United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Kenya, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa3920.html [accessed 25 November 2015]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
KENYA After 9 years as a single-party state led by the Kenya Africa National Union (KANU), a 1991 constitutional amendment restored multiparty politics. However, President Daniel Arap Moi and his KANU party continued to dominate the political system. In addition to his role as President, Moi also heads the military, and controls the security, university, civil service, judiciary, and provincial, district, and local governance systems. KANU controls a majority of the unicameral National Assembly's 200 seats. The large internal security apparatus includes the police Criminal Investigation Department (CID), the paramilitary General Services Unit (GSU), the Directorate of Security and Intelligence (DSI), and the National Police. The CID and DSI investigate criminal activity and also monitor persons the State considers subversive. Members of the internal security forces committed numerous serious human rights abuses. The economy includes a well-developed private sector in trade, light manufacturing, and finance. The predominant agricultural sector provides food for local consumption, substantial exports of coffee, tea, and cut flowers, and around 70 percent of total employment. Tourism remained the top foreign exchange earner. Tight monetary policies reduced annual inflation to a single digit, and publicly traded companies were opened to partial foreign ownership. With the earlier elimination of most trade controls, imports increasingly challenged previously protected industries. Challenges to the country's continued economic improvement include corruption, unpredictable exchange rates, and inadequate infrastructure. Annual gross domestic product per capita is $270. The Government's human rights record worsened in 1995. Police committed several extrajudicial killings and tortured and beat detainees. The Government arrested some police officers responsible for abuses. Authorities sometimes used arbitrary arrest and prolonged detention. Prison conditions are life threatening, and the judiciary is subject to executive branch influence. Citizens ability peacefully to change their government has not yet been fully demonstrated at the presidential level. The Government continued to harass and intimidate those opposed to the ruling party. In August a progovernment mob attacked members of a newly formed opposition party. In February and March, several arson attempts against a newspaper and at least one civic organization appeared to be politically motivated. The Government continued to detain critics of the ruling party, including opposition parliamentarians and journalists, and two civic organizations were deregistered after they addressed governance issues. The Government continued to limit freedom of speech, assembly, and association, and obstruct opposition leaders' access to their supporters and electronic media. In January the Government forcibly relocated victims of ethnic violence for a second time, and in October, ethnically motivated riots broke out in a Nairobi slum. The Government has not addressed the root causes of factional violence in the Rift Valley and elsewhere in Kenya. Discrimination against women and ethnic groups, and violence against women and children remained serious problems.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There was one killing with political undertones involving Bernard Kahumbi, a CID Superintendent. In late April, Kahumbi led a highly publicized but unsuccessful police search for Njehu Gatabaki, editor of Finance magazine. The day that Gatabki surrendered to police Kahumbi was found shot to death near a Nairobi slum. Opposition parliamentarians claimed that Kahumbi had been murdered by government forces because he had failed to arrest Gatabaki, a fellow Kikuyu. Government officials denied the charge, linking the murder to the opposition. In July two men were charged with Kahumbi's murder; at year's end their trials had not yet begun. Kenyan police used improper lethal force on several occasions in attempts to apprehend criminal suspects. In a case that sparked nationwide protests in July, two administrative policemen mistook two electric company employees for thieves and shot and killed them. The policemen were charged with murder and at year's end were awaiting trial. Six other policemen faced murder charges in different cases. Over 800 persons died in prison from disease or lack of medical care. There was at least one prison death due to police brutality. Sergeant Martin Obwong, a prison warder, died on March 18 shortly after being released from a Nairobi police station. He had been arrested the previous evening after a bar room quarrel with a police officer. Upon returning home, Obwong reportedly told his son that he had been beaten in custody. In September a police corporal and a constable were charged with manslaughter in connection with Obwong's case. At year's end, they had not yet come to trial. In March the Kenyan High Court determined that a police reservist had acted in self-defense when he killed a homeless child in August 1994. The reservist is currently the subject of an inquest in the murder of four other homeless children. There were no developments in the case of the 1990 murder of former Foreign Minister Ouko. Regarding the 1994 murder of Charles Njeru, a suspected thief who died in police custody in Karaba, a third police constable was arrested and charged in the case. At year's end, he and two policemen arrested in 1994 remained in custody awaiting trial. The Government said that it did not have sufficient evidence to bring charges in the 1993 beating death of the nephew of Central Organization of Trade Unions' Secretary-General Joseph Mugalla. The Government also said that there was no evidence to implicate police in the 1993 death of Jackson Mutonye, who died in custody after being arrested for an alleged raid on a government arms depot. Two persons were convicted for the 1994 murder of opposition Member of Parliament (M.P.) Peter Nyongo's uncle. In April both were given death sentences. Mob justice remained a serious problem. The Kenya Human Rights Commission documented 84 cases between January and June where suspected criminals were murdered by angry crowds. The Government condemned the practice but has taken no action to address the problem, nor arrested anyone who participated in the violence.
There were no reports of politically motivated disappearances. There were no developments in the 1994 disappearance of Islamic Party of Kenya activist Mohammed Wekesa.
c. Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment
There continued to be credible reports that police resorted to torture and brutality, and at least 12 police officers were charged for such offenses. In one serious incident police tortured and mistreated four suspected members of the February Eighteenth Movement (FEM), a small Kenyan guerrilla force based in Uganda (see Section 1.g.). According to medical reports, one of the FEM suspects, Joseph Wekesa's left eardrum was ruptured, his back pierced, his arms burned, and his hands and feet beaten by police during his detention in February. Wekesa's attorney claimed that he confessed to guerrilla activities to avoid further abuse. Another suspect, Richard Wasilwa, was slapped in the face, hit on the knees, and struck on the genitals by police. A doctor reported that two other suspects, Moses Mukono and Frederick Wafula, sustained similar injuries in police custody. Though Wasilwa, Mukono, and Wafula were eventually released, the courts did not order an investigation of their treatment in detention. Sixty-three members of the Mungiki religious sect arrested in December 1994 for involvement in an illegal oathing ceremony alleged various forms of police abuse during their 10-month confinement (see Section 2.c.). One suspect lost an arm after police hung him from a tree during interrogation. An attorney for the oathing suspects informed the court in September that police had subjected the defendants to unwarranted anal examinations in prison. He also claimed that police placed them in toilet-flooded prison cells that formerly belonged to inmates with tuberculosis and scabies. The Government did not take action against policemen responsible for the abuse of 11 persons arrested in connection with Koigi Wa Wamwere's alleged police station raid in 1993. Similarly, the Government failed to comply with a court order to discipline police officers who tortured the "Ndeiya Six" suspects, who in 1994 were acquitted of an alleged 1993 assault on a government arms depot. A senior government official indicated in October that internal police investigations in the Ndeiya Six case had concluded and that no police officers would be charged. The trial of Geoffrey Kuria Kariuki, a cousin of Koigi Wa Wamwere, who sustained head injuries during his 1994 arrest for alleged theft, was postponed in 1995 because he required brain surgery. On August 10, police failed to protect members of the Safina Political Party from a mob attack in Nakuru. First, a crowd armed with whips and clubs set upon Safina Secretary-General Richard Leakey (a double leg amputee), Party Treasurer Njeri Kabeberi, and reporters at the Nakuru courthouse. Prison warders later joined another crowd near the Nakuru prison in beating journalists and other Safina members. Safina officials accused police and KANU supporters of involvement in the attacks. Following an investigation ordered by the Attorney General, three suspected participants in the attacks were arrested and charged in September. At year's end, they had not yet come to trial. In January Alice Maraga Ashioya, the widow of a former magistrate, told a court in Nyeri that she had confessed to her husband's murder after having been sexually abused by a female police officer during interrogation. The judge rejected the confession, acquitted Ashioya, and criticized the police for misconduct. In October Nairobi police officers arrested Mary Wangoi for alleged drunken behavior and beat her in custody, causing her to miscarry. So far one policeman has been suspended in the course of police investigations into the incident. Prison conditions are life threatening, due in part to a lack of resources and in part to the Government's unwillingness to address deficiencies in the penal system. Both male and female prisoners are subjected to inadequate water, poor diet, severe overcrowding, deficient health care, and substandard bedding. Kenya's 78 prisons hold approximately 38,000 prisoners, 12,000 of whom are awaiting trial. On average, prisons are overcrowded by 30 percent of holding capacity, although some facilities, such as the Nairobi remand prison, are overcrowded by several hundred percent. There were over one hundred deaths in prison in 1995, most due to dysentery and diarrhea. Kenyan prisons do not have resident doctors, and only one prison had a doctor permanently assigned to it. Rape of both male and female prisoners continued to be a serious problem. The Government does not permit independent monitoring of prison conditions.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides that most persons arrested or detained shall be brought before a court "as soon as is reasonably practicable," which would be within 24 hours of the arrest or from the start of detention. A 1988 constitutional amendment allows police to hold persons suspected of capital offenses, such as murder and treason, for 14 days before charging them in court. A 1993 amendment to the Penal Code excludes weekends and holidays from this 14-day period. In practice, however, suspects are sometimes held for 2 to 3 weeks or even longer before being brought to court. Persons arrested and charged are usually allowed access to their families and attorney promptly. Detainees, however, may be visited by family members and attorneys only at the discretion of the State. For those who have been charged, it is often possible to be released on bail with a bond or guarantees of return. The law does not stipulate the period within which the trial of a charged suspect must begin. The Government has acknowledged cases where persons have been held in pretrial detention for several years, usually because of backlogs. There were credible reports of pretrial detention periods in excess of 5 years. The Preservation of Public Security Act (PPSA) allows the State to detain a person indefinitely without charges or trial upon a determination that it is necessary for the "preservation of public security." This includes "prevention and suppression of rebellion, mutiny, violence, intimidation, disorder and crime, unlawful attempts and conspiracies to overthrow the Government or the Constitution." The Chief's Authority Act, leftover from the colonial period, empowers local officials called "chiefs" to arrest individuals and to restrict a person's movement without trial. No persons were detained under the PPSA or the Chief's Authority Act in 1995. The task force on the Reform of Penal Law and Procedures, created by the Attorney General in 1993, continued its task of reviewing and proposing new statutes related to criminal investigation, arrest, detention, questioning, charge, and bail. The Task Force's final report had not yet been submitted by year's end. The police continued to detain politicians, members of civic organizations, clergymen, journalists, and others who were critical of the Government. As in 1994, the police usually held the detainees for several hours before releasing them without charge. In July, for example, police detained three members of the unregistered Safina Political Party for 24 hours for speaking with Kenyatta University students about the new party. In May police detained prominent Kikuyu M.P. Paul Muite, attorney Mirugi Kariuki, two Norwegian journalists, and a representative of the International Commission of Jurists (ICJ) for 11 hours for visiting a site the authorities declared to be restricted. In some cases, detainees were held for much longer periods. In March police held former University of Nairobi student leader Robert Wafula for 57 days without charge to question him about the FEM movement. In January police arrested and charged opposition M.P. Njenga Mungai along with two other opposition M.P.'s, Francis Wanyange and Lwali Oyondi, for allegedly advocating violence against the Kalenjin tribe. The Government dropped the charges against Oyondi and Wanyange but kept Mungai in remand, denying his bail applications on three occasions. While in prison, Mungai was admitted to the hospital three times for dehydration and stomach complications; he was finally released on bail in April and at year's end was awaiting trial. Attorneys for suspected members of the FEM claimed that their clients had been arrested as many as 8 months before appearing in court. Police also harassed and arrested opposition M.P.'s, usually on charges of some variation of sedition. The authorities arrested and formally charged 9 opposition M.P.'s with sedition in 1995. The Government dropped charges against 4 M.P.'s, and the other 5 were awaiting trial at year's end. The 1994 case of one M.P., Stephen Ndichu, was still outstanding at year's end. In October Nairobi attorney Mbuthi Gathenji was arrested and charged on 24 counts of publishing false and inflammatory statements. The statements in question were testimonials about the 1991 ethnic clashes in Narok. Gathenji had recorded, but not published, the statements in preparation for a suit on behalf of the clash victims. Gathenji's trial had not begun by year's end. Police also continued to conduct mass arrests. On March 14, police arrested roughly 300 persons in Nakuru in what the town Police Commissioner described as an attempt to rid the town of "unwanted elements." All of those arrested paid fines for either illegal hawking or possessing homemade liquor. On April 13, Nakuru police took approximately 350 people into custody following the murder of a local chief. All but three were released the following day. The Government does not use exile as a means of political control. However, Sheik Khalid Balala, a former leader of the unregistered Islamic Party of Kenya, has remained in a European country for more than a year because Kenyan Embassy officials there have been unwilling to renew his passport. In August Balala attempted to fly to Kenya but was prevented from boarding the plane by airline officials.
e. Denial of a Fair Public Trial
Although the Constitution provides for an independent judiciary, it is subject to executive branch influence in practice. The President has extensive powers over appointments, including the Chief Justice, the Attorney General, and Appeals and High Court Judges. The President can also dismiss judges and the Attorney General upon the recommendation of a special presidentially appointed tribunal. Judges do not have life tenure but rather serve on a contract basis. Two retired High Court judges told a lawyers' seminar in March that judges sometimes delivered sentences under the suasion of public comments and private recommendations by executive branch officials. The court system consists of a Court of Appeals, a High Court, and two levels of magistrates' courts, where most criminal and civil cases originate. Judges hear all cases; there is no jury system. Customary law is used as a guide in civil matters affecting persons of the same ethnic group as long as it does not conflict with statutory law. In 1989 High Court Justice Norbury Dugdale ruled that the "Bill of Rights" outlined in the Constitution was unenforceable; this decision reinforced the implicit power of the executive branch over the judiciary. The decision has not been overruled. Civilians are tried publicly though some testimony may be held in secret. There is a presumption of innocence, and defendants have the right to attend their trial, to confront witnesses, and to present witnesses and evidence. Civilians can also appeal a verdict to the High Court and ultimately to the Court of Appeal. Military personnel are tried by courts-martial, and verdicts may be appealed through military court channels. The Chief Justice appoints attorneys for military personnel on a case by case basis. Defendants do not have a right to government-provided legal counsel, except in capital cases. For noncapital charges free legal aid is usually not available outside Nairobi. As a result, poor people who do not have an attorney may be found guilty for lack of an articulate defense. Although defendants generally have access to an attorney in advance of trial, defense lawyers do not always have access to government-held evidence, since the Government can plead the state security secrets clause as a basis for withholding evidence. In August the Government raised court fees for the filing and hearing of cases by between 200 and 500 percent. For instance, the daily rate for arguing a case before a judge rose from approximately $10 to $50. The Law Society of Kenya and other attorneys strongly opposed the increase, saying the new charges would deny the majority of citizens access to the courts. The Constitution entitles the Attorney General to take over and discontinue proceedings in private prosecution cases. Using his authority, Attorney General Amos Wako argued that citizens must first notify his office before initiating private prosecution. In May Wako used this authority to terminate a public corruption case filed against Vice-President George Saitoti by opposition M.P. Raila Odinga. He also used the provision to stop an incitement case brought against Local Government Minister William Ntimama by opposition activist Ngengi Muigai. After charging 47 persons with suspected membership in FEM, the Government dropped the charges against 28 of them. Four were convicted, one of whom subsequently died in prison, and 15 others still faced charges at year's end. Human rights activist Josephine Nyawira Ngengi is also being tried under questionable circumstances. Ms. Ngengi and 13 others have been accused of violent robbery, a capital offense. Despite the fact that Attorney General Amos Wako twice terminated criminal proceedings against the group for lack of evidence, Ms. Ngengi and the other accused were arrested again in June for the same offense. At year's end, her trial was ongoing and the case had adjourned several times because police officers had not complied with a summons to appear to testify. The trial of Koigi Wa Wamwere and his 3 codefendants, who were charged with armed robbery in connection with an alleged raid on a Nakuru police station in 1993, concluded in October. International observers concluded that the prosecutor did not produce credible evidence tying Wamwere to the alleged raid. Despite the lack of evidence, the chief magistrate found Wamwere and two of his codefendants guilty of unarmed robbery and sentenced the three men to two concurrent 4-year prison terms plus three strokes of the cane. The fourth defendant was acquitted of all charges. Throughout 1995 Wamwere's defense attorneys established convincing alibis and showed that the State had tampered with evidence. The presiding magistrate, William Tuiyot, interfered with the proceedings in a way that called into question Wamwere's ability to receive a fair trial. For example, in July Wamwere's attorneys withdrew from the case when Magistrate Tuiyot halted their final summation because of its political content. In August and September, prison warders twice prevented Wamwere from meeting with his attorneys. International observers and human rights groups consider Wamwere and his codefendants to be political prisoners. Wamwere's defense attorneys began the appeals process in December.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution permits searches without warrants in certain instances "to promote the public benefit." The Police Act clarifies that policemen may enter a home forcibly if the time required to obtain a search warrant would "prejudice" their investigations. Although security officers generally obtain search warrants, they occasionally conduct searches without warrants to apprehend suspected criminals or to seize property believed to be stolen. The courts have admitted evidence obtained without search warrants to support convictions. There were several instances during the year where police conducted searches or seizures without warrants. While apprehending members of Mwangaza Trust in early April for holding an allegedly illegal meeting, police searched the Trust offices without a warrant and confiscated several documents. In late April, roughly 20 armed police officers twice searched the residence of opposition M.P. Njehu Gatabaki without a warrant (see Section 1.a.). In May Nakuru police seized letters written by Koigi Wa Wamwere from the car of his defense attorney, opposition M.P. Paul Muite. Security forces continued to employ various means of surveillance, including a network of informants to monitor the activities of opposition politicians and human rights advocates. A prominent local attorney stated that she had been followed by police in February after representing suspected members of the February Eighteenth Movement. Prior to the raid on the Mwangaza offices, police had trailed several Trust members. In May police followed opposition M.P.'s to a private dinner hosted by fellow M.P. Joab Omino and then dispersed the group for having allegedly convened an illegal meeting. Although Kenyans are free to choose their political affiliation, the Government continued to discourage civil servants from membership in opposition parties. An Assistant Minister in the Office of the President blamed opposition members in the civil service several times for the country's economic development problems. In April the Public Service Commission gave early retirement to civil servant James Njeru after the Kajiado District Commissioner accused him of supporting the Democratic Party.
g. Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts
Substantial evidence indicates that high-level government officials were complicit in instigating and promoting the ethnic clashes of 1991-1994, which claimed over 1,000 lives and displaced 250,000 people. In April opposition activist Ngengi Muigai brought charges against Local Government Minister William Ntimama for having allegedly incited the Maasai tribe during the 1991 clashes in Narok. Attorney General Amos Wako acted on his constitutional authority to quash the charges before the trial commenced (see Section 1.e.). Ethnic-related violence continued in January, but there were no other reported incidents of ethnic violence the rest of the year. On January 6, Kipsigi warriors attacked a displaced persons camp in Thessalia and seriously injured three people with arrows; the camp was demolished. On January 11, 10 people were killed in clashes in Longonot. Homes were burned, and the inhabitants, mostly Kikuyu, were chased away. There were unconfirmed reports that the attackers were brought into the area by helicopters. On January 12, a National Council of Catholic Churches (NCCK) camp in Eldoret was raided by administrative police, who chased away approximately 65 families. The NCCK, assisted by the U.N. Development Program (UNDP), was in the process of moving the displaced persons from the camp after the District Officer had ordered the camp closed on January 2. The Government made no arrests in any of these cases. In early January displaced persons from the Maela Camp, who were dispersed by the Government in late December 1994, were again forcibly moved by the district administration to unknown locations in Central Province. Those remaining in Maela were harassed in nightly attacks by the Administrative Police and relief support was not allowed into the area. Leading elders accused the Government of attempting to starve them out. Many of the displaced, however, remained in Maela throughout the year, living in the market center and in private homes. In October reports surfaced about renewed clashes in the Rift Valley between Kalenjin subtribes. Although these clashes were unconfirmed, reliable sources reported that tensions in the area were high and that numerous injuries had resulted from the fighting. In November reports of cattle raids in the Turkana area between the Pokots and the Turkana, which were viewed by many as ethnically related, led to the deaths of over 40 people and the theft of thousands of cattle. Government officials, particularly Minister Ntimama, continued to make inciteful and threatening statements against non-Maasai living in the Rift Valley. The UNDP program to assist thousands of displaced clash victims came to a virtual standstill in January. The program has not resumed operations due to the lack of government support. In one incident with ethnic and political undertones, in October riots broke out in Nairobi's Kibera slum, leaving two dead and scores injured. The fighting was reportedly between the Nubian and Luo population in the slum. During the year the Government blamed isolated attacks against police stations, banks, and villages on the self-proclaimed FEM, a small Kenyan force based in western Uganda that opposes President Moi's Government. When, for example, an estimated 200 armed assailants killed 2 officers during a raid on police headquarters in Sirisia (Western province) in March, the Provincial Commissioner attributed the attack to FEM guerrillas. Similarly, an Assistant Minister in the Office of the President said FEM operatives were responsible for several Nairobi bank robberies.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Although the Constitution provides for freedom of speech and the press, the Government has interpreted broadly colonial-era sedition and libel laws in order to limit free expression (see Section 1.d.). The Government has used these provisions to deny opposition parties the right of free speech. For example, in February President Moi instructed police to arrest anyone who insulted him, and three opposition M.P.'s, James Orengo, Linus Polo, and Njehu Gatabaki, were later arrested and charged with sedition for allegedly disparaging the President. Security forces and local administration officials also used these provisions as a pretext to disperse opposition rallies to prevent speakers from criticizing the Government. Despite these forms of obstruction, civic organizations and the opposition continued to present their views to the public. The print media include three daily newspapers that report on national politics. The Nation is the country's largest newspaper and carries articles critical of government policies. In August the second largest daily, the Standard, was sold to an investment group with links to the Government. Although the new management has pledged to maintain the Standard's independent editorial policy, KANU party stalwarts have reportedly tried to interfere in the paper's editorial process. The third daily newspaper, the Kenya Times, reflects KANU party views. Weekly newspapers and magazines, many of which are more openly critical of the Government, also have substantial audiences. Newspaper and magazine editors continued to feel varying degrees of government pressure to self-censor, particularly on such topics as President Moi's family or corruption involving his advisors. On the whole, the print media remained vibrant and independent, although government harassment of the press increased. During the year, one journalist was arrested for false reporting, three were detained by police for questioning, and at least six were assaulted by security officials. In August a group of armed administrative policemen and an assistant chief beat three Nation reporters, stole their equipment and money, and threatened to shoot them when they visited a shanty village in Nairobi. City police promised to investigate the incident but have not yet released their findings. One Nation bureau chief was acquitted of publishing false reports concerning the 1994 doctors' strike. In early February, unidentified assailants firebombed the offices of Finance, a magazine published by opposition M.P. Njehu Gatabaki. No arrests were made. On April 27, a police squad raided Colourprint Press, the company that produces Finance, and arrested its director, Anil Vidyarthi. The squad confiscated plates for the magazine's April edition, which had alleged President Moi's involvement in the 1990 murder of former Foreign Minister Robert Ouko. The squad also immobilized a printing machine. Vidyarthi and Gatabaki were charged on April 28 with sedition and at year's end were still on trial. Both Colourprint and Finance have continued to operate, however. Radio is the medium through which most citizens get news. The Government controls the Kenya Broadcasting Corporation (KBC), which operates the country's only radio station, its affiliate television station, and a new cable television station. KBC radio and television typically do not criticize the Government, give a large share of news time to government or ruling party functions, and neglect to give equal reporting to opposition activities. Members of KANU own another television station, the Kenya Television Network, which airs news programs with more balanced political coverage. A government supporter owns a second cable television network. The Minister of Information continued to delay action on numerous television and radio license applications while awaiting recommendations on media liberalization from the Attorney General's Task Force on the Press. Representatives of the international media are generally free to operate in Kenya. However, throughout the year the Government temporarily impounded issues of the Economist and the International Herald Tribune that reported on Kenya's human rights situation. In March Minister of Information Johnstone Makau threatened to deport reporters for Time, Newsweek, and the Washington Post for writing articles critical of President Moi. Makau subsequently permitted the reporters to stay, claiming falsely that they had agreed to correct mistakes in their articles. In May two Norwegian journalists were arrested and charged for photographing the police station that Koigi Wa Wamwere allegedly raided in 1993; they departed the country after posting bail (see Section 1.d.). The Government continued its ban on a number of books, including a Kiswahili play based on George Orwell's "Animal Farm," and a number of works by emigre Kenyan author Ngugi Wa Thiong'o. In May the Nakuru District Commissioner refused to license the staging of a Thiong'o play, even though the play was not actually banned. Contrary to previous years, the Government did not overtly pressure university students and faculty to support the ruling party. However, in August police detained temporarily the Dean of the University of Nairobi Faculty of Law for discussing political issues with opposition supporters. There were also notable clashes between the Government and the universities in July and November, when police forcefully dispersed student demonstrations against unsatisfactory dormitory conditions and increases in tuition.
b. Freedom of Peaceful Assembly and Association
Freedom of assembly is provided for in the Constitution but is seriously limited by the Public Order Act, which gives the authorities power to control public gatherings. This act prohibits meetings or processions of 10 or more persons without a license from the District Commissioner. In theory the law does not apply to persons meeting for "social, cultural, charitable, recreational, religious, professional, commercial, or industrial purposes." In practice, meetings under almost all categories are subjected to the Public Order Act. Throughout the year the Government restricted the right of peaceful assembly by refusing to license meetings. The three major opposition parties--FORD-Kenya (FORD-K), FORD-Asili (FORD-A), and the Democratic Party (DP)--estimated that they were denied permits for public gatherings more than a half dozen times each. The Government occasionally denied licenses to KANU as well. The Government also disrupted both licensed and unlicensed opposition gatherings. In July police fired shots in the air to disperse a rally conducted by FORD-Asili M.P.'s during the parliamentary by-election campaign for the Kipipiri Constituency. In August a procession by FORD-K M.P. Raila Odinga and opposition supporters in Suba District broke up when police attacked participants with sugarcane stalks and fired guns in the air. In September police scattered a Democratic Party rally in Kirinyaga by firing tear gas and clubbing party members. Government officials and opposition leaders warned against meetings by rival parties in their home districts. For example, in January seven opposition M.P.'s declared Webuye a FORD-Kenya zone and warned KANU activists to stay out of the area. In August Local Government Minister William Ntimama told a public rally that a planned FORD-Asili meeting in Narok would be a provocation of the Maasai community. Police broke up gatherings by nonpolitical groups as well. In February antiriot police in Murang'a District disrupted a Catholic procession protesting the ban on Inooro, a local diocesan newsletter (see Section 2.c.). The priest who led the march was charged with incitement and at year's end was on trial. The Societies Act governs freedom of association; it states that every association must be registered or exempted from registration by the Registrar of Societies. Twelve political parties are currently registered under this statute: KANU, FORD-K, FORD-A, the DP, the Social Democratic Party, the Kenya Social Congress, the Kenya National Congress, the Party of Independent Candidates of Kenya, the Kenya National Democratic Alliance, the Social Democratic Party, Labor Party Democracy, and the National Development Party of Kenya. Twenty-three parties have been refused registration since 1992, while at year's end 13 others had applications pending, including a party newly formed in 1995 named Safina. Nongovernmental organizations (NGO's) are registered by the Government's NGO Coordination Board under the NGO Act. In January a legal affairs NGO, the Center for Law Research International (CLARION), hosted a seminar on corruption in Kenya and published a report on the subject. The following month the NGO Coordination Board deregistered CLARION on the grounds that it had disseminated inaccurate material damaging to the Government. CLARION sued for reinstatement in August, claiming that the Board had not made its decision according to lawful procedure. At year's end the case had not yet come to court. In January the Government deregistered the Mwangaza Trust, an organization formed in 1994 for the purpose of promoting civic education, constitutional reform, democratization, and development. The Government stated that the Trust had engaged in political activities, contrary to the terms of its registration. Mwangaza members subsequently sued the Attorney General, arguing that, unlike societies and NGO's, trusts were not required to be registered. In March the High Court allowed Mwangaza to continue functioning so long as it pursued its declared objectives. The Trust, however, dissolved itself in May, enabling its principals to form the Safina Political Party. The Government continued to discourage civil servants from membership in opposition parties (see Section 1.f.).
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government generally does not infringe upon religious activities, except to require registration by new churches. However, in February the Government banned the publication of Inooro, a monthly newsletter published by the Catholic diocese of Murang'a. The Kikuyu-language newsletter featured social commentary that was frequently critical of President Moi and KANU. The Government order banning Inooro gave no justification for the decision. In October and November, 58 members of a Kikuyu Christian sect based in Laikipia were sentenced to 2 years and 9 months in prison for belonging to an illegal society and taking part in an unlawful assembly. Sixty-three sect members had been arrested in December 1994 for allegedly participating in an illegal oathing ceremony. Throughout the trial the sect denied the charges and claimed that the Government had licensed its gatherings for the past 3 years. Muslim groups charged that the Government's refusal to register two Islamic teachers colleges in Mombasa and Murang'a demonstrated anti-Muslim discrimination. The Minister of Education denied the charge (see Section 5).
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
By law, citizens may travel freely within the country. However, the establishment of security zones following ethnic clashes in 1993 restricted the ability of many Kenyans to travel, particularly to those parts of the Rift Valley most affected by clashes. Although the security zones, such as in Molo and Burnt Forest, have not been officially lifted, access to the areas has been allowed in practice. Nonetheless, opposition party members and diplomats have been stopped at police road blocks and prevented from visiting some of the areas. The Government does not restrict emigration or foreign travel. The law requires a woman to obtain her husband's or father's permission prior to obtaining a passport (see Section 5). Civil servants must obtain government permission for international travel which was granted in all cases. There are 195,000 refugees, mostly Somali and Sudanese, living in camps, and an undetermined number living outside of camps in cities and rural areas. Somalis account for about 75 percent of the total refugee population. In the past year over 30,000 Somalis have returned home either through voluntary assisted repatriations or spontaneously following the closure of one the largest refugee camps near Mombasa. The Government cooperated with the U.N. High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees. However, the Government has insisted that camps in the heavily populated tourist areas of the coast be closed and refugees consolidated into two areas--the northeastern camps for Somalis and Kakuma camp for Sudanese and other nationalities. Violent rapes and attacks in the refugee camps, reported in 1993, decreased significantly. However, incidents of rape of women and young girls continued to occur. With the assistance of the UNHCR, Kenyan police response to these incidents improved during the year. Acts of violence, including carjackings and banditry, still occur with some frequency in the camps and the Dadaab area, which sometimes led to the injury or death of some refugees and police personnel. In August the Chief Inspector of Police in Dadaab, who had been lauded for his support and professionalism, was killed by bandits while in hot pursuit following a carjacking. Refugees living outside the camps are vulnerable to arrest, and those who purchase false identification documents and visas are even further at risk. In December thousands of refugees, illegal aliens, visitors, as well as Kenyans were arrested in police sweeps, supposedly to target those involved in criminal activity in Nairobi. Those arrested were held in a former refugee camp in Nairobi in crowded rooms with no facilities. The UNHCR was allowed to facilitate the release of refugees who were ordered to camps, but other aliens, many with legitimate documents, were still being held at the end of the year. There were no reports of expulsion of those having a valid claim to refugee status.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides citizens with the right to change their government through free and fair multiparty elections, but their ability to do so has not yet been fully demonstrated at the presidential level. The 1992 presidential and parliamentary elections were marked by violence, intimidation, fraud, and other irregularities, but opposition candidates nevertheless won 63 percent of the vote. President Moi's election victory has allowed him and his KANU Party to dominate the political process. At the local level the President exercises sweeping power over the political structure. The President appoints both the powerful provincial and district commissioners and a multitude of district and village officials. At the national level, the Constitution authorizes the President to dissolve the legislature and prohibits Assembly debate on issues under consideration by the courts. This law, in conjunction with the Speaker of the Assembly's ruling that the President's conduct is inappropriate for parliamentary debate, has limited the scope of deliberation on controversial political issues. M.P.'s are entitled to introduce legislation, but in practice it is the Attorney General who does so. As the head of KANU, which controls 119 of the Parliament's 200 seats, the President is also able to influence significantly the legislative agenda. The Government continued to harass and intimidate the political opposition, and the opposition has had difficulty competing with KANU. The Government's monopoly on the electronic media has prevented opposition parties from reaching television and radio audiences. The Public Order Act has kept opposition leaders from meeting their supporters (see Section 2.b.), and colonial-era sedition laws restrict freedom of expression. The Electoral Commission, which oversees all elections, lacks statutory independence, since its members are appointed by the President. The opposition has also claimed that voter constituencies are apportioned in favor of KANU, which has resulted in a KANU parliamentary majority despite only receiving one-third of the popular vote. At the local level, officials have demonstrated partiality to the ruling party during parliamentary by-elections. For example, in June, the district administration in Machakos distributed food supplies at a KANU rally several days before a by-election. Seven parliamentary by-elections were held in 1995 due to the deaths or disqualifications of sitting M.P.'s. The elections were generally free and fair, although journalists and diplomatic observers reported anomalies in voter registers as well as incidents of vote-buying, bribery, and violence. During the June by-election in Changamwe, young opposition supporters stoned vehicles believed to be ferrying KANU voters and burned two minivans after removing the passengers. In the December by-election in Nyatike, KANU supporters assaulted the FORD-K candidate and attacked FORD-K representatives inside polling stations. Although there are no legal restrictions on the participation of women in politics, traditional attitudes circumscribe the role of women in politics. There were two female permanent secretaries in the Government and seven female M.P.'s. President Moi also appointed Kenya's first woman cabinet minister. Within the opposition, women figure most significantly in the Democratic Party, where 25 percent of the Party's national office holders are women. Members of all tribal and ethnic groups participate in the Government and political parties. However, since white Kenyan paleontologist Richard Leakey announced his involvement in the Safina Political Party, President Moi repeatedly cautioned against white Kenyans' participation in political activities. Numerous tribes--including Kisiis, Merus, Embus, Kambas, Kikuyus, Taitas, Kalenjins, Luhyas, Turkanas, Somalis, Maasai, Giriamas, and Luos--are represented in the President's Cabinet. However, the President is widely reputed to rely on an inner circle of advisers drawn mostly from his Kalenjin tribe.
Section 4 Government Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Kenya has several well-organized and vocal human rights organizations. Two groups, the Kenya Human Rights Commission (KHRC) and Release Political Prisoners, not only produce a regular series of often critical reports on Kenya's human rights record but also organize activities to publicize their causes. The Institute for Education in Democracy continues to monitor parliamentary by-elections with cooperation from the Electoral Commission. Legal organizations such as the Public Law Institute, the Kenya Law Society, the International Commission of Jurists, and the International Federation of Women Lawyers cover human rights issues as a major priority. A new organization, the Citizens Coalition for Constitutional Change, has lobbied on behalf of constitutional reform. A large pool of Kenyan attorneys conduct pro bono representation of defendants. In March there was an arson attempt at the offices of the Kituo Cha Sheria (KCS - Legal Advice Center) located along the same hallway as the KHRC. The arsonists shot two security guards who were working at the KCS offices at the time of the attack. The arson attempts are believed to have been politically motivated. It is not clear whether the Commission was also a target. President Moi and government officials continued to criticize domestic and international human rights NGO's. However, some domestic human rights organizations have successfully cooperated with government officials on issues like women's rights. The Government also allowed representatives of international human rights NGO's, such as the Secretary General of Amnesty International, to visit Kenya.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
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."
Violence against women is a serious and widespread problem. The most recent police statistics on the subject were released in 1994 and showed that in 1992 there were 454 cases of rape, 136 cases of attempted rape, 343 cases of indecent assault, 407 cases of defilement (e.g., child molestation), and 14 cases of incest. The statistics are probably underreported, however, since social mores deter women from going outside their families or ethnic groups to report sexual abuse. The Government has condemned violence against women, and the law carries penalties up to life imprisonment for rape. Still, the rate of prosecution remains low because of cultural inhibitions against discussing sex, the fear of retribution, the disinclination of police to intervene in domestic disputes, and the unavailability of doctors who might otherwise provide the necessary evidence for conviction. Furthermore, traditional culture permits a man to discipline his wife by physical means and is ambivalent about the seriousness of rape. The Constitution does not specifically address discrimination based on gender, and women continue to face both legal and de facto discrimination on several fronts. For example, a woman is legally required to receive consent from her husband or father before obtaining a passport. In practice a woman must also have her husband's or father's approval to secure a bank loan. Also, women can legally work at night only in the export processing zones (EPZ's). According to Pension Law, a widow loses her work pension upon remarriage, whereas a man does not. Not only do women have difficulty moving into nontraditional fields, but they are also promoted more slowly than men and bear the brunt of retrenchments. Kenya's Law of Succession, which governs inheritance rights, provides for equal consideration of male and female children. In practice, most inheritance issues do not come before the courts. Women are often excluded from inheritance settlements or given smaller shares than male claimants. In addition, a widow cannot be the sole administrator of her husband's estate unless she has her children's consent. Societal discrimination is most apparent in rural areas, where women account for 75 percent of the agricultural work force. Rural families are more reluctant to invest in educating girls than in educating boys, especially at the higher levels. The number of boys and girls in school are roughly equal at the primary and secondary levels, but men outnumber women almost two to one in higher education, and literate men significantly outnumber literate women. The nation's most well-known women's rights and welfare organization is Maendeleo Ya Wanawake ("Development of Women," in Kiswahili), which was established as a nonpolitical NGO during the colonial era but is reportedly informally controlled by the Government.
The May 1994 report of the Attorney General's Task Force on Children recommended both pragmatic and legal measures to safeguard the rights of children. The Government drafted legislation, which is currently being debated in Parliament, to establish a National Council of Children's Services to supervise the planning and financing of child welfare activities. The bill also revamps the juvenile court system. However, both KANU and opposition M.P.'s, as well as a number of local NGO's, have faulted the bill for portraying child offenders as criminals in need of discipline. Opponents of the bill also have noted that it does not address homelessness, female circumcision, forced labor, sexual abuse, and education. Economic displacement and population growth continued to fuel the problem of homeless street children. Media reports place the number of such children nationwide in the tens of thousands, and the Government estimates that their number is growing at an annual rate of 10 percent. According to the Attorney General's Task Force, these children are typically involved in theft, drug trafficking, assault, trespass, defilement, and property damage. There have been credible reports that police have treated these children inhumanely (see Section 1.a.). Despite the Government's stated opposition, female genital muilation (FGM), which is widely condemned by international health experts as damaging to both physical and psychological health, remains widespread, particularly among Kenya's nomadic peoples. It is usually performed at an early age. Health officials estimate that roughly 50 percent of females nationwide have undergone this procedure. A Maendeleo Ya Wanawake official stated in January that the percentage in some districts of the Eastern, Nyanza, and Rift Valley provinces was as high as 80 percent. Child rape and molestation have also emerged as significant problems. Local newspapers reported roughly 20 court cases where females below the age of 15 were raped. The rapists in question were typically older than 40 and received prison sentences of between 5 and 20 years, plus several strokes of the cane. In late September, two men were sentenced to life in prison for raping a minor.
People with Disabilities
Government policies do not discriminate against people with disabilities in employment, education, or other state services. Disabled persons are frequently denied driving licenses, however. There is also no mandated provision of accessibility for the disabled to public buildings or transportation.
According to the 1989 Government census, whose figures were released in May 1994, the Kikuyu are the largest ethnic community, comprising 20.8 percent of the population. The Luhya, Luo, Kamba, and Kalenjin (an amalgamation of nine small tribes) are the next largest, each making up over 11 percent of the population. The Government continued to discriminate against Rift Valley Kikuyus. According to opposition politicians and local human rights bodies, provincial authorities have denied national identification cards to a substantial number of Kikuyu youths, even though they and, in many cases, their parents have been born and raised in the Rift Valley. Without identification cards these youths cannot marry, attend universities, obtain employment, or register to vote. In addition, Local Government Minister William Ntimama stated again in 1995 that Kikuyus displaced from Enosupukia by the ethnic clashes would not be allowed to return. He also warned that Kikuyus applying for identification cards in the Narok area were attempting to steal political power from the local Maasai community. A series of talks between Kikuyu and Kalenjin elders that focused on reconciliation and resettlement possibilities ended abruptly when the Democratic Party won the September by-election in the Kikuyu constituency of Kipipiri. There continued to be tensions between Asians, that is Kenyans of subcontinent descent, and black Kenyans, and Asians are subject to official and societal discrimination. Black Kenyans generally resent Asians because of their affluence, their seeming reluctance to assimilate African culture, and to employ black Kenyans in management positions in their enterprises. The acquittal of an Indian police reservist in the shooting death of an African street child and the reservists alleged involvement in the murders of other street children have heightened these preexisting racial tensions. The Government singled out ethnic Somalis as the only ethnic group in Kenya required to carry an additional form of identification proving that they are Kenyan citizens. Ethnic Somalis, who are overwhelmingly Muslim, must still produce upon demand their Kenyan identification card and a second identification card verifying "screening." Both cards are also required in order to apply for a passport. In June the police made sweeps through a Somali community in Nairobi, ostensibly in search of illegal aliens. Innocent Somali Kenyans were among those arrested. Somali Kenyans were also victimized during a December sweep. Many were harassed or arrested and paid as much as $50 (2,500 Ksh) to be released. The continued presence of Somali refugees in Kenya has exacerbated the problems faced by Kenyan Somalis.
Section 6 Worker Rights
a. The Right of Association
Except for central government civil servants, including medical personnel and university academic staff, all workers are free to join unions of their own choosing. The law provides that as few as seven workers may establish a union, provided that objectives of the union do not contravene the law and another union is not already representative of the employees in question. The Government may deregister a union, but the Registrar of Trade Unions must give the union 60 days to challenge the deregistration notice; an appeal of the Registrar's final decision may be brought before the High Court. President Moi deregistered the Kenya Civil Servants Union in 1980; since 1989 the Central Organization of Trade Unions (COTU) has sought to reverse this decision. There are at least 33 unions in Kenya representing approximately 350,000 workers, less than 20 percent of the country's industrial work force. Except for the 150,000 teachers who belong to the Kenya National Union of Teachers, which the Government has registered, all other unions are affiliated with one central body, the COTU. The Government created COTU in 1965 as the successor to both the Kenya Federation of Labor and the Kenya African Workers Congress. The 1965 decree establishing COTU gives the President power to remove from office the central body's three senior leaders and grants nonvoting membership on the Executive Board to a representative of the Ministry of Labor as well as of KANU. A 1993 High Court decision nullified the 1993 abortive attempt to install leaders more acceptable to the Government, but the plotters refused to vacate COTU headquarters. Following a 1994 Appellate Court order, however, the Registrar of Trade Unions agreed to recognize the old COTU leadership. The elected leadership remained in office through 1995. Although the Board is comprised of the leadership of affiliated unions, it is not uncommon for KANU to provide funding and other support for the election of senior union officials. In 1995 several trade union leaders from affiliated unions reinvigorated their efforts to bring about democratic reforms in the election and appointment of labor officials, separation from the Government, and the establishment of links with any Kenyan political party that supports workers' rights. The Trade Disputes Act permits workers to strike provided that 21 days have elapsed following the submission of a written letter to the Minister of Labor. The military, police, prison guards, and members of the National Youth Service are precluded by law from striking. Other civil servants, like their private sector counterparts, can strike following the 21-day notice period (28 days if it is an essential service, e.g., water, health, education, or air traffic control). During this 21- day period, the Minister may either mediate the dispute, nominate the arbitrator, or refer the matter to the Industrial Court, a body of five judges appointed by the President, for binding arbitration. Once a dispute is referred to either mediation, fact-finding, or arbitration, any subsequent strike is illegal. However, Section 28 of the Act gives the Minister of Labor broad discretionary power to determine the legality of any strike. The Minister in 1994 used this power to declare several strikes illegal, although the required notice had been given. The Minister did not declare any strikes illegal in 1995. Several unions including municipal workers and some civil servants held brief strikes for back or increased wages. Internationally, COTU is affiliated with both the Organization of African Trade Union Unity and the Internal Confederation of Free Trade Unions. Many of its affiliates are linked to international trade secretariats.
b. The Right to Organize and Bargain Collectively
While not having the force of law, the 1962 Industrial Relations Charter, executed by the Government, 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. Wages and conditions of employment are established in negotiations between unions and management. In 1994 the Government relaxed wage policy guidelines to permit wage increases of up to 100 percent and renegotiation of collective agreements. Collective bargaining agreements must be registered with the Industrial Court in order to guarantee adherence to these guidelines. The Trade Disputes Act makes it illegal for employers to intimidate workers. Employees wrongfully dismissed for union activities are generally awarded damages in the form of lost wages by the Industrial Court; reinstatement is not a common remedy. More often, aggrieved workers have found alternative employment in the lengthy period prior to the hearing of their cases. Legislation authorizing the creation of EPZ's was passed in 1990. The EPZ Authority decided that local labor laws, including the right to organize and bargain collectively, would apply in the EPZ's, although it grants many exemptions in practice. For example, the Government waived aspects of the law that prevent women from working at night (see Section 6.e.). Worker and some government officials criticized health and safety conditions in the EPZ's.
c. Prohibition of Forced or Compulsory Labor
The Constitution proscribes slavery, servitude, and forced labor. However, under the Chiefs' Authority Act, a local authority can require people to perform community services in an emergency, although this did not occur in 1995. The International Labor Organization (ILO) Committee of Experts has found these and other provisions of Kenyan law to contravene ILO Conventions 29 and 105 concerning forced labor, but noted the Government's efforts to review the Chiefs' Authority Act.
d. Minimum Age for Employment of Children
The Employment Act of 1976 makes the employment in industry of children under the age of 16 illegal. This Act applies neither to the agricultural sector, where about 70 percent of the labor force is employed, nor to children serving as apprentices under the terms of the Industrial Training Act. Ministry of Labor officers nominally enforce the minimum age statute. Children often work as domestics in private homes (including those of relatives), in the informal sector, and in family businesses and farms. Given the high levels of adult unemployment and underemployment, the employment of children in the formal industrial wage sector in violation of the Employment Act is not a significant problem.
e. Acceptable Conditions of Work
The legal minimum wage for blue collar workers in the wage sector varies by location, age, and skills, with 12 separate scales. After a modest 1994 wage increase and considerable appreciation of the Kenya shilling against the U.S. dollar, the lowest minimum wages were $34 (1,700 shillings) per month in urban areas and $19.50 (955 shillings) in rural areas. Workers in some enterprises claimed that employers forced them to work extra hours with no overtime pay. Prices for basic commodities declined in mid-1995, but because of inflation the minimum wage was still insufficient to meet daily needs of a family. Most workers relied on second jobs, subsistence farming, or the extended family for additional support. The Regulation of Wages and Conditions of Employment Act limits the normal workweek to 52 hours, although some categories of workers have a shorter workweek. Nighttime employees, however, may be employed for up to 60 hours per week. As is the case with respect to minimum age limitations, the act specifically excludes agricultural workers from its purview. An employee in the nonagricultural sector is entitled to 1 rest day per week. There are also provisions for 1 month of annual leave and sick leave. On overtime, the law provides that the total hours worked (i.e., regular time plus overtime) in any 2-week period for night workers may not exceed 144 hours; the limit is 120 hours for other workers. The Ministry of Labor is tasked with enforcing these regulations, and reports of violations are few. The Factories Act of 1951 sets forth detailed health and safety standards; this act was amended in 1990 to encompass the agriculture, service, and government sectors. The 65 health and safety inspectors attached to the Ministry of Labor's Directorate of Occupational Health and Safety Services have the authority to inspect factories and work sites. As a result of the 1990 amendments, the Directorate's inspectors may now issue notices enjoining employers from practices or activities which involve a risk of serious personal injuries. Previously, only magistrates were vested with this authority. Such notices can be appealed to the Factories Appeals Court, a body of four members, one of whom must be a High Court judge. The number of factory inspections increased dramatically in 1993 and subsequently have continued at a high level.