Freedom in the World 2008 - Kenya

Capital: Nairobi
Population: 36,900,000

Political Rights Score: 4
Civil Liberties Score: 3
Status: Partly Free

Ratings Change ↓

Kenya's political rights rating declined from 3 to 4 due to significant irregularities in the December 2007 presidential election vote-counting process, which ultimately benefited the incumbent, Mwai Kibaki.

Overview

Kenya's democratic development suffered a sharp reversal as a result of apparent manipulation of the December 2007 presidential election. In contrast to the concurrent parliamentary polls, which showed major gains for the opposition, incumbent Mwai Kibaki was declared the winner of the presidential vote amid credible, multiple allegations of fraud. The violence and unrest that ensued in many parts of the country was also a product of existing dissatisfaction with Kibaki's administration, which had made limited progress in enacting vital reforms and fighting entrenched corruption.

Kenya achieved independence from Britain in 1963. Nationalist leader Jomo Kenyatta was president until his death in 1978, and Vice President Daniel arap Moi succeeded him. While the Kenyan African National Union (KANU) party remained in power, Moi diminished the influence of the previously dominant Kikuyu ethnic group, favoring his own Kalenjin group.

In 1992, after a lengthy period of 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 1997, Moi again defeated a divided opposition.

KANU's election victories were achieved through political repression, massive use of state patronage, media control, and dubious electoral procedures. Meanwhile, 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 deteriorating governance. 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 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. 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. An ambitious reform program set forth by the new leadership included tackling corruption, addressing economic and social problems, and undertaking institutional changes designed to promote democracy.

Despite some successes, reform efforts were blunted by a number of factors, including the fragility of the governing coalition, a complex and unsuccessful constitutional reform process, significant resource constraints, and the threat of 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 remains 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 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.

A lively press and public investigative commissions have been increasingly critical of the substance and slow pace of the Kibaki administration's reforms. A number of commissions are still investigating incidents of corruption, such as the long-running Goldenberg foreign-exchange scandal and the Anglo-Leasing government contracting affair, which occurred during Kibaki's tenure.

After a lengthy drafting process, a revised constitution was submitted to voters in a referendum in November 2005. The final proposal offered by the National Assembly envisioned a relatively weak new post of prime minister – reinforcing the powers of the president – and opted to maintain a single legislative chamber instead of creating a bicameral parliament. The draft charter also would have impeded the ability of the National Assembly to impeach the president, and gave the executive extensive powers over the redrawing of electoral districts. These changes sparked considerable popular unrest, and the draft was soundly rejected by referendum voters.

Despite general improvements in political rights and civil liberties under Kibaki, several worrisome trends emerged in 2006. Githongo in January issued an authoritative report indicating that corruption had reached the highest ranks of the government, prompting the resignation of several ministers and implicating the vice president. In March, security forces raided an independent television network that had been critical of the government. Meanwhile, international donors remained skeptical of the administration's willingness and ability to curb corruption.

Kenya's fledgling democracy plunged abruptly into crisis in the aftermath of the December 2007 general elections. While the opposition appeared to win the parliamentary polls, supporters of opposition presidential candidate Raila Odinga were outraged at apparent vote rigging that favored the incumbent, President Kibaki. The election commission nevertheless declared Kibaki the winner, and he was quickly sworn in. Ethnic partisans supporting the rival candidates battled in many of the country's most populous and economically important areas. As the year drew to a close, a rising death toll and unresolved disputes over the composition of the new administration cast doubt over the direction and stability of Kenya's political system.

Political Rights and Civil Liberties

Kenya is not an electoral democracy. The 2002 presidential and legislative elections, widely viewed as legitimate and reflective of the people's will, had resulted in a peaceful transfer of power from the long-ruling KANU party to the opposition NARC. However, the country is far from consolidating its fragile democracy and electoral processes, as clearly demonstrated by the flawed 2007 presidential election, in which the supposedly neutral election authorities were subjected to considerable political pressure. The ruinous aftermath of the polls raised fundamental concerns about the integrity and credibility of the electoral process.

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 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 Kenya'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 2007 Corruption Perceptions Index ranked Kenya 150 out of 180 countries surveyed. Respondents to the 2007 Kenya Bribery Index stated that they encountered bribery in 54 percent of their interactions with public and private institutions. The report also suggested, however, that the average size of bribes has declined. The police continue to be viewed as the most corrupt governmental body.

The meager results to date from investigations such as the Goldenberg inquiry and the massive Anglo-Leasing scandal indicate the magnitude of the challenge of reducing corruption in Kenya and the failure of President Mwai Kibaki's administration to do so. The Kenya Anti-Corruption Commission has made slow progress at best. Since 2003, its efforts have resulted in only 32 successful convictions.

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 media environments on the continent. However, the country's record was seriously marred in March 2006, when security forces sacked the independent KTN television station and stole documents and equipment. In 2007, legislation that could have restricted media freedoms was rejected by President Kibaki. According to the BBC, six private television stations exist, although their coverage is limited. Some 22 FM radio stations broadcast to many parts of Kenya. The government does not restrict access to the internet.

The authorities have largely respected freedom of religion, though there have been some reports of government hostility toward Muslims. Religious tension has risen in recent years following 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 2007 Kenya Bribery Index determined that public colleges and universities rank high among entities engaged in corruption; bribes are frequently paid to ensure entry into the most prestigious 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 in recent years has been its energetic and robust civil society. Public policy NGOs have had some advocacy successes, especially in comparison with many other formerly authoritarian countries. Signs of progress include the role of civil society in mobilizing public opinion on constitutional reform and the ability of NGOs to undertake voter education and election monitoring.

All workers other than the police are legally free to join unions. 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 it 60 days to challenge the move. 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, its actions have reflected the primacy of the executive branch for much of the independence period. The Kibaki government came to power promising that the rule of law would be upheld, and judicial independence strengthened. In late 2003, Kibaki appointed new judges to replace those tainted by corruption. These actions, however, raised concerns about the appointment criteria and the lack of transparency in the selection process. A 2005 report by the International Commission of Jurists concluded that corruption in the administration of justice as well as in the judiciary remained a serious impediment to the rule of law in Kenya. Draft legislation designed to give the judiciary more control over its budget has languished in parliament; 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, in areas with a predominantly Muslim population. The government has not established a truth, justice, and reconciliation commission, but a high-level panel has 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 introduced the Suppression of Terrorism Bill, which to date has not been passed due to widespread protests over the extent to which it would restrict civil liberties. Amnesty International, for example, critiqued the legislation's "vague and broad definition" of terrorism and terrorist acts as well as the wide-ranging powers it would give authorities to search and detain persons in connection with terrorism investigations.

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 access to legal representation.

Kenya's population is divided into more than 40 ethnic groups, among which there are frequent allegations of discrimination and periodic episodes of violence, some being quite substantial. 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. By contrast, the Kikuyu have longed been viewed as benefiting from the division of ethnic power.

Land disputes frequently form the basis of ethnic tension and violence, as seen in the clashes following the 2007 elections. Kikuyu, Luo, and Kalenjin groups in the Rift Valley harbor strong resentments about land distribution and rights. 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. Electoral disputes have sharply aggravated discord.

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. 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; three women were made cabinet ministers. Proposed legislation to establish 50 parliamentary seats reserved for women was defeated in the National Assembly in 2007. There is evidence of widespread violence against women; reported cases of rape, attempted rape, defilement, 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 the 2006 UNAIDS Report on the Global AIDS Epidemic, the national HIV prevalence among adults was 6.1 percent, with 1.3 million Kenyans living with HIV at the end of 2005. Roughly 140,000 citizens died of AIDS in 2005, and there were a total of 1.1 million children orphaned by AIDS.