A/HRC/45/2 536. A new prosecution policy provided for a two-stage test. The evidential test required prosecutors to access the rebuttal evidence against the realistic prospect of a conviction. The public interest test required prosecutors to consider the culpability of the suspect, the impact, or harm to the community or victim, the suspect’s age at the time of the offence and whether prosecution was a proportionate response. Also developed were Plea Bargain Guidelines, Diversion Guidelines, Deferred Prosecution Guidelines, Guidelines on Delegated Prosecution, Practice Directions on Delegation of Prosecutorial Powers, Guidelines for the Administration and Management of the Prosecution Fund, and Traffic Rules and Guidelines. 537. Kenya welcomed the guidelines issued by the special procedures mechanism and the Office of the High Commissioner on Human Rights to ensure policies and decisions taken during the COVID-19 pandemic were consistent with the protection of human rights. 538. A number of law enforcement officers have been indicted based on the alleged use of excessive force while enforcing COVID-19 measures, including the dusk to dawn curfew and the proper wearing of facemasks. The President of the Republic of Kenya issued a public apology for this excessive use of force. 539. The lockdown also led to an upsurge of gender-based violence. A toll-free telephone line was installed to enable those victims of sexual violence who were dissatisfied with the handling of their cases to seek redress. A victim support unit was also established. 540. Kenya received 319 recommendations, 261 of which were immediately supported, 53 were noted and five were deferred for further consideration. Following further examination and consultation, two of the five deferred recommendations have since been supported and the remaining three recommendations have been noted. The acceptance of a large number of the recommendations was testament to the commitment of Kenya to the meaningful improvement in the enjoyment of human rights for its people. 541. Some of the recommendations did not enjoy the support of Kenya due to the elaborate nature of the processes and procedures necessary for the ratification or accession to treaties and Kenya was concerned that some of these recommendations, particularly those expressed in mandatory phraseology, might not be implemented before the next review. 542. The process of abolishing the death penalty will take considerable time, considering factors including changing the public perception on the death penalty and lobbying Parliament on the importance of reviewing the relevant law. In light of the declaration by the Supreme Court of Kenya in 2017 that the mandatory nature of the death sentence as provided for in Section 204 of the Penal Code was unconstitutional, the Task Force that was established to look into this issue has recommended the abolition of the death penalty. The process of evaluating this recommendation was ongoing. 543. Given the specific measures put in place to stem the COVID-19 pandemic, it was not practical to arrange a date for a visit by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity at this stage. The request by the Independent Expert would be considered after the pandemic is brought under control. 544. Same sex unions were prohibited by the Constitution and relevant national laws, and contravened the culture and values of Kenya. Nevertheless, provision of all public services was actively promoted to all persons without discrimination, regardless of sexual orientation and gender identity or expression. Several pieces of legislation attested to the realization of the principles of equality and non-discrimination. No one is required to indicate his or her sexual orientation when applying for jobs or accessing any government services. The Courts have protected the rights of intersex persons who were officially recognized in the 2019 National Population census. 94