November 2015 Discussion: Using Indicators to Enhance Country Reviews by U.N. Treaty Bodies
Welcome to our November monthly discussion! I’m Pauline Vata from Hakijamii, a Kenya-based NGO advocating for economic and social rights of marginalized groups, especially those in urban areas. In the last month’s online discussion, we looked into the potential of the SDG indicators to increase human rights accountability. Continuing our conversation on the ways to identify relevant human rights indicators, this month, I would like to propose we explore how we can improve the use of indicators in the work of U.N. human rights treaty bodies, to provide more helpful guidance to states regarding their compliance with treaty obligations.
Three weeks ago, on 16 October 2015, the Committee on Economic, Social and Cultural Rights (CESCR), the U.N. treaty body responsible for reviewing state compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR), published its List of Issues (LOI) in relation to the combined second to fifth periodic reports of the government of Kenya. CESCR will use the LOI to assist in its assessment of Kenya’s compliance with ICESCR in the February 2016 session. The initial periodic report of Kenya was reviewed by CESCR in 2008, and, strikingly, it was the first review since the country acceded to ICESCR in 1972. While seven years have passed since the first review of Kenya, it is noted that there is not much difference between the 2008 and 2015 LOIs. For example, with regards to an adequate standard of living (article 11 of ICESCR), similar issues were raised in both the 2008 and 2015 LOIs, as follows:
- “Please provide more detailed information on the impact of programmes and policies aimed at combating poverty (such as the National Poverty Eradication Plan” (excerpt from the 2008 LOI);
- “Please provide information on the impact of the National Poverty Eradication Plan 1999-2015, particularly relating to youth, women and people living in Arid and Semi-Arid Lands (ASAL) and the current levels of poverty, disaggregated by region” (excerpt from the 2015 LOI).
This similarity may come from a reflection that there have been no progressive steps taken by the Kenyan government in eradicating poverty given that related questions are asked over a period of seven years, or may represent a continuing concern of CESCR about a widespread and pervasive issue. Is this just a case of a mundane process adhered to every five years, limiting the effectiveness of CESCR in practice? Or should CESCR ask more detailed questions in its LOI, particularly when following up on issues already raised in previous state reviews? Can other members of the Working Group share their experiences and lessons learnt in their work to influence the LOIs of treaty bodies and/or the questions ultimately asked in the review process? How can we better identify and use indicators for effective country review by the treaty bodies?
Meanwhile, CESCR already noted in its Concluding Observations of December 2008 that “the absence of disaggregated statistical data in the report, which would have enabled the Committee to better assess the implementation of the Covenant by the State party.” The civil society organizations in Kenya have had a hard time obtaining relevant data on the situation of human rights. It should be noted that the promulgation of the new Constitution of Kenya in 2010 heralded a new chapter in the right to information in Kenya, and article 35 thereof codified for the first time the right to information. However, unlike other provisions in the bill of rights which bestow the specific right to "every person", article 35 of the Constitution employs the words "every citizen". In the ruling of the High Court of Kenya Petition No. 43 of 2012, Famy Care Limited vs. Public Procurement Administrative Review Board & Another  eKLR, the court made two findings regarding the right of access to information in Kenya: 1) the right to information is only enjoyable by “Kenyan citizens”, and not foreign citizens; and 2) the right to information is enjoyable by “national Kenya citizens”, and not Kenyan juridical persons such as corporations or associations. As such, notwithstanding the provision of the Constitution, obtaining statistical data related to human rights issues is still an uphill task at the national level, and therefore, it is necessary that critical and relevant disaggregated information is requested from and produced by the government of Kenya through international procedures such as treaty bodies. Have members of the Working Group used international processes, like state reporting before the treaty bodies, to obtain relevant information that they are finding hard to obtain nationally?
Prior to their country review sessions, the U.N. treaty bodies are expected to conduct thorough research regarding the data and information they require from the State under review, in order to give sound Concluding Observations for the State to act upon. In this regard, identifying relevant indicators is a crucial step in demanding such data and information. I look forward to hearing your thoughts or any other strategies we may collaborate on, with respect to the use of indicators for effective country review by treaty bodies.