Countries at the Crossroads 2004 - Kenya

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Executive Summary

Author

Edward R. McMahon holds a joint appointment as research associate professor of community development and applied economics, and political science at the University of Vermont. He also serves as a senior research associate at Freedom House, where he assesses democratic development in Africa for Freedom House's Freedom in the World survey.

In December 2002, opposition leader Mwai Kibaki was elected president of Kenya. He defeated Uhuru Kenyatta, the son of Kenya's first president and chosen successor of Daniel arap Moi, Kenya's autocratic president since 1978. This election heralded a sea change in Kenyan politics, although the underlying conditions had been developing for a number of years. For the first time, power passed from the hands of the Kenyan African National Union (KANU) to the National Rainbow Coalition (NARC), which was offering the promise of meaningful political and economic reform. The election raised hopes that Kenya's move toward democratic consolidation and respect for the rule of law could be underway.

The rule of President Moi was associated with poor governance. Limits on political and civil rights were common, as was corruption in the ruling party and government. Many of the issues under consideration in this report were repeatedly problems under the Moi regime. In its initial months, the Kibaki administration has stressed its will to confront and correct many of these problems. Caution should be exercised in assessing these positive trends, however. Given the early stage of the post-Moi era, significant resources constraints, and a difficult international climate, it is too early to conclude definitively that Kenya is on a sustained trajectory toward full compliance with international norms for transparency and good governance.

The Kibaki administration also faces the problem of whether and how to deal with the past. A debate is underway over the extent to which the government should actively seek to right past wrongs and pursue alleged wrongdoers, up to and possibly including former President Moi. An official inquiry group is recommending the establishment of a Truth Commission. In addition, Kenya's nascent democratic experiment has been complicated by the threat of terrorism and ambiguous attitudes on the part of major donor countries.

Although Kenya's new government has expressed a commitment to reform, it has a very limited track record in terms of policy implementation thus far. Given that Kenya's recent past was dominated by an autocratic and highly corrupt government, the future remains unsure. Kenya is strong in its political culture – characterized by openness, competitiveness, and an energetic civil society – whereas its performance in effective law enforcement and public morality are weaker. Although the intentions of the current government may be good, it faces serious challenges in translating them into practice. While this report reflects a certain optimism about the current context, prudence is necessary in assessing the new government's performance to date and promise for the future.

Civil Liberties – 4.74

Kenya's civil liberties situation is in a process of improvement. Kenyans are able to express themselves politically, and today their rights are more fully respected than at any time in the country's history.

The constitution states that "no one shall be subject to torture or degrading punishment or other treatment." There were only a few isolated and as yet unsubstantiated reports of torture in 2003, marking an important step forward. The Kibaki government has made the protection of human rights a high priority. It has also been considering establishing a commission to investigate the extent of human rights violations undertaken by the former government. However, while there are no current reports of detention without trial or torture under the Kibaki government, actions such as mass arrests in August 2003 in the coastal city of Mombasa, where much of the country's Muslim minority lives, do raise civil liberties questions.

Although checks exist in the legal system against arbitrary arrest, they are not uniformly respected. In addition, the Kibaki government has introduced into parliament a controversial draft bill, the Suppression of Terrorism Bill, which would allow police to arrest and search property without authority from the courts and would allow investigators to detain suspected terrorists for 36 hours without allowing them contact with the outside world.¹ Heightened government counterterrorism measures, including surveillance and interrogations, have resulted in growing antigovernment and anti-American sentiment in parts of the country.²

As recently as 2002, security forces continued to use torture and physical violence during interrogation and to punish both pretrial detainees and convicted prisoners. Human rights organizations, churches, and the press highlighted and criticized numerous cases of torture and several cases of indiscriminate beating of groups of persons by police during the year. The Kenya Human Rights Commission (KHRC) has stated that police brutality was widespread and estimated that there were hundreds of cases during the year. KHRC reported 49 torture-related deaths in 2001, and People against Torture reported 70 cases of death by torture and 238 total cases of torture in 2001.³ According to a BBC report in May 2003, Nyayo House in Nairobi was the scene of over 2000 cases of torture during Moi's presidency.⁴

The constitution provides that persons arrested or detained be brought before a court within 24 hours for non-capital cases and within 14 days in capital cases. Under the Moi government, however, police continued to arrest and detain citizens arbitrarily. The law does not stipulate the period within which the trial of a charged suspect must begin. Indicted suspects have often been imprisoned for months or years before being brought to court. The law provides that families and attorneys of persons arrested and charged be allowed access to them, although this right often is ignored.⁵

In 2002-03 no instances of politically motivated assassinations were proven, although previous high-profile politically related killings suggest that such events are not alien to Kenyan politics. The as-yet-unsolved September 2003 murder of Dr. Odhiambo Mbai, a leader of a committee of the constitutional review commission considering limiting executive branch powers, may have been politically inspired.

As recently as 2002 there were credible reports of the use of excessive force in dealing with demonstrations and public protests. For example, Amnesty International's Kenya entry in its 2003 annual report stated that in 2002 "Numerous meetings and demonstrations were broken up, sometimes violently, by the police, especially those of opposition parties, members of the Rainbow Alliance and human rights groups." In 2003, although there has been a considerable security presence at events such as the funeral of late Vice President Michael Wamalwa, there were no significant reports of resort to excessive force.

The state's ability to protect citizens from abuse by private and non-state actors is a problem. The rule of law is very weak in some parts of the country, especially in the sparsely populated northeastern region bordering Somalia. A study conducted by the Security Research and Information Centre, a Kenyan NGO focusing on security and crime-related issues, indicates that illegal firearms are widespread in many districts in the North Rift region, thereby making these areas virtually ungovernable.⁶ Thus, intimidation in parts of the country has been common. The ability of citizens to petition effectively for redress when their rights are violated by state authorities is likewise very uneven.

To date, the state's impact in ensuring and enforcing the equality of all citizens regarding civil liberties has been seriously limited. A draft gender equity bill created considerable public controversy, with some Muslims protesting that it was too sweeping in scope. Evidence suggests that there is widespread violence against women; one report determined that over 50 percent of women had been victims of domestic violence.⁷ According to a study by the Kenya-based Centre for Human Rights and Democracy, 60 percent of rape cases in the North Rift region were not reported because women feared unfair treatment by police.⁸ Many of the cases have gone unpunished, despite repeated complaints by women's groups that Kenyan laws remain too lenient in sentencing offenders in cases of violence against women.

The Kibaki government has explicitly targeted improving women's rights as a key policy goal. A host of issues contribute to women's second-class status; many of these are being examined in the context of the current constitutional review process. The constitution was amended only in 1997 to include a specific prohibition of discrimination on grounds of gender. A recent Human Rights Watch report documents how women in Kenya are often precluded from inheriting property, expelled from their homes when they divorce or their husbands die, stripped of their belongings, and forced into customary sexual behaviors (such as "wife inheritance" and ritual "cleansing") in order to keep their property.⁹

Trafficking in women and children is a problem in Kenya, although it is difficult to determine its exact magnitude. While Kenya has ratified several international conventions on children's rights, it has not ratified some key documents on slavery.¹⁰

The constitution prohibits discrimination on the basis of a person's "race, tribe, place of origin or residence or other local connection, political opinions, color, or creed." However, the country's population is divided into more than 40 ethnic groups, and not surprisingly, the challenge of governing such a disparate population has been complicated by frequent and credible allegations of discrimination, as well as sporadic interethnic violence. Some of this was instigated by the Moi government. Credible reports have concluded that in recent years KANU instigated ethnic cleansing for political purposes, especially in the Rift Valley area. In 2002, for example, the government-released Akiwumi Report on ethnic clashes between 1991 and 1998 stated that public officials, from petty policemen to senior officials, instigated violence. It cited political factors as the primary cause of ethnic violence, which resulted in more than 1,000 deaths during the 1990s, disrupted two general elections, and displaced hundreds of thousands of persons. According to the 2002 U.S. State Department Human Rights Report, the Akiwumi Report "detailed a pattern of local authorities failing to act on warnings of impending violence, failing to intervene to stop violence while it was occurring, and failing to pursue known perpetrators. It also accused senior officials of giving inflammatory speeches in volatile areas and in some cases, financing persons responsible for violence."

In the public sector, discrimination by members of most ethnic groups in favor of other members of the same group is common. Political cleavages have tended to correlate with ethnic cleavages. For example, during President Moi's rule, "his Kalenjin ethnic group and other traditionally pastoral Nilotic ethnic groups were represented disproportionately and held key positions in the Government, the ruling KANU party, the paramilitary General Services Unit, and the presidential escort. Many members of these groups appeared to believe that economic and political liberalization would likely harm their groups, and to favor other groups."¹¹ More recently, concerns have been expressed about the development of a Mount Kenya Mafia under President Kibaki and favoritism toward Kikuyu.¹²

The government has singled out the overwhelmingly Muslim ethnic Somalis as the only group whose members are required to carry an additional form of identification to prove that they are citizens. The continued presence of and at times criminal activities by Somali refugees have exacerbated the problems faced by citizens of Somali ethnicity. In addition, politicians from a range of political parties have periodically appealed to majority prejudices by attacking citizens of Asian descent, accusing them of exploiting and usurping the natural inheritance of citizens of African descent.¹³

In general, the government has respected the constitutionally mandated right of freedom of religion. The state has tended not to intrude on the appointment of religious or spiritual leaders or on the internal organizational life of faith-related organizations, nor has it placed restrictions on religious observance, religious ceremony, or religious education. However, as terrorist acts associated with Islamic fundamentalism have been committed on Kenyan soil in recent years – including a car bomb that blew up the U.S. embassy in Nairobi in 1998 and a bomb blast in an Israeli-owned hotel in Mombasa in 2002 – religious-based tension has risen and clearly has the potential for undermining Kenya's democratic consolidation prospects.

Violence has broken out at times between Muslims and those of other faiths. The Moi government required religious organizations to register with the registrar of societies. Many Muslims believe, with some justification, that the government is hostile toward them, poses additional bureaucratic requirements for their access to government services, discriminates against them in law enforcement, and otherwise adopts a negative attitude toward them.

The constitution explicitly permits freedom of assembly. While the Kibaki government has generally respected this right, the Moi government restricted it in practice. Drawing on draconian colonial-era regulations, any meeting of more than a handful of people required official approval under Moi. These provisions were applied selectively but clearly had a deterrent effect. In many instances authorities interfered with public demonstrations and meetings for which the required notification had been given. The government also utilized the Societies Act – which requires that every association be registered or exempted from registration by the registrar of societies – to limit the freedom of association, at times arresting civil society leaders and opposition politicians and charging them with participating in illegal actions.

In December 2001, the labor commissioner registered the Union of Kenya Civil Servants (UKCS), which granted civil servants the right to join unions for the first time since 1980. Today, 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.

While not having 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. However, the Moi government frequently called strikes illegal.¹⁴

Unlike some other African states, Kenya has no history of citizens being compelled to join associations or political parties; given the highly pluralistic nature of Kenyan society, this is highly unlikely to occur in the future. Under the Kibaki government, the state has not placed registration or legal impediments on the functioning of nongovernmental organizations.

Rule of Law – 3.97

Although Kenya's judicial system is largely based on the British model, for much of the independence period its actions tended to reflect the primacy of the executive branch. In July 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 courts were also understaffed and underfinanced, and Kenyans awaiting trial faced long delays that violated their right to due process.¹⁵

There is no tradition of independent judicial review of legislative and executive actions, although this issue has been raised in the ongoing constitutional review process. The president has extensive powers over appointments, including those of the attorney general, the chief justice, and appeal and high court judges. He appoints the latter on the advice of the Judicial Service Commission, which consists of the chief justice, the attorney general, the chair of the Public Service Commission, and two High Court or Court of Appeal Judges. The chief justice is a member of both the Court of Appeals and the High Court, thus undercutting the principle of judicial review. Although most judges have life tenure, the president has extensive authority over transfers. In previous years, judges who ruled against the government were sometimes punished with transfer or non-renewal of their contracts.¹⁶

In recent years, criticism of the judiciary has been increasingly freely aired, and a public policy debate about its shortcomings has ensued. The Kibaki government came into power promising that the rule of law would be upheld and judicial independence strengthened. One of its initiatives has been the creation of the justice and constitutional affairs ministry, although some in the legal profession have expressed fears that it could serve to undermine, rather than promote, the independence of the judiciary.¹⁷ President Kibaki himself criticized the extent of corruption in the judiciary and instructed the minister of justice to establish a process for the immediate identification of corrupt judges.¹⁸ In February 2003 Chief Justice Bernard Chunga resigned after a presidential committee was established to investigate allegations against him of torture, corruption, and interference with the administration of justice. Interim reports by the Judiciary Sub-Committee on Integrity and Corruption that was appointed in March 2003 by Chief Justice Johnson Evan Gicheru indicated that almost one-third of judges were involved in corruption. In June 2003 President Kibaki appointed eight new high court judges as part of an initiative to replace those tainted by corruption. [Editor's note: In October 2003 President Kibaki suspended 23 senior judges on suspicion of corruption.] While this action was generally viewed favorably, it also suggests the need for mechanisms to ensure that monitoring judicial performance be regularized and transparent. Courts also do not receive adequate resources from the state in order to fulfill their responsibilities in a timely, effective manner, although there is no compelling evidence in 2003 of state funding for the judiciary being used as an instrument of control or political pressure.

The issue of judicial competence has always been at center stage, arising mainly from the appointment mechanisms previously based on political patronage and ethnicity. Critics have argued that a number of judges do not have the capacity to understand legal issues well enough to develop the law in a creative manner.¹⁹

The country also has officially recognized Kadhi Islamic courts, which administer Sharia personal law for such issues as marriage and succession disputes and are located only in areas with a predominantly Muslim population. This is controversial with non-Muslim Kenyans, and the future of these courts is being considered in the context of ongoing constitutional discussions.²⁰

Civilians are tried publicly, although some testimony may be given in closed session. The law provides for a presumption of innocence and for defendants to have the right to attend their trial, to confront witnesses, and to present witnesses and evidence. Civilians also can appeal a verdict to the High Court and ultimately to the Court of Appeals. The Kenyan government, in contrast to many other African regimes, has traditionally had a fairly good record of respecting property rights.

Defendants do not have the right to government-provided legal counsel, except in capital cases. For lesser charges, free legal aid rarely is available, and then only in Nairobi and other major cities. Although defendants have access to an attorney in advance of trial, defense lawyers do not always have access to government-held evidence. The government can utilize the State Security Secrets Clause in order to withhold evidence, and local officials sometimes classify documents to hide the guilt of government officials.²¹ Court fees for filing and hearing cases are high for ordinary citizens.

Although there are no legal provisions enshrining unequal treatment before the law, Kenya is still far from providing de facto impartial treatment given massive regional, ethnic, economic, and social cleavages.

While there is a tradition of civilian control over security forces, the Moi government selectively encouraged abuses and adopted a "see no evil" attitude in other cases. Thus significant numbers of human rights abuses by security forces, which occurred in a general context of tacit approval by the KANU authorities, were documented in previous years. Only rarely, if ever, were security forces brought to account for alleged abuses. The Kibaki government, by contrast, has presented itself as determined to introduce effective control and accountability over the security forces. President Kibaki has appointed new army and police commanders, but specific reforms in the security sector were limited as of September 2003.

Recommendations:

The government either should create an independent commission or strengthen the Judicial Service Commission to monitor judicial performance and appointments. For example, the commission could require prospective judges to prove that they have no ethical inquiries pending against them and fully disclose their assets. The government should provide adequate resources to the judiciary, while also taking enforcement measures to address corruption and inefficiency in the justice system. The system should provide full access to legal services by all citizens, especially disadvantaged minorities. The government needs to be careful to create the appropriate balance between delivering on its election promises for expeditious reforms in the judiciary and the urge to tread carefully lest it grossly interfere with the independence of the judiciary.

Anticorruption and Transparency – 3.80

Kenya has embraced capitalism since independence, although there has been a tradition of state involvement in the economy. The Heritage Foundation's Index of Economic Freedom rates government intervention in the economy as "moderate".²² State intervention has taken place both directly and through corrupt practices. In fact, corruption has long been a serious problem in Kenya. The country has consistently been ranked in the bottom 10 percent of countries on Transparency International's (TI) Corruption Perceptions Index.²³ The widespread extent of urban-based corruption is also reflected in TI's Kenya Urban Bribery Index.²⁴ According to one former U.S. ambassador, in the 1990s official corruption cost the Kenyan government almost $900 million annually.²⁵

The press, parliament, and the judiciary have increasingly highlighted examples of government corruption and malfeasance, an openness that has been accentuated under the Kibaki government. In 2001 parliament provided evidence of rampant graft and cronyism pervading state-run institutions. A report from the Parliamentary Public Accounts Committee presented numerous credible and detailed examples of government corruption and gross mismanagement. The report was particularly critical of "slow investigation by the police and lack of sanction against the force for disobedience." The parliament had previously published a "list of shame" identifying by name a number of high-ranking government officials who were implicated in corruption, including Vice President George Saitoti, Trade and Tourism Minister Nicholas Biwott, and nearly a dozen cabinet members. Under Moi government pressure the report was subsequently revised and the names deleted.²⁶

President Kibaki was elected largely due to his expressed commitment to uproot corruption. In his inaugural address he stated that corruption would "cease to be a way of life," and that the fight against corrupt practices would start at the very top of his administration. His government is indeed undertaking significant efforts to curb corruption, although the scale of the problem, limited resources available to address it, and underlying structural, economic, and cultural issues serve to significantly complicate these reform initiatives. Central to this policy has been institutional reform, including the setting up of an independent anticorruption commission. One of Kibaki's early appointments was to place the widely respected head of TI's Kenya chapter, John Githongo, in charge of the government's office of ethics and governance.

A package of reforms has been proposed, and some adopted. One of these, an attempt to separate public office from personal interests, is the Public Officer Ethics Bill, under which all public officials must declare their wealth annually, as well as that of their spouse. The Kenya Anti-Corruption Commission has begun to exercise its powers to bring charges against suspected corrupt officials.²⁷ A number of commissions are investigating particular scandals, including the Goldenberg affair, but no former high-ranking officials have yet been prosecuted.

An investigation of government procurement officers by the finance ministry in early 2003 determined that there "is a serious and widespread abuse of office by officers charged with this responsibility." Finance Minister David Mwiraria stated that most procurement officers owned companies that won government contracts but never, or only partially, produced the goods and services for which they had already been paid. In reaction the government suspended all government procurement officers.²⁸ The Public Procurements Review and Appeals Board of the Finance Ministry recently rejected a City of Nairobi insurance tender championed by the local government minister, even though it clearly exceeded regulatory norms.²⁹ While anecdotal evidence suggests that petty and possibly even large-scale corruption has decreased, it is too early to determine whether the government's anticorruption policies will bear fruit.³⁰ Government investigative offices have received many complaints from victims of corruption both within and outside of government, who are seizing the opportunity to petition a government that has expressed its willingness to fight corruption. Whistleblowers who expose cases of corruption currently have no legal protection, however, although the idea has been raised in the media.³¹

Reflecting widespread concern among public employees that their pay is too low, an early action of the newly elected parliament was to vote itself a major pay raise, on the grounds that doing so would reduce the incentives for corrupt behavior. This action, however, was criticized by many Kenyans, who viewed it as an attempt by parliamentarians to enrich themselves.

An office of the controller and auditor-general exists. According to its director, however, its independence and effectiveness were long emasculated due to poor funding and direct interference by the executive branch. Parliament is now considering drafting a National Audit Office Bill to strengthen the independence of the audit function.³²

The president, as chancellor of all state universities, appoints the vice chancellors who manage the institutions under the supervision of the ministry of education. In the Moi era constant closures of universities affected academic standards, the government interfered in student elections to ensure sympathetic student leaders, and it imposed political, rather than competency criteria in the hiring and firing of lecturers.³³ To date, no reports have surfaced that the Kibaki government has sought to politicize higher education.

Difficult relations between the Moi government and donor countries and international financial institutions were due in large part to the lack of a transparent budget-making and execution process.³⁴ Even during the Moi era the parliament was the locus of considerable discussion and critical analysis of the budget, but usually its effect on the realities of government spending was limited. In 2003 parliament appears to be exercising increased supervision over budgetary processes, but it is too early to determine the extent to which this trend will become institutionalized.

While in theory citizens have a legal right to obtain information about the conduct of government, public access to government information has been limited. Calls have been made in the context of the Constitutional Review Commission, however, to codify the public's right to information.³⁵ The executive budget-making process traditionally has formally had elements of transparency but in reality has been closely managed by the Office of the President. The Kibaki government has opened up the process to an extent, and parliament has increasingly sought to exercise meaningful legislative review and scrutiny.

Recommendations

The legal and moral context in which cases of corruption can be reported needs reinforcing. Beyond the anticorruption initiatives that have already been undertaken, the government should promote legislation that allows Kenyans broader access to information, protects those who would report corruption, and allows for judicial review. The culture of impunity needs to end, and major cases of corruption need to be prosecuted. Kenyans must also follow through on evolving plans for ensuring accountability for past crimes, including corruption and the manipulation of ethnic violence. Justice must be shown to the victims of politically motivated ethnic clashes.

Accountability and Public Voice – 4.22

Under domestic and international pressure, President Moi reluctantly permitted the resumption of multiparty politics in 1991, a move that put into place a dynamic that ultimately led to the NARC 2002 election victory. In an effort to manage limited political reform, Moi employed methods such as political repression, media control, dubious electoral procedures, physical violence, judicial bias, police powers, and executive decrees against political opponents. In addition, the KANU government's attitude toward civil society was generally hostile and suspicious. It often accused these groups of being subversive and of supporting the opposition. Security forces frequently abused constitutional guarantees regarding detention, privacy, search, and seizure.³⁶ Under the Kibaki government power remains heavily concentrated in the executive branch of government, a key issue in ongoing constitutional negotiations.

With the 2002 elections Kenyans were able for the first time to choose their leaders in genuinely open and competitive elections. The statement of a delegation representing the Commonwealth reflected the general domestic and international view that the elections were legitimate: "By common consensus, it was the best General Election the country had ever had, and the most peaceful: despite the intense interest it provoked the atmosphere was less violent and more tolerant than in either 1992 or 1997."³⁷

The Commonwealth delegation did criticize the pro-KANU bias of the Kenya Broadcasting Corporation's (KBC's) coverage, the use of state resources by the ruling party during the election campaign, and problems with the voter registry. These problems obviously were not of a sufficient magnitude to have denied NARC a victory, but they are problems that could potentially arise at a subsequent election. While the 2002 elections have been almost universally embraced as representing Kenya's move into the democratic community of nations, they represent just the first time such elections have occurred in Kenya. The country is thus far from consolidating its nascent and fragile free electoral processes.

Since 1993, four motions have been passed in parliament calling for legislation to facilitate public funding of political parties, but none has yet been enacted. However, the issue has featured prominently in the ongoing constitutional reform process and new legislation in this area is likely forthcoming. On a related point, reflecting the largely unregulated state of campaign finance in Kenya, a public policy debate is also taking place about the controversial "harambee" practice, under which citizens have often been pressured to donate funds to politicians.

While Kenyans' political choices are currently free from domination by the military, foreign powers, and totalitarian parties, and although NARC is a multi-ethnic movement, voting continues to be largely along ethnic lines.³⁸ KANU maintained power through the support of the president's own minority ethnic grouping, the Kalenjin, while combining an alliance of other minority groups and playing the two largest ethnic groups, the Kikuyu and the Luo, against each other.

Kibaki's victory in the 2002 election was also seen as successful because of the opposition's decision to unite as a single coalition. NARC was formed two months prior to the general election based on a signed memorandum of understanding between Kibaki's party, the National Alliance of Kenya, and the Liberal Democratic Party, created by three disaffected members of KANU. The memorandum's key agreements were that Raila Odinga, the most prominent signatory from the Liberal Democratic Party, would be appointed to the new post of prime minister and that cabinet posts would be divided equally between the parties. As of September 2003, the appointment of the prime minister post, conditional on constitutional reform that has been on the table since March 2003, had not been established.

Members of parliament are entitled to propose legislation, but in practice to date the attorney general has usually introduced government-drafted laws. However, in 2000 the national assembly passed implementing legislation to establish a Parliamentary Service Commission, with the power to hire staff and draft a budget. The parliament's steadily increasing influence has been reflected in the lively debates in the Constitutional Review Commission about the division of future power between the executive and legislative branches.

Although there are no legal restrictions, traditional attitudes circumscribe the role of women in politics. Only nine members (four elected and five nominated) were female in the 222-seat national assembly prior to the 2002 general elections. The cabinet included only one female member. The December 2002 elections increased the number of women in Parliament to eight elected and seven nominated, and three women currently serve in the cabinet.

The civil service is administered by a Public Service Commission. Public administration has its roots in part in the British administrative tradition, in which the civil service is supposed to be highly qualified and politically neutral. While this has been maintained to some extent, a recent study by the United Nations Development Program (UNDP) found that overall, the civil service did not meet these standards. It identified poor dissemination of codes and regulations to civil servants, declining professionalism, and widespread nepotism and corruption as key problem areas.³⁹

One of the core strengths of Kenya's political culture is its energetic and robust civil society. The success of the 2002 elections is to a great extent a result of the ability of civil society in Kenya to pry open political space and freedoms. Due in large part to its efforts, in recent years the public policy process has demonstrated significant elements of transparency, especially when compared to other countries wrestling with the legacy of decades of authoritarian rule. A good example of civil society's influence on the government is the ability of nongovernmental organizations to undertake voter education and election monitoring.⁴⁰ However, a balanced assessment of the nature and extent of civic engagement must also note that it has not always led to meaningful change, and some groups have suffered from common problems of not being representative, an over-reliance on foreign donors, and poor internal governance.

A constitutional review process headed by Dr. Yash Gai, a respected academic, included a wide range of civic and associational groups. Its draft report, issued in September 2002, calls for 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. The constitutional review process has continued since then, with the powers of the president versus parliament and decentralization being two of the most hotly debated issues, although the Kibaki government appears to be rethinking its pre-election commitment to limit the powers of the presidency. This process has been made possible by the fact that civic organizations and public policy groups have had considerable access to the media and have been able to convey their views to the public, especially in the major urban areas.

The constitution provides for freedom of speech and of the press, and Kenya's press has traditionally been lively, especially when compared to that in many other African countries. The Moi government did restrict these rights somewhat, including selectively harassing and arresting members of the media. Nevertheless print media were fairly free, and in the latter years of Moi's rule the electronic media also began to demonstrate signs of independence. Over the past year this trend has continued, and few constraints exist, although there are still some reports of journalists being arrested and harassed.⁴¹ The government does not restrict access to the Internet.

A media bill was passed in May 2002 that significantly raised publishing fees and gave the government more control over the distribution of newspapers and magazines. It was criticized by rights groups, who said it would muzzle the press. In June 2003 the Kibaki government announced that this bill would be scrapped.⁴² The issue of media licensing, however, remains controversial, as does the issue of how free and fair the media can be in a country where politics are marked by deep ethnic divisions. According to the director of the independent, Nairobi-based Media Institute, the country's political transition has allowed the press to publish freely and has created an atmosphere that poses no direct threat to the physical safety of journalists. The problem, however, is that no institutional or legal context in practice institutionalizes these freedoms yet; in short, there is "freedom without guarantees."⁴³

Public officials have used libel laws in the past to attack publications directly critical of actions by government officials. While in office, one of President Moi's chief lieutenants, Nicholas Biwott, won a large libel suit, provoking criticism that the rulings were politically motivated and intended to protect senior government officials.⁴⁴

The government controls the KBC. During the 2002 campaign the KBC gave clear preference to the ruling party. For example, from November 22 until the election on December 27, it gave 65 percent of its coverage to KANU and President Moi. The private TV stations KTN and Nation TV and the print media provided the voters with a broad variety of political views.⁴⁵

The government is preparing a bill for a new Kenya Broadcasting Corporation Act to revamp the corporation and regulate the media sector. The creation of an autonomous media council to regulate the country's journalism is also being considered.

Recommendations

The government should ensure that the constitutional review process moves forward quickly and without interference from the government. Key recommendations in the draft on reducing executive power and creating an independent judiciary should be adopted. There are few credible regulations concerning campaign finance; this is an area in which future reforms will be important. The media council should have a status similar to that of the Law Society of Kenya, which was established by an act of parliament but which exercises its functions independently and is part of civil society. Electoral reform should include addressing the wide disparities in constituency size. The electoral commission's independence and funding should be increased. The government should also close the vast urban-rural gap in access to information that limits the ability of millions of people to receive adequate information.

Notes

1 "US Rights Lobby Comes Out Against Kenyan Terror-Busting Bill," Agence France Press, 15 August 2003.

2 Sam Aola, "Anti-terror Measures Spawn Anti-US Sentiment in Kenya," Agence France Presse, 27 July 2003.

3 Kenya, Country Reports on Human Rights Practices – 2002 (Washington, DC: U.S. Dept. of State, Bureau of Democracy, Human Rights, and Labor, 31 March 2003), http://www.state.gov/g/drl/rls/hrrpt/2002/18209.htm.

4 "Kenya Heeds Call for Torture Commission," BBC News, 1 May 2003, http://news.bbc.co.uk/1/hi/world/africa/2992349.stm.

5 Country Reports (U.S. Dept. of State).

6 "North Rift Awash With Illicit Arms," East African Standard, 30 March 2003.

7 Domestic Violence in Kenya (Nairobi: Federation of Women Lawyers, 2002), 21.

8 Country Reports (U.S. Dept. of State).

9 "Double Standards: Women's Property Rights Violations in Kenya" (New York: Human Rights Watch, 2003), http://www.hrw.org/reports/2003/kenya0303-02.htm#p252_44886.

10 A Human Rights Report on Trafficking of Persons, Especially Women and Children (Washington, DC: The Protection Project, 2002), 293-94.

11 Country Reports (U.S. Dept. of State).

12 "Will He Succumb to the Mafia?", The Nation (Nairobi), 9 September 2003.

13 Kenya, International Religious Freedom Report 2002 (Washington, DC: U.S. Dept. of State, Bureau of Democracy, Human Rights, and Labor, October 2002), http://www.state.gov/g/drl/rls/irf/2002/13839.htm.

14 Country Reports (U.S. Dept. of State).

15 Kenya's Unfinished Democracy (New York: Human Rights Watch, 2002), http://hrw.org/reports/2002/kenya2/Kenya1202-02.htm#P251_53881.

16 Country Reports (U.S. Dept. of State).

17 "President Kibaki Appoints New Judges," The East African, 9 June 2003.

18 "Kibaki's Warning to Lawyers," The Nation (Nairobi), 1 August 2003.

19 Ibid.

20 "Kenya: Constitutional Conference," Daily Nation (Nairobi) 21 May 2003.

21 Country Reports (U.S. Dept. of State).

22 Index of Economic Freedom (Washington, DC: Heritage Foundation, 2003), http://cf.heritage.org/index/country.cfm?ID=78.

23 Corruption Perceptions Index 2002 (Berlin and London: Transparency International, 2002), http://www.transparency.org/cpi.

24 The Urban Kenyan Bribery Index (Berlin and London: Transparency International, 2002), http://www.transparency.org/dnld/kubi.pdf.

25 Ambassador Johnnie Carson, "Corruption is Costing Kenya Dearly" (New York: Global Policy Forum, 2002), http://www.globalpolicy.org/nations/corrupt/governmt/2002/1220kenya.htm

26 Freedom in the World (New York: Freedom House, 2003), 301.

27 "Corruption Perceptions Index-Kenya to Perform Poorly," East African Standard, 15 September 2003.

28 "State Suspends All Tenders," The Nation (Nairobi), 29 May 2003.

29 Macharia Gaitho, "Kenya: NARC Must Do More on Graft," Daily Nation, 2 September 2003, http://www.nationaudio.com/News/DailyNation/02092003/Comment/Comment0209200312.html.

30 The First Hundred Days (Nairobi: Kenya Human Rights Commission, 9 April 2003), http://www.khrc.org.ke/updates.asp?id=12.

31 Michelle M. Kagari, "You Can't Fight Graft in Secret," Daily Nation, 17 April 2003, http://www.nationaudio.com/News/DailyNation/17042003/Comment/Comment170420032.html

32 Sunday Standard, 27 July 2003.

33 See Haven of Repression: A Report on the University of Nairobi and Academic Freedom in Kenya (Nairobi: Kenya Human Rights Commission, 1992).

34 See, for example, "Kenya: Country Assistance Evaluation" (Washington, DC: The World Bank Group, 2000), http://www-wds.worldbank.org/servlet/WDS_IBank_Servlet?pcont=details&eid=000094946_00121605340620.

35 Computer Society of Kenya Memorandum to the Constitution of Kenya Review Commission (Nairobi: Constitution of Kenya Review Commission, 10 May 2002), http://www.kenyaconstitution.org/docs/11d084.htm.

36 Annual Survey of Political Rights and Civil Liberties (New York: Freedom House, 2003), 301.

37 Report of the Commonwealth Observer Group (London: The Commonwealth, 27 December 2002), http://thecommonwealth.org/docs/elections/kenya/kenya%20/cog%20/report.doc.

38 Stephen Ndegwa, "Kenya: Third Time Lucky?" Journal of Democracy 14, no. 3 (July 2003).

39 Public Service Ethics in Africa, Vol. 2 (New York: UNDP, 2001), 41.

40 2002 General Election Report (Nairobi: Institute for Education in Democracy, 2003), http://www.iedafrica.org/documents/elections_2002report.pdf, 28.

41 Country Profile: Kenya (London: BBC News, 2003), http://news.bbc.co.uk/1/hi/world/africa/country_profiles/1024563.stm.

42 "Official Says Government Planning to Scrap Contentious Media Bill," East African Standard, 13 June 2003.

43 "Focus on Press Freedom," IRIN, 19 May 2003.

44 "Judges Yielding to Political Influence in Libel Cases," Daily Nation, 5 April 2003.

45 "Preliminary Conclusions" (Nairobi: European Union Election Observation Mission, 2002), http://www.eueomkenya.org/p-report.html.