NHRIs and the Challenges of Independence in a Kenyan Context

Abstract: The concept of National Human Rights Institutions (NHRIs) with a mandate to protect and promote human rights have been addressed by the UN for more than half a century, and such institutions have been established in several countries around the world for the last two decades. The establishment of a national human rights institution is however not equal to the commitment of human rights, and in some countries it has been used as a mean to deflect international criticism of human rights abuses. One example of that was the Standing Committee on Human Rights in Kenya established in 1996. The Committee was however replaced in 2003 by Kenya National Commission on Human Rights (KNCHR), which in contrast to the Standing Committee, was established in accordance with the guiding Paris Principles of NHRIs. The Paris Principles are recognized as a set of normative minimum standards and are used as guidance in the establishment and operation of NHRIs. NHRIs can play a crucial role if they are effective, especially in a country such as Kenya, with a long history of violations of human rights and where impunity for such has prevailed. Kenya has ratified many of the core human rights treaties but this does not reflect the state of human rights in the country. There is still a big gap between human rights in theory and practice. One way to understand the challenges related to the implementation of human rights in Kenya is to understand the challenges of a national body vested with the mandate to enhance the promotion and protection of human rights in the country. This thesis examines the challenges of independence for KNCHR. It assesses how national law corresponds to international recommendations and furthermore, how the independence granted in law corresponds to the independence of the KNCHR in practice. It also examines how NHRIs effectively can exercise both the watchdog role and the advisory role. Despite a legal foundation providing KNCHR with a broad mandate, relevant functions and far reaching powers, to a large extent in accordance with the Paris Principles, the independence of KNCHR is under constant threat. The study shows that there are several factors, such as legal proceedings against the Commission; political influence of the appointment procedures; perceptions of a divided commission; attempts by politicians to undermine its credibility; and attempts by politicians to direct the work of the Commission, that risk to curtail the independence of the Commission. Recently the Commission was entrenched in the Constitution, that is a step in the right direction and will presumably enhance its authority, but the entrenchment in the Constitution will not solve all the legal challenges and it will not change the political culture in the country. In comparison with the KNCHR Act, the new Constitution is not as detailed with regards to the mandate, functions and powers of the Commission as well as regarding appointment procedures and qualifications of commissioners. Hence, additional legislation and amendments of current laws are needed to ensure coherence with the Paris Principles and other recommendations. New legislation and amendments of current laws are also required in order to overcome the challenges related to independence and to provide the Commission with adequate functions and powers, to ensure that the effective functioning of the Commission is not hampered. Furthermore, it remains to see if the legal improvements in the Constitution will have the desired affects in practice. To overcome the constant threats to the independence of the Commission, these threats need to be acknowledged and addressed. In many aspects the Commission reflects the Kenyan society. Pluralism and diversity in the society as well as in the composition of the Commission shall be used as an asset and not as a ground for divisions. It requires that commissioners and staff let human rights be the leading force, and partisan interests such as negative ethnicity should be left behind. In this regard the Commission should set a good example. A strong leadership is hence important, that can bring together the Commission and make it work as a team towards the same goal, and to avoid polarization and internal conflicts. If people perceive the Commission as being busy fighting each other instead of fighting human rights violators this can ruin its public credibility and legitimacy. To effectively combine the two-sided mandate of advisory and watchdog is not always easy, as has been shown in Kenya. Effective exercise of the watchdog role, risks to hamper the effectiveness of the advisory role and vice versa. The previous and the current chair have different styles of leadership and approach. The previous chair was more advocacy oriented, often used media and the public podium to highlight human rights violations and criticize violators of human rights. The current chair is not seen as much in media, and is perceived to be working more behind the scenes. To combine the two roles of advisory and watchdog, both above mentioned approaches are needed. To have the ability to do both, requires commissioners that are able to take on these different roles. However, for such strategy to be effective, when to go public and when to work behind the scenes needs to be a conscious choice, and most of all it is important that the Commission act as one group, no matter what approach it chooses. Only then the Commission will be perceived as a strong and decisive force for human rights in the country, which will make it less vulnerable for attempts to challenge its independence, legitimacy and in the end its effectiveness.