Freedom in the World

Kenya

Kenya

Freedom in the World 2007

2007 Scores

Status

Partly Free

Freedom Rating
(1 = best, 7 = worst)

3.0

Civil Liberties
(1 = best, 7 = worst)

3

Political Rights
(1 = best, 7 = worst)

3
Trend Arrow: 

Kenya received a downward trend arrow because of a lack of transparency regarding government anticorruption efforts.
Overview: 


Despite a heightened level of political rights and civil liberties under the government of President Mwai Kibaki, several worrisome trends emerged in 2006. Anticorruption crusader John Githongo issued in January an authoritative report indicating that corruption had reached the highest ranks of the Kibaki government, prompting the resignation of several ministers and implicating the vice president. In March, Kenyan security forces raided an independent television network, causing significant damage. Meanwhile, international donors maintained a skeptical stance regarding the government’s willingness and ability to curb corruption.


Britain gained control of Kenya in the late nineteenth century, partly in order to open and control a route to the Nile River headwaters in Uganda. Kenya achieved its independence in 1963. The nationalist leader Jomo Kenyatta was president until his death in 1978, and then–vice president Daniel arap Moi succeeded him. Moi’s ascent to the presidency kept the Kenyan African National Union (KANU) in power but gradually diminished the power of the previously dominant Kikuyu ethnic group.

In 1992, after a lengthy period of de facto single-party rule, domestic unrest and pressure from international aid donors forced Moi to hold multiparty elections. He was reelected as president in controversial polling. In the next presidential and legislative elections in December 1997, Moi again defeated a divided opposition.

KANU’s election victories were cemented through political repression, massive use of state patronage, media control, and dubious electoral procedures. Physical violence, an often-docile judiciary, extensive police powers, and executive decrees were used against political opponents and in efforts to undermine the wider civil society. Moi’s rule was associated with poor governance, and limits on political and civil rights were common, as was corruption in the ruling party and government. In the 1990s, government-sponsored ethnic violence heightened political polarization. The violence was perpetrated, in most cases, by Kalenjin or Maasai KANU supporters against members of the Kikuyu and Luhya ethnic groups, believed to be supporters of opposition political parties. Despite these problems, political space for opposition views continued to open, and many of the core elements necessary for the growth of a democratic political system developed.

In 2002, the opposition succeeded in uniting behind Mwai Kibaki in national elections. He was elected president, defeating Uhuru Kenyatta, the son of Kenya’s first president and Moi’s chosen successor. In addition, the National Rainbow Coalition (NARC), which supported Kibaki, won the majority of seats in the National Assembly. These elections raised the prospect of a major shift in Kenyan politics; the new leadership’s ambitious reform program included tackling corruption, addressing economic and social problems, and undertaking institutional reforms designed to promote democracy.

Reform efforts have been complicated by a number of factors, including the fragility of the governing NARC coalition, a complex, controversial, and unsuccessful constitutional reform process, significant resource constraints, the threat of terrorism, and at times mixed messages sent by some major donor countries such as the United States on issues such as civil liberties and terrorism. An independent anticorruption commission has been investigating more than 3,000 cases of alleged corruption since its inception in 2003, but its record of initiating successful prosecutions has been very modest. One of Kibaki’s early appointments was John Githongo, the widely respected leader of the Kenya chapter of Transparency International, as head of the government’s Office of Governance and Ethics. Githongo resigned in early 2005, frustrated by continued corruption and the Kibaki administration’s failure to enact meaningful reforms. Faced with repeated threats on his life, he subsequently fled the country and gained asylum in Britain in early 2005.

A lively press and public investigative commissions have increasingly critiqued the substance and slow pace of the Kibaki administration’s reforms. A number of commissions are still carrying out investigations into particular examples of corruption, such as the long-running Goldenberg foreign exchange scandal and Anglo-Leasing government contracting affair, which occurred during the Kibaki administration.

After a lengthy drafting process, a revised constitution was submitted to the voters in a referendum in November 2005. The National Assembly had voted to amend the final draft version to reduce the powers of a proposed prime minister and reinforce those of the president. It also opted to maintain a single legislative chamber, rather than creating a bicameral legislature as originally envisaged. The revised constitutional draft made it more difficult for the National Assembly to impeach a president and raised the possibility that presidential elections could be decided through district gerrymandering by the government. These changes sparked considerable popular unrest, and the revised draft was soundly rejected by the referendum voters.

Despite the heightened level of political rights and civil liberties under the Kibaki government, several worrisome trends emerged in 2006. Githongo in January issued an authoritative report indicating that corruption had reached the highest ranks of the Kibaki government, prompting the resignation of several ministers and implicating Vice President Moody Awori. In March, after the publication of stories critical of the government, Kenyan security forces raided the independent KTN television station and disabled the printing plant of the Standard newspaper, in addition to burning copies of the newspaper. International donors maintained a highly skeptical stance regarding the government’s willingness and ability to curb corruption. Political tensions due in part to jockeying ahead of the country’s scheduled December 2007 presidential election, entrenched corruption, a lack of reform results, and questions regarding the depth of the government’s commitment to reform continue to raise serious concerns about the pace and direction of Kenya’s democratic development.

Political Rights and Civil Liberties: 


Kenya is an electoral democracy. The 2002 presidential and legislative elections, widely viewed as legitimate and reflective of the people’s will, resulted in a peaceful transfer of power—from the long-ruling KANU party to the opposition NARC coalition, led by new President Mwai Kibaki’s Democratic Party. However, the country is far from consolidating its fragile democracy and electoral processes.

The president is elected for a five-year term. The single-chamber National Assembly consists of 210 members elected for five years, with an additional 12 members appointed by the president and nominated by the parties on the basis of their shares of the popular vote. The National Assembly is the setting for much of the nation’s political discourse, and a varied and energetic civil society plays an important role in public policy debates.

Political parties representing a range of ideological, regional, and ethnic interests are active and vocal, and there are no significant impediments to party formation.

Corruption continues to be a very serious problem threatening the country’s nascent democracy. Political parties, nongovernmental organizations (NGOs), and the press, as well as some official bodies, have unearthed examples of government corruption and malfeasance. The 2006 report by anticorruption campaigner John Githongo was merely the most serious of a number of credible reports of high-level corruption. Transparency International’s 2006 Corruption Perceptions Index ranked Kenya 142 out of 163 countries surveyed. The 2006 Kenya Bribery Index states that the overall incidence of corruption has increased by approximately 20 percent from that of 2003, the first year of the Kibaki administration. It also suggests, however, that the average size of bribes has declined. In 2004, the government raised police salaries to reduce incentives for corruption, but according to the Bribery Index, police are still the most frequently bribed public officials.

The meager results to date from investigations such as the Goldenberg inquiry emphasize the magnitude of the challenge of reducing corruption in Kenya. The Kenya Anti-Corruption Commission has made slow progress at best and has been accused of bias in its work against independent state organizations such as the Kenya National Human Rights Commission. The anticorruption panel’s chairman has also been accused of seeking to deflect investigations into the massive Anglo-Leasing scandal, in which government officials attempted to defraud the treasury of hundreds of millions of dollars through payments to spurious firms for security and defense contracts. Furthermore, the commission’s chief investigator looking into allegations against senior ministers was fired in June as he was preparing a report for Kibaki detailing the extent of the scandal.

The constitution provides for freedom of speech and a free press. These rights have been generally respected in practice, and Kenya enjoys one of the liveliest press environments on the continent. However, the country’s overall positive record was seriously marred in March 2006, when security forces sacked the independent KTN television station and stole documents and equipment. The Kenya Union of Journalists has also at times criticized the government for failing to expand media freedom in the country. Six private television stations exist, although their coverage is limited. Currently, 22 FM radio stations broadcast to many parts of Kenya. The government does not restrict access to the internet.

In general, the government has respected freedom of religion. According to the 2006 U.S. State Department’s Report on International Religious Freedom, “government policy continued to contribute to the generally free practice of religion; however, some Muslim leaders continued to charge that the Government is hostile toward Muslims.” The report concludes that Kenya is one of the least repressive African states in this regard, although disputes do occur between Muslims and Christians. Religious-based tension has risen in recent years in the wake of terrorist acts associated with Islamic fundamentalism that were committed on Kenyan soil in 1998 and 2002.

Academic freedom is the norm in Kenya, reflecting the country’s broader respect for freedom of thought. However, Kibaki has been accused of appointing university heads, such as the vice chancellor of the University of Nairobi, based on favoritism. The 2006 Kenya Bribery Index notes that bribes are frequently paid to ensure entry into the country’s most prestigious educational institutions.

The constitution guarantees freedom of assembly. The Kibaki government, unlike its predecessor, has generally respected this right, although there have been cases of unnecessary use of force. One of the core strengths of Kenya’s political culture is its energetic and robust civil society. The success of the 2002 elections was due in large part to the ability of NGOs in Kenya to pry open political space and gain greater freedom. In recent years, public policy NGOs have had some advocacy successes, especially in comparison to many other countries wrestling with the legacy of decades of authoritarian rule. The role of civil society in mobilizing public opinion on constitutional reform and the ability of NGOs to undertake voter education and election monitoring are examples of this progress.

All workers other than the police are legally free to join unions of their choice. The Trade Union Act provides for a Registrar of Trade Unions, who is appointed by the minister of labor. The government may deregister a union, but the Registrar of Trade Unions must give the union 60 days to challenge the deregistration notice. While it does not have the force of law, the Industrial Relations Charter—executed by the government, the Central Organization of Trade Unions (COTU), and the Federation of Kenya Employers—gives workers the right to engage in legitimate trade union organizational activities. Both the Trade Disputes Act and the charter authorize collective bargaining between unions and employers. Historically, much of the trade union movement has been subservient to the governing authorities, but this dominance has lessened somewhat under the Kibaki administration.

Although Kenya’s judicial system is based on the British model, for much of the independence period its actions reflected the primacy of the executive branch. In 2002, a panel of Commonwealth judicial experts from Africa and Canada examined the court system, concluding that it was among the most incompetent and inefficient in Africa, with judges subject to political pressure and often accepting bribes to influence their decisions. The Kibaki government came to power promising that the rule of law would be upheld, and judicial independence strengthened. Kibaki has criticized the extent of corruption in the judiciary and instructed the minister of justice to establish a process to identify corrupt judges. In late 2003, Kibaki appointed new judges to replace those tainted by corruption. These actions, however, raised concerns about the criteria used and the lack of transparency in the appointment process. A 2005 report by the International Commission of Jurists concluded that corruption in the administration of justice as well as in the judiciary remains a serious impediment to the rule of law in Kenya. In 2006, the judiciary sought legislation to give it more control over its budget; the courts are understaffed and underfinanced, and Kenyans awaiting trial face long delays that violate their right to due process. The country has officially recognized Kadhi courts, which administer Sharia (Islamic law) for such issues as marriage and inheritance disputes, located in areas with a predominantly Muslim population. The government has not established a truth, justice, and reconciliation commission, although in the wake of Kibaki’s rise to the presidency a high-level commission called for such an institution.

While checks against arbitrary arrest exist in the legal system, they are not uniformly respected. In 2003, the Kibaki government hastily introduced into the National Assembly the Suppression of Terrorism Bill. The bill was revised and reintroduced following protests from a wide range of advocacy and human rights organizations, but Parliament had not acted upon it by year’s end. Concerns remain over the extent to which a final bill may restrict civil liberties. Amnesty International, for example, critiqued the legislation’s “vague and broad definition” of terrorism and terrorist acts and the wide-ranging powers it would give authorities to search and detain persons in connection with terrorist activities.

The government announced plans in 2005 to double the number of police officers recruited annually and to increase the proportion of female recruits from 13 percent to 20 percent. While prisons are congested, the government has taken steps to try to reduce this problem. Police still use force to extract information from suspects and deny them an opportunity to get legal representation.

Kenya’s population is divided into more than 40 ethnic groups, among which there are frequent allegations of discrimination and occasional violence. In a 2005 report, the Minority Rights Group stated that inequitable government spending has deepened the problems of minority and indigenous peoples. The report identified the Endorois, Maasai, Nubian, and Turkana ethnic groups as the most marginalized in the country with respect to land, resources, job opportunities, and government services, notably health care.

Land disputes frequently form the basis of ethnic tension and violence. Members of the Nubian community, most of whom are Muslim, claim that the government discriminates against them by trying to eliminate their ethnic identity. The continued presence and, at times, criminal activities of Somali refugees have exacerbated the problems faced by that minority. Factors contributing to ethnic tension include widespread firearms possession, the commercialization of traditional cattle herding, poor economic conditions, drought, and ineffective security forces.

Women in Kenya continue to face serious obstacles in the exercise of their freedom. They are denied equal property rights, which puts them at greater risk of poverty, disease (including HIV/AIDS), violence, and homelessness. In 2002, a draft gender-equity bill created considerable public controversy, with some Muslims protesting that it was too sweeping in scope. The government announced in 2004 that a revised bill would be introduced in the National Assembly. It subsequently promised that gender units would be established in all government ministries. By the end of 2006, however, 10 ministries still had no staff in charge of gender units.

Traditional attitudes limit the role of women in politics, although there are no legal restrictions and some change is occurring. The 2002 elections increased the number of women in the National Assembly to eight elected and seven appointed, along with three cabinet ministers. The Kibaki administration has explicitly listed improving women’s rights as a key policy goal. This issue is also the focus of considerable attention and discussion in the constitutional review process. There is evidence of widespread violence against women, reported cases of rape, attempted rape, defilement, and incest, and assault against women rose from 11,867 in 2004 to 12,036 in 2005, according to the 2006 Kenya National Human Development Report.

According to a 2006 report by Human Rights Watch, HIV/AIDS was not declared a national emergency until 2001, by which time the epidemic had claimed an estimated 140,000 lives. The number of Kenyan children who have lost one or both parents to AIDS is expected to reach 2.4 million by 2010. Kenya announced in June 2005 a system of cash grants to families caring for orphans.