1.1  DefendDefenders (The East and Horn of Africa Human Rights Defenders Project) is a regional civil society organisation (CSO) established in 2005 and based in Kampala, Uganda. It seeks to strengthen the work of human rights defenders (HRDs) throughout the East and Horn of Africa sub-region by reducing their vulnerability to the risk of persecution and by enhancing their capacity to effectively defend human rights. DefendDefenders focuses its work on Burundi, Djibouti, Democratic Republic of Congo, Eritrea, Ethiopia, Kenya, Rwanda, Somalia (and Somaliland), South Sudan, Sudan, Tanzania, and Uganda.

1.2  National Coalition of Human Rights Defenders – Kenya (Defenders Coalition), is a Kenyan CSO established in 2007. It works to strengthen the capacity of HRDs to work effectively and reduce their vulnerability to the risk of persecution, including by advocating for a favorable legal and policy environment in Kenya.

1.3  In this submission, DefendDefenders and Defenders Coalition evaluate the Government of Kenya’s implementation of recommendations received and accepted during the third UPR cycle, in 2020. The report assesses Kenya’s international human rights obligations to foster a safe and supportive environment for HRDs including civil society. It specifically analyses Kenya’s performance in upholding the rights to freedom of association, peaceful assembly, and expression, and offer specific, action-oriented follow-up recommendations.

1.4  During its third UPR, the Government of Kenya received 320 recommendations, including 13 related to freedoms of association, expression, and peaceful assembly. Kenya accepted all 13 recommendations. 11 concerned HRDs and CSOs, eight freedom of expression, seven freedom of association, and two peaceful assembly (with some concerning several issues). A thorough evaluation of legal sources, media reports, and human rights documentation, elaborated upon below, demonstrate that the Government of Kenya has only partially implemented these recommendations.

1.5  The government’s efforts to ensure accountability for violations against HRDs have been insufficient. HRDs continue to face harassment, intimidation, and violence, with inadequate mechanisms in place to protect them and hold perpetrators accountable. A safe and enabling environment for HRDs and CSOs remains to be established and maintained. CIVICUS ranks Kenya’s civic space as “obstructed.” Restrictions to protests remain a major concern, with incidents of disruption reported in each of the country’s updates throughout the year. Despite the government’s nominal support for most recommendations, tangible progress in creating a protective and supportive framework for the protection of these rights has been minimal. The continued presence of legal and societal barriers undermines their full implementation, highlighting a significant shortfall in Kenya’s commitment to upholding international human rights standards.

1.6 We are deeply concerned over the excessive use of force in response to protests, extrajudicial killings, enforced disappearances, targeted arrests, assaults on journalists, and restrictions on media coverage, all of which undermine the fundamental principles of a free and democratic society and the freedoms of expression, press, association, and peaceful assembly.

• Section 2 examines Kenya’s implementation of UPR recommendations and compliance with international human rights standards concerning freedom of association.

• Section 3 examines Kenya’s implementation of UPR recommendations and compliance with international human rights standards related to freedom of peaceful assembly.

• Section 4 examines Kenya’s implementation of UPR recommendations and compliance with international human rights standards related to the protection of HRDs, including civil society and journalists.

• Section 5 examines Kenya’s implementation of UPR recommendations and compliance with international human rights standards concerning freedom of opinion and expression.

• Section 6 contains recommendations to address concerns raised and to advance implementation of recommendations under the third UPR cycle.

• Annex 1 contains an assessment of accepted recommendations on freedom of association, expression, peaceful assembly, and HRDs under the third cycle of the UPR.

 Recommendations to the government of Kenya

6.1  Freedom of association

• Uphold civil and political rights, particularly the freedom of association for all individuals, including those within the SOGIE community, without discrimination or harassment.
• Instruct law enforcement agencies to cease harassment, arbitrary arrests, and detention of individuals based on their sexual orientation gender identity.
• Fully operationalise the PBO Act of 2013 and provide a transparent and supportive framework for the registration and regulation of civil society organisations.

6.2  Protection of human rights defenders, including civil society activists, and journalists

• Investigate and prosecute those responsible for attacks, harassment, and intimidation against HRDs.
• Conduct comprehensive training for law enforcement officials on safeguarding HRDs and upholding their rights.
• Expedite the adoption and enforcement of laws that provide robust protection for HRDs, including the establishment of an independent oversight body to monitor and report on government compliance with international human rights obligations in accordance with Council resolution 27/31 of the Human Rights Council.
• Review and amend existing laws and regulations that restrict the operations of CSOs and ensure that legal frameworks align with international human rights standards to promote a free and enabling environment for CSOs to operate.
• Integrate the outcomes of the Universal Periodic Review into actionable plans to promote and safeguard all human rights, in consideration of recommendations from civil society.
• Safeguard the rights of CSOs to advocate on various issues, including SOGIE rights, without fear of discrimination, reprisals, or censorship to ensure that CSOs can freely address issues affecting marginalized communities.
• Create platforms for regular consultations and collaborations to foster a constructive dialogue between the government and civil society, to CSOs to participate meaningfully in policy-making processes and ensure their voices and concerns are heard and addressed.

6.3   Freedom of expression, media freedom and access to information

• Amend national legislation in line with international standards to guarantee freedom of expression, and ensure new legislation conforms to international human rights norms. Immediately cease internet shutdowns and disruptions, especially during protests to ensure the internet remains accessible to access and disseminate information.
• Implement robust measures to safeguard journalists from threats, assaults, and arbitrary arrests, ensuring they can work freely without fear of reprisals for documenting state actions, expressing critical opinions, or covering sensitive topics.
• Investigate and hold accountable those who perpetrate violence against journalists.
• Adopt a comprehensive law on access to information.

6.4   Freedom of peaceful assembly

• Conduct an independent and thorough investigation into the use of excessive force against protestors and ensure accountability for those responsible.
• Adhere to Article 37 of the Kenyan Constitution, which guarantees the right to peaceful assembly, and ensure riot control measures, such as tear gas and water cannons, are only used when necessary and in a proportionate manner.
• Refrain from using riot control measures, such as tear gas and water cannons, in confined spaces like residential areas.
• Safeguard Article 37 of the Constitution by reviewing the proposed Assemblies and Demonstrations no 28 of 2024 to ensure that it guarantees the freedom of assembly.