Berkley Center

Background: As part of the Religion, Conflict, and Peacebuilding Fellowship, Consuelo Amat interviewed Hassan Omar Hassan, commissioner of the Kenyan National Human Rights Commission (KNHRC) and former vice chairperson of that institution. In the interview, Hassan discusses the current work of the KNHRC around the constitutional referendum.

Mr. Hassan, could you begin by clarifying the distinction between the Kenyan National Human Rights Commission and the Kenyan Human Rights Commission (KHRC)?

The main difference is that the KNHRC is a government agency and the KHRC, despite its similar name, is actually a non-governmental organization. The NGO was founded first (in 1991), and one of its first efforts was to pressure the government to create its own human rights agency. Indeed, the word “commission” in the name of the NGO was intended as a mock government institution. Following the euphoria of a post-[Daniel arap]Moi dictatorship Kenya, the [Mwai] Kibaki government created the national commission in 2002. Today both institutions exist, but the national commission is the “big brother” of the NGO.

Could you talk about the KNHRC’s view on the proposed constitution and its activities around the upcoming referendum?

The KNHRC endorses the proposed constitution and is especially thrilled about the Bill of Rights, which is the most progressive set of individual rights that Kenya has ever seen. As a government agency, it makes sense that the KNHRC is supporting the constitution, just as are President Mwai Kibaki and Prime Minister Raila Odinga. In addition to the Bill of Rights, the proposed constitution gives KNHRC significant power to do human rights advocacy within the government, to gender and equality mainstream programs, to carry out fact-finding investigations, and to have some oversight over the security apparatus. Unfortunately, these provisions were somewhat curtailed with a last-minute change that the government made to the draft constitution as it was going into print: they added an exception clause in some of the human rights provisions to give leeway in matters of “national security.”

And could you tell me about KNHRC’s activities around the constitutional referendum?

One of the most exciting projects of the KNHRC is the Agenda Five campaign. Agenda Five is an attempt to bring the process of the constitutional reform to the people. It is meant to supplement the four agendas items that formed the Annan-led power-sharing agreement. If you read Annan’s four agendas you will realize that the main actors are politicians. We think that the people of Kenya need to play a prominent role in reforming this country, and Agenda Five is an attempt to give them a place to make a contribution. The political transformation that Kenya is going through now has to be discussed and driven at the grassroots level, so as to ensure long-term peace and stability. In an effort to carry out civic education and engage the average citizen, the KNHRC is going across the country in caravans, giving out materials, setting up meetings with low-profile figures and common people, and then broadcasting their efforts via the Kenyan Television Network. I also publish articles in newspapers and have a column in one of our local newspapers.

Could you tell me about the debate over the qadi courts, and how you see it play out at the grassroots level?

I am worried about the increasingly hostile environment in Kenya toward Muslims. To illustrate what I mean is a press release that recently came out by Kenyan Christian leaders called “Entrench Islamic Sharia Law in the Constitution at Your Own Risk.” The section on qadi courts reads:

"We remain extremely opposed to the inclusion of qadi courts in the constitution. It is clear that the Muslim community is basically caving for itself an Islamic state within a state. This is a state with its own sharia compliant banking system; its own sharia compliant insurance; its own halal bureau standards; and is now pressing for its own judicial system. Such a move is tantamount to dividing the nation on the basis of religion, and is a dangerous trend that will destroy Kenya. We should learn from nations that have move in that direction and suffered instability." (pg. 2)

I get extremely disappointed when language like this comes from faith leaders who are supposed to enlighten and guide people. Several denominations signed the statement, but the most surprising endorsements came from the Anglican Church of Kenya and the Friends Church in Kenya. I am convinced that this incendiary language is a deliberate attempt to distract people from the key issues that are important for Kenya and that would truly shake up the status quo. The fact is that the draft constitution retained the clause on qadi courts verbatim from the current constitution, and that Muslims can use the sharia-based courts on a voluntary basis to settle family matters (no criminal issues can be heard in these courts, for instance). The only addition in the proposed constitution is that some public funds will be channeled to enable the courts.

But it is worth noting that even though the people follow their spiritual leaders, there is significant dissent as well. On the ground I often see people who recognize qadi courts as long-standing and as part of our heritage. That is why these civic education campaigns are so important: we need to inform people and promote a civilized debate on how we are going to reform our country and protect those who are discriminated. Probably the worst off in this country are Somali refugees—they get mistreated by everyone, but especially by the Kenyan police. I was just reading Human Rights Watch’s on the Kenyan police abuses against Somali refugees. They are also ostracized by the society, and Kenyan Somalis are also feeling this discrimination. These problems are compounded by the fear of terrorists infiltrating from Somalia through the Kenyan border.