Freedom in the World 2009 - Kenya

Capital: Nairobi
Population: 38,000,000

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

Overview

In early 2008, Kenya suffered widespread violence and social dislocation stemming from significant irregularities in the December 2007 presidential election, in which incumbent Mwai Kibaki claimed victory. Kibaki and opposition leader Raila Odinga in late February negotiated a compromise agreement under which Odinga obtained the newly created post of prime minister and his party joined a coalition cabinet. A Commission of Inquiry into Post-Election Violence began operating in June, and its report, issued in October, called for the creation of a special tribunal with the mandate to prosecute crimes committed as a result of the postelection violence.

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

In 1992, after a lengthy period of single-party rule, domestic unrest and pressure from international aid donors forced Moi to hold multiparty elections, though he was reelected in controversial balloting. In the next presidential and legislative elections in 1997, Moi again defeated a divided opposition.

KANU's election victories were achieved through political repression, massive use of state patronage, media control, and dubious electoral procedures. Meanwhile, physical violence, an often-docile judiciary, extensive police powers, and executive decrees were used against political opponents and in efforts to undermine the wider civil society. Limits on political and civil rights were common under Moi, as was corruption in the ruling party and government. In the 1990s, government-sponsored ethnic violence heightened political polarization. The violence was perpetrated, in most cases, by Kalenjin or Maasai KANU supporters against members of the Kikuyu and Luhya ethnic groups, who were believed to support opposition parties. Despite these problems, political space for opposition views continued to open, and many of the core elements necessary for a democratic political system developed.

With Moi retiring, the opposition united to contest the 2002 elections as the National Rainbow Coalition (NARC). Its presidential candidate, Mwai Kibaki, defeated KANU's Uhuru Kenyatta, the son of Kenya's first president. The NARC also won the majority of seats in the National Assembly. The new leadership embarked on an ambitious reform program that included tackling corruption, addressing economic and social problems, and undertaking institutional changes designed to promote democracy.

Despite some successes, the reform efforts were blunted by a number of factors, including the fragility of the governing coalition, a complex and unsuccessful constitutional reform process, significant fiscal constraints, and the threat of terrorism. An independent anticorruption commission began to investigate more than 3,000 cases of alleged corruption in 2003, but its work yielded few successful prosecutions. Furthermore, new corruption scandals emerged during Kibaki's tenure. John Githongo, the respected head of Transparency International's Kenya chapter whom Kibaki had appointed to lead the Office of Governance and Ethics, resigned from that post in early 2005, citing his frustrations with ongoing corruption and the Kibaki administration's failure to enact meaningful reforms.

The lively press and public investigative commissions became increasingly critical of the substance and slow pace of the government's reforms. After a lengthy drafting period, a revised constitution was submitted to a referendum in November 2005. The final draft offered by the National Assembly envisioned a relatively weak new post of prime minister, reinforcing the powers of the president, and opted to maintain a single legislative chamber instead of creating a bicameral parliament. The draft charter also would have impeded the ability of the National Assembly to impeach the president, and gave the executive extensive powers over the redrawing of electoral districts. These changes sparked considerable popular unrest, and the draft was soundly rejected by referendum voters.

In January 2006, Githongo issued an authoritative report indicating that corruption had reached the highest ranks of the government. The findings implicated the vice president and prompted the resignation of several ministers. In March, security forces raided an independent television network that had been critical of the government, adding to doubts among international donors concerning the administration's willingness and ability to enact positive reforms and improve governance.

Kenya's democratic and economic development suffered a sharp reversal as a result of the apparent manipulation of the December 2007 presidential election. While the concurrent parliamentary polls showed major gains for the opposition Orange Democratic Movement (ODM), Kibaki was declared the winner of the presidential vote amid credible, multiple allegations of fraud. He had long been accused of favoring his Kikuyu ethnic group, and the presidential results sparked weeks of violence between the Kikuyu, Luo, and other groups. The fighting claimed more than 1,500 lives and resulted in the displacement of over 300,000 people from their homes, although many eventually returned or were relocated by the government. In late February 2008, Kibaki and ODM presidential candidate Raila Odinga, a Luo, negotiated a compromise agreement in which Odinga gained the newly created post of prime minister and his party joined Kibaki's recently formed Party of National Unity (PNU) in a coalition cabinet. The new cabinet, unveiled in April, included a total of some 40 ministers to accommodate both sides.

In the wake of the violence, a Commission of Inquiry into Post-Election Violence (CIPEV), also known as the Waki commission, began operating in June 2008. Its report, issued in October, concluded that systemic institutional failures in Kenya's internal security mechanisms, governmental impunity, and popular anger were the primary instigating factors in this crisis. The report called for the creation of a special tribunal to prosecute crimes committed as a result of postelection violence. The report also recommended that in the absence of such a tribunal, the names of instigators of the violence be sent to the International Criminal Court for possible prosecution. By years' end the parliament had yet to vote on legislation to establish the special tribunal.

Forecasts of Kenya's economic growth for 2008 and 2009 rebounded somewhat with the restoration of peaceful conditions. The IMF predicted that growth in 2008 would be close to 4 percent, followed by 7 percent growth in 2009. Inflation increased to an annual rate of approximately 30 percent, according to the Kenyan National Bureau of Statistics, well above that of its neighbors.

Political Rights and Civil Liberties

Kenya is not an electoral democracy. While there were few claims of irregularities in the December 2007 parliamentary polls, which the opposition won, credible reports on the flawed presidential vote highlighted apparent vote rigging and other administrative manipulations that had the effect of favoring the incumbent, Mwai Kibaki. The election commission nevertheless declared Kibaki the winner, and he was quickly sworn in. The ruinous aftermath raised fundamental concerns about the integrity and credibility of the electoral process. In September 2008, an international commission, the Independent Review Commission (IREC), issued a final report stating that the legitimacy of the election results was undermined by several factors, including a defective voter registry and widespread fraud. The report also recommended serious and far-reaching electoral reforms, including strengthening the independence of the election commission and improving the trustworthiness of the voter registration process.

The president is elected for a five-year term. He now shares power with a prime minister who is the leader of the largest party or coalition in the National Assembly. The unicameral body consists of 210 members elected for five-year terms, with an additional 12 members appointed by the president and nominated by the parties on the basis of their shares of the popular vote. Political parties representing a range of ideological, regional, and ethnic interests are active and vocal, and there are no significant impediments to party formation.

Corruption continues to be a very serious problem that threatens Kenya's nascent democracy. Political parties, nongovernmental organizations (NGOs), and the press, as well as some official bodies, have unearthed examples of government corruption and malfeasance. The 2006 report by anticorruption campaigner John Githongo was merely the most serious of many credible reports of high-level corruption. However, official probes and prosecutions have yielded meager results. Since 2003, the Kenya Anti-Corruption Commission's efforts have led to only 51 convictions. In 2008, the government's cut-rate sale of the Grand Regency Hotel in Nairobi to a group of Libyan investors prompted new accusations of graft. Transparency International's 2008 Corruption Perceptions Index ranked Kenya 147 out of 180 countries surveyed. Respondents to the 2008 Kenya Bribery Index stated that they encountered bribery in 56 percent of their interactions with public and private institutions. The report also identified the police, the Ministry of Lands, and the Ministry for Local Government as the entities most affected by corruption.

The constitution provides for freedom of speech and a free press. These rights are generally respected in practice, and Kenya enjoys one of the liveliest media environments on the continent. However, the country's record was seriously marred in March 2006, when security forces sacked the independent KTN television station and stole documents and equipment. Amid the violence that followed the December 2007 elections, the authorities imposed a temporary ban on live broadcasts. A number of private television and radio stations operate, although their reach is limited. The government-owned Kenya Broadcasting Corporation continues to dominate the broadcast media, particularly outside urban centers. The government does not restrict access to the internet.

The authorities largely uphold respected freedom of religion, though there have been some reports of government hostility toward Muslims. Religious tension has risen since terrorist attacks in 1998 and 2002 that were associated with Islamic fundamentalism, but religion was not a major element of the unrest in early 2008. A record 13 Muslims were appointed to the new cabinet in April 2008.

Academic freedom is the norm in Kenya, reflecting the country's broader respect for freedom of thought. However, Kibaki has been accused of appointing cronies to high positions at universities. The 2008 Kenya Bribery Index determined that private colleges and universities ranked high among entities engaged in corruption; bribes are frequently paid to ensure entry into the most prestigious institutions.

The postelection crisis had an at least temporary chilling effect on freedom of private discussion, as many individuals became hesitant to discuss ethnic-related issues openly.

The constitution guarantees freedom of assembly. This right is generally respected, although there have been cases of unnecessary use of force at demonstrations, and public gatherings were curtailed during the 2008 postelection violence. One of the core strengths of Kenya's political culture, even in recent periods of political polarization, has been its robust civil society. Public policy NGOs have had some significant advocacy successes, especially in comparison with those in other formerly authoritarian countries.

There are some 40 trade unions in the country, representing about 500,000 workers. Most of the unions are affiliated with the one approved national federation, the Central Organization of Trade Unions (COTU). All workers other than police officers are legally free to join unions. The Industrial Relations Charter – executed by the government, the COTU, and the Federation of Kenya Employers – gives workers the right to engage in legitimate trade union organizational activities. Some unions have complained that employers resist efforts to establish unions in their factories, even when most workers express their desire to organize, and that the relevant government bodies have been ineffective in enforcing the law. Both the Trade Disputes Act and the charter authorize collective bargaining between unions and employers. Historically, much of the trade union movement has been subservient to the authorities, but this dominance has ebbed somewhat in recent years.

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 period since independence. The Kibaki government came to power promising that the rule of law would be upheld and judicial independence strengthened. However, a 2005 report by the International Commission of Jurists concluded that corruption in the justice system remained a serious impediment to the rule of law, a view that was echoed by Kenya's attorney general in 2008. Draft legislation designed to give the judiciary more control over its budget has languished in the parliament. The courts are understaffed and underfinanced, leading to long trial delays that violate defendants' right to due process. The country has officially recognized Kadhi courts, which administer Sharia (Islamic law) for issues including marriage and inheritance in areas with a predominantly Muslim population. The 2008 inquiry on the postelection violence noted the role of the public's lack of confidence in the judiciary, and called for the establishment of a truth, justice, and reconciliation commission. Legislation to establish the commission was passed by parliament and signed by President Kibaki in November.

While there are checks on arbitrary arrest in the legal system, they are not uniformly respected. Police still use force to extract information from suspects and deny them access to legal representation. Security forces engaged in extrajudicial killings during the 2008 postelection violence. Also during the year, prison guards went on strike to protest low pay and substandard living conditions. While prisons are overcrowded, the government has taken steps to reduce this problem.

Kenya's population comprises more than 40 ethnic groups, and friction between them has led to frequent allegations of discrimination and periodic episodes of violence. Land disputes frequently underlie ethnic clashes, as seen in the 2008 fighting. Kikuyu, Luo, and Kalenjin populations in the Rift Valley harbor strong resentments about land distribution and economic and political rights. The Mungiki sect of mainly Kikuyu youth has been associated with postelection and other criminal violence. Members of the Nubian community, most of whom are Muslim, claim that the government discriminates against them by trying to eliminate their ethnic identity. The continued presence and, at times, criminal activities of Somali refugees have exacerbated the problems faced by that minority. Other factors contributing to ethnic tension include widespread firearms possession, the commercialization of traditional cattle herding, poor economic conditions, drought, and ineffective security forces. Government-instigated violence and political conflict have also increased animosity during the past decade.

The Waki commission's report cited specific cases of both state and opposition-sponsored violence and massive internal population displacements in the early 2008 postelection crisis. In addition, the population movements led in some cases to expropriation of property and belongings. Despite government relocation efforts, some refugee camps remained open at the end of 2008.

Women in Kenya continue to face serious obstacles. They are denied equal property rights, putting them at greater risk of poverty, disease (including HIV/AIDS), violence, and homelessness. Kenyan women's rights groups have pointed out that 60 percent of the charges stemming from the 2008 postelection violence involved cases of rape, and that there was evidence that police committed the most abuses against women. Several gender-equity bills remain at the discussion stage in the National Assembly. Traditional attitudes limit the role of women in politics, although there are no legal restrictions and some progress has been made. According to the Inter-Parliamentary Union, the 2007 elections increased the number of women in the National Assembly to 20, or about 8 percent of the total.

According to the 2007 Kenya AIDS Indicator Survey, the national HIV prevalence rate among adults was 7.8 percent, with 1.4 million Kenyans living with HIV at the end of 2007. The national HIV prevalence rate had been 6.7 percent in 2003.