Conditions of detention
(15) The Committee is concerned about the dire conditions of detention in Kenyan prisons, particularly the
overcrowding, lack of appropriate health services and high levels of violence inside the prisons, including
inter-prisoner violence. The Committee notes the relevant work undertaken by the Kenya National Commission on
Human Rights in monitoring the conditions of prisons. The Committee is nevertheless concerned that visiting judges
play a limited role in inspecting the conditions of detention (art. 11).
The Committee urges the State party to take effective measures to bring the conditions of detention
into line with United Nations Standard Minimum Rules for the Treatment of Prisoners. In addition,
the State party should allocate the material, human and budgetary resources necessary to:
(a)
Reduce overcrowding in prisons, in particular the high number of persons in pretrial
detention, by inter alia enforcing the relevant provisions which provide for alternative non-custodial
measures for minor offences and by reforming the abusive bail system currently in place;
(b)
Ensure that adequate health services are available in all prisons by increasing the
number of medical practitioners working for the penitentiary system;
(c)
Take the appropriate measures to reduce the high level of violence inside prisons,
including inter-prisoners violence, and punish those responsible;
(d)
Strengthen judicial supervision of conditions of detention foreseen in the Prison Act.
Non-refoulement and renditions
(16) While the Committee acknowledges the long history of the State party as a host country for refugees from the
region as well as it efforts in resettling and integrating these populations, it remains deeply concerned that the
current refoulement procedures and practices may expose individuals to the risk of torture. More specifically, the
Committee notes with concern that the Immigration Act does not make reference to the absolute principle of
non-refoulement in relation to torture and it does not provide for a process of independent review of removal orders.
The Committee is further concerned about the fact that section 21 (1) of the Refugee Law (2006) provides for an
exception to the general principle of non-refoulement allowing expulsion of refugees on the basis of national
security (art. 3).
The State party should adopt the necessary measures to bring current expulsion and refoulement
procedures and practices fully in line with article 3 of the Convention. In particular, expulsion and
refoulement of individuals should be decided after careful assessment of the risk of being tortured in
each case and should be subject to appeal with suspensive effect. The Committee urges the State Party
to fulfil all its obligations under article 3 of the Convention thereby guaranteeing the absolute principle
of non-refoulement.
(17) The Committee notes with concern the statements made by the State party delegation, also confirmed by
numerous and consistent reports and allegations, about the practice of returns and renditions of individuals, nationals
and non-nationals, to Somalia, Ethiopia and Guantánamo Bay, including the case of Mr. Abdulmalik, on the basis of
national security and actions to fight terrorism (arts. 2 and 3).
The Committee urges the State party to ensure that any measure taken to combat terrorism is in
accordance with Security Council resolutions 1373 (2001) and 1566 (2004), which require that
anti-terrorist measures be carried out with full respect for, inter alia, international human rights law,
including the Convention. The Committee calls upon the State party to investigate these allegations in
order to establish responsibilities and ensure compensation to victims.
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