Countries at the Crossroads 2006 - Kenya

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

Introduction

In December 2002, 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. For the first time, power passed from the hands of the Kenyan African National Union (KANU) to the Kibaki-led National Rainbow Coalition (NARC), a broad-based grouping of ethnically diverse parties opposed to KANU's corrupt and authoritarian rule. The election raised hopes that Kenya's move toward democratic consolidation and respect for the rule of law was meaningful and that consequential political and economic reform would take place.

Kenya is now a more democratic country than it was under the KANU regime. Nonetheless, the high expectations that accompanied Kibaki's victory have been tempered by a more measured recognition of the complexities and constraints regarding democratization in the Kenyan context. Kenya is in the process of defining the limits and boundaries of democratic conduct as well as the relationship among various components of a democratic system. There are numerous layers and sectors in this kaleidescope, some of which are moving more certainly in a democratic direction than others.

The Kibaki government has undertaken many initiatives designed to promote democratic governance, and political space has increased in some important respects. The media, parliament, political parties, and NGOs function with considerable freedom. Yet political tensions, entrenched corruption, lack of specific reform results, and questions regarding the depth of the government's commitment to reform raise serious concerns about the state of Kenya's democratic experiment. The record is replete with expressions of good intent and stalled reform initiatives. The government's base of support has narrowed, lessening its appetite for ambitious reform measures. In particular, its inability to address corruption in a sustained and meaningful manner remains a critical challenge.

Characterized by openness, competitiveness, and an energetic civil society, Kenya has a strong political culture. However, its performance in effective law enforcement and public morality is weaker. Kenya's faults, especially regarding corruption, threaten to trump the positives in its nascent democratic opening.

Civil society has weakened as its members have entered government, and the initial euphoria of change has somewhat dissipated. In addition, parties united in opposition to KANU have had to redefine their relationships with each other, and some have left the governing coalition. The threat of terrorism and at-times strained relations with donor countries also present complicating factors.

A proposed revised constitution was soundly defeated, approximate 58 percent to 42 percent, in a November 2005 referendum. The lengthy constitutional-revision process had raised hopes that the result would further strengthen democracy. An initial draft known as the Bomas version reflected considerable popular support and input, but the final government-edited draft contained a number of controversial provisions. In addition, many key actors and commentators characterized the vote more as a referendum on President Kibaki's rule than on the relative merits of the draft constitution.

Accountability and Public Voice – 5.16

With the 2002 elections, for the first time, Kenyans were able to choose their leaders in genuinely open and competitive polling. The result was a successful alteration in power. Prior elections, uniformly won by KANU, were characterized by poor election administration, electoral manipulation, and alleged vote rigging and voter intimidation. By contrast, the 2002 elections displayed low levels of coercion and violence. According to the Commonwealth observer delegation, "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." Nonetheless, the Commonwealth delegation criticized the pro-government bias of the Kenya Broadcasting Corporation (KBC) coverage, the ruling party's use of state resources during the election campaign, and problems with voter registry. These incidences were not of a sufficient magnitude to deny NARC a victory, but could potentially arise in subsequent elections. Another criticism targeted the liberal use of new provisions regarding voter assistance in the polling place.

Concerns also arose about inappropriate use of government resources and incidents of violence and campaign intimidation surrounding the 2005 constitutional referendum; however, no significant complaints were recorded about administration of the referendum. Both referendum supporters and detractors accepted the clear-cut result.

In recent years, the electoral commission has become more professional and more adequately funded, except in the area of voter education. It currently enjoys significant independence from the government, although this issue may resurface in the run-up to the 2007 national elections as some commissioners' terms end. Several stakeholders, such as human rights and election-observation groups, have emphasized the need for the government to continue to make inclusive and broad electoral commission appointments.

Despite the fact that the two national polls since 2002 have been viewed as legitimate, they are nevertheless the first of their kind. Areas of continuing concern include candidate nomination processes and campaign financing, electoral gerrymandering, inappropriate use of government resources for electoral purposes, levels of violence surrounding elections, and the marginalization of disadvantaged sectors of society. The country thus has a long way to go to consolidate its nascent and fragile electoral processes.

Although the NARC coalition entered office with a mandate for political reform, including the introduction of transparency into political party finances, no progress on this issue has been made. Draft legislation containing provisions for public funding of political parties has not been introduced into parliament. This legislation would provide public funding to political parties with parliamentary representation. The question of political party funding also featured prominently in the constitutional reform process. There is concern about the current potential for the Registrar of Societies, under whose regulatory purview political parties fall, to make decisions about party registration on a partisan basis. The draft Political Parties bill would provide a new regulatory and legal framework for parties.

While Kenyans' political choices are not dominated by the military, foreign powers, or totalitarian parties, and although NARC has been a multiethnic movement, voting patterns continue to fall largely along ethnic lines. Despite increased parliamentary influence, power remains heavily concentrated in the executive branch under the Kibaki government. The ministers and ministries within this branch tend to champion the narrow interests of President Kibaki's largely Kikuyu and central Kenya-based political constituency and are known colloquially as the Mt. Kenya mafia. The NARC coalition has, over time, lost support from parties other than Kibaki's Democratic Party.

Although in theory the executive, legislative, and judicial branches of government oversee one another's actions and seek to hold each other accountable, the power of the presidency takes precedence in practice. This question of parliamentary versus presidential power was probably the single most contentious issue addressed in the constitutional reform debate. The penultimate Bomas draft provided for a significantly heightened parliamentary role. However, the final draft, prepared under the close supervision of attorney general Amos Wako, weakened the powers of the proposed prime minister.

Members of parliament are entitled to propose legislation, but in practice the attorney general usually introduces government-drafted laws. Over the past couple of years, parliament has demonstrated some independence from the executive, for example in passing the Forest Act over President Kibaki's objections. It has also tabled or significantly altered government-introduced legislation, such as privatization and antiterrorism bills. Parliamentarians have also aided anticorruption and transparency efforts through commission investigations. For example, the Anglo-Leasing government contracting scandal, in which several leading cabinet ministers have been implicated, was first exposed in parliament in early 2004.

The civil service is administered by a Public Service Commission. Kenya's public administration has some roots in the British administrative tradition, in which the civil service is supposed to be highly qualified and politically neutral. A 2003 UN Development Program study 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. The government has established an 11-person team to monitor the performance of civil servants and instituted a job-review policy before reappointment for many civil servants, but significant problems remain.

Traditional attitudes circumscribe the role of women in politics. Only nine female members (four elected and five nominated) sat in the 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 the 224-member Parliament to eight elected and seven nominated. Three women served in the cabinet prior to its dismissal by President Kibaki in November 2005. The defeated constitution included a mandatory provision that women comprise one-third of representatives at the national and district legislative levels.

Kenya's energetic and robust civil society has been one of the core strengths of its political culture. The success of the 2002 elections was largely due the ability of the country's nongovernmental organizations (NGOs) to push for open political space and greater freedom. In recent years, public-policy NGOs in Kenya have achieved significant elements of transparency, especially when compared to those in many other countries wrestling with the legacy of decades of authoritarian rule. Most NGOs are generally free from legal impediments from the state and able to function openly. 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 major urban areas. The drawn-out constitutional review process involved a wide range of civic groups and associations.

Some NGOs have been able to influence public policy in the Kibaki administration (e.g., the Kenyan Section of the International Commission of Jurists have influenced judicial reform and the Federation of Women Lawyers has had an impact on legal and gender issues). Further, the Sexual Offences Bill, Criminal Law Amendment Act, and bills on refugees as well as children's welfare and trafficking are some examples of actual or draft legislation influenced by civil society advocacy efforts. A number of women and men in senior government positions have made gender issues a priority, but they often encounter bureaucratic inertia and/or resistance, especially as the NARC's base of political support has narrowed.

The government has at times responded defensively to NGO criticism. In addition, some civil society organizations' credibility has suffered from a lack of distance from the Kibaki administration. For example, the Board of Trustees of Transparency International Kenya (the chair of which openly acknowledged his closeness to President Kibaki) forced Gladwell Otieno, the organization's executive director, to resign from her job in April 2005, after she criticized the government's stand on corruption.

The constitution provides for freedom of speech and of the press, and Kenya's press traditionally has been lively, especially when compared to that of many other African countries. The media includes 4 major daily newspapers, 25 FM radio stations, and 4 main television stations. In the latter years of Moi's rule the electronic media also began to demonstrate signs of independence. This trend has continued in the Kibaki administration, which came to power promising further media liberalization. In late 2003, however, the government cracked down on unregistered "alternative" newspapers, using a controversial law passed by the previous government. The government, though, does not restrict access to the Internet.

The media has called for the overhaul of parts of certain laws that hamper press freedom, including the Official Secrets Act, Section 194 of the penal code, the Books and Newspapers Act, the Defamation Act, the Judicature Act, the Kenya Broadcasting Corporation Act, and the Communication Commission of Kenya Act. The issues of media licensing and cross-ownership of newspaper and electronic media remain controversial, as they have the potential to reduce the breadth of views expressed by the press. According to the director of the independent, Nairobi-based Media Institute, the country's political transition has allowed the press to publish freely and created an atmosphere that does not directly threaten journalists' physical safety. Concerns exist, however, that no institutional or legal context actually protects these freedoms. The government is developing a media bill in consultation with relevant stakeholders, designed to emphasize self-regulation. The bill also contains provisions for a minimum wage for journalists and a new code of conduct.

In the past, public officials have used libel laws to attack publications directly critical of actions by government officials. While in office, for example, 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.

Recommendations

• The constitutional review process should be renewed, with the Bomas draft used as a point of reference.
• Parliament should give expeditious consideration to the drafts of political party and media bills.
• Appointments to the Electoral Commission should be made in consultation with the broad range of stakeholders.

Civil Liberties – 4.58

The Kibaki government has placed considerable emphasis on the protection of human rights. Civil and political rights are more respected in Kenya today than at any time in the country's history. In its "State of Human Rights Report, 2003-2004," the Kenya National Human Rights Commission (KNHRC) suggested that the Kibaki government's record on human rights has been a vast improvement from that of the previous regime. The report indicated that problems such as detention without trial, tribal clashes, and extrajudicial killings had diminished considerably and that living conditions in prisons had greatly improved.

Much remains to be done, however. Actions such as police abuse and violence by security forces during the constitutional referendum campaign period raise considerable questions about the protection of civil liberties. A survey commissioned by the KNHRC suggests continued reluctance on the part of citizens to report incidents of alleged torture. In February 2005, Kenyan human rights groups presented a report to the UN Committee on Human Rights alleging torture by government authorities. One example cited was the death of 14 prisoners in eastern Kenya.

Although checks against arbitrary arrest exist in the legal system, they are not uniformly observed. In addition, the Kibaki government ostensibly continues to support revised draft legislation on antiterrorism, which, although improved from an earlier version, would give police sweeping arrest and search powers without authority from the courts.

The constitution provides that persons arrested or detained be brought before a court within 24 hours in the case of noncapital offenses and within 14 days in capital cases. The law, though, 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 trial begins. The law provides that families and attorneys of persons arrested and charged be allowed access, although this right is often ignored.

The Kibaki government has sought to improve prison conditions. Vice President Moody Awori has led a high-profile effort on this topic. Specific actions and initiatives include the community service order program, which aims at decongesting prisons. More than 200,000 petty offenders have been released from jail to undertake community service in recent years. Police have resisted plans to give parole to minor offenders, arguing that this would increase crime. Some efforts have been made to improve health and living conditions in prisons.

No instances of politically motivated assassination have been proven over the past two years, although previous high profile, politics-related killings suggest that such events are not alien to Kenya. For example, three men arrested for the September 2003 murder of Dr. Crispin Mbai, a key player in constitutional review commission considering limiting executive branch powers, were acquitted due to lack of evidence in April 2005. No other suspects have been arrested.

The state's ability to protect citizens from abuse by private and non-state actors remains limited for some sectors of the population, especially in poor and rural areas. Intimidation has been common in some parts of the country. The rule of law is very weak in the sparsely populated northeastern region bordering Somalia. These disadvantaged groups are also relatively less able to effectively petition for redress when their rights are violated by state authorities.

To date, the state's ability to ensure and enforce the equality of all citizens regarding civil and political rights has also been limited. Evidence suggests that there is widespread violence against women; according to the Kenya Demographic Health Survey, in 2003, 44 percent of women aged between 15 and 49 had been physically or sexually violated by a husband or parent. Many of these cases go unpunished, despite repeated complaints by women's groups that Kenyan laws remain too lenient in sentencing offenders in cases of violence against women.

The constitution was only amended in 1997 to include a specific prohibition of discrimination on grounds of gender. Kenya ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1984. The Kibaki government initially targeted improved women's rights as a key policy goal. This issue was also the focus of considerable attention and discussion in the constitutional review process. The government promised that gender units would be established in all government ministries, and a domestic violence bill was passed. A sexual offences bill under consideration by parliament as of late 2005 would carry strong sanctions against individuals or spouses who infected partners or victims with HIV or engaged in gang rape, defilement, child trafficking, child prostitution, child sex tourism, incest, or sexual harassment.

Overall, however, the government's record has not matched its intentions in this realm. In 2002 a draft Gender Equity bill was withdrawn after it created considerable public controversy, with some Muslims protesting that its scope was too sweeping. The government announced in 2004 that a revised bill would be introduced in parliament, but this has not occurred. In 2004 parliament passed the National Commission on Gender and Development bill, but the commission lacks a budget and has maintained a low profile. A number of human rights organizations have expressed concern about the state of women's property rights. They highlight problems regarding women's ability to inherit from deceased husbands or family members, traditional practices such as "wife inheritance" by male members of a deceased husband's family, and loss of property as a result of divorce or separation. Ineffective courts and unresponsive government authorities are singled out as significant contributing factors.

The constitution prohibits slavery, and the penal code outlaws forced detention of women for prostitution, abduction, and labor as well as the sexual exploitation of children. Despite these provisions, trafficking in women and children is a problem, although it is difficult to determine its exact magnitude. According to the U.S. Department of State's 2005 Trafficking in Persons Report, "Kenya is a source, transit, and destination country for men, women, and children trafficked for the purposes of forced labor and sexual exploitation." The report determined that while the Kenyan government does not fully comply with the minimum standards for the elimination of trafficking, it has expanded its efforts in this area. In mid-2004, for example, the Kenyan Police Service launched a ten-person Human Trafficking Unit to undertake investigations.

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." Yet 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.

In the public sector, it is common for members of most ethnic groups to grant preferential treatment to other members of the same group. Political cleavages have tended to correlate with ethnic cleavages. For example, concerns have been expressed especially about favoritism toward the Kikuyu ethnic group in government personnel appointments.

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 their citizenship. The continued presence and at times criminal activities of Somali refugees have exacerbated the problems faced by citizens of Somali ethnicity. Some groups suffer from inadequate protection and security. In July 2005, for example, at least 19 people, many of them children, were killed and dozens wounded in a raid on a remote village in eastern Kenya in what residents said was an inter-clan attack spurred by long-running disputes over water and pasture rights.

Within a context of limited resources and higher priority issues, the Kibaki administration has made a modest effort to improve the status of people with disabilities. For example, President Kibaki began 2004 by signing into law the Persons with Disabilities Act, designed to improve the rights and rehabilitation of people with disabilities. It established the National Council for Persons with Disability with 27 members, of whom 20 have disabilities. The council's role is to formulate policies regarding the disabled and advise the government on how to avoid discrimination. Employers are required to allocate a certain percentage of available jobs to disabled persons, and duties on imported tools and equipment for those with disabilities are waived. The extent of compliance with these provisions is not yet clear.

In general, the government has a good track record in respecting freedom of religion. According to the 2004 U.S. State Department 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. The state has not tended 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, ceremony, or 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 – religion-based tensions have risen.

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

Violence has broken out occasionally between Muslims and those of other faiths. Many Muslims believe, with some justification, that the government is hostile toward them, poses additional bureaucratic requirements for their access to government services, and discriminates against them in law enforcement. Muslims have specifically complained about government repression in the name of the war against terror; they have pointed to the draft Protection Against Terrorism bill, arrests of Muslims on suspicion of terrorism, and the banning of Muslim charity organizations, such as the African Muslim Agency.

Demonstrations and public protests in Kenya are generally permitted; however, in November 2005 government banned demonstrations calling for new elections following the constitutional referendum's defeat, claiming that such demonstrations would present a "threat to national security." Further, several credible reports brought to public attention the use of excessive force to deal with demonstrations and public protests. Amnesty International's Kenya 2004 annual report stated, "Law enforcement officials continued to use excessive force in dispersing demonstrations, and during the arrest of criminal and 'terrorist' suspects." For example, one person was killed and 33 injured in July 2005 protests against parliament's revision of the draft constitution. At least 8 people subsequently died in referendum campaign violence. The state does not force citizens to join associations or political parties; it also does not place registration or legal impediments on NGOs.

All workers other than members of the police and military are legally free to join unions of their choice. The government may deregister a union, but the registrar of trade unions is required to give that 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, 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. A civil service union strike in 2005 met strong government resistance and resulted in a change in union leadership.

Recommendations

• Greater emphasis should be placed on reforming police structure and operations to reduce human rights violations and improve the quality of cases prosecuted.
• Renewed emphasis should be placed on developing and implementing initiatives designed to promote the rights of women through increased education, stricter enforcement of existing laws against discrimination, and greater women's representation at all levels of government.
• The state needs to address the problems of human trafficking through tightening controls over cross-border movements, putting greater emphasis on trafficking-specific public education and awareness campaigns in trafficking-prone communities, and expanding programs that provide direct protective assistance to children in prostitution.

Rule of Law – 3.90

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. In 2002, for example, when a panel of Commonwealth judicial experts from Africa and Canada examined the court system, they concluded that it 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 determined 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 report emphasized that while some attempts had been made to reform the judiciary, substantive and far-reaching administrative and institutional measures had never been taken. It also noted that more emphasis has been placed on purging the judiciary of perceived corrupt officers than on addressing the fundamental and underlying institutional causes of poor judicial functioning. Another report has concluded that "Independence of the judiciary is still a far off dream, and incompetent and corrupt judges remain on the bench."

Kenya lacks a tradition of effective judicial review over legislative and executive actions. A Constitutional and Judicial Review Division of the High Court was created in 2004, but its actions have been very limited. In addition, the government has at times demonstrated an attitude of being above the law, for example, ignoring judicial decisions in the Amboseli and Kenyatta International Convention Center cases. The attorney general's docket mandate is also extremely broad, making it virtually impossible for him to function effectively in all areas of his jurisdiction.

The president has extensive powers over appointments, including those of the attorney general, chief justice, as well as appellate and High Court judges. He appoints judges on the advice of the Judicial Service Commission – a body lacking independent status itself as it is comprised of the chief justice, attorney general, chair of the Public Service Commission, and two High Court or Court of Appeals judges. The chief justice is a member of the Court of Appeals and the High Court, thus undercutting the principle of judicial review [how?]. Although most judges have life tenure, the president has extensive authority over transfers. In addition, Philip Murgor, the director of public prosecutions, was fired in 2005 in the wake of his energetic probing of politically sensitive drug and corruption cases. This episode points to the need for a politically independent Public Prosecutor's office, which has been frequently subjected to political influence and control.

In recent years, criticism of the judiciary has been aired more freely, and a public policy debate about its shortcomings has ensued. The Kibaki government entered office promising that the rule of law would be upheld and judicial independence strengthened. It has created the Ministry of Justice and Constitutional Affairs, although some in the legal community believe that the Ministry's existence has, at least in part, undermined rather than promoted the independence of the judiciary.

President Kibaki 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. In 2003, in what some have dubbed "radical surgery," President Kibaki oversaw the firing of 24 judges and 87 magistrates accused of corruption. While these actions were generally viewed favorably, they did not reflect a sustained, institutional effort to strengthen judicial independence. Courts do not receive adequate resources from the state to fulfill their responsibilities in a timely and effective manner, although there are few direct examples of state funding for the judiciary being used as an instrument of control or political pressure.

Civilians are tried publicly, although some testimonies may be given in closed session. The law provides for a presumption of innocence and for defendants to have the right to attend trial, confront witnesses, and present witnesses and evidence. But, delays in the administration of justice are common. Legal provisions that allow courts to release suspects on bail or bond pending the hearing and determination of their case are not fully utilized, which has led to overcrowding in detention facilities. Frequent adjournment has also been cited as a cause for delays in the completion of cases. Prosecutors further lack the staff and resources to prosecute criminal cases expeditiously. The breadth of legal provisions for criminal offenses not subject to bail is another cause of prison congestion.

Defendants have the right to government-provided legal counsel only in capital cases. For lesser charges, free legal aid is rarely available, and then only in Nairobi and other major cities. Defense lawyers do not always have access to government-held evidence. The government can cite the State Security Secrets Act as justification to withhold evidence, and local officials sometimes classify documents to hide the guilt of government officials. Court fees for filing and hearing cases are costly for the average Kenyan.

The government has undertaken a number of reforms, including outlawing the holding of suspects in custody for more than 14 days and the abolition of legal validity [making inadmissible?] of confessions made to police, in the Criminal Law (Amendment) Act of 2003. Some reports suggest, however, that such reforms have adversely affected investigators, and prosecutors' ability to do their jobs. As of late 2005, the government was considering legislation to roll back some of these reforms.

The issue of whether to establish a Truth, Justice, and Reconciliation Commission to investigate the Moi presidency's abuses of power drew considerable interest and support early in the Kibaki presidency. Many argued that such a commission was necessary to properly assess previous governments' records and provide grounds for further democratic consolidation. A Task Force on the Establishment of a Truth, Justice and Reconciliation Commission recommended immediate establishment of a commission in October 2003. The political sensitivity of the issue, however, has resulted in no action taken.

The Kenyan economy has long been oriented along capitalist lines. The government, especially in contrast to many other African regimes, has traditionally had a fairly good record of respecting property rights. According to the Heritage Foundation 2006 Index of Economic Freedom, however, problems exist. "Property and contractual rights are enforceable, but long delays in resolving commercial cases are common."

A tradition of civilian control over security forces persists. At times, however, some security forces have acted with relative impunity. The Kibaki government has stated its intent to introduce effective control and accountability over the security forces. President Kibaki has appointed new army and police commanders, but the record of specific reforms in the security sector remains limited to date. Sufficient executive or parliamentary oversight of military and intelligence service functions, including budget development and expenditure, is lacking.

Recommendations

• The Judicial Service Commission should be expanded with input from consumers of justice. Furthermore, the Commission's independence should be enhanced.
• The state needs to institute more transparent and qualitatively improved judicial appointment procedures
• In order to heighten confidence in the justice system, increased resources should be devoted to resolving murders with political implications.
• The currently wide mandate of the attorney general should be reduced and better focused.
• Greater emphasis should be placed on judicial training.

Anticorruption and Transparency – 3.24

Kenya has embraced capitalism since independence, yet the state has traditionally been involved in the economy. The Heritage Foundation's 2006 Index of Economic Freedom states that government intervention has increased compared to previous years. State intervention has taken place officially and through corrupt practices. In fact, corruption has long been a serious problem; Kenya has consistently ranked in the bottom 10 percent on Transparency International's (TI) Corruption Perceptions Index. According to the TI 2005 Bribery Index, while the overall incidence of corruption has dropped as compared with that of 2002, the average size of bribes has increased significantly. The study suggests that the Kenyan police force is the most corrupt institution in the country; the Teachers Service Commission, a government agency that manages teachers' affairs, was identified as the second-most corrupt state institution. The report also cited widespread corruption among local government authorities.

The Kibaki administration has made some efforts to curb corruption, including the 2003 passage of the Anti-Corruption and Economic Crimes Act, changes in the judiciary, the formation of the Kenya Anti-Corruption Commission (KACC), legislation requiring public servants to declare their wealth, and increases in government salaries. In addition, President Kibaki signed into law the Procurement and Disposal bill, designed to raise standards in the government procurement process in 2005. A Serious Crimes Unit has been established within the Department of Public Prosecution, and the government is engaged in the Governance, Justice, Law and Order Sector project, an ambitious donor-supported effort to improve transparency and governance throughout the bureaucracy. The KACC has recommended prosecution of a number of government officials.

Overall, however, results have been very disappointing. The Kibaki administration has come under increasing and considerable criticism for its lack of progress in curbing corruption. This is exacerbated by the fragility of the governing coalition, President Kibaki's detached governing style, the sheer magnitude of the problem, limited resources available to address it, and underlying structural, economic, and cultural issues. These factors have all combined to significantly deflate initial reform initiatives.

In the 2004-2005 parliament, NGOs, the press, and indeed some official bodies unearthed examples of government corruption and malfeasance. These included alleged fraud in the procurement of naval vessels from Spain, a new system of passports, and the printing of national currency. Numerous official commissions are investigating particular scandals, but former high-ranking officials have yet to be prosecuted. The results to date have been meager, as exemplified by investigations such as the Goldenberg foreign exchange scandal, which highlight the magnitude of the challenge of reducing corruption in Kenya. In addition, President Kibaki's increasing reliance on the Mount Kenya mafia – a small group of trusted aides – some of whom are believed to be highly corrupt, has further heightened concerns. In early 2005, the British High Commissioner made public a list of 20 cases alleging official corruption that have either been dismissed or remain under investigation by the KACC. In 2005, Transport Minister Chris Murungaru was denied visas by the U.K. and U.S. governments on grounds of suspected corruption. In addition, the military and intelligence services remain closed institutions; the scandal involving the alleged purchase of Spanish naval vessels has emphasized the lack of adequate security services' budgetary and expenditure oversight.

The Kibaki administration does not commonly take action against senior political appointees suspected of corrupt activities. However, in an isolated case, the government charged six former senior civil servants with "abuse of office" for awarding millions of dollars in irregular contracts in February 2005 to supply equipment to Kenya's immigration department and build a police forensic laboratory.

The KACC 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. It has investigatory, but no prosecutorial powers. One of President Kibaki's early appointments was John Githongo, the widely respected head of the Transparency International-Kenya chapter, to head the government's Office of Ethics and Governance. Frustrated by continued corruption and the Kibaki administration's failure to enact meaningful reforms, Githongo resigned in early 2005.

In an attempt to separate public office from personal interests, the Public Officer Ethics Act requires government officials to file annual declarations of wealth. However, the fact that these reports are not made public has called the transparency of this process into question. Draft legislation to remedy this issue is under consideration.

Under significant international pressure, in February 2005, President Kibaki ordered an audit report on high-level corruption in the awarding of security contracts to be forwarded to the KACC for action; the next day, he carried out a cabinet reshuffle. However, the director of the KACC, Aaron Ringera, told the BBC that the commission was not prepared to prosecute any cabinet ministers because it is "usually very difficult to pin any documentary evidence against a minister."

Currently, no legal protection exists for government whistle-blowers who expose corruption cases, although draft legislation to remedy this has been introduced. The Official Secrets Act has been cited by senior government officials (including Francis Muthaura, head of the civil service and secretary to the cabinet) as a deterrent against civil servants providing classified information to the press. Muthaura specifically warned civil servants in 2004 against leaking information after the media highlighted corruption implicating government ministers.

In 2004 President Kibaki signed into law the Public Audit bill, which provides for a more systematic audit of state corporations. The legislation reorganized the office of controller and auditor general through the establishment of the Kenya National Audit office. It is still too early to determine the effectiveness of this initiative. Other legislation passed to address corruption includes the investment code and the Finance Management Act.

While citizens have the legal right to obtain information about government conduct, public access to government information has been limited. In 2005 the Kenya Human Rights Commission issued a report rating various government ministries and offices on their openness to the public. The military and the presidency were judged the "most opaque," while the Ministry of Environment and National Assembly were given the highest marks for responsiveness. Other top performers were the ministries of sports, agriculture, finance, and justice.

Calls to codify the public's right to information were made in the context of the constitutional review process. In theory, the executive budget-making should enjoy a degree of transparency; however, in reality, the budget has been closely managed by the office of the president without much opportunity for review and input. However, the Kibaki government has opened up the process to an extent, and parliament has increasingly sought to exercise meaningful legislative scrutiny. Draft freedom-of-information legislation is in parliament, although it has been critiqued by advocacy groups for being overly legalistic and narrow in scope.

In 2005, the government commissioned Deloitte South Africa to audit several projects, including those funded by the World Bank. Finance Minister David Mwiraria indicated that this decision was made after fraud was detected in the Kenya Urban Transport Improvement Project. The National Audit Office has improved its audit compliance of government projects. The government has promised to expeditiously release audits regarding cases of alleged embezzlement of state funds.

Recommendations

• The KACC should be embedded in the constitution and should either be given prosecutorial powers or develop a more effective and productive relationship with the director of public prosecutions.
• Legislation should be enacted requiring government-official wealth declarations to be made public.
• The state needs to ensure adequate legal protection for whistle-blowers
• The government should adopt freedom-of-information legislation.

Author

Edward R. McMahon holds a joint appointment as Research Associate Professor in the Department of Community Development and Applied Economics, and the Department of Political Science at University of Vermont.