Human Rights Violations of the Samburu People by the Government of Kenya: a Report to the United Nations Human Rights Council Submitted on November 1, 2009 by Cultural Survival.

Observations on the State of Indigenous Human Rights in Light of the Declaration on the Rights of Indigenous Peoples

Kenya

Prepared for

United Nations Human Rights Council: Universal Periodic Review

November 1, 2009

Cultural Survival

Cultural Survival

Cultural Survival is an international indigenous rights organization with a global indigenous leadership and consultative status with ECOSOC. Cultural Survival, which is located in Cambridge, Massachusetts, and is registered as a 501(c)(3) non-profit organization in the United States, monitors the protection of indigenous peoples’ rights in countries throughout the world and publishes its findings in its magazine, the Cultural Survival Quarterly and on its website: www.culturalsurvival.org

Executive Summary

Kenya has had a deplorable record of honoring the rights of its Indigenous citizens, both during colonization and after. For most of 2009 the government’s treatment of its Indigenous populations has been especially egregious, with massive and well-organized attacks on Samburu villages by combined police and military forces and the use of government-funded mercenaries from Somalia. The government used helicopters, bombs, apparent chemical weapons, and ground forces on unarmed villagers, and they confiscated the people’s only food source, their cattle, prompting a famine that killed hundreds more people. The mercenaries hired by the government have kidnapped and murdered children, beheaded sleeping adults, and seized even more cattle. All of this violence and intimidation appears to be motivated by government oil leases recently awarded to Chinese companies to drill on Samburu land in violation of their rights.

Kenya’s record with regard to its indigenous peoples—mostly consisting of pastoralists and hunter-gatherers—has reflected its colonial past, with laws and structures favoring agricultural peoples and commercial interests. In addition to passive discrimination, the government has at various times egregiously violated Indigenous Peoples’ human rights.

The most recent example concerns the Samburu people, pastoralists living in the northern part of the country. Cattle provide the Samburu with 90 percent of their food and represent virtually all of their economy, serving as currency.

On February 21, 2009, Borana tribal members and Oromo raiders from Somalia (the Borana are related to the Somali Oromo peoples) stole 300 cows from a Samburu community in the eastern part of Samburu District. They also kidnapped two children. The Samburu moran (warriors) went in pursuit of their cattle and the children, and when they could not be recovered, impounded 200 Borana cattle in retaliation, to use as a negotiating tool. They then contacted the police and the Borana tribe to notify them that they would release the cattle when their stolen children and cattle were returned, and demanded police help to look for these children. There was no response. The Samburu reported the incident immediately to their Member of Parliament, Raphael Letimelo, who made a statement on a local news station pleading to have the children returned immediately. The police, however, made no investigation or attempt to find them.

On February 22, a police officer and two Samburu security officers from the nearby village of Archer’s Post used the Kalama Wildlife Conservancy vehicle to search for the cattle and the missing children. (The conservancies, which are run by the Samburu, provide the region’s only security patrols for poaching, but also are used to investigate cattle rustling or other disturbances). The vehicle was ambushed by Borana bandits and the Borana shot the two conservancy officers. The Borana notified a Nairobi official that the Samburu had confiscated 200 cows, but did not report why.

Fourteen hours later, the Kenya Government deployed a Special Security Force to Samburu. They did not pursue the Borana or Somali who initiated the first raid or search for the missing children. Instead, they deployed thousands of police from the Regular Police Force, District Administrative Police Force, and General Service Unit, and troops from the Kenyan Army in a well-orchestrated surprise attack on the villages of Kalama and Lerata villages and communities, including Lerata and Kalama, where they opened fire on innocent villagers in bomas (homesteads with enclosures for cattle), schools, clinics, and water holes, and on children herding goats and cattle. The attack included helicopters that strafed unarmed villagers, at least seven bombs dropped on villagers, and aerial discharge of some kind of caustic liquid that severely burned several children.

“At first, the community thought the police were here to help us find our lost children and we ran out to greet them,” stated Sammy Lepurdati. “When they initially started shooting, everyone tried to convince them they were making a mistake, but instead the police kept circling the bomas and fired deliberately at innocent people. It was a nightmare. People were screaming, running in every direction. Those who survived fled to the bush and nearby mountains.”

Ground forces then moved in, beating people with clubs. Police beat over 30 women, children, and elderly people with clubs, according to one witness, who asked to remain anonymous. “My mother was walking to the bore hole with my four-year-old sister and ten-month-old brother who was wrapped on her back, to water our goats and calves,” the 15 year-old reported. “She turned around to take my sister’s hand when police approached her, told her to give over the calves and goats to him and, when she pleaded with him that it was our only source of food, he began beating her with his club. When the baby started crying, he pushed my mother to the ground and began hitting her over and over again on her back until the baby stopped crying. My sister screamed and then he began beating her, too.” All three sustained life-threatening injuries according to the rural dispensary’s nurse practitioner, Edward Letalama.

The police then used their helicopters to round up the Samburus’ cattle. Forty trucks arrived to transport the cattle; others were herded by foot and helicopter to Archer’s post and impounded. They were later sold in Nairobi. The profits were kept by the police officers who had confiscated them. More than 2,000 cattle were confiscated in the initial attacks.

The two children, 7 and 8, were found, dead and hanging from a tree with their throats cut and their bodies skinned.

In the two days after the initial attacks, as the assault spread to other villages, the police refused to conduct a proper investigation, take statements from witnesses, negotiate a cease-fire, or come to any agreements with local officers, who included Member of Parliament Raphael Letimelo, 16 regional councilors, two local councilors, and County Council officers. All local wildlife conservancy communication and anti-poaching equipment was seized from Namunyak, Westgate, Sera Lipi, and Kalama Wildlife Conservancies, all in the same region. Altogether in these attacks more than 6,000 head of cattle were confiscated, removed, and sold, with a value of more than US $5 million.

The MP Raphael Letimelo was twice told in front of witnesses that he would be shot and executed immediately if he continued to speak against the attacks. He then returned to Nairobi to seek assistance from the president’s office. President Kibaki closed his telephone, refused to discuss the situation, or to allow an appointment to be arranged with MP Letimelo, and when Letimelo tried to see the President without an appointment, he was twice told that the president had left through a side door. Letimelo also spoke with the Internal Security Minister George Saitoti, Prime Minister Raila Odinga, Human Rights Watch, the US Embassy, and many others, with little result.

Government officials claimed that the operation was in response to the Samburu cattle raid, a claim that would seem unlikely given the scale and organization of the response, as well as its timing. Military documents provided by an army lieutenant indicate instead that the attacks had been planned months ahead of time and that the aim was to drive the Samburu off their land and end their way of life. The helicopters were requisitioned weeks in advance.

On March 7, two human rights workers, Oscar Kamau Kingara and John Paul Oulu, who had recently returned from an investigation into the attacks, were executed in Nairobi hours before they were to make public announcements about the Samburu situation.

On March 11, in response to a request for a hearing by MP Letimelo, a Nairobi court ordered a ceasefire. The police remained in the area honoring the ceasefire only insofar as they used clubs to beat people instead of using firearms. They also looted local businesses and raped village women.

On June 6, Borana and Somali bandits approached Samburu herdsmen from the village of Kipsing and tried to take their cattle. When the Samburu resisted, the bandits contacted the police in Isiolo to assist them. The Somali, Borana, and police then attacked the village. In the fighting that ensued, the Samburu moran shot and killed 5 raiders, 6 police, and seriously wounded 19 other police. Following this incident, Raphael Letimelo said he received threats from government officials of possible mass executions and removal of Indigenous Peoples from their traditional homelands throughout the Samburu District. Neither of those things happened, however.

On June 15, 400 Kenyan National Police were permanently stationed in Archer’s Post and began Operation Walk and Shoot, in which they harassed community members and randomly shot into the community from a distance.

Through the month of July there were a series of attacks by Borana and Somali bandits on Samburu and Turkana villages. (The bandits said they were attacking the Turkana because they supported the Samburu.) The attacks included beheadings, shooting people in their sleep, and, on July 13, the kidnapping of two more children, 8 and 9, who were again found hanging from a tree with their throats cut and their bodies skinned. The extreme nature of these attacks (and the repetition of the murdered children) suggests that they were intended to provoke the Samburu into an equally extreme response that could, in turn, be used to justify an extreme government response.

The Samburu did not respond in kind, but instead sent a petition for redress to the Internal Security Minister. They received no response.

On August 15, three hundred uniformed troops attacked Samburu communities, killing two and injuring several others and confiscating more cattle. It is not clear whether these were Kenyan military, police, or others. On August 20 mercenary troops from Somalia and the Oromo Liberation Front entered Kenya to attack Samburu communities and those of any other pastoralist groups that supported the Samburu. Through the month of September there were multiple attacks by these forces, against both Samburu and the related Pokot pastoralists, who also supported the Samburu.

On September 5, hired forces attacked the village of Losesia, killing two Samburu, injuring several others, and confiscating almost 4,000 head of cattle and 2,600 goats. On September 15, OLF forces killed 30 Pokot and injured 16 more near the village of Naibor. The Member of Parliament for the Isiolo District said that he had funded the OLF, and Prime Minister Odinga, referring to the ongoing attacks by Borana and Somalis, admitted that the government had been supplying arms to Borana and Somalis along the border who were then killing Samburu.

The confiscation of cattle has robbed Samburu of their food source, and famine has set in, exacerbated by the drought. Hundreds of Samburu have died of starvation as a result. The government has taken no steps to alleviate the famine, nor has it offered the Samburu restitution. On the contrary, it seems bent on increasing the assault on Samburu communities.

On October 12, the Kenyan government announced that it had awarded a $26 million lease to a Chinese firm to drill for oil in the center of Samburu territory, suggesting a motivation for the all the aggression against the Samburu. It is the first of eighteen contracts the government is negotiating with Chinese firms for oil.

All of these acts violate provisions of the International Covenant on Civil and Political Rights, African Charter on Human and Peoples Rights and the UN Declaration on the Rights of Indigenous Peoples.

NOTE:  We are currently receiving reports of further air and land attacks on the Samburu by hundreds of Kenyan police troops during the week of November 16.

More news at this link

http://www.culturalsurvival.org/news/kenya/background-information-human-rights-violations-samburu-people-kenya

The Partnership for Change Message for Madaraka Day – 46 Years Later It’s Not Yet Uhuru but Change is Coming.

THE PARTNERSHIP FOR CHANGE MESSAGE FOR MADARAKA DAY – 46 YEARS LATER IT’S NOT YET UHURU BUT CHANGE IS COMING.

Nairobi 1st June 2009

Summary: Madaraka was meant to;
- give Kenyans sovereignty over their political affairs and their resources
- give Kenyans a Bill of Rights to be enforced by an independent judiciary
- create a democratic, prosperous & just Nation where the rule of law prevails

46 years ago today, a handover took place at a ceremony in Nairobi, Kenya, between the British colonial government and an elected government headed by the leader of the Kenya African National Union, Jomo Kenyatta, as Prime Minister of Kenya. That day June 1st 1963 has since then been commemorated annually by Kenyans as Madaraka (Internal Self Government) Day. It is the day that Kenyans knew their independence would shortly come.

Six months later on December 12th 1963 (Jamuhuri or Republic Day), Kenya attained independent dominion status within the British Commonwealth under a constitution that was negotiated and agreed at three multi-party Constitutional Conferences held in London and Nairobi between 1961 and 1963. At the stroke of midnight all eligible persons in the country became citizens of Kenya by birthright – in the case of those born after midnight – by naturalisation or by application.

Jomo Kenyatta remained Prime Minister until December 12th 1964 when further constitutional changes declared that Kenya would henceforth be a Republic with Jomo Kenyatta as the first President of Kenya. Kenyatta was president for 15 years. The Prime Ministership was abolished, and there have only been two more Kenyan Presidents since then – in 46 years – Daniel Arap Moi who was President between 1978 and 2002 (24 years); and Mwai Kibaki who is serving his 7th year as President.

Since that first Madaraka Day, Kenyans have been trying to secure the benefits of internal self-governance, democracy and prosperity for the people of Kenya. Sadly, 46 years later, Kenyans are still suffering from the ills of a colonial like state which instead of healing, feeding, and educating and securing the people; oppresses steals and even kills often and with impunity.

Kenyans know that freedom is not free, and that they have to unite as they did before Independence for freedom. Several times in our history we have been reunited in the push for true Uhuru. Immediately after the first Madaraka Day the struggle to preserve the vision of land and freedom was led by the Kenya People’s Union against KANU, and throughout the 1960s and 1970s by patriots like Pio Gama Pinto, Josiah Mwangi Kariuki and the students and dons of Kenya’s universities. This was defeated by brute force and assassinations. In the 1980s the resistance to section 2A of the Constitution involved agitation for the end of the one party KANU dictatorship of Daniel Arap Moi. Most recently, there was the rejection of KANU in 2002, and the election of the National Rainbow Coalition which was Kenya’s first pre-election pact coalition government, and which developed an Economic Recovery and Constitutional Reform strategy and plan which was frustrated by selfish political manoeuvre. Today Kenyans are striving to overcome the political, economic and governance crisis which emerged after the botched presidential election of December 27th 2007, and this struggle is assuming a dimension of generational leadership change in the form of a “citizen’s in charge” movement.

Throughout the darkest days, Kenyans have always known that they are Kenyans and that as such they have rights which are given to them by their Constitution. They have consistently since Independence resisted against a leadership that sought to oppress them as the colonial state did. They have however suffered greatly in this resistance. Many Kenyans have been detained without trial, subjected to rigged trials, exiled, tortured and even been killed and tortured in the past 46 years.

On 12th December 2008, citizens through the Partnership for Change declared that they were going to take charge of democratising and freeing their country for themselves. The Partnership for Change has since November 2008 been implementing a six-point agenda of advocacy and public education on the National Accord, Fundamental Human Rights, the National budget and Debt, Citizens’ Responsibility and Ending Impunity. These agenda items are covered in the National Accord of February 28th 2008, which established the Grand Coalition Government led by President Mwai Kibaki and Prime Minister Raila Odinga.

WHAT IS THE CONTENT OF OUR NATIONAL ACCORD?

Agenda One of the National Accord:
- restoration of civil and political liberties
- cessation of violence against and between citizens

Agenda Two of the National Accord:
- resolving the post election humanitarian crisis
- reconciliation and national healing

Agenda Three of the National Accord:
- overcoming the political crisis

Agenda Four of the National Accord:
- overcoming long term issues and providing solutions to mass poverty and unemployment, land reform, regional imbalances, and equity
- addressing national cohesion and reconciliation, transparency and accountability, constitutional reform, institutional reform of Parliament, the Judiciary and the Internal Security Apparatus including the police

The Grand Coalition Government has failed to keep the timelines and to deliver the National Accord. We believe that implementing the National Accord and the agenda of the Partnership for Change will ensure the delivery of the vision of Madaraka Day and Uhuru. We have committed ourselves to use all our constitutional freedoms to advocate and educate Kenyans on our agenda for the prosperity and freedom of all citizens. In this, as people and citizens of Kenya, we shall act without waiting for the political leadership who have failed us before time and time again.

Recognizing that Madaraka Day 1963 made us citizens with inalienable rights, the Partnership for Change shall over the next 6 months up to December 12th 2009 mount a nation-wide campaign to restore the Madaraka Day vision of democratic accountability and urge Kenyans to resist dictatorial impunity. If we succeed, at a minimum the fundamental rights of every Kenyan will be respected and protected by the state and its agencies on pain of prosecution for any one regardless of status, who violates the rights of a Kenyan citizen. Our rights are not negotiable.

The Partnership for Change holds the position that the National Accord and not Vision 2030 is the country’s Blue Print for national development and ultimately salvation. On this 46th Madaraka Day, we restate that the full implementation of the National Accord is non-negotiable and the Grand Coalition Government so long as it remains incapable, or refuses, to implement the National Accord has no moral authority to remain in place, bearing in mind it is created by a political pact and not by a democratic election result. To stimulate peaceful and democratic change in Kenya, we shall support people’s struggle and initiatives for a better Kenya in the following ways:

1. We shall work to raise awareness of public resources management discipline in order to identify and secure financial and other resources for the achievement of Agenda 4 of the National Accord. In this regard we are campaigning to rationalise the budget and to achieve at least 60% of the budget is secured for development spending; and are also advocating for a comprehensive external debt relief agreement for Kenya.

2. We shall work and campaign as citizens, educating others and asserting our fundamental freedoms as detailed in Chapter V of the Constitution (Bill of Rights) and in particular calling for the unequivocal and full implementation of the full implementation of the Report of the Waki Commission of Inquiry into the Post Election Violence and the Alston Report to the 11th Session of the United Nations Human Rights Council on Summary and Extra Judicial Killings to end impunity in Kenya and to ensure that for the first time in Kenya’s history since Independence all public institutions and public officials are held accountable, and work to promote and defend human rights.

3. We shall work with grassroots Kenyans to educate Kenyans, organise forums that are driven by the citizens themselves- on how to full participate and consult with each other to participate in decision making, public finance, to protect and preserve democracy, ensure honest and effective representation in Parliament and the local governance structures and indeed all governance structures.

4. We shall advocate for the need for impartial application of the rule of law. Kenyans are born equal, regardless of the political opinion, ethnic origin or social status.

5. We shall develop plans and policies for institutional responses to deal with impunity including enhancing public monitoring and record keeping of the government operations related to public finance management and the as regards the fundamental human rights

6. We shall support the call by the people of Kenya for their immediate democratic re-enfranchisement and their right to an elected government.

WE SHALL ACT FOR THE FOLLOWING REASONS AND GROUNDS:
We shall do this because the Grand Coalition Government must be pushed to deliver on its duty to Kenyans as expected in the National Accord. We shall do this because it is our right to demand for the full implementation of the National Accord. Failure to implement the National Accord constitutes grounds for a fresh election, and the Grand Coalition Government has failed in the following respects:

Failure to keep Timelines:
- It has failed to keep the timelines to deliver the promise of the National Accord. Constitutional Review within 12 months has been overlooked hence the stalled institutional reforms in the judiciary, in parliament and the representation of the people, dealing with regional imbalances and the public finance systems;
- It has failed to establish the Special Tribunal for Kenya to punish the persons bearing the greatest responsibility for crimes against humanity committed in Kenya during the Post Election Violence period (December 2007 to February 2008) during which 1,133 Kenyan were murdered and hundreds of thousands were displaced.
- It has failed in 15 months to settle the internally displaced victims of the post election violence leaving hundreds of thousands of Kenyans exposed to untold suffering daily, indefinitely.

Failure to Protect Kenyans and End Extra Judicial Killings
- It has failed to demobilise militias, and dismantle organised crime syndicates and gangs, which continue to murder, extort and maim with impunity.
- Extrajudicial killings by the Kenya Police continue and no one is being punished for this illegality which has lead to the deaths of hundreds of Kenyan young men and women. Torture of persons in official custody remains a practice within the police and other disciplined forces, and torturers have impunity. Police reforms are still pending and on June 2, 2009 the UN special Rapporteur on Enforced disappearances shall present a damning report on Kenya. Shockingly during the Madaraka day celebrations, neither the President nor the Prime Minister had anything to say on this – in prominent attendance at the celebration was the Police Commissioner who has several times been indicted by independent and official reports. The Attorney general who has been described by the UN Special Rapporteur as the embodiment of impunity remains in office after 19 years, and presumably for life.

Failure to Secure Protection of Law and Access to Justice
- There have been no efforts to improve access to justice for the majority of the population. Whereas over the past 15 months the Grand Coalition Government increased the administrative districts to over 209; it has failed to provide the people with courts and today there are only 58 High Court Judges, and 287 Magistrates for a population of 38 million citizens. The backlog of cases according to the Ministry of Justice stands at over 800,000! 46 years after independence, Kenyans are denied justice as a majority face criminal charges without any legal aid or assistance by qualified lawyers.
- Prisons were built to hold 16,000 inmates at a time. Today they hold over 64,000 convicts and every day about 45,000 Kenyan citizens are held by the police in cells under inhumane and degrading conditions.

Failure to Address Long Term Issues
- The Grand Coalition Government has failed to tackle poverty and inequality. It has failed to deliver on its promise to generate 740,000 new jobs each year from 2008 to keep up with youth unemployment which is now a national security threat. Training colleges have been shut down for lack of funds while the Grand Coalition Government continues to increase recurrent expenditure on hospitality and conspicuous consumption.
- The Grand Coalition Government has failed to consolidate national cohesion. It has failed to criminalise hate speech by law and in fact it has allowed politicians and public officers to verbally abuse and scandalize those who point out its faults. The Kiambaa victims’ mass funeral which was avoided by the national and local leadership of the Orange Democratic Movement, and shoddily managed by State House shows how far the nation is from national healing.
- The Grand Coalition Government has failed to institute the much desired and needed land reform and is engaged in a sham discussion to shield its members’ vested interest in the status quo where formally public lands remain in private hands illegally; a fact extensively documented by among others the Ndung’u Land commission report of 2004.
- The Grand Coalition Government is incapable of fighting corruption and has indeed institutionalized impunity for gross economic crimes by shielding perpetrators from persecution and by incorporating perpetrators of corruption in its highest political and public offices. Today, more than half of the cabinet ministers of the GCG are implicated in Grand corruption charges and are yet to be cleared. A corrupt government can not deliver Agenda 4 of the National Accord.

Failure to control Public Debt:
- The Grand Coalition Government has committed 24% of national Budget to debt redemption and is increasing our domestic debt from Kshs. 670.8 billion to Kshs. 827.4 billion and since 1963 Kenya has borrowed over Kshs. 1 trillion with little to show for it. It is now imperative that we have full accountability and transparency in our debt. The Partnership for Change shall demand that Kenyans are told whom we owe and for what purpose we owe. We shall campaign that we as a country should undertake no further debts until the government of Kenya accounts to the people through Parliament. A quick look at our statement of external debt reveals huge borrowings and repayment to the tune of over a trillion shillings for development infrastructure that has never been built. Most of the loans did not have proper parliamentary authority and went to private hands leaving Kenyan tax payer to pay for value un-received. Disturbingly, the Grand Coalition Government has made it its policy to borrow to fund its recurrent expenditure.
- The Partnership for Change takes exception with the Bretton Woods institutions which choose to ignore the public evidence that the Kenyan Government is neither transparent nor accountable in public finance management and that there are odious debts on our books. Even though the Partnership for Change alerted the Executive Board of the International Monetary Fund as to the presence of odious debt our books, and the history of pathetic management of public resources by Treasury, the International Monetary Fund’s immediate response to this call was to lend the Government of Kenya twice the amount it wished to borrow.

The Partnership for Change shall play Its role in offering information, organising the people and providing the tools for holding public officials and state institutions accountable so that by December 12, 2009, Kenyan citizens shall have made a breakthrough.

Partnership for Change
Nairobi 1st June 2009