Kisii A - Safeguarding Human Rights Through Combating Corruption

ABSTRACT

The fight against corruption is fundamental to the protection and promotion of human rights. The paper submits that corruption acts of the police contribute to the direct violation of human rights. Corruption practices like bribery of police by criminals resulted in low levels of prosecution and high level of crime and insecurity which led to the formation of local vigilante groups in Kisii. Though noble objectives of tackling crime, the paper finds that the vigilante groups have turned to arrest of suspects and dispute resolution through use of violence and perpetuated gross human rights violations including right to fair trial, right to life and freedom of security. The situation is made worse by the fact that there is minimal citizen awareness of rights under the Constitution. The paper recommends sensitization of citizens of the link between corruption and human rights and that community policing initiatives be regulated by law and policy including the new Nyumba Kumi initiative so that it does not degenerate to another corrupt and extortionist community policing programme.

1. INTRODUCTION

Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish¹. Corruption has always greased the wheels of the exploitation and injustice which characterizes our world² corruption has a negative impact on Human Rights. It is worth noting that, much has been written and conferences held on combating this malignant tumor that is thriving on the incapacity of those affected by the same to come out and seek medication with minimal success.

Human rights standards, as established in major international treaties and domestic legislation, impose obligations on States. Focusing on specific human rights will help to identify who is entitled to make claims when acts of corruption occur and who has a duty to take action against corruption and protect those harmed by it³. A line should be drawn between rights and interests, this enables state actors to develop means and ways to protect human rights while combating corruption at every level.

Appropriate measures have been put in place through various international and domestic legislation by many states that feel and believe that corruption can be combated (just like any disease that can be prevented, treated and controlled) for better enjoyment of human rights. It is therefore important to reflect on the issue whether; safeguarding human rights through combating corruption is an achievable reality or a mere pipe dream; and, to ask the question; to what extent are policing initiatives at the community level contributing to the better enjoyment of human rights?

The paper lays emphasis on the effects of corruption vis-à-vis human rights including the right to life, liberty and security of the person and the right to fair hearing in Kisii County. This paper explores the unchartered field of human rights violation by “legally recognized” vigilantes in the name of community policing groups fuelled by corrupt activities in the County.

B. THE RIGHT TO LIFE, SECURITY OF PERSON AND THE RIGHT TO FAIR TRIAL IN KENYA

Chapter IV of the Constitution of Kenya 2010 provides for the Bill of Rights and is in tandem with the provisions of the Universal Declaration of Human Rights⁴. The Constitution of Kenya provides for the right to life, freedom and security of the person and the right to fair hearing.

This paper looks at the right to life, security of the person, right to fair trial and whether protection of such rights is achievable by community policing groups. It also focuses on the extent to which such rights are violated by a vigilante group in the name of community policing.

The sungusungu group was formed with the objective of assuring the community of their security after police failed to combat crime in the region⁵. The police did not fail to combat crime as a matter of mere incompetence; rather it was due to a number of factors that made them susceptible to corrupt practices. The poor living conditions of the police meant that they could easily be corrupted and be tempted to take bribes. There was also collusion between criminals and the police that led to the latter tampering with evidence or cover up which resulted in insufficient evidence being tendered in court. This ensured that the criminals were set free by the courts hence the urge by the locals to rise up and get rid of various vices in the community through formation of vigilante groups. Despite failure, incompetence and corruption of the police service, the mode of cleansing the community of unwanted elements by vigilante was and is a total violation of human rights by any standards. Whereas the community policing was aimed at protecting right to life and freedom of security, it ended up being a major perpetrator of violations of such rights. Further, it is important to note that the continued breach of human rights and freedoms is to a large extent caused by the failure of police service evidence by their corrupt practices.

2. THE PERCEPTION OF THE PUBLIC ON CORRUPTION

Despite countless public campaigns to raise awareness, and institutional and legal reforms to improve public administration, research shows that corruption continues to flourish in Kenya. Indeed, opinion polls suggest that corruption is rife in the country and residents have embraced it as the only way to be assured of protection; how else can the laxity of the police to act and daily extortion, by the vigilante group, for the provision of security and dispute resolution services be explained?

A survey by the national Anti-corruption agency conducted in the 2010/2011 financial year showed that Kisii County recorded the highest cases of bribery demands⁶, most people acknowledged being coerced to give bribes either to the police, in different offices, court clerks, and to the vigilante group for their “essential services to the community.”

Most people think that bribery is the only form of corruption, implying that acts of corruption like embezzlement, fraud, extortion, nepotism, favoritism, and Clientelism⁷ are new in their world, in the context of corruption.

Most literature presupposes that corruption is rampant in the public sector and much less in the private sector but they do not distinctively define what corruption is, rather, they have listed a number of acts that constitute corruption. The Oxford dictionary of Law defines corruption to be, offences relating to the improper influencing of people in certain positions of trust⁸. According to The United States Agency for International Development, (USAID) Handbook for Fighting Corruption (1999), corruption encompasses unilateral abuses by government officials such as embezzlement and nepotism, as well as abuses linking public and private actors such as bribery, extortion, influence peddling and fraud.

3. CAUSAL LINK BETWEEN STATE CORRUPTION, VIGILANTISM AND BREACH OF HUMAN RIGHTS (RIGHT TO LIFE, SECURITY OF THE PERSON AND FAIR HEARING)

Evaluating the causal link between the corrupt practice and the harm, we have to establish how direct the connection is between the corrupt act and harm suffered by the victim on the one hand, and the content of the human right and the obligation required from the state on the other hand. The following approach in determining causation between corrupt practices and human rights violation has been adopted for this paper; direct violation is where the corrupt act itself goes against the content of the human right; indirect violation: the corrupt act is an essential factor in the chain of events that led to the infringement of human rights and remote violation: the corrupt act itself does not violate human rights.

Community policing initiatives rose in the year 2005 as an attempt at public-police partnership to entrench sound and firm foundation of socio-economic and political security, with the aim of aiding the police to curb the proliferation of crime in the country on the justification that because criminals live among other members of the community, crime and insecurity would be tackled where members of the community were involved in policing themselves. However, there was no legislation providing for the mandate of these community policing groups and how they would be regulated.

The USAID definition of corruption; particularly the bribery and extortion part of it, and of those many other definitions from other sources, are always associating corruption to public figures or public-private connections forgetting or overlooking the grassroots level. The impact of these community policing groups has not been captured anywhere neither do we have statutes regulating their operations. These people are not vetted: members are former criminals; what stops them from extortion and bribery?

The local vigilante group “sungusungu” has usurped the roles of the police and the judiciary as they investigate, adjudicate over various matters and give rulings/judgments that must be adhered to accordingly⁹. It appears that the government recognizes this community policing group as they have allowed operations of this group uninhibited¹⁰ . The group has a offices situated less than a kilometer from police division headquarters, that is operational fulltime, with officers dedicated to serve the public round the clock. Residents have to part with a substantial amount of money for their protection, (read extortion) or if one is suspected of being a thief or a witch, he/she is decapitated and there is no question on the same. Some of their rulings include being subjected to 40 strokes of the cane.

The accused have no chance of appeal neither is it available to them. The rules guiding the right to fair trial do not exist. This does not rule out citizens with personal vendetta or ill motives fabricating complaints to settle personal scores through the vigilante group. One only needs to pay (bribe) to the officials and you are arrested to answer to the “charges.”

4. FINDINGS.

1. Acts of corruption are an everyday activity in the county.

2. Residents in the rural areas do not understand that combating corruption is essential to their lives and is linked to the enjoyment of human rights

3. Many citizens are in the dark on the provisions of the Constitution as pertains to their rights.

4. Corruption among state officers has enhanced the violation of these rights.

5. Vigilante groups in the name of community policing has no place in the Kenyan system of security; this is just enhancing derogation of human rights by a few individuals

5. SUMMARY.

In places where community policing exists, acts of corruption and violation of human rights have, to a large extent, been experienced albeit under-reported. Members of these groups are not vetted and their recruitment method is not known, some people use this group as a means to silence their enemies or competitors through bribery. Their ‘law’ belongs to the highest bidder. This will mean the existing groups be replaced which in turn will render them jobless thus increased crime. Hence, as far as the Nyumba Kumi initiative¹¹ is being fronted to the public as the much sought cure to insecurity, a precautionary approach should be employed so that it does not become an extension of the existing corrupt and extortionist community policing programmes.

The fight against corruption vis-à-vis safeguarding human rights is achievable if anti-corruption instruments expressly provide for the same. The United Nations Convention against Corruption is designed differently from most human rights treaties, it is pragmatic in approach and is not generally declaratory of rights, and it has mandatory sections, recommendations and guidelines. This makes the convention fairly complex compared to most human rights treaties¹².

6. WAY FORWARD.

1. Adopt measures that address corruption in relation to human rights not only in the public sector but also in the rural setting of the common man; rights and interests be conspicuously and distinctively highlighted.

2. Sensitization of people on their obligations, rights and freedoms as pertains to corruption.

3. Proper legislation on the conduct and scope of operation of community policing groups be enacted.

Adopt and strengthen mechanisms for promoting the education of populations to respect the public good and public interest, and awareness in the fight against corruption and related offences, including school educational programmes and sensitization of the media, and the promotion of an enabling environment for the respect of ethics¹³.