Kenya is a multiparty democracy that holds regular elections, but its political rights and civil liberties are seriously undermined by pervasive corruption and brutality by security forces. The country’s media and civil society sectors are vibrant, even as journalists and human rights defenders remain vulnerable to restrictive laws and intimidation.
Key Developments in 2018:
- In March, following months of unrest and a lengthy political standoff in the wake of the disputed 2017 presidential election, Raila Odinga met with President Uhuru Kenyatta, and a widely circulated photograph of the two men shaking hands stoked controversy and confusion. Odinga accepted the results of the election in the meeting and the two leaders pledged to work together, but few substantive details of their discussion were disclosed.
- The government stepped up anticorruption efforts during the year; a number of high-level officials, including the deputy chief justice of the Supreme Court, were arrested for graft in 2018.
- In January, authorities shut down four television stations after they defied a warning by the government to not broadcast a mock swearing-in ceremony for Raila Odinga. The government then ignored a court order to allow the stations back on the air for several days before ending the shutdown in February.
- In February, the government began deportation proceedings against opposition politician and Odinga supporter Miguna Miguna, despite the fact that he held dual Kenyan-Canadian citizenship. A March court order requiring the government to release Miguna from police custody at the Nairobi airport was defied, and his deportation was carried out. In December, the High Court ruled that Miguna was indeed a Kenyan citizen, and that his deportation was unlawful. The court ordered the government to issue Miguna a passport and allow his return to the country, and authorities indicated that they would comply.
POLITICAL RIGHTS: 19 / 40
A. ELECTORAL PROCESS: 6 / 12
A1. Was the current head of government or other chief national authority elected through free and fair elections? 1 / 4
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 47 counties.
President Kenyatta was reelected in October 2017 in a disputed election, the rerun of which was boycotted by the main opposition candidate, Raila Odinga, on account of a lack of electoral reforms. The first presidential election, held in August, was annulled the following month by the Supreme Court, which ruled that vote-counting procedures by the Independent Electoral and Boundaries Commission (IEBC) had been severely flawed, and that a rerun should be held. (The count had returned a solid victory by Kenyatta, which many analysts had predicted.) In the ruling’s wake, the main opposition coalition, the National Super Alliance (NASA), threatened to boycott the rerun unless a number of reforms were implemented at the IEBC. Some of these reforms were not met, prompting a boycott of the rerun by Odinga, who urged his supporters not to participate in the poll. The final results showed that Kenyatta won the rerun with 98.3 percent of the vote. Turnout for the rerun was just 38.8 percent—much lower than turnout for the August polls, which reached nearly 80 percent. Odinga continued to harshly criticize the election process after the rerun, and Kenyatta began his final term facing a significant legitimacy crisis.
Violence and intimidation marred the presidential election period. Chris Msando, the IEBC member in charge of the vote-counting system, was murdered days ahead of the August vote, with his body showing signs of torture. In the weeks between the annulled election and the rerun, one IEBC commissioner fled Kenya for the US, prompting the IEBC chairman to assert that the body could not guarantee a free election given the atmosphere of intimidation. Police in Nairobi and Kisumu used excessive force in an attempt to quell sometimes violent opposition protests. Several dozen people were reportedly killed by police in the capital alone, according to Human Rights Watch (HRW).
A2. Were the current national legislative representatives elected through free and fair elections? 3 / 4
The bicameral Parliament consists of the 349-seat National Assembly and the 67-seat Senate. 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.
Stakeholders broadly accepted the results of the 2017 parliamentary contests. Irregularities and violations were reported, but they were not systematic and did not harm or benefit any specific party.
A3. Are the electoral laws and framework fair, and are they implemented impartially by the relevant election management bodies? 2 / 4
The IEBC is mandated with conducting free and fair elections, and operates under a robust electoral framework. However, the IEBC faces frequent allegations of favoritism toward the incumbent Jubilee Coalition, and in 2017 its members experienced violence and intimidation severe enough to prompt its chairman to declare that he could not guarantee the integrity of the presidential rerun. After the annulment of the first presidential election, in 2017 the National Assembly approved controversial measures mandating that if a candidate withdraws from a rerun election, the other candidate would automatically win the poll. The amendments additionally limited the Supreme Court’s power to annul election results. The measures took effect a few days after the rerun was held.
B. POLITICAL PLURALISM AND PARTICIPATION: 8 / 16
B1. Do the people have the right to organize in different political parties or other competitive political groupings of their choice, and is the system free of undue obstacles to the rise and fall of these competing parties or groupings? 2 / 4
Citizens are free to organize into political parties. Kenyan parties represent a range of ideological, regional, and ethnic interests, but are notoriously weak, and are 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.
Opposition leaders sometimes face harassment and threats from authorities, and opposition rallies and demonstrations are frequently met with a violent police response. In January 2018, security forces used tear gas to disperse some opposition supporters who were attending a mock swearing-in event for Raila Odinga, but the authorities allowed the event to proceed without a major crackdown. On the day of the ceremony, the Interior Ministry declared Odinga’s newly formed National Resistance Movement (NRM), an offshoot of the NASA, to be an illegal organization, leaving its members vulnerable to arrest.
In February, the government began deportation proceedings against opposition politician and Odinga supporter Miguna Miguna, despite the fact that he held dual Kenyan-Canadian citizenship. A March court order requiring the government to release Miguna from police custody at the Nairobi airport was ignored, and his deportation was carried out. In December, the High Court ruled that Miguna was indeed a Kenyan citizen, and that his deportation was unlawful. The court ordered the government to issue Miguna a passport and allow his return to the country, and authorities indicated that they would comply.
B2. Is there a realistic opportunity for the opposition to increase its support or gain power through elections? 2 / 4
Opposition parties and candidates are competitive in Kenyan elections, and the 2017 polls saw a high number of incumbents voted out of office. However, Odinga’s decision to boycott the rerun election in protest of a lack of reforms at the IEBC left Kenyatta opponents without a viable candidate to vote for, effectively guaranteeing Kenyatta’s reelection.
In March 2018, following months of unrest and a lengthy political standoff in the wake of the boycotted rerun election, Odinga met with President Kenyatta, and a widely circulated photograph of the two men shaking hands stoked controversy and confusion. Odinga accepted the results of the election in the meeting and the two leaders pledged to work together, but few substantive details of their discussion were disclosed. Several of Kenyatta’s opponents in Parliament condemned “the handshake,” claiming that it undermined Odinga’s credibility and would further weaken and fragment the opposition.
Following the meeting, Kenyatta and Odinga formed the Building Bridges Initiative. Under the initiative, a 14-member task force convened in May, which was entrusted with gathering public opinion on the problems that plague Kenyan politics such as ethnic strife, corruption, and political dysfunction, and ultimately producing recommendations for reform. Although some analysts praised the initiative for its efforts to build consensus, a number of opposition politicians sharply criticized it, claiming that it was a waste of government resources and that members of the task force were insufficiently vetted.
B3. Are the people’s political choices free from domination by the military, foreign powers, religious hierarchies, economic oligarchies, or any other powerful group that is not democratically accountable? 2 / 4
People’s political choices are generally free from undue influence by powerful, democratically unaccountable actors. However, ethnicity remains the most salient organizing principle in Kenyan politics, and two ethnic groups—the Kikuyu and Kalenjin—have dominated the presidency since independence.
B4. Do various segments of the population (including ethnic, religious, gender, LGBT, and other relevant groups) have full political rights and electoral opportunities? 2 / 4
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.
The stipulation that all voters must possess a National Identity Card hinders historically marginalized groups from obtaining greater access to the political process, particularly the nearly seven million pastoralists from the upper Rift Valley and the North Eastern Province. There are significant implicit barriers to the participation of non-Christian and LGBT (lesbian, gay, bisexual, and transgender) people in national politics.
C. FUNCTIONING OF GOVERNMENT: 5 / 12
C1. Do the freely elected head of government and national legislative representatives determine the policies of the government? 2 / 4
The ability of elected officials to set and implement policy is undermined by corruption and other dysfunction. Although the 2010 constitution reduced the powers of the executive branch and improved the oversight role of Parliament, corruption limits the independence of the legislative branch, and in practice, Parliament is generally subordinate to the president.
C2. Are safeguards against official corruption strong and effective? 1 / 4
Corruption continues to plague national and county governments in Kenya, and state institutions tasked with combating corruption have been ineffective. The Ethics and Anti-Corruption Commission (EACC) lacks prosecutorial powers and has been largely unsuccessful in pursuing corruption cases. The EACC’s weakness is compounded by shortcomings at the Office of the Director of Public Prosecutions (ODPP) and within the judiciary.
Despite these challenges, with the April 2018 appointment of Noordin Haji as the Director of Public Prosecutions (DPP), the ODPP stepped up anticorruption investigations, arresting and charging a number of high-profile officials with graft. In May, Richard Ndubai, the director of the National Youth Service, was arrested along with 40 other government employees, for allegedly stealing $78 million in public funds. The accused awaited trial at year’s end. In August, Supreme Court Deputy Chief Justice Philomena Mwilu was arrested and charged with allegedly receiving bribes and failing to pay her taxes. It remains to be seen whether the revitalization of the ODPP will lead to an increase in corruption convictions of high-level officials.
C3. Does the government operate with openness and transparency? 2 / 4
Elaborate rules govern public finance in Kenya, but enforcement is often lacking. Parliament’s Budget and Appropriations Committee effectively delegates the budget process to the Treasury, and the legislature has demonstrated limited willingness to ensure that the Treasury respects budget-making procedures. When budget information is made available, it is generally released long after the planning stages during which stakeholders could offer input.
Many of the central government’s expenditures are not disclosed. In October 2018, the auditor general accused several counties of fraudulent use of funds. However, in recent years, counties have more frequently made budget documents accessible to the public. The 2016 Access to Information Law contains a broad exemption for national security matters.
CIVIL LIBERTIES: 29 / 60
D. FREEDOM OF EXPRESSION AND BELIEF: 10 / 16
D1. Are there free and independent media? 2 / 4
Kenya has one of the more vibrant media landscapes on the African continent, with journalists actively working to expose government corruption and other wrongdoing. However, several laws restrict press freedom, and the government and security forces harass journalists, leading to self-censorship in some cases. In January 2018, authorities shut down four television stations after they defied a warning by the government to not broadcast Raila Odinga’s mock swearing-in ceremony. The government then ignored a court order to allow the stations back on the air for several days before ending the shutdown in February.
In May, President Kenyatta signed the controversial Computer Misuse and Cybercrimes Act 2018 into law. Vaguely worded provisions in the law criminalized abuse on social media and “publication of false information,” which was made punishable with hefty fines and up to two years in prison. Rights activists condemned the legislation for undermining press freedom. However, in May, the High Court suspended the provisions that most concerned press freedom advocates.
D2. Are individuals free to practice and express their religious faith or nonbelief in public and private? 2 / 4
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. Shabaab militants have at times specifically targeted Christians in Kenya.
D3. Is there academic freedom, and is the educational system free from extensive political indoctrination? 3 / 4
Academic freedom in Kenya, though traditionally robust, is increasingly threatened by political interference, ethnic divisions, and violence.
Student union elections have led to allegations of fraud and violent protests. In addition, there is evidence that ethnic considerations have influenced university hiring, leaving the staff of some institutions with significant ethnic imbalances.
D4. Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution? 3 / 4
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 government in recent years has used its broadly defined surveillance powers to monitor mobile phone and internet communications.
E. ASSOCIATIONAL AND ORGANIZATIONAL RIGHTS: 7 / 12
E1. Is there freedom of assembly? 2 / 4
The constitution guarantees the freedom of assembly. However, 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, and violently dispersed assemblies that they had not explicitly banned.
E2. Is there freedom for nongovernmental organizations, particularly those that are engaged in human rights– and governance-related work? 2 / 4
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 attempts were seen in part as an effort to silence criticism of the government’s human rights record. NGO leaders who criticized the government faced harassment and threats of arrest in 2018, as well.
At year’s end, the government had still not implemented the Public Benefits Organizations (PBO) Act, which was passed in 2013 to improve the regulatory framework for NGOs and create more space for civil society.
E3. Is there freedom for trade unions and similar professional or labor organizations? 3 / 4
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. However, labor leaders sometimes experience intimidation, notably in the wake of strike actions. A number of strikes have taken place in the past several years, including those organized by medical workers and university staff.
F. RULE OF LAW: 5 / 16
F1. Is there an independent judiciary? 2 / 4
The judiciary is generally considered to be independent, but judicial procedures are inefficient. The government’s refusal to comply with court orders to release Miguna Miguna and halt his deportation, and to end the shutdown of several television stations that aired Odinga’s swearing-in ceremony, threatened judicial independence in 2018.
After the High Court annulled the first 2017 presidential election, members of the ruling Jubilee Coalition threatened and intimidated judges. In June 2018, President Kenyatta signed an appropriations bill that significantly reduced the budget for the judiciary to $143 million, compared to $173 million the previous year. Some critics claim that the budget cut was retaliation for the 2017 election annulment, and judges denounced the decision as an attack on the judiciary’s independence.
F2. Does due process prevail in civil and criminal matters? 1 / 4
Constitutional guarantees of due process are poorly upheld. There remains a significant backlog of court cases. The police service is thoroughly undermined by corruption and criminality.
F3. Is there protection from the illegitimate use of physical force and freedom from war and insurgencies? 1 / 4
The Shabaab militant group continued to pose a security threat in 2018. Violence against suspects and detainees by security forces remains a serious concern, and abuses are rarely punished. Extrajudicial killings were also frequent during the year. According to the Daily Nation, the police killed 222 people in 2018, a slight decline from the 256 people killed in 2017. A report released by the Kenya National Human Rights Commission (KNCHR) in November 2018 implicated security forces in widespread rape and sexual abuse during the 2017 election period.
F4. Do laws, policies, and practices guarantee equal treatment of various segments of the population? 1 / 4
Consensual same-sex sexual activity is criminalized under the penal code, with a maximum penalty of 14 years in prison. Members of the LGBT community continue to face discrimination, abuse, and violent attacks. In 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. Reports of police abuses against refugees and asylum seekers continued.
G. PERSONAL AUTONOMY AND INDIVIDUAL RIGHTS: 7 / 16
G1. Do individuals enjoy freedom of movement, including the ability to change their place of residence, employment, or education? 2 / 4
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. Hundreds of people fled their homes in Narok South in September 2018 as a result of communal clashes that continued through the end of the year.
G2. Are individuals able to exercise the right to own property and establish private businesses without undue interference from state or nonstate actors? 1 / 4
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.
Forced evictions are prevalent in low-income areas, particularly in Nairobi. In July and August 2018, thousands of people were evicted from their homes in Nairobi, which were bulldozed to make room for a new railroad. The government did not provide those evicted with compensation or new housing. Authorities also forcibly evicted thousands of indigenous people from protected forest lands during the year.
G3. Do individuals enjoy personal social freedoms, including choice of marriage partner and size of family, protection from domestic violence, and control over appearance? 2 / 4
The constitution recognizes marriage as a union between two people of the opposite sex, but otherwise does not place explicit restrictions on social freedoms. Polygamy is legal, and approximately 10 percent of the married population are in polygamous marriages. Rape and domestic violence remain common and are rarely prosecuted.
G4. Do individuals enjoy equality of opportunity and freedom from economic exploitation? 2 / 4
Kenya remains an unequal society, with wealth generally concentrated in towns and cities. The arid and semiarid north and northeastern parts of the country have particularly high poverty rates.
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.