OPINION: Engage international instruments as a discourse for holding the government accountable

By Kevin Mwangi

NAIROBI, Kenya, May 10- The Constitution of Kenya provides that all international laws, treaties and conventions, among other instruments which Kenya has ratified, form part of Kenya’s laws.

International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

To monitor the implementation of the instruments, the United Nations have formed what is known as the human rights treaty bodies which are committees of independent experts that monitor implementation of the core international human rights treaties.

Each State party to a treaty has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty.

There are ten human rights treaty bodies composed of independent experts of recognized competence in human rights, who are nominated and elected for fixed renewable terms of four years by State parties.

Despite International instruments forming part of our laws, there has been little engagement by the Civil Society or the general public in engaging these instruments which are meant to hold the government accountable.

In the last 2 years, Kenya has been reviewed by the Universal Periodic Review which is a unique process which involves a review of the human rights records of all UN Member States whose ultimate goal is the improvement of the human rights situation in every country with significant consequences for people around the globe and the United Nation Human Rights Council on the International Covenant on Civil and Political Rights which commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.

Shadow reporting is a useful way for NGOs to improve the effectiveness of the UN treaty reporting process and also ensure that their issues regarding implementation of the concerned treaty are addressed.

During these two reviews only a handful of civil society have been able to participate in the process.

The lack of engagement with the mechanisms has been occasioned by a number of factors which include the stereotype that only ‘elite civil society’ engage with the mechanism, lack of technical capacity to engage with the mechanisms, limited funds as the reviews are usually held in Geneva Switzerland and lack of appreciation for the work of the mechanisms by civil society.

The recommendations that emanate from the treaty bodies may influence legislation, policy and budgeting as the government in some instances like the Universal Periodic Review has to develop an implementation matrix which has to be signed off by the president and resources have to be allocated to the matrix.

The limited participation of civil society in the review process limits the objectivity of the process which results in lack of accountability for human rights in the Country.

In the wake of Covid-19 the treaty bodies are now embracing technology and conducting online reviews therefore enabling more civil society to engage in the review and Kenya had its first online review on the 4^th periodic report on the international covenant for civil and political which has seen 62 recommendations emanate from the review and more civil society were able to participate in the process.

We hope the treaty bodies allow for virtual and in person participation to enhance the objectivity of the process by allowing more civil society to participate and the civil society begin appreciating the impact the reviews have to ensure that we are holding the government accountable for their human rights obligations.

The Author, Kevin Mwangi is an Advocate of the High Court of Kenya and an expert member of the Working Group On the Death Penalty, Extrajudicial, Summary or Arbitrary Killings  and Enforced Disappearance in Africa at the African Commission on Human and Peoples’ Rights.