Kenya: Rape, mob justice, police killings and the Draft

[Guest guest]

Rape, mob justice, police killings and the Draft

By L. MUTHONI WANYEKI

Posted Monday, July 12 2010 at 00:00

Amnesty International released a chilling report last week on crime and

insecurity in Nairobi's low-income areas.

It focused on what, once pointed out, clearly should have been obvious —women's

vulnerability to sexual violence when living in crowded conditions and sharing

communal bathing facilities and toilets.

Heartrending examples were given, one after the other, of women raped,

gang-raped and nearly raped simply when trying to stay clean or to relieve

themselves.

And equally heartrending examples were given of how they try to manage their

insecurity.

One mother, for instance, only bathes while her sons keep watch outside.

Others simply do not bother to leave their " houses " (if their living conditions

qualify as houses) when they need the toilet at night.

They urinate and defecate in plastic bags, which they throw out the following

morning.

Why do they have to manage on their own in this way?

They cannot afford even the Ksh5 (6 US cents) to use what toilets do exist as

part of the rehabilitation efforts in the low-income areas.

There are no police stations in a number of these areas.

And even where they do exist, many women neither expect security to be provided,

nor justice.

Most do not report assaults, fearing retaliation (for they tend to know their

assailants).

And those that do report have, for the most part, been let down — reporting

rarely leads to speedy arrests, charges or successful convictions.

The report is a terrible indictment of how normalised crime and insecurity have

become, and how ineffective our responses to them are. It should not be so.

In many places, it is not so. I spent the week before last in a northern seaside

town in Spain.

Above the beaches was a promenade, stretching along the entire bay and up into

the hills.

I ran on it every morning, early to avoid the heat, passing other runners,

swimmers, walkers, some with their dogs, even some older men fishing.

The runners all acknowledged each other.

It was entirely safe. And it was full in the evenings too, late into the long

summer nights — I saw many women alone, of all ages, strolling or going places

with intent, dressed for the occasion, all apparently utterly unconcerned about

their safety.

This is, actually, how it is meant to be. But this is only how it can be where

two conditions exist.

First, that the majority of (young) people (especially young men) have

livelihood possibilities.

And second, that states take seriously their raison d'être — to assure citizens

of the safety and security of their persons and property.

Regardless of their economic or other status.

States do so not just from an ethical, human-rights or moral perspective, but

from an eminently practical one.

They understand that if they fail in this respect, ultimately, citizens will

take the law into their own hands. As they have done, and continue to do in

Kenya.

Whether we are talking about individual acts of so-called mob justice, the

emergence of " mafias " that start as private protection rackets but mutate into

armed groups and militia such as the Mungiki or the collective arming efforts on

both sides of the divide created by the post-election violence.

Citizens taking the law into their own hands is one thing.

The phenomenon can be contained when the state recognises the threat and acts.

The phenomenon spirals out of control when state security agencies themselves

begin to take the law into their own hands.

Frustrated by their lack of equipment and resources, or by the failure of the

judiciary to act on what they do bring forward, they assume the right of

arbitration for themselves.

And extrajudicial executions start to mount. The combination of the two can

only, eventually, push states into civil war.

Let us not delude ourselves — the rise of armed groups and militias and the

criminalisation of state security agencies with an overall breakdown in law and

order are what have led to civil war in every African country that has undergone

it.

We have ongoing processes of police and judicial reform.

The reports from the two task forces are ready, with the one on police reform

being slowly implemented.

Conditions of work and remuneration of the Kenya Police Force are being improved

— the salary increases announced last week are something that no citizen would

have a problem with, unlike the proposal to increase the already outrageous

salaries of our parliamentarians.

A Bill to establish an accountability and oversight body for the Kenya Police

Force is also ready.

Most important, however, is what the draft Constitution proposes to strengthen

the criminal justice and human-rights system.

The Administration Police and the Kenya Police Force will come under one

command, enhancing accountability.

They will be prohibited from taking orders of a partisan or political nature,

from outside that command.

Their recruitment patterns will equitably reflect Kenya's ethnic diversity.

And, like all state organs, they will be compelled to act in line with the

Constitution and all the rights outlined therein.

So much for enforcement. On arbitration, the Chief Justice will be appointed by

the president, with parliamentary approval.

All other members of the bench will be appointed by an expanded Judicial Service

Commission (with citizen representation), subject to vetting and parliamentary

approval — all moves to enhance competence and increase independence.

The office of the Attorney General will be clearly separated from that of the

Public Prosecutor, with the powers of nolle prosequi removed from the discretion

of the Attorney General and subjected to the courts' determination — moves

intended to ensure that criminal prosecutions proceed not on a political basis,

but rather on the basis of the evidence at hand.

Importantly, standing before the courts has been expanded — not just

survivors/victims of criminality and human-rights violations will be able to

file Constitutional references or private prosecutions, but also those

representing classes of survivors/victims as well as those acting in the public

interest.

What this all should mean is that the possibilities for following the law in

addressing crime and insecurity will be enhanced.

We will no longer have the excuse that remedies do not exist in law.

And state security agencies will no longer have that excuse either — passing the

buck and the game of " catch " that our current Constitution allows between the

security agencies on the one hand, the Attorney General, the Director of Public

Prosecutions and the bench on the other will stop.

And the current losers of this game — ordinary citizens like the terrorised

women who spoke through the Amnesty International report — can only be the

winners.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

http://www.theeastafrican.co.ke/opOrEd/comment/Rape%20mob%20justice%20police%20k\

illings%20and%20the%20Draft/-/434750/955904/-/item/3/-/ud9np9/-/index.html

[Guest guest]

Rape, mob justice, police killings and the Draft

By L. MUTHONI WANYEKI

Posted Monday, July 12 2010 at 00:00

Amnesty International released a chilling report last week on crime and

insecurity in Nairobi's low-income areas.

It focused on what, once pointed out, clearly should have been obvious —women's

vulnerability to sexual violence when living in crowded conditions and sharing

communal bathing facilities and toilets.

Heartrending examples were given, one after the other, of women raped,

gang-raped and nearly raped simply when trying to stay clean or to relieve

themselves.

And equally heartrending examples were given of how they try to manage their

insecurity.

One mother, for instance, only bathes while her sons keep watch outside.

Others simply do not bother to leave their " houses " (if their living conditions

qualify as houses) when they need the toilet at night.

They urinate and defecate in plastic bags, which they throw out the following

morning.

Why do they have to manage on their own in this way?

They cannot afford even the Ksh5 (6 US cents) to use what toilets do exist as

part of the rehabilitation efforts in the low-income areas.

There are no police stations in a number of these areas.

And even where they do exist, many women neither expect security to be provided,

nor justice.

Most do not report assaults, fearing retaliation (for they tend to know their

assailants).

And those that do report have, for the most part, been let down — reporting

rarely leads to speedy arrests, charges or successful convictions.

The report is a terrible indictment of how normalised crime and insecurity have

become, and how ineffective our responses to them are. It should not be so.

In many places, it is not so. I spent the week before last in a northern seaside

town in Spain.

Above the beaches was a promenade, stretching along the entire bay and up into

the hills.

I ran on it every morning, early to avoid the heat, passing other runners,

swimmers, walkers, some with their dogs, even some older men fishing.

The runners all acknowledged each other.

It was entirely safe. And it was full in the evenings too, late into the long

summer nights — I saw many women alone, of all ages, strolling or going places

with intent, dressed for the occasion, all apparently utterly unconcerned about

their safety.

This is, actually, how it is meant to be. But this is only how it can be where

two conditions exist.

First, that the majority of (young) people (especially young men) have

livelihood possibilities.

And second, that states take seriously their raison d'être — to assure citizens

of the safety and security of their persons and property.

Regardless of their economic or other status.

States do so not just from an ethical, human-rights or moral perspective, but

from an eminently practical one.

They understand that if they fail in this respect, ultimately, citizens will

take the law into their own hands. As they have done, and continue to do in

Kenya.

Whether we are talking about individual acts of so-called mob justice, the

emergence of " mafias " that start as private protection rackets but mutate into

armed groups and militia such as the Mungiki or the collective arming efforts on

both sides of the divide created by the post-election violence.

Citizens taking the law into their own hands is one thing.

The phenomenon can be contained when the state recognises the threat and acts.

The phenomenon spirals out of control when state security agencies themselves

begin to take the law into their own hands.

Frustrated by their lack of equipment and resources, or by the failure of the

judiciary to act on what they do bring forward, they assume the right of

arbitration for themselves.

And extrajudicial executions start to mount. The combination of the two can

only, eventually, push states into civil war.

Let us not delude ourselves — the rise of armed groups and militias and the

criminalisation of state security agencies with an overall breakdown in law and

order are what have led to civil war in every African country that has undergone

it.

We have ongoing processes of police and judicial reform.

The reports from the two task forces are ready, with the one on police reform

being slowly implemented.

Conditions of work and remuneration of the Kenya Police Force are being improved

— the salary increases announced last week are something that no citizen would

have a problem with, unlike the proposal to increase the already outrageous

salaries of our parliamentarians.

A Bill to establish an accountability and oversight body for the Kenya Police

Force is also ready.

Most important, however, is what the draft Constitution proposes to strengthen

the criminal justice and human-rights system.

The Administration Police and the Kenya Police Force will come under one

command, enhancing accountability.

They will be prohibited from taking orders of a partisan or political nature,

from outside that command.

Their recruitment patterns will equitably reflect Kenya's ethnic diversity.

And, like all state organs, they will be compelled to act in line with the

Constitution and all the rights outlined therein.

So much for enforcement. On arbitration, the Chief Justice will be appointed by

the president, with parliamentary approval.

All other members of the bench will be appointed by an expanded Judicial Service

Commission (with citizen representation), subject to vetting and parliamentary

approval — all moves to enhance competence and increase independence.

The office of the Attorney General will be clearly separated from that of the

Public Prosecutor, with the powers of nolle prosequi removed from the discretion

of the Attorney General and subjected to the courts' determination — moves

intended to ensure that criminal prosecutions proceed not on a political basis,

but rather on the basis of the evidence at hand.

Importantly, standing before the courts has been expanded — not just

survivors/victims of criminality and human-rights violations will be able to

file Constitutional references or private prosecutions, but also those

representing classes of survivors/victims as well as those acting in the public

interest.

What this all should mean is that the possibilities for following the law in

addressing crime and insecurity will be enhanced.

We will no longer have the excuse that remedies do not exist in law.

And state security agencies will no longer have that excuse either — passing the

buck and the game of " catch " that our current Constitution allows between the

security agencies on the one hand, the Attorney General, the Director of Public

Prosecutions and the bench on the other will stop.

And the current losers of this game — ordinary citizens like the terrorised

women who spoke through the Amnesty International report — can only be the

winners.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

http://www.theeastafrican.co.ke/opOrEd/comment/Rape%20mob%20justice%20police%20k\

illings%20and%20the%20Draft/-/434750/955904/-/item/3/-/ud9np9/-/index.html