Freedom in the World 2005 - Kenya

Political Rights: 3
Civil Liberties: 3
Status: Partly Free
Population: 32,400,000
GNI/Capita: $360
Life Expectancy: 51
Religious Groups: Protestant (45 percent), Roman Catholic (33 percent), Muslim (10 percent), indigenous beliefs (10 percent), other (2 percent)
Ethnic Groups: Kikuyu (22 percent), Luhya (14 percent), Luo (13 percent), Kalenjin (12 percent), Kamba (11 percent), Kisii (6 percent), Meru (6 percent), other African (15 percent), other [including Asian, European, and Arab] (1 percent)
Capital: Nairobi

Overview

Kenya continued its ambivalent reform process throughout 2004. The efforts at political, economic, and social reforms undertaken by the administration of President Mwai Kibaki were highlighted by a lively press and public investigative commissions. At the same time, political tensions, entrenched corruption, lack of specific reform results, and questions regarding the depth of the government's commitment to reform raised concerns about the extent of progress towards democratic consolidation.

Britain conquered Kenya in the late eighteenth century in order to open and control a route to the Nile River headwaters in Uganda; in 1963, Kenya achieved its independence. The nationalist leader Jomo Kenyatta was president until his death in 1978, when 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. Moi was reelected president in controversial polling. In December 1997 presidential and parliamentary elections took place, and Moi again secured victory over a divided opposition. Moi's reelection was ensured by his massive use of state patronage and the official media to promote his candidacy and by harassment of the divided opposition.

KANU's election victories were achieved through political repression, media control, and dubious electoral procedures. Physical violence, an often-docile judiciary, 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. Limits on political and civil rights were common, as was corruption in the ruling party and government. In the 1990s the government sponsored ethnic violence, which heightened political polarization. Despite these problems, political space continued to open up. Over time, many of the core elements necessary for the growth of a democratic political system developed.

In 2002, the opposition succeeded in uniting behind 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 parliament. These elections raised the prospect of a sea change in Kenyan politics: the new leadership's ambitious reform program included tackling corruption and economic and social issues, as well as undertaking institutional reforms designed to promote democracy.

To date, reform efforts have been complicated by the fragility of the governing NARC coalition; an ongoing, complex constitutional reform process; significant resource constraints; the threat of terrorism; and ambiguous attitudes on the part of major donor countries.

A drawn-out constitutional review process has included the participation of a wide range of civic groups and associations. Under consideration are the creation of a senate and an executive prime minister to be elected by parliament; presidential and parliamentary electoral reform; decentralization; and other changes designed to limit the power of the presidency, including giving parliament the power to impeach the president. In 2004, the commission, was hamstrung by political infighting and was unable to reach decisions on a number of sensitive and politically charged issues. The question of whether parliament is to participate in the process, and at what stage, has also bogged down the proceedings.

The press, parliament, and the judiciary are increasingly highlighting examples of government corruption and malfeasance. President Kibaki established an independent anticorruption commission, which has been investigating over 3000 cases of alleged corruption since its inception in 2003, although its track record of initiating successful prosecutions has been modest. One of President Kibaki's early appointments was to place John Githongo, the widely respected head of Transparency International's (TI) Kenya chapter, in charge of the government's Office of Ethics and Governance. A number of commissions are investigating particular scandals, such as the Goldenberg and Euro Bank affairs.

The failures of governance in the Moi era present the Kibaki administration with a challenge of whether, and how, to deal with the past. Debate is underway over the extent to which the government should actively seek to right past wrongs and to actively pursue alleged wrongdoers, up to and possibly including former president Moi. In 2003 a presidential task force solicited views from the public and recommended that a truth commission be established to probe injustices perpetrated since 1963, but such a commission has yet to be constituted.

Political Rights and Civil Liberties

With the 2002 elections, Kenyans were able for the first time to choose their leaders in genuinely open and competitive elections. The general domestic and international view was that the elections were legitimate. However, the country is far from consolidating its nascent and fragile democracy, including its electoral processes. Nevertheless, political parties are active and vocal, and parliament is the setting for much of the nation's political discourse. A varied and energetic civil society plays an important role in public policy debates.

TI's 2004 Corruption Perceptions Index suggests that corruption is beginning to fall in many significant areas, and the Kenya Bribery Index states that the incidence of corruption has dropped significantly compared with that of 2002. In 2004, the government raised police salaries to reduce incentives for corruption; according to TI, police are still the most frequently bribed public officials. There have been meager results to date from investigations such as the Goldenberg inquiry, emphasizing the magnitude of the challenge to reduce corruption in Kenya. In addition, Kibaki's increasing reliance on the "Mount Kenya Mafia" – powerful businessmen from the president's majority Kikuyu ethnic group – has raised increasing concerns. In mid-2004, European donors suspended aid over concerns about corruption, but the IMF provided a more positive assessment. Kenya was ranked 129 out of 146 countries surveyed in TI's 2004 Corruption Perceptions Index.

The constitution provides for freedom of speech and of the press, rights which the Moi government had restricted in practice. Despite a hostile government attitude, the print media remained fairly free in the latter years of Moi's rule and the electronic media began to show some signs of independence. This trend has been accentuated under the Kibaki government, although the Kenya Union of Journalists has criticized the government for failing to expand media freedom in the country. The government does not restrict access to the Internet.

In general, the government has respected freedom of religion. According to the 2004 U.S. State Department's Report on International Religious Freedom, "there is generally a great level of tolerance among religious groups." The report concluded that Kenya was one of the least repressive African states in this regard. However, disputes occur between Muslims and Christians, and Muslim leaders often criticize the government. Religious-based tension has risen in recent years, as terrorist acts associated with Islamic fundamentalism have been committed on Kenyan soil. In June 2004, the Council of Imams and Preachers of Kenya accused the Government of persecuting Muslims, and cited the arrest of some 30 Muslims on terrorism charges as proof.

Reflecting Kenya's generally positive record on freedom of thought issues, academic freedom is the norm. The constitution explicitly permits freedom of assembly, and the Kibaki government, unlike its predecessor, has generally respected this right, although there have been cases of unnecessary use of force. In July, security forces, for example, killed and injured a number of demonstrators in Nairobi and Kisumu following the cancellation of public rallies demanding a new constitution.

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 nongovernmental organizations (NGOs) in Kenya to pry open political space and greater freedom. In recent years, public policy has achieved significant elements of transparency, especially when compared with many other countries wrestling with the legacy of decades of authoritarian rule. The role of civil society in the ongoing constitutional reform process is a good example, as has been the ability of NGOs to undertake voter education and election monitoring.

All workers other than the police are legally free to join unions of their choice. The government also may deregister a union, but the Registrar of Trade Unions must give the union 60 days to challenge the deregistration notice. The Trade Union Act makes provision for a registrar of trade unions, who is appointed by the minister of labor. Historically, most of the trade union movement has been at least partially subservient to the governing authorities.

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 and found it to be among the most incompetent and inefficient in Africa. Judges commonly accepted bribes and many were subject to political influence.

The Kibaki government came into 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. The president has appointed new high court judges to replace those tainted by corruption. Senior judges have also been suspended while they are investigated for alleged corruption and misconduct.

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" Islamic courts that administer Sharia (Islamic law) for such issues as marriage and inheritance disputes, located in areas with a predominantly Muslim population. Controversy exists over whether these courts should be explicitly included in the new Kenyan constitution.

While checks against arbitrary arrest exist in the legal system, they are not uniformly respected. In 2003 the Kibaki government introduced into parliament controversial draft legislation, the Suppression of Terrorism Bill, aimed at combating terrorism. The bill was re-drafted following protests from a wide range of advocacy and human rights organizations, but concerns remain over the extent to which the final bill may restrict civil liberties.

Police still use force to extract information from suspects and deny them an opportunity to get legal representation. The Kenya Human Rights Network claims to have recorded 485 cases of torture and extrajudicial shootings in 2003. The upward trend may partly be because human rights campaigns have prompted more citizens to report violations. Generally, prisons are congested, some holding five times their capacity. This congestion is in some measure caused by the large number of prisoners awaiting trial. Courts often set bail beyond the means of the accused, and overworked prosecutors are slow in preparing for trial.

Kenya's population is divided into more than 40 ethnic groups, among which there were frequent allegations of discrimination and occasional violence. Land disputes frequently form the basis of ethnic tension and violence. Members of the Nubian community, most of whom are Muslim, claimed that the Government discriminated against them by trying to eliminate their ethnic identity. The continued presence of and, at times, criminal activities by Somali refugees have exacerbated the problems faced by that minority. Factors contributing to this tension include widespread firearms possession, the commercialization of traditional cattle rustling, poor economic conditions, drought conditions and ineffective security forces.

Women in Kenya continue to face serious obstacles in the exercise of their freedom. In 2002 a draft gender equity bill created considerable public controversy, with some Muslims protesting that it was too sweeping in scope, but the government announced in 2004 that a revised bill would be introduced in parliament. There is evidence of widespread violence against women; one report determined that more than 50 percent of women had been victims of domestic violence. 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 parliament to eight elected and seven nominated, along with three cabinet ministers. The Kibaki government has explicitly targeted 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.