Freedom in the World 2006 - Kenya

Political Rights: 3
Civil Liberties: 3
Status: Partly Free
Population: 33,800,000
GNI/Capita: $400
Life Expectancy: 47
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

The administration of President Mwai Kibaki came under increasing criticism in 2005 for its overall lack of progress in curbing corruption. In late November, Kenyan voters decisively rejected a new constitution. The final version of the draft constitution proved to be highly controversial, as the National Assembly and government, at the eleventh hour, decided to retain most powers in the presidency rather than transferring them to a new post of prime minister.

Britain conquered Kenya in the late eighteenth century 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, 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 legislative elections took place, and Moi again won over 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, 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, the government sponsored ethnic violence, which heightened political polarization. Despite these problems, political space continued to open up, 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 and economic and social issues, as well as undertaking institutional reforms designed to promote democracy.

To date, reform efforts have been complicated by a number of factors, including the fragility of the governing NARC coalition, the complex and controversial constitutional reform process, significant resource constraints, the threat of terrorism, and ambiguous attitudes on the part of major donor countries. An independent anticorruption commission has been investigating more than 3,000 cases of alleged corruption since its inception in 2003, but its track record of initiating successful prosecutions has been very modest. One of President Kibaki's early appointments was John Githongo, the widely respected head of the Kenya chapter of Transparency International, in charge 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.

A lively press and public investigative commissions have increasingly critiqued both the substance and slow pace of the Kibaki administration's political, economic, and social reforms. 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. A number of commissions are investigating particular scandals, such as the Goldenberg and Euro Bank affairs.

A drawn-out constitutional review process included the participation of a wide range of civic groups and associations. A penultimate draft included the creation of a senate and an executive prime minister to be elected by the National Assembly and changes designed to limit the power of the presidency, including facilitating the ability of the National Assembly to impeach the president. In July 2005, however, the NARC majority in the National Assembly, supported by the government, watered down a number of these reforms. The National Assembly voted to amend the final draft version to reduce the powers of the prime minister and reinforce those of the president. It also opted to maintain a single legislative chamber, rather than a bicameral legislature as originally envisaged. The revised constitution draft also made it more difficult for the National Assembly to impeach a president, and raised the possibility that presidential elections could be decided by district gerrymandering by the government. These changes sparked considerable popular unrest, and the revised draft was rejected by voters in a constitutional referendum on November 21, 2005. Political tensions, entrenched corruption, lack of specific 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 opening.

Political Rights and Civil Liberties

Citizens of Kenya can change their government democratcally. The 2002 elections, widely viewed as legitimate and reflective of the will of the people, resulted in the alternation of power – with KANU losing, and the NARC coalition, led by president-elect Mwai Kibaki's Democratic Party, gaining power. A wide variety of political parties representing a range of ideological, regional, and ethnic interests exists, and there are no significant impediments to party formation. However, the country is far from consolidating its nascent and fragile democracy, including its electoral processes.

The president is elected for a five-year term. The single chamber National Assembly contains 210 members elected for five years, with an additional 12 members appointed by the president. A wide range of political parties are active and vocal. 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.

Corruption remains a serious problem. Political parties, nongovernmental organizations (NGOs), and the press, as well as some official bodies, have unearthed examples of government corruption and malfeasance. Several major scandals were made public in 2005, including serious allegations of fraud in the procurement of naval vessels, in a new system of issuing passports, and in the printing of the national currency. The resignation of John Githongo, the head of the Office of Governance and Ethics, was also seen as a blow to the government's credibility in fighting corruption. The Kenya Anti-Corruption Commission (KACC) has recommended prosecution of a number of government officials, although none from the government's senior ranks.

Transparency International's 2005 Corruption Perceptions Index suggests that corruption has continued to be a serious problem; Kenya was ranked 144 out of 159 countries surveyed. The 2005 Kenya Bribery Index states that while the overall incidence of corruption has dropped compared with that of 2002, the average size of bribes has increased significantly. In 2004, the government raised police salaries to reduce incentives for corruption; 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 to reduce corruption in Kenya. In addition, President Kibaki's increasing reliance on the "Mount Kenya Mafia" – powerful businessmen from the president's majority Kikuyu ethnic group – has raised increasing concerns. In early 2005, the British High Commissioner made public a list of 20 cases alleging official corruption, 18 of which remain under investigation by the KACC.

The constitution provides for freedom of speech and a free press. These rights are generally respected in practice, and Kenya enjoys one of the liveliest press environments on the continent. A 2005 audit by the independent Chambers of Justice, while critical of the Kibaki Administration in many respects, gave the government generally high marks for accommodating criticism and respecting civil liberties, human rights, and press freedom. The Kenya Union of Journalists, however, has at times criticized the government for failing to expand media freedom in the country. Currently, 22 FM stations broadcast to many parts of Kenya. The government does not restrict access to the internet.

In general, the government has a good track record of respecting freedom of religion. According to the 2005 U.S. State Department's Report on International Religious Freedom, "there is generally a great level of tolerance among religious groups." The report concludes that Kenya is 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.

Religious-based tension also arose over the draft constitution. The Federation of Churches in Kenya, which represents 41 conservative Christian congregations across the country, spearheaded opposition to constitutional provisions concerning both the potential easing of abortion restrictions and allowing gay marriage, and the role of Islamic "Kadhi" courts. In the draft constitution, religious courts were defined in an open-ended manner that allows for the reintroduction of customary courts to mediate matters of family and personal law.

Reflecting Kenya's generally positive record on freedom of thought issues, academic freedom is the norm. However, President Kibaki has been accused of appointing university heads, such as the vice chancellor of the University of Nairobi, based on favoritism.

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. 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 achieved significant transparency in government, 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. 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. It concluded that Kenya's court system was among the most incompetent and inefficient in Africa, with judges subject to political pressure and often accepting bribes to influence their decisions. 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.

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. 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.

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. In mid-2005, the Kenya Human Rights Commission raised concerns over the government's failure to establish a truth, justice, and reconciliation commission.

While checks against arbitrary arrest exist in the legal system, they are not uniformly respected. In 2003, the Kibaki government introduced into the National Assembly the Suppression of Terrorism Bill, a controversial draft legislation aimed at combating terrorism. The bill was redrafted 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. Amnesty International, for example, critiqued its "vague and broad definition" of terrorism and terrorist acts and the wide-ranging powers it gives authorities to search and detain persons in connection with terrorist activities. In 2005, the government found itself under considerable international pressure to pass the revised legislation.

The government has initiated measures to increase the police-to-population ratio, which had dropped over the years from 1 police officer for every 711 Kenyans in 1991 to the current 1 for every 1,150 persons. The government announced plans in 2005 to double the number of police officers recruited annually and to increase the number 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. In 2005, Amnesty International reported violations, including police torture, use of violence against public demonstrations, and harsh prison conditions resulting in as many as 45 prisoner deaths under suspicious conditions at a prison in Meru (eastern Kenya) in 2004.

Kenya's population is divided into more than 40 ethnic groups, among which there were frequent allegations of discrimination and occasional violence. In a 2005 report, the Minority Rights Group states that government budget allocations are making the problems of minority and indigenous peoples intolerable. The report identifies the Endorois, Maasai, Nubia, and Turkana ethnic groups as the most marginalized groups in the country in the areas of 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, claimed that the government discriminated 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 this tension include widespread firearms possession, the commercialization of traditional cattle rustling, poor economic conditions, drought, and ineffective security forces.

Women in Kenya continue to face serious obstacles in the exercise of their freedom. According to a report issued by Human Rights Watch, women in Kenya 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.

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 the National Assembly to eight elected and seven nominated, along with three cabinet ministers. The Kibaki administration 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.