On April 13, President Uhuru Kenyatta assented to the Prevention of Torture Act. This is the culmination of five years of advocacy by civil society for an anti-torture law.
It buttresses Article 29(d) of the Constitution, which guarantees freedom from torture and cruel, inhuman or degrading treatment or punishment.
This right cannot be derogated under any circumstances – even in times of war.
This means that Kenya has finally fulfilled Article 2(1) of the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment that requires state parties to take effective legislative, administrative, judicial or other measures to prevent torture.
The Act establishes legal and institutional frameworks to support victims of torture. It empowers victims to claim redress for all forms of inhumane treatment at the hands of the police and other state agents, particularly at a time when Amnesty International had reported 122 cases of extrajudicial killings in Kenya by last October.
It also creates a Victims’ Trust Fund for compensation to enable families to rebuild and provide redress for the violations suffered. The Act also caters for victim and witness protection and support during criminal proceedings.
However, what exactly is torture? The Constitution of Kenya neither defines torture nor does it provide a framework for the reparation of victims of torture.
Torture is legally understood to mean any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession, punishment, or intimidation or coercion, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering incidental to lawful sanctions.
Torture is intentional infliction of severe mental or physical suffering; a public official is directly or indirectly involved; and, done for a specific purpose.
Because of a history that includes the Wagalla Massacre, Mwakenya crackdowns, Nyayo and Nyati House ordeals that saw human rights defenders, opposition leaders and even university lecturers suffer, new laws that regulate the police; intelligence services; and the army all have provisions that criminalise torture.
These laws include the National Police Service Act, the Kenya Defence Forces Act and the National Intelligence Services Act.
The TJRC found that police and the military have been at the centre of violations of human rights. Both either carried out the violations, or have failed to protect citizens.
Political activists, suspects, complainants, lawyers, human rights defenders, whistle blowers and journalists have been victims of torture.
HUMAN RIGHTS ABUSES
On March 26, a journalist, Mr Isaiah Gwengi, was tortured by Administration Police officers in Usenge Township in Siaya County in retaliation for his investigative articles of human rights abuses.
The post-mortem reports of lawyer Willie Kimani, his client, Josphat Mwenda, and their driver, Joseph Muiruri, revealed that they underwent severe torture by APs before being killed.
The government must now ensure proper implementation.
The Kenya National Commission on Human Rights must be adequately funded to play its oversight role as far as awareness, monitoring and investigations as far as freedom from torture is concerned.
Before the Act was passed, the constitutional and human rights division of the High Court was instrumental in redressing wrongs even without clear statutory parameters.
Former MPs Mwandawiro Mgangha and Koigi Wamwere and lawyer Gitau Mwara sued the State and were awarded compensation. The law will act as deterrent to state actors.
Mr Kiprono is a senior legal officer, ARTICLE 19 Eastern Africa.email@example.com Twitter @kipdemas Website: www.demasvox.com