ali, whom he describes as “the single major obstacle to police reform”.
“There is abundant evidence linking him to a central role in devising and overseeing the policy of extrajudicially executing large numbers of “suspected criminals”, Prof Alston says of the police commissioner.
He accuses Maj-Gen Ali of having “utterly failed to devise any law enforcement strategy worthy of the name for dealing with Mungiki and other forms of criminality”.
Responding to the accusations, the police boss told the Nation that there was no truth in the accusations and that Prof Alston did not collect enough information about the police to arrive at a judgement about police plans.
“Does he know our strategy for dealing with Mungiki? He talks a lot about the police, but in the entire 10 days he was in Kenya, he only spent an hour with us. He was always in a hurry rushing off somewhere. It is not sufficient to write a report,” Maj-Gen Ali said.
“Anyone can make an accusation, it does not take a brain surgeon to come up with one. Where is the proof? Countries are run on the basis of the rule of law, not wild allegations,” he said of death squad accusations and added that Prof Alston “leans over backwards to make claims he can’t prove”. He also accused Prof Alston for being an “apologist” for the Mungiki and for “sanitising” the gang.
Lawyer and former MP Paul Muite, who has written to the International Criminal Court asking that it investigates and tries cases of illegal executions, claimed that the government was running out of time.
“The UN commission on human rights will debate the report next month, and should it adopt it, the government will suffer dire consequences,” Mr Muite said.
Prof Alston visited Kenya between February 16 and 26 and presented a preliminary report, prompting critics to accuse him of relying on reports done by others.
The criticism implied that Prof Alston had relied on a report prepared by the Kenya National Commission of Human Rights, a government agency.
After the Security Council receives the report of the human rights body, it can choose to take no action or ask Kenya to take action against those named. Alternatively, it can refer the case to the International Criminal Court.
In his report, Prof Alston noted that the government can choose to deny the existence of problems or to insist that they are under control, while the killings and impunity continue.
However, the government says it does not condone extrajudicial killings and there is no policy sanctioning them.
The government’s defence denies that police executions are widespread, opportunistic and reckless on grounds that they are not supported by any facts.
Killings during police operations, it states, were prevalent in areas where criminal gangs operate such as Mt Elgon, Rift Valley and Central provinces.
“It should be noted that such occurrences are rare in other parts of the country where there are no criminal activities by armed gangs,” it says.
The government report refutes findings that the police force lacks internal and external oversight organs and mentions the role of Parliament, the Police Oversight Board, and the Public Complaints Standing Committee (the Ombudsman) as bodies that oversee police operations.