Govt on the spot over Torture Bill

Victims of torture during a crackdown in Mandera. Photo/FILE  NATION MEDIA GROUP

By CAROLINE WAFULA (cwafula@ke.nationmedia.com)
Posted  Tuesday, May 14   2013 at  17:33

 

Kenya is under pressure to enact an anti-torture legislation to help fight against inhuman treatment of persons.

This is one of the key areas where Kenya is being reviewed by the Committee Against Torture sitting in Geneva to assess its progress and commitment to punish acts of torture and other forms of cruel treatment.

Government representatives will appear before the United Nations committee on Thursday to give a progress report on what has been done in the last four years to end torture, cruelty, inhuman and degrading treatment or punishment.

A draft Prevention of Torture Bill was drafted by the government in collaboration with civil society groups.

The draft Bill was prepared to provide the necessary legal framework for the prevention, prohibition and punishment of acts of torture and ill-treatment in line with the UN Convention Against Torture.

The former Ministry of Justice, National Cohesion and Constitutional Affairs, the Kenya Law Reform Commission and the Kenya National Commission on Human Rights have also been involved in the process of drafting the Bill.

The Prevention of Torture Bill, 2011, seeks to render inadmissible in evidence any information, confession or admission obtained by torture.

It proposes to outlaw the use of such information by any persons with knowledge that the same was obtained by torture.

The Bill prescribes the penalty for such acts as imprisonment for a term not exceeding 25 years. In a case where the act of torture results in death, the penalty is life imprisonment.

Under the Bill, the commission of cruel, inhuman and degrading treatment or punishment is limited to public officers, persons acting in an official capacity or a person acting at the instigation or with the consent or acquiescence of a public officer.

The penalty for committing the offence is a fine of Sh1 million or imprisonment for a term not exceeding 15 years or both. It further provides for remedy and compensation of victims.

It was noted that the enactment of the Prevention of Torture Bill, 2011 into law will effectively cure the gaps existing in the Penal Code, Evidence Act and Criminal Procedure Code which were referred to by the UN committee in the its concluding observations at Kenya’s initial review in 2008.

The Bill, according to Kenya’s current status report, is being reviewed by the Commission on the Implementation of the Constitution (CIC) whose mandate is to monitor whether the process and contents of the legislation are in full conformity with the Constitution.

After review and the necessary stakeholders’ consultations, the Bill will be submitted to Cabinet for approval and thereafter forwarded to Parliament for scrutiny and enactment, according to the Kenyan second periodic review report.

In a joint report submitted by five civil society groups to the ongoing CAT session, the groups say CIC should consider the Bill as priority legislation as part of those spelt out under the Fifth Schedule of the Constitution.

The World Organisation Against Torture, Coalition of Violence Against Women (Covaw), the Kenya Alliance for Advancement of Children, Legal Resources Foundation, the Kenyan Section of the International Commission of Jurists say, however, that it remains to be seen whether the government will ensure the bill passes without unnecessary amendments.

The Human Rights Committee recommended to Kenya in 2012 to ensure that the Prevention of Torture Bill is enacted in line with the Convention against torture which has been adopted by 153 states.

The groups which are among NGOs that appeared before the CAT session on Tuesday to give their reports say while torture is prohibited under the new Constitution and other laws in the country, there is still no comprehensive legislation that defines torture or offers a process of redress and appropriate accompanying sanctions.

In 2008 when Kenya was last reviewed, the Committee Against Torture expressed regret that the Penal Code of Criminal Procedure do not contain a definition of torture and therefore lack appropriate penalties that can be applied to such acts, including psychological torture according to Articles 1 and 4 of the Convention Against Torture.

In the report submitted to the UN body at this year’s review of Kenya, the lobby groups say efforts to define the crime of torture in the penal legislation in conformity with international standards is urgently required with legislative penalties appropriate to the gravity of the offence around torture and other related violations.

CAT assesses states’ compliance to the Convention Against Torture in a bid identify what more needs to be done by specific countries.

Signatory countries are required to domesticate the Convention by enacting relevant laws to fulfil their obligations in line with the Convention.

The Kenya Government says in its report to the UN committee that the Prevention of Torture Bill contains a number of noteworthy components that fortify the country’s compliance with the Convention Against Torture.