Freedom in the World 2004 - Kenya

Political Rights: 3
Civil Liberties: 3
Status: Partly Free
Population: 31,600,000
GNI/Capita: $350
Life Expectancy: 46
Religious Groups: Protestant (45 percent), Roman Catholic (33 percent), Muslim (10 percent), indigenous beliefs (10 percent), other (2 percent)
Ethnic Groups: Kikuyu (22 percent), Luhya (14 percent), Luo (13 percent), Kalenjin (12 percent), Kamba (11 percent), Kisii (6 percent), Meru (6 percent), other African (15 percent), other [including Asian, European, and Arab] (1 percent)
Capital: Nairobi

Ratings Change
Kenya's political rights and civil liberties ratings improved from 4 to 3 due to positive post-2002 election developments in 2003, including a constitutional review process, an anticorruption campaign, and efforts to strengthen judicial independence.

Overview

The December 2002 presidential and legislative elections, which were the first free and fair elections in Kenya's history, raised hopes in 2003 that the country's long-promised move toward democratic consolidation and respect for the rule of law would finally be under way. During the year, government reform efforts focused on a constitutional review process, an anticorruption campaign to tackle Kenya's endemic corruption, and the strengthening of judicial independence. At the same time, most observers remain cautious regarding the extent to which promised reforms will ultimately be implemented.

Britain effectively colonized Kenya in the late nineteenth century in order to open and control a route to the Nile River headwaters in Uganda. Kenya achieved independence in 1963. The nationalist leader Jomo Kenyatta was president until his death in 1978, when his vice president, Daniel arap Moi, succeeded him. Moi's ascent to the presidency kept the Kenyan African National Union (KANU) in power, but gradually diminished the power of the previously dominant Kikuyu ethnic group in favor of Moi's Kalenjin group.

In 1992, after the country had gone through a lengthy period as a de facto single-party state, domestic unrest and pressure from international aid donors forced Moi to hold multiparty elections. Moi was reelected president in controversial polling. In the December 1997 presidential and parliamentary elections, Moi again secured victory over a divided opposition. His reelection was ensured by massive use of state patronage and the official media to promote his candidacy and by harassment of the divided opposition.

The rule of President Moi was associated with poor governance, limits on political and civil rights, and corruption in the ruling party and government. In 2002, the government-released "Akiwumi Report" on ethnic clashes between 1991 and 1998 stated that public officials, from petty policemen to senior officials, instigated violence. The report cited political factors as the primary cause of ethnic violence that resulted in more than 1,000 deaths during the 1990s, disrupted two general elections, and displaced hundreds of thousands of persons.

Despite these problems, political space continued to open up. As the December 2002 presidential and legislative elections approached, Moi made it clear that Uhuru Kenyatta, the son of former president Jomo Kenyatta, was his preferred successor. However, the opposition succeeded in uniting behind opposition leader Mwai Kibaki, positioning themselves for electoral victory. Kibaki was elected president with 63 percent of the vote, defeating Kenyatta, who received 30 percent. In addition to Kibaki's victory in the presidential poll, his National Rainbow Coalition (NARC) – a coalition of more than a dozen political parties – won the majority of seats in parliament.

The elections heralded a sea change in Kenyan politics. For the first time, power passed from KANU to a coalition offering the promise of meaningful political and economic reform. The new leadership's ambitious reform program includes tackling corruption, addressing economic and social issues, and undertaking institutional reforms designed to promote democracy. Given the early stage of the post-Moi era, the fragility of the NARC coalition, a highly sensitive and complex constitutional reform process, significant constraints on resources, terrorism, and ambiguous attitudes on the part of major donor countries, it is too early to definitively conclude that Kenya is on a sustained trajectory toward full compliance with international norms for transparency and good governance. In 2003, a debate was under way over the extent to which the government should actively seek to right past wrongs and actively pursue alleged wrongdoers, up to and possibly including, former president Moi.

Political Rights and Civil Liberties

With the 2002 elections, Kenyans for the first time were able to choose their leaders in genuinely open and competitive elections. Although the elections were widely regarded as legitimate, the country is far from consolidating its nascent and fragile democratic opening, including its electoral processes. Prior to 2002, KANU's election victories were achieved through political repression, media control, and dubious electoral procedures, and power was heavily concentrated in the executive branch of government. Since the resumption of multiparty politics in the early 1990s, many of the core elements necessary for the establishment of a democratic political system have developed. Political parties are active and vocal, and parliament is the setting for much of the nation's political discourse.

An ongoing constitutional review process has included the participation of a wide range of civic and associational groups. It is considering the creation of a senate and an executive prime minister to be elected by parliament; presidential and parliamentary electoral reform; decentralization; and other changes designed to limit the power of the presidency, including giving parliament the power to impeach the president. There is widespread suspicion, however, that the unsolved September 2003 murder of Dr. Odhiambo Mbai, a leader of a committee of the Constitutional Review Commission, which is considering limiting executive branch powers, may have been politically inspired by elements within President Mwai Kibaki's NARC.

Corruption has long been a serious problem in Kenya, which has consistently been ranked in the bottom 10 percent of performing countries on Transparency International's (TI) Corruption Perceptions Index. In its 2003 index, Kenya was ranked 122 out of 133 countries surveyed. However, the press, parliament, and the judiciary are increasingly highlighting examples of government corruption and malfeasance. This process has been accentuated under the government of President Kibaki, who was elected in 2002 due largely to his expressed commitment to uproot corruption. Central to his policy was the launching of a five-year national campaign against corruption, including the establishment of an independent Anti-Corruption Commission, which has begun to exercise its powers to bring charges against suspected corrupt officials. A number of commissions are investigating particular scandals. An investigation of government procurement officers by the Finance Ministry in early 2003 determined that there "is a serious and widespread abuse of office by officers charged with this responsibility." One of Kibaki's early appointments was that of the widely respected head of TI's Kenya chapter, John Githongo, who was placed in charge of the government's Office of Ethics and Governance. A package of reforms has been proposed, and some have been adopted. One of these, an attempt to separate public office from personal interests, is the Public Officer Ethics Bill, under which every public official must annually declare his or her wealth, as well as that of his or her spouse.

The constitution provides for freedom of speech and of the press. The government of former president Daniel arap Moi restricted these rights in practice, with tactics including harassing, beating, and arresting members of the media during the year. Despite this hostile attitude, the print media were fairly free, and in the latter years of Moi's rule, the broadcast media began to show some signs of independence. This trend was accentuated during 2003, and few constraints exist. However, according to the BBC, there are still some reports of journalists being arrested and harassed. The government does not restrict access to the Internet.

In general, the government has respected freedom of religion. However, religious-based tension has risen in recent years, as acts of terrorism associated with Islamic fundamentalism have been committed on Kenyan soil.

One of the core strengths of Kenya's political culture is its energetic and robust civil society. The success of the 2002 elections is a result in large part of the ability of civil society to pry open political space and greater freedoms. Due in large part to their efforts, the public policy process enjoys significant elements of transparency, especially when Kenya is compared to many other countries wrestling with the legacy of decades of authoritarian rule. The role of civil society groups in the ongoing constitutional reform process is a good example, as has been their ability to undertake voter education and election monitoring.

The constitution explicitly permits freedom of assembly, and the Kibaki government, unlike its predecessor, has generally respected this right. All workers other than the police are legally free to join unions of their choice. In December 2001, the labor commissioner registered the Union of Kenya Civil Servants (UKCS), which granted civil servants the right to join unions for the first time since 1980. The government may deregister a union, but the Registrar of Trade Unions must give the union 60 days to challenge the deregistration notice.

Although Kenya's judicial system is largely based on the British model, for much of the independence period, its actions tended to reflect the primacy of the executive branch. In July 2002, a panel of Commonwealth judicial experts from Africa and Canada examined the court system and found it to be among the most incompetent and inefficient in Africa. Judges commonly accept bribes and many are subject to political influence. The courts are also understaffed and underfinanced, and people awaiting trial face long delays that violate their right to due process. The country has officially recognized "Kadhi" Islamic courts that administer Sharia (Islamic law) for such issues as marriage and succession disputes; they are located only in areas with a predominantly Muslim population. Controversial calls from the Muslim community to expand the scope of these courts are being considered in the context of ongoing constitutional discussions.

In recent years, criticism of the judiciary has been aired increasingly freely, and a public policy debate about its shortcomings has ensued. The Kibaki government came into power promising that the rule of law would be upheld and judicial independence strengthened. Kibaki has criticized the extent of corruption in the judiciary and has instructed the minister of justice to establish a process for the immediate identification of corrupt judges. In February 2003, Chief Justice Bernard Chunga resigned after a presidential committee was established to investigate allegations against him of torture, corruption, and interference with the administration of justice. In June, Kibaki appointed eight new High Court judges as part of an initiative to replace judges tainted by corruption. Kibaki suspended 23 senior judges, half of the total number, in October during their investigation into alleged corruption and misconduct.

The Kibaki government has made the protection of human rights a high priority. It has also been considering establishing a commission to investigate the extent of human rights violations undertaken by the former government. However, while there are no current reports of arbitrary arrest, detention without trial, and torture, actions such as mass arrests in August 2003 in the coastal city of Mombasa, where much of the country's Muslim minority live, do raise civil liberties questions. In addition, the government has introduced into parliament a controversial Suppression of Terrorism Bill aimed at combating terrorism. The bill would allow police to arrest and search property without authority from the courts and would permit investigators to detain suspected terrorists for 36 hours without allowing them contact with the outside world.

Kenya's economy has been in long-term decline. Most of Kenya's 29 million people are poor and survive through subsistence agriculture. Nepotism and fraud inhibit economic opportunity and discourage greater foreign investment.

Women in Kenya continue to face serious obstacles in the exercise of their freedoms. A draft gender equity bill created considerable public controversy, with some Muslims protesting that it was too sweeping in scope. Evidence suggests that there is widespread violence against women. According to a study by the Center for Human Rights and Democracy in Eldoret, 60 percent of rape cases in the North Rift region were not reported because women feared unfair treatment by police. Many of the cases have gone unpunished, despite repeated complaints by women's groups that Kenyan laws remain too lenient in sentencing offenders in cases of violence against women.

Traditional attitudes circumscribe the role of women in politics, although there are no legal restrictions and some change is occurring. There were only nine female members of parliament (four elected and five nominated) in the 222-seat National Assembly prior to the 2002 general elections and one female cabinet member. The elections increased the number of women in parliament to eight elected and seven nominated, and three cabinet ministers. The Kibaki government has explicitly targeted improving women's rights as a key policy goal. This issue is also the focus of considerable attention and discussion in the ongoing constitutional review process.