Freedom in the World
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Kenya is a multiparty democracy that holds regular elections, but its political rights and civil liberties are seriously undermined by pervasive corruption and cronyism, police brutality, and ethnic rivalries that are exploited by political leaders. The country has also struggled to cope with the threat of terrorism emanating from neighboring Somalia; counterterrorism efforts often feature abusive and discriminatory tactics targeting the Muslim and ethnic Somali communities.
- After Islamist militants killed at least 141 Kenyan soldiers in Somalia in January, Kenyan authorities arrested a journalist and a blogger for sharing information related to the attack on social media, adding to a pattern of restrictions on freedom of expression. In April, a judge struck down the legal provision under which the two were arrested.
- In June, police officers allegedly tortured and murdered the accuser in a police brutality case, along with his lawyer and a driver. The incident highlighted the broader problem of criminality and excessive force among law enforcement agencies.
- Members of the electoral commission resigned in October as part of a political agreement to reform the body ahead of general elections in 2017. The deal came after a failed constitutional referendum bid and a series of major protests by the opposition, which argued that the existing electoral system was deeply flawed.
A decline in domestic terrorist attacks in 2016 was overshadowed by an apparent rise in the use of lethal force by Kenyan police. An October study found that in the first eight months of the year, police officers killed a total of 122 civilians, a 7 percent increase over the same period in 2015. Police brutality was on display in May and June, when the opposition organized demonstrations aimed at overhauling the electoral commission. At least five demonstrators were killed amid police beatings, tear gas, and gunfire ammunition.
In the year’s most prominent incident of police violence, human rights lawyer Willie Kimani, his client Josephat Mwenda, and their driver, Joseph Muiruri, were killed in June. Kimani was representing Mwenda in a court case in which the latter accused police officers of misuse of lethal force. The three were allegedly tortured and then dumped in a river. Five police officers were charged with the murders. Government statistics released in May provided another indication of alarming criminality among police, showing that police officers were implicated in over a third of the crimes reported in 2015.
The year also featured attempts by the government to limit freedom of expression. Journalists, bloggers, and activists were arrested or prosecuted on a variety of charges, and officials allegedly pressured media outlets to curb unfavorable coverage. In January, the Daily Nation fired an editor over an opinion piece that was critical of the administration, and in March the same paper severed ties with a cartoonist known for his biting critiques of powerful figures. Despite these pressures, many media houses continued to produce aggressive reporting on the government, and a number of activists used the country’s moderately independent judicial system to fight back against threats to freedom of expression.
Under a constitution approved by voters in 2010, the president and deputy president, who can serve up to two five-year terms, are directly elected by majority vote; they are also required to win 25 percent of the votes in at least half of Kenya’s newly created 47 counties.
The legislature consists of the National Assembly (349 members) and the Senate (67 senators). In the National Assembly, 290 members are directly elected from single-member constituencies. A further 47 special women representatives are elected from the counties, and political parties nominate 12 additional members according to the share of seats won. The Senate has 47 elected members representing the counties, 16 special women representatives nominated by political parties based on the share of seats won, and four nominated members representing youth and people with disabilities. Both houses have speakers who are ex-officio members.
In the 2013 general elections, the ruling Jubilee Coalition took 167 National Assembly seats and 30 Senate seats. The opposition Coalition for Reforms and Democracy (CORD) won 141 and 28 seats in the assembly and Senate, respectively. In the presidential race, Uhuru Kenyatta of Jubilee won with 50.07 percent of the vote, followed by Raila Odinga of CORD with 43.7 percent. Amid serious questions surrounding the tabulation of results, CORD alleged widespread vote rigging in a petition to the Supreme Court, but the court declined to annul the results.
The 47 counties have elected governors, deputy governors, and assemblies. Following the 2013 general elections, the Jubilee Coalition held governorships in 18 counties, while CORD won in 23. Governors serve for a term of five years, renewable once.
With the next elections expected in August 2017, CORD pushed during 2016 for a reform of the Independent Electoral and Boundaries Commission (IEBC) and other aspects of the electoral system. It first sought to initiate a process for the adoption of constitutional amendments to that end, which required gathering at least a million signatures. The effort failed after the IEBC ruled in March that only about 890,000 of the 1.6 million signatures submitted were valid. CORD then mobilized its supporters in May and June for weekly street demonstrations that paralyzed Kenya’s urban centers. This forced the government to the negotiating table, and in August the two sides reached an agreement under which the IEBC would be restructured to include direct party representation. The incumbent commissioners submitted their resignations in October, and an appointment process for new commissioners was under way at year’s end.
Citizens are free to organize into political parties that represent a range of ideological, regional, and ethnic interests, but Kenyan parties are notoriously weak, often amalgamated into coalitions designed only to contest elections. Under the Political Parties Act, parties that receive at least 5 percent of the votes cast in a national election are eligible for public funds.
During the 2013 elections, powerful economic interests posed impediments to political choice. Unverified sums of money were used during the campaign in the absence of an adequate campaign finance law, and there was evidence of direct vote buying by candidates from both coalitions.
The 2010 constitution was intended to reduce the role of ethnicity in elections. Fiscal and political devolution, implemented in 2013, has served to generate more intraethnic competition at the county level. Nevertheless, the ongoing politicization of ethnicity at the national level hinders effective representation of different segments of Kenya’s diverse population, limits voter choice, and impedes meaningful policy debates. Although the Political Parties Act requires each party to have at least 1,000 members in 24 of the 47 counties to ensure diversity, the major coalitions continue to reflect distinctive—though rarely exclusive—ethnic alliances.
The stipulation that all voters must possess a National Identity Card impedes historically marginalized groups from obtaining greater access to the political process, particularly the nearly seven million pastoralists from the upper Rift Valley and North Eastern regions.
The ability of elected officials to set and implement policy is seriously undermined by corruption and other forms of dysfunction. The devolution process has exposed capacity deficits at the county level, with most county governments struggling to absorb funds and failing to meet spending targets for development projects. At the national level, an auditor general’s report on government financial statements for the 2014–15 fiscal year gave a clean (unqualified) audit opinion for only about 25 percent of the statements assessed.
Major corruption scandals continued to be reported in the media during 2016. They included opposition claims that a portion of the revenue from a sale of $2.8 billion in Eurobonds had been misappropriated by the government; revelations that some $17.4 million, more than double the initial estimate, had been lost in a 2015 embezzlement scandal centered on the National Youth Service; and the improper awarding of Health Ministry contracts reserved for marginalized groups, in some cases to companies owned by the president’s relatives.
State institutions tasked with combating corruption have been ineffective. In August 2016, the head of the Ethics and Anti-Corruption Commission (EACC) resigned under pressure over allegations that a company run by his wife had benefited from National Youth Service contracts. Some reform projects, like the Integrated Financial Management Information System (IFMIS), launched in 2014 as an online clearinghouse for state procurements, appear to have made the problem worse. Misuse of IFMIS was alleged in both the National Youth Service and Health Ministry scandals. The EACC’s weakness is compounded by shortcomings at the Office of the Director of Public Prosecutions (ODPP) and in the judiciary. It was reported in October 2016 that out of 5,551 cases investigated by the EACC in the 2014–15 fiscal year, only 117 (2 percent) were forwarded to the ODPP, and of these the ODPP managed to secure a single conviction.
The president signed the Access to Information Act in August 2016, enabling citizen information requests and requiring disclosures on government contracts. Officials who improperly withhold information can face fines or prison terms. Transparency advocates welcomed the law, but noted a broadly defined exemption for national security matters and called for careful consultation on implementing regulations.
The 2010 constitution strengthened protections for freedoms of speech and of the press, and there is a large, independent, and active media sector in Kenya. The media notably reported on corruption scandals reaching the highest levels of government during 2016. However, several laws restrict press freedom, and the government and security forces harass journalists, leading to self-censorship in some cases. Many journalists and activists have turned to online outlets and social media platforms to bypass political and business influences at established media groups.
In January 2016, the interior minister issued a directive against the dissemination of images showing the victims of a devastating Islamist militant attack in Somalia that killed at least 141 Kenyan soldiers. Later that month, a journalist and a blogger who had reported on the attack were arrested and charged under Section 29 of the Information and Communications Act, which banned the “improper use of a licensed communications system.” The vaguely defined offense has allowed authorities to arrest and charge numerous online journalists and bloggers who convey critical information on government officials. In April 2016, the High Court declared Section 29 unconstitutional, and related cases were subsequently dropped.
The government and some business groups have used other forms of influence to shape news coverage, including defamation suits and manipulation of advertising purchases, sometimes leading major media groups to avoid sensitive content. In January 2016, the Daily Nation fired editor Denis Galava after he wrote an editorial that was critical of the government. In March, the newspaper fired Godfrey Mwampembwa (Gado), a cartoonist known for skewering powerful figures. Mwampembwa was later hired by a competing newspaper, the Standard. Also during the year, the courts ordered media outlets including the Standard and the Daily Nation to pay substantial monetary damages in defamation cases, several of which were filed by judges.
The government generally respects the constitutional guarantee of freedom of religion. However, counterterrorism operations against the Somalia-based Shabaab militant group have left Muslims exposed to state violence and intimidation. In July 2016, Human Rights Watch reported that it had documented at least 34 enforced disappearances and 11 extrajudicial killings between 2013 and 2015, all involving people taken into custody during counterterrorism operations.
Academic freedom in Kenya, though traditionally robust, is increasingly threatened by ethnic politics and political violence. Student union elections have led to allegations of fraud and violent protests. Police reportedly used beatings and other abuse to quell protests over a student election at the University of Nairobi in April 2016. In addition, there is growing evidence that ethnic considerations have influenced university hiring, leaving the staff of some institutions with significant ethnic imbalances.
The relatively unfettered freedom of private discussion in Kenya has suffered somewhat from state counterterrorism operations and intimidation by security forces and ethnically affiliated gangs.
The constitution guarantees the freedoms of assembly and association. The law requires organizers of public meetings to notify local police in advance, and in practice police have regularly prohibited gatherings on security or other grounds, or violently dispersed assemblies that they had not explicitly banned. Among other episodes in 2016, police used beatings, tear gas, and live ammunition to break up CORD protests calling for electoral reform in May and June. At least five demonstrators were killed.
Kenya has an active nongovernmental organization (NGO) sector, but civil society groups have faced growing obstacles in recent years, including repeated government attempts to deregister hundreds of NGOs for alleged financial violations. The moves were seen in part as an effort to silence criticism of the government’s human rights record. In 2016, the government again failed to put into effect the 2013 Public Benefit Organizations Act, which was expected to provide a more transparent and supportive legal framework for NGO registration and activity. While delaying implementation, officials have sought to introduce restrictive amendments to the law. In June 2016 the government announced that it would strictly enforce laws placing limits on work permits and salaries for foreign workers, specifically threatening the status of those employed by NGOs.
The 2010 constitution affirmed the rights of trade unions to establish their own agendas, bargain collectively, and strike. Unions are active in Kenya, with approximately 40 unions representing nearly two million workers. Most unions are affiliated with the Central Organization of Trade Unions (COTU). In June 2016, the government agreed to a new pay deal with teachers’ unions, which had mounted a strike over the issue in 2015. A full collective-bargaining agreement was completed in October. In December, Kenyan doctors went on strike over pay and working conditions that had apparently grown worse after the devolution of health services to the county level.
The 2010 constitution enhanced the independence of the judiciary, but Kenya has struggled to entrench the rule of law in practice. The country’s respected chief justice, Willy Mutunga, retired from office in June 2016, raising concerns as to whether the judiciary would continue on a reformist path. The constitution sets a mandatory retirement age of 70, and Mutunga stepped down a year earlier than necessary. Two other Supreme Court justices, Philip Tunoi and deputy chief justice Kalpana Rawal, were forced to retire the same month after controversial but unsuccessful attempts to stay on beyond the age limit. Tunoi was facing bribery allegations at the time. David Maraga was nominated as the new chief justice in September, and in October he and the replacements for the other two retired justices were sworn into office. The independent Judicial Services Commission handles the vetting and appointment of judges, including the chief justice. In May, the High Court struck down a legal amendment that would have directed the commission to submit three names for chief justice to the president rather than one, effectively giving the president discretion over the appointment.
The police service is thoroughly undermined by corruption and criminality. Government statistics released in May 2016 showed that police officers were implicated in over a third of the crimes reported in 2015. In October, the Daily Nation reported that in the first eight months of 2016, at least 122 civilians had been shot dead by police, a 7 percent increase over the same period in 2015.
The year’s most brazen crime occurred in June, when police officers allegedly abducted, tortured, and murdered human rights lawyer Willie Kimani; his client, Josephat Mwenda, who had filed a complaint against an officer for illegally shooting him; and their driver, Joseph Muiruri. The three men’s bodies were found in a river about a week after they went missing. Five police officers were facing trial for the murders at year’s end. A number of other high-profile crimes remained unsolved during the year, including the May murder of a prominent businessman and opposition supporter, Jacob Juma. Opposition leader Raila Odinga claimed that a police hit squad was responsible.
Despite aggressive government counterterrorism efforts, the Shabaab continued to mount deadly attacks on Kenyan soil, particularly near the border with Somalia. While the number of attacks appeared to decline compared with the previous year, notable incidents in 2016 included a July shooting attack on two buses that killed at least six people in Mandera County in the northeast, and an October raid on a guesthouse in the same county that killed 12 people.
Ethnic Somalis—both Kenyan citizens and refugees from neighboring Somalia—have borne the brunt of arbitrary arrests and a range of other abuses linked to the counterterrorism campaign. As of 2016 there were more than 500,000 refugees in Kenya, including some 330,000 Somalis. In recent years there has been increased social and political pressure to expel Somali refugees, and tens of thousands have been repatriated under UN supervision. The government in May announced plans to close the massive Dadaab refugee camp in November, but later extended the deadline by six months.
Consensual same-sex sexual activity is criminalized under the penal code, with a maximum penalty of 14 years in prison. Members of the LGBT (lesbian, gay, bisexual, and transgender) community continue to face discrimination, abuse, and violent attacks. In June 2016, a High Court judge in Mombasa upheld the use of forced anal examinations and testing for HIV and hepatitis B as a means of gathering supposed evidence of same-sex sexual activity. The UN special rapporteur on torture and other experts have condemned such practices.
While the constitution provides protections for freedom of movement and related rights, they are impeded in practice by security concerns and ethnic tensions that lead many residents to avoid certain parts of the country.
Organized crime continues to threaten legitimate business activity in Kenya. Political corruption and ethnic favoritism also affect the business sector and exacerbate existing imbalances in wealth and access to economic opportunities, including public-sector jobs.
The 2015 Protection against Domestic Violence Act criminalized a range of abuses including forced marriage, spousal rape, and female genital mutilation. However, rape and domestic violence reportedly remain common and are rarely prosecuted. Customary law often trumps statutory law, leaving women with few remedies for discriminatory customary practices. Underage marriage is illegal but still occurs. Women face disparities in education and are underrepresented in politics and government. The constitution calls for all elected and appointed state institutions to have no more than two-thirds of their members from the same gender, but institutions that continued to fall short of that standard in 2016 included the cabinet and both houses of Parliament.
Refugees and asylum seekers from neighboring countries, particularly children, have been vulnerable to sex trafficking and forced labor in Kenya, though Kenyan children are also subject to such abuses. Kenyan workers are recruited for employment abroad in sometimes exploitative conditions, particularly in the Middle East.