[Study] Budget Analysis on the Cost of Extra-judicial Killings in Kenya

TERMS OF REFERENCE; STUDY ON THE COST OF EXTRA JUDICIAL EXECUTIONS IN KENYA **; ANALYSING DEVELOPMENT PLANS AND COST FOR ADDRESSING EXTRA JUDICIAL EXECUTIONS FROM 2010-2019.**

1. About Protection International (PI) Kenya

Protection International Kenya (PIK) is registered as a non-governmental organization in Kenya. PIK operates in Kenya with support from its headquarters in Belgium[1]. PI has been in Kenya since 2010 when it started its operations as Protection Desk Kenya.

Our Vision

PI aspires to a world in which fundamental human rights (HRs) and freedoms are respected, protected and fulfilled. PI´s contribution to the world is to ensure that everyone who defends HRs can do so without fear of threats or attacks. PI supports Human Rights Defenders (HRDs) to protect themselves through a comprehensive approach. This approach is founded on three pillars: 1/ empowering HRDs to manage their protection themselves; 2/encouraging authorities to comply with their legal duty to respect, protect and fulfil HRs and 3/ making other individuals and institutions with a positive stake in the protection of HRDs to do more or better, and those with a negative stake to respect the rights of HRDs.

Our mission

Our contribution to that world is to support human rights defenders through comprehensive protection programmes. Our programmes empower defenders to build their capacities in order to manage their protection effectively, to allow those that protect them fulfill their obligations, and to convince other individuals and institutions with a stake in the protection of human rights defenders to maximize their positive contribution.

Our goals

1. Empower Human Rights Defenders (HRDs) to protect themselves: We contribute towards empowering HRDs to manage their own protection and security management by increasing their risk analysis skills and understanding on protection issues. We work in developing preventive security systems jointly with the HRDs and organizations involved as well as in emergency situations, according to their needs and context. The main source of inspiration is the knowledge generated by the exchange of experiences and lessons learnt by HRDs themselves.

2. Create and strengthen strategic alliances that allow for more effective engagement of HRDs with duty-bearers and stakeholders: Understanding alliances as a way of collective protection, we contribute to overcome the isolation of HRDs or strengthen their networks through strategic alliances with duty-bearers and stakeholders that ensure their active and effective involvement to attend protection needs of HRDs.

3. Contribute to improved policy-making for the protection of the right to defend human rights: We support the adoption and effective implementation of national public policies to protect HRDs, providing technical advice and training to key actors. We provide accurate information (ad hoc studies or well recognized publications and presentations) on best practices and developments on public policies, ensuring the qualified participation of HRDs in the process of design, creation and implementation of those policies.

2. BACKGROUND INFORMATION

As of 1st March 2020, police had killed 41 people across the country [2].Police brutality and extrajudicial executions (EJEs) are major issues in Kenya, especially in the so-called informal settlements more commonly known as “slums”. Some 107 Kenyans were killed by the police last year (2019). The report, which relied on deaths documented in 2019, indicated that 69 per cent of those killed were mostly aged between 18 and 35. Some 20 per cent of them were below 18[3]. Data by the Missing Voices Project show that most of those killed were youths from informal settlements. Nairobi is surrounded by informal settlements where poverty and the lack of basic services mean that thousands live in undignified conditions struggling to survive while police forces act against them with impunity. Anecdotal evidence shows that authorities operate on the assumption that because people in informal settlement have few resources, the majority of them are thieves and therefore criminals. Consequently, the police forces are said to have lists of “criminals” to eliminate. The young males targeted by the police do not receive fair trials, and they are not subject to the due process of law. Most of the times, they do not even know that there are charges against them, and many times they are shot in the back while fleeing violence or walking with their friends. Sometimes, they do not even notice that police have guns aimed at their backs until it is too late. Some of the victims’ area as young as 13 year old boys shot dead while coming back from school. According to Senator Sakaja’s statement[4], more than 30 young people were murdered in EJEs from October to December 2018. Kenya is a “country at war with its young people […], and a country at war with its young people is a country that has no future […] In Kenya, the highest cause of death is Youth”.

The government spends close to Sh1 billion each year to compensate cases of extra-judicial killings. Based on 2020 reports from the Attorney General’s Office, the Attorney General’s office disbursed Sh822 million to compensate 45 cases. This is in line with the government’s compensation policy, which caters for all legal claims against the government, which is from court decrees and arbitral awards and all legal fees[5].These compensations are paid by tax payers money meant to provide other essential services such as health care, education and housing. Diversion of funds meant for development implies that the general population will be denied access to quality services due to insufficient funding by the government. This is paradoxical considering Kenya has increased its foreign borrowing since 2013. Total public debt has jumped to 55% of GDP from 42% from 2013 to 2019[6] government says the higher borrowing of funds is for infrastructure projects. It’s surprising to see a country facing fiscal deficits not taking bold steps in addressing extra judicial executions which continues to hemorrhage the public coffers, a matter that could be minimized through observance of the law. The fiscal deficit for 2019/20 will be financed by net external financing of 331 billion shillings, domestic borrowing of 305.7 billion shillings and other domestic receipts of 3.2 billion shillings[7].

A government’s budget is the most important economic policy and planning document, and is an essential means by which to assess government’s (and more broadly state institutions) efforts for the realization of human rights. It can also be a means to assess how those state institutions and entities are fulfilling their mandate to protect the right to defend human rights according to international standards. The close relationship between public budgets and human rights has been recognized by International Human Rights mechanisms in their assessment of State compliance with human rights obligations. Civil society actors, grass-roots organizations, human rights advocates and others look to social audits, expenditure tracking, budget scorecards and other budget assessment tools to develop critical evidence of human rights efforts, and to advocate for necessary budget-related steps to be taken for better realization of human rights. In this way, they help to close the gap between rhetoric and reality, and hold governments to account for their actions[8].

This study sets out to explore the linkages between fulfillment of obligations under International Human Rights law by the Kenyan government and budget policies and processes. The study is informed by PI’s theory of change, we believe that State authorities have the responsibility to respect, protect and fulfil the Right to Defend Human Rights (RDHR). By so doing national authorities will adopt comprehensive policies protecting W/HRDs and their RDHR consequently holding perpetrators to account to deter them from committing violations .The study seeks to sensitize government officials on the interdependence between human rights i.e. civil and political rights and environmental, economic, social and cultural development rights.

3. PURPOSE OF THE CONSULTANCY

In order to gain a holistic understanding on the government’s budget allocation and its implication on the cost of EJEs, PI Kenya will carry out a budget analysis on the cost of Extra judicial killings in Kenya between 2010 and 2019.This analysis will show actual development plans and cost for Kenya to promote and protect human rights (including the right to defend human rights) and thus the cost of EJEs from 2010 – 2019. As much as it is possible, the study will be complemented with some insights and preliminary research on deeply ingrained organizational dysfunctionalities in Kenyan security forces (e.g. exerting deadly violence as a response to “being tough on crime”, “fighting terrorism”, etc., or corruption of law enforcement officials, and suppressing critical voices, especially of W/HRDs who denounce police brutality and abuse).

4. OBJECTIVES OF THE CONSULTANCY

• The study will identify the extent to which the Kenyan government prioritizes funding for HRDs work through National Human Rights Institutions and other government authorities with the mandate to protect human rights defenders and the right to defend human rights.

• To identify both human and financial resources allocated to protecting victims, witnesses, whistleblowers, W/HRDs who denounce the EJEs.

• To determine budgets allocated to institutions such as IPOA: the budgets allocated to investigate and punish brutality committed by police officers (including the part of the budget allocated to fight impunity regarding attacks against W/HRDs).

• To establish resources channeled to reparations to victims of EJEs vs. budgets for human rights education and training to police officers.

• To establish the relationship between W/HRD protection, protection to RDHR and the political will to act upon them.

• The study will be used as a tool to sensitize governments officials with the mandate of budget making on how to budget effectively to realize comprehensive people’s rights, improve their understanding on the relationship of the budget to the human rights guarantees in their country’s constitution and laws, and in the regional and international human rights treaties the government has ratified.

• Strengthen duty bearers understanding on how in detailed and concrete terms they can meet their human rights obligations in the way they raise revenue, allocate, spend and audit the budget. The study will look at the consequences of advancing one right at the expense of the other.

• The study will propose remedial measures to the government for the comprehensive promotion and protection of human rights defenders.

• The budget analysis will become an important advocacy instrument, key messages derived from the study will be directed to government officials with budget making mandate, human rights institutions, and civil society organizations’ regional and international human rights mechanisms (like the United Nations Special Rapporteur and Treaty bodies system).

5. SCOPE OF WORK

· Develop relevant study/research design for the study.

· Conduct desk review of existing information as per the objectives outlined above.

· Development of qualitative & quantitative data collection instrument

· Develop a sample size and sampling procedures for the study

· Conduct a pilot study/pre-test of the data collection tools for reliability and validity of data collection tools.

· Provide an inception report, which should espouse the consultant’s understanding of the TORs, methodology and with a financial proposal.

· Conduct field study and collecting data;

· Making necessary observations, compiling key information relevant to the study.

· Preparing a draft and final report on study findings, providing recommendations on emerging programming interventions and policy advocacy opportunities, as well as best practices on meeting human rights obligations through raising revenue, its allocation, spending and auditing the budget.

· Conduct an analysis of the National Planning Process, National Budget to establish mainstreaming of human rights.

· Review the Auditor General and Controller of Budgets reports to assess interventions and strategies being applied to address and respond to EJEs.

· Analyze the Auditor General and Controller of Budgets reports to establish the gaps and best practices of the identified interventions and strategies.

· Hold interviews with relevant officials: NHRI, Ministry of the Interior, the National Treasury, Kenya Police Service, Independent Policing Oversight Authority, etc., to gain insights on budget elaboration and allocation, especially regarding the role of Kenyan state to uphold human rights, including W/HRDs’ right to defend human rights.

· Hold interviews with mothers of victims of EJEs / survivors to gain their perspectives on the compensation by government.

· Analyze the economic burden on households that are victims of EJEs.

· Develop dialogue starters/elevator pitches for the KAMWE project for initiating discussions with government officials on EJEs.

· Identify and recommend advocacy opportunities during the budget making cycle for CSOs and other stakeholders.

· Extract from the final study report key messages to be condensed into a short advocacy brief document written in a journalistic and accessible style, to be disseminated to a wider audience in Kenya.

· Final report must be formatted ready for publication (in a printable final version approx. 30-45 pages).

The Consultant’s Input for the Assignment:

i) Analyze the National Planning Process, National Budget to establish mainstreaming of human rights in the process.

ii) Review the Auditor General and Controller of Budgets reports and settlement from 2010 to 2019 to establish what the GoK has spent on compensation for victims of extra judicial executions.

iii) Give an in depth and annual analysis on the National Budget, Projections and Expenses that support or restrict promotion and protection of Human Rights work in Kenya.

iv) Review the budget in light of vision 2030, Medium Term Expenditure Framework (MTEF) and Commission on Revenue Allocation (CRA) plans, advisories, survey and reports on human rights indicators with particular emphasis on extrajudicial executions, budget priorities and vulnerabilities in Kenya.

v) Analyze Nairobi city county budget and county implementation planning and development from the basis from devolution inception in 2013 to date. To establish its alignment to the promotion and protection of human rights.

vi) Analyze the Kenya New Constitution 2010 on bill of rights and government performance as per the constitution between 2010-2019; as well as relevant documents stating the mandate of key state institutions with a role to uphold human rights and the right to defend human rights.

vii) Correlate government compensations cost and loss of lives within that study period

4. METHODOLOGY

The Consultant is expected to develop a viable methodology process and methodologies that infuse qualitative and quantitative approaches and comprehensive desk review. The methodology should be interactive and have a rights-based approach. The final outputs of the process should provide the key outcomes on the aforementioned objectives. The data collection tools and the inception reports will be approved before the full study is undertaken by the proponent. The draft report will be validated by the stakeholder for approval before the final copy is delivered.

5. MANAGEMENT AND TIME-FRAME

Consultant’s Responsibilities

The Consultant’s will be supervised and guided directly by PI Kenya.

• Have their first meeting with the proponent after signing the contract to get in-depth information on the assignment

• The Consultant will organize pilot testing of data collection tools and refine data collection tools after consultations with the proponent

• It is expected that the Consultants will present an initial layout (Inception phase) document to the proponent for comments and suggestion before proceeding to the next step

• A draft report to be presented and reviewed by the stake holders for incorporation of their comments

• Final report and a policy brief to be presented in soft and 4 hard copies to the proponent

• Cost of travel, documentations and accommodation will be covered by the fees paid to the consultant.

PI Kenya will be responsible for the following duties:

1. Holding an entry meeting with the consultant.

2. Sharing the relevant PI Kenya background organizational information and provide contacts for mothers of victims of EJEs and HRDs.

3. Review the data collection tools and inception reports for comments and suggestions input

4. Review, discuss and improve the drafts produced and approval of the final report

5. Providing the consultant with specific feedback within the stipulated time frame.

6. Validate the final draft report and Advocacy/Policy Brief.

6. DURATION OF THE CONTRACT

The consultancy will be conducted within sixty (60) consultancy days. The assignment is expected to be finished completely (final report submitted) not later than 30^th August 2020.

7. DELIVERABLES

The consultant will report to and liaise with PI Kenya for support on a regular basis. Mobilization of some respondents will be facilitated by PI Kenya. This includes setting up interviews and meetings with project beneficiaries, and other stakeholders.

The selected consultant should deliver the following:

• Inception Report: The inception report should include a review of:

a) Existing national and county policies, regulations, practices and their enforcement in relation to budget allocation and realization of human rights, including the right to defend human rights.

b) Existing laws and policies that govern government budget formulation and its obligation towards citizen’s realization of human rights, including the right to defend human rights.

c) Propose ethical and feasible evaluation methodologies to respond to the evaluation of government budgets.

d) Validated data collection tools for the study and work plan for the assignment

• Produce Draft Report

a) Study on the cost of extra judicial executions in Kenya; analyzing development plans and cost for addressing extra judicial executions from 2010-2019- The draft report will provide preliminary findings and recommendations and provide tangible evidence (information and data) as per the study objectives.

b) Revision of Study on the cost of extra judicial executions in Kenya; analyzing development plans and cost for addressing extra judicial executions from 2010-2019 – The revised report will synthesize all data, findings, conclusions and recommendations, taking into account all comments and additions from the KAMWE Programme team following the submission of the Study on budget analysis on the cost of EJEs draft report.

c) Validation meeting/Oral Presentation: PI Kenya will organize a feedback meeting. The consultants will make a presentation to KAMWE Programme team on the preliminary findings of the study, conclusions and recommendations and lessons for Programme improvement. The meeting will be an opportunity to clarify outstanding aspects of the study before finalization of the report.

d) Produce a Final report: The consultants will be expected to produce a final report, including main issues discussed and all comments provided by the KAMWE Programme team during the validation meeting.While the consultants shall determine the substantive content of the findings, conclusions, and recommendations of the report. Final report must be formatted (edited, content layout and design) ready for publication (in a printable final version approx. 30-45 pages). The report is subject to final approval by Protection International Kenya (PIK) in terms of whether or not the report meets the conditions of the ToR and expected standards.

Provide Dialogue Starters

● Dissemination Workshop: After the final report is finalized, PI Kenya will organize a dissemination workshop with key stakeholders. The consultant is expected to co-facilitate the workshop and present the results of the survey.

8. SKILLS AND QUALIFICATIONS OF THE CONSULTANTS

Lead Consultant:

1. Master’s degree in Human Rights, Law, Economics, Business Management and Statistics

2. Sound understanding of laws, treaties, declarations and country context on human rights and extra judicial executions.

3. Demonstrable ten years’ experience in similar assignment and consultancy services

4. Sound understanding of the budget making process/cycle in Kenya.

5. Excellent presentation skills

Two Team Members:

1. Master’s degree in Economics, Business Management, Statistics and Law, ( a combination of Law/Sociology or Economics/Statistics and law ( One of the team member must be an advocate of the high court of Kenya)

2. Sound understanding of laws, treaties, declarations and country context on human rights and extra judicial executions.

3. Five years’ experience in similar assignment and consultancy services

4. Sound understanding of the budget making process/cycle in Kenya.

[1] https://www.protectioninternational.org/sites/default/files/downloads-fi…

[2] https://newsplex.nation.co.ke/deadlyforce/2020

[3] https://www.the-star.co.ke/news/2020-02-14-at-least-100-kenyans-killed-b…

[4] Senator Sakaja, Nairobi City, County, Statement 21st Feb. 2019: https://www.youtube.com/watch?v=H1-5iedm4i0

[5] https://www.the-star.co.ke/news/big-read/2020-03-22-the-costly-execution…

[6] https://af.reuters.com/article/kenyaNews/idAFL8N27F6P

[7] https://af.reuters.com/article/kenyaNews/idAFL8N27F6P

[8] https://www.ohchr.org/Documents/Publications/RealizingHRThroughGovernmen…