13th April 2017 marked a historic event as President Uhuru Kenyatta assented to the Prevention of Torture Act 2017. Having been first drafted as the Prevention of Torture Bill 2010 by a multi-stakeholder team led by the Independent Medico-Legal Unit (IMLU) and the ICJ-Kenya Chapter, the 7 year journey to the new law has been arduous and painstaking.
Though bringing together the diverse technical expertise of legal and other experts within government agencies, parliament and civil society was a task in itself, securing the political good will to have the bill successfully go through the legislative process was the biggest challenge. Thanks to the tenacity and hard work of those championing the bill, including victims of torture, their families and the Parliamentary Human Rights Caucus, the Attorney General in November 2016 finally presented a government version of the Bill to the Cabinet, setting the stage for the new law to go through parliament as a government bill.
This new law is a milestone for several reasons. First, the law now provides for a clear platform to actualize several fundamental articles in the Constitution of Kenya 2010 including Article 25 with regards to freedom from torture and cruel, inhuman or degrading treatment or Punishment, Article 28 on respect and protection of human dignity and Article 29 on freedom and security of the person.
Secondly, the new law brings all state agencies and officials under the ambit of accountability for torture and cruel, inhuman or degrading treatment or punishment, and provides clear penalties for such atrocities. Prior to this torture was expressly outlawed under different pieces of legislation covering only members of the National Police Service, the National Intelligence Service and the Kenya Defense Forces. Other law enforcement agencies that have historically and more recently been increasingly involved in perpetuating torture and cruel, inhuman or degrading treatment or punishment like council askaris, Kenya Wildlife Services and Kenya Forest Services had no legal provisions prohibiting them from perpetuating these heinous atrocities.
Thirdly, it is important to point out that the Constitution already prohibits torture in Article 25 but it was hitherto difficult to prosecute the crime of torture because a specific law providing for penalties had not been enacted. Under this new law those perpetuating torture and ill-treatment will no longer be charged with such crimes as assault but with the more serious crime of torture or ill treatment that will now attract a sentence of not more than 25 years and 15 years respectively.
Fourthly, the new law provides for redress and reparations as provided for under the UN Convention against torture, the African Charter on Human and Peoples Rights and the Victims protection Act 2014. This will include compensation as well as medical and psychosocial rehabilitation. Prior to this many victims and families have spent huge amounts of resources following up on payments awarded by courts. IMLU records over the last ten years show that more than 2000 victims of torture continue to seek justice and those whose cases have succeeded in court are still owed millions of shillings by government from such awards.
The new law also protects police and other law enforcement officers who refuse to obey illegal orders from their superiors that would lead to torture or ill-treatment, clearly stating that such order may not be invoked as justification for torture or cruel, inhuman or degrading treatment or punishment.
The Prevention of Torture Act 2017 also provides for the protection of vulnerable witness thus giving a new impetus for victims and their families to report cases of torture and pursue justice. Though torture would normally happen away from the public domain, witnesses including medical and trauma professionals have become critical component in accountability for torture.
To ensure that the long and arduous quest justice by victims and their families is no longer in vain it is critical that the Attorney General and other relevant agencies of government fast track the implementation of this law. Civil society, the media and other non-state agencies must move with speed to publicize, educate the people on the new law and train criminal justice agencies on the implications of the new law to enable them apply it appropriately.
In the meantime we trust that the President will soon assent to the National Coroner’s Service Bill 2016, another related legislation enacted by parliament in late March this year that will greatly improve reportable deaths’ investigation system in Kenya, including deaths in custody.
(Kiama is the Executive Director, Independent Medico-Legal Unit)