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Kenya

Executive Summary

Kenya is a republic with three branches of government: an executive branch, led by a directly elected president; a bicameral parliament consisting of the Senate and National Assembly; and a judiciary. In the 2017 general elections, the second under the 2010 constitution, citizens cast ballots for president, deputy president, and parliamentarians, as well as county governors and legislators. International and domestic observers judged the elections generally credible, although some civil society groups and the opposition alleged there were irregularities. The Independent Electoral and Boundaries Commission (IEBC) declared Jubilee Coalition Party candidate Uhuru Kenyatta had won re-election as president over opposition candidate Raila Odinga. The Supreme Court subsequently annulled the results for president and deputy president, citing irregularities, and the court ordered a new vote for president and deputy president that the opposition boycotted. The IEBC declared President Kenyatta winner of the new vote, and the Supreme Court upheld the results. Kenya held three by-elections in April after the courts nullified the 2017 election results in those constituencies due to irregularities.

The National Police Service (NPS) maintains internal security and reports to the Ministry of Interior and Coordination of National Government. The National Intelligence Service collects intelligence internally as well as externally and reports directly to the president. The Kenya Defense Forces report to the Ministry of Defense and are responsible for external security but have some domestic security responsibilities, including border security and supporting civilian organizations in the maintenance of order, including postdisaster response. Civilian authorities at times did not maintain effective control over the security forces.

Significant human rights issues included: unlawful killings, including extrajudicial killings by the government or on behalf of the government and by al-Shabaab; forced disappearances by the government or on behalf of the government; torture by the government; harsh and life threatening prison conditions; arbitrary arrest and detention by the government; arbitrary interference with privacy; censorship; widespread crimes of violence against women and girls, which the government took inadequate action to prevent or prosecute; widespread acts of government corruption; and the existence and use of laws criminalizing consensual same-sex sexual conduct between adults.

The governmental Independent Policing Oversight Authority (IPOA), established to provide civilian oversight of police, investigated numerous cases of misconduct. Impunity at all levels of government continued to be a serious problem. The government took limited and uneven steps to address cases of alleged unlawful killings by security force members, although IPOA continued to refer cases of police misconduct to the Office of the Director of Public Prosecution (ODPP) for prosecution. Impunity in cases of alleged corruption was also common.

On January 15, five al-Shabaab terrorists conducted a complex terrorist attack at the Dusit D2 Hotel in downtown Nairobi, killing 21 persons including one American. Al-Shabaab also staged deadly attacks and guerilla-style raids on isolated communities along the border with Somalia, targeting both security forces and civilians. Human rights groups alleged security forces committed abuses, including extrajudicial killings, while conducting counterterror operations.

Section 2. Respect for Civil Liberties, Including:

a. Freedom of Expression, Including for the Press

The law provides for freedom of expression, including for the press, but the government sometimes restricted this right.

Freedom of Expression: In 2017 a branch of the High Court declared unconstitutional Section 132 of the penal code that criminalized “undermining the authority of a public officer,” ruling the provision violated the fundamental right of freedom of expression. Other provisions of the constitution and the law prohibiting hate speech and incitement to violence remained in force. The Judicial Service Commission, however, reported many cases were withdrawn due to failure of witnesses to appear in court or to facilitate mediation. Cases that did proceed often failed to meet evidentiary requirements. Authorities arrested members of parliament (MPs) on incitement or hate speech charges. In June authorities arrested MP Charles Kanyi for incitement to violence after Kanyi allegedly threatened foreigners operating businesses in Nairobi. In September the Milimani chief magistrate acquitted four serving and former MPs of hate speech charges related to statements made in 2016.

Press and Media, Including Online Media: The government occasionally interpreted laws to restrict press freedom, and officials occasionally accused the international media of publishing stories and engaging in activities that could incite violence. Two laws give the government oversight of media by creating a complaints tribunal with expansive authority, including the power to revoke journalists’ credentials and levy debilitating fines. The government was media’s largest source of advertising revenue, and regularly used this as a lever to influence media owners. Most news media continued to cover a wide variety of political and social issues, and most newspapers published opinion pieces criticizing the government.

Sixteen other laws restrict media operations and place restrictions on freedom of the press. In 2016 the president signed into law the Access to Information Act, which media freedom advocates lauded as progress in government transparency. The government, however, has not issued regulations required to implement the act fully, and civil society organizations reported government departments failed in some instances to disclose information.

Violence and Harassment: Journalists alleged security forces or supporters of politicians at the national and county levels sometimes harassed and physically intimidated them. The government at times failed to investigate allegations of harassment, threats, and physical attacks on members of the media.

In February, Kenya Forest Service rangers assaulted four journalists while they were covering a ceremony in Naro Moru Forest Station. The cabinet secretary for the environment ordered the suspension of five officers involved in the assault.

In June, two Kenya Television Network (KTN) journalists were attacked and seriously injured by students and faculty of St. Stephen’s Girls Secondary School in Machakos County. The school’s principal was charged with assault and inciting the students to attack the journalists. The principal allegedly opposed the journalists investigating a case of a missing student.

Censorship or Content Restrictions: The mainstream media were generally independent, but there were reports by journalists government officials pressured them to avoid certain topics and stories and intimidated them if officials judged they had already published or broadcast stories too critical of the government. There were also reports journalists avoided covering issues or writing stories they believed their editors would reject due to direct or indirect government pressure.

Journalists practiced self-censorship to avoid conflict with the government on sensitive subjects, such as the first family or assets owned by the Kenyatta family.

Libel/Slander Laws: In 2017 a branch of the High Court declared unconstitutional a portion of the law that defined the offense of criminal defamation. Libel and slander remain civil offenses.

National Security: The government cited national or public security as grounds to suppress views it considered politically embarrassing.

Police arrested and detained for 14 days prominent social media blogger Robert Alai in June for posting pictures of police officers who were killed in a terror attack. Despite taking down the pictures as requested by police, he was arraigned in court and charged with two counts of treachery and disclosure of information in relation to terrorist activities. He was released on bail.

b. Freedoms of Peaceful Assembly and Association

c. Freedom of Religion

See the Department of State’s International Religious Freedom Report at https://www.state.gov/religiousfreedomreport/.

d. Freedom of Movement

The law provides for freedom of internal movement, foreign travel, emigration, and repatriation for citizens, and the government respected those rights, but it placed restrictions on movement for refugees.

In-country Movement: Refugees and asylum seekers require registration with the National Registration Bureau, and the law reiterates strict implementation of the encampment policy. The Interior Ministry’s Refugee Affairs Secretariat (RAS), responsible for refugee management in the country, continued to enforce the encampment policy requiring all refugees and asylum-seekers to reside in the designated refugee camps, despite a Court of Appeal decision to the contrary. RAS issues new arrival asylum seekers with registration documents and movement passes requiring them to report to the camps. Refugees needing to move outside the designated areas (Kakuma camp, Kalobeyei settlement, and the Dadaab refugee camp complex) must obtain a temporary movement pass issued by the RAS. Stringent vetting requirements and long processing times have delayed the issuance of temporary movement passes in the camps.

The law allows exemption categories for specific groups to live outside designated camp areas, including in protection and medical cases. The government granted limited travel permission to refugees to receive specialized medical care outside the camps, and to refugees enrolled in public schools. It made exceptions to the encampment policy for extremely vulnerable groups in need of protection. The government continued to provide in-country movement and exit permits for refugee interviews and departures for third-country resettlement.

Although there were no restrictions on movements of internally displaced persons (IDPs), stateless persons in the country faced significant restrictions on their movement (see section 1.g.).

Section 4. Corruption and Lack of Transparency in Government

The law provides criminal penalties for official corruption. Despite public progress in fighting corruption during the year, the government did not implement relevant laws effectively. Frequently officials allegedly engaged in corrupt practices with impunity.

Corruption: During the year the ODPP initiated investigations and prosecutions of high-level corruption involving dozens of government and parastatal officials with ties to the ruling party and to the political opposition. These investigations and prosecutions included some senior officials such as the cabinet secretary for national treasury and planning and his principal secretary. The national media closely covered the director of public prosecution’s investigations into and arrests of officials stemming from the 21 billion shillings ($206 million) procurement scandals at the Kerio Valley Development Authority, as well as corruption allegations involving the National Lands Commission, county governor offices, and high-profile business leaders. These investigations and prosecutions remained active at year’s end.

The public continued to perceive corruption as a severe problem at all levels of government. A survey during the year in the country by Transparency International found 45 percent of respondents had paid a bribe, compared with 37 percent in the previous 2015 survey. Police and authorities issuing identification documents were cited the most for taking bribes. Corruption had increased according to 67 percent of respondents, and 71 percent believed the government was doing a poor job of combating corruption. The responses on these two questions had not changed significantly from the results of Transparency’s 2015 poll.

In January, President Kenyatta appointed a new chief executive officer of the Ethics and Anticorruption Commission (EACC), who introduced a new approach to tackling corruption that prioritizes high-impact cases, systems reviews, assets recovery, and public communication. In the new commissioner’s first five months in office, the EACC recovered assets equal to 30 percent of the corruption assets the EACC recovered over the past five years. Officials from agencies tasked with fighting corruption, including the EACC, ODPP, and judiciary, were sometimes the subjects of corruption allegations.

The EACC has the legal mandate to investigate official corruption allegations, develop and enforce a code of ethics for public officials, and engage in public outreach on corruption. The EACC, however, lacks prosecutorial authority and must refer cases to the ODPP to initiate prosecutions. At the end of 2018, the EACC reported having more than 319 corruption cases pending in court. A mixture of cash and land/immovable assets valued at approximately 3.2 billion shillings ($31.4 million) were recovered in the period 2018-2019. The EACC had secured 39 convictions in the 2017-2018 period, an 80 percent conviction rate, with some cases including several individuals, making the 2017-2018 fiscal year the most successful year in the commission’s history.

The government took additional steps to combat corruption, including increasing the number of investigations and prosecutions. The government made limited progress on other commitments, including adoption of international anticorruption standards and digitization of government records and processes. Because courts had significant case backlogs, cases could take years to resolve.

Police corruption remained a significant problem. Human rights NGOs reported police often stopped and arrested citizens to extort bribes. Police sometimes jailed citizens on trumped-up charges or beat those who could not pay the bribes. During police vetting conducted by the National Police Service Commission (NPSC) in recent years, many police officers were found to have the equivalent of hundreds of thousands of dollars in their bank accounts, far exceeding what would be possible to save from their salaries. Mobile money records showed some officers also transferred money to superior officers.

The Judiciary and the NPS continued measures to reform the handling of traffic cases by police and courts, streamlining the management of traffic offenses to curb corruption. Despite the progress noted above, no senior police official was convicted or jailed for corruption-related offenses during the year.

Financial Disclosure: The law requires all public officers to declare their income, assets, and liabilities to their “responsible commission” (for example, the Parliamentary Service Commission in the case of members of parliament) every two years. Public officers must also include the income, assets, and liabilities of their spouses and dependent children younger than 18. Failure to submit the declaration as required by law or providing false or misleading information is punishable by a fine of one million shillings ($9,820) or imprisonment for a term not exceeding one year or both. Information contained in these declarations was not readily available to the public, and the relevant commission must approve requests to obtain and publish this information. Any person who publishes or otherwise makes public information contained in public officer declarations without such permission may be subject to imprisonment for up to five years, a fine of up to 500,000 shillings ($4,910), or both. Authorities also required police officers undergoing vetting to file financial disclosure reports for themselves and their immediate family members. These reports were publicly available.

The law requires public officers to register potential conflicts of interest with the relevant commissions. The law identifies interests public officials must register, including directorships in public or private companies, remunerated employment, securities holdings, and contracts for supply of goods or services, among others. The law requires candidates seeking appointment to nonelected public offices to declare their wealth, political affiliations, and relationships with other senior public officers. This requirement is in addition to background screening on education, tax compliance, leadership, and integrity. Many officials met these requirements and reported potential conflicts of interest. Authorities did not strictly enforce ethics rules relating to the receipt of gifts and hospitality by public officials.

There were no reported challenges to any declarations of wealth–which normally are not made public–filed by public officials. The requirement for asset and conflict of interest declarations was suspended by an August 2018 Public Service Commission (PSC) memo. The memo was issued after PSC engagement with government stakeholders indicated a need for clarity on the filling out of the assets registry. The PSC’s suspension of the requirement led to inconsistency in the application of the directive, with some institutions requiring declarations while others did not.

Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights

Domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases, although some groups reported experiencing government harassment during the year. Officials were sometimes cooperative and responsive to the queries of these groups, but the government did not implement recommendations by human rights groups if such recommendations were contrary to its policies. There were reports officials intimidated NGOs and threatened to disrupt their activities (see section 2.b.). Less-established NGOs, particularly in rural areas, reported harassment and threats by county-level officials as well as security forces. Human rights activists claimed security forces conducted surveillance of their activities, and some reported threats and intimidation.

The Truth, Justice, and Reconciliation Commission issued its final, multivolume report about human rights abuses and injustices from the colonial period through the 2007-2008 postelection violence to President Kenyatta in May 2013. The government largely failed to implement the commission’s recommendations on justice and accountability, despite calls from survivors, victims, religious leaders, and civil society (see section 1.e., Property Restitution). In March a lobby group, the National Victims and Survivors Network, petitioned the Senate to take over the consideration and implementation process of the commission from the National Assembly.

In 2013 a group of civil society organizations filed a High Court petition accusing the government of having failed to investigate and address properly sexual and gender-based violence that occurred during the 2007-2008 postelection violence or to provide medical and legal assistance to survivors. The case continued at year’s end.

There were also reports officials and police officers threatened activists who sought justice for police killings and other serious abuses during the 2017 elections. Human Rights Watch reported that, between August 2017 and March 2018, police and other officials directly intimidated at least 15 activists and victims in Nairobi and in the western county of Kisumu. The intimidation included threats of arrest, warnings not to post information about police brutality, home and office raids, and confiscation of laptops and other equipment.

Government and security officials promptly investigated the 2016 triple homicide case of International Justice Mission (IJM) lawyer and investigator Willie Kimani, IJM client Josphat Mwenda, and their driver Joseph Muiruri, and charged four police officers accused in the case. In October a court barred the prosecution from submitting a 2016 video confession by one of the defendants as evidence. The trial continued at year’s end.

The KNCHR reported security agencies continued to deny it full access to case-specific information and facilities to conduct investigations of human rights abuses as the constitution permits.

The United Nations or Other International Bodies: The government took note of recommendations of the United Nations or international human rights groups but in many cases did not implement them.

Government Human Rights Bodies: The KNCHR is an independent institution created by the 2010 constitution and established in 2011. Its mandate is to promote and protect human rights in the country. Citing budget restrictions, the administration reduced KNCHR’s budget for the fifth straight year.

The NPSC and IPOA, both government bodies, report to the National Assembly. The NPSC consists of six civilian commissioners, including two retired police officers, as well as the NPS inspector general and two deputies. In January a new commission took office. The NPSC is responsible for recruiting, transferring, vetting, promoting, and disciplining NPS members. In September the NGO consortium the Police Reforms Working Group Kenya issued a press statement noting its concerns regarding the August dismissal of IPOA’s chief executive officer by the board. The working group also called for a parliamentary inquiry into the appointment process and activities of IPOA’s board and urged the government to safeguard the independence of IPOA’s secretariat. The CEO was reinstated in October.

The ODPP is empowered to direct the NPS inspector general to investigate any information or allegation of criminal conduct and to institute criminal proceedings in police abuse or corruption cases.

Police accountability mechanisms, including those of the IAU and IPOA, maintained their capacity to investigate cases of police abuse, although disagreements around the dismissal and reinstatement of IPOA’s CEO likely delayed some investigations. The IAU director reports directly to the NPS inspector general. Eighty-two officers served in the IAU, mostly investigators with a background in the Kenya Police Service and the Administration Police Service. During the year the IAU also began interviews to select 150 additional officers. The IAU conducts investigations into police misconduct, including criminal offenses not covered by IPOA. Between January and September, the IAU received approximately 1,200 complaints, the number of which had increased year-to-year as police and the public became more familiar with the IAU. As required by law, the IAU relocated to offices separate from the rest of the police service in late 2018. This move also contributed to the increase in the number of cases the IAU received. The EACC, an independent agency, investigates cases involving police corruption. IPOA also helps to train police officers on preventing abuses and other human rights issues.

As of June, IPOA received 3,237 complaints, bringing the total since its inception in 2012 to 13,618. IPOA defines five categories of complaints. Category One complaints comprise the most serious crimes–such as murders, torture, rape, and serious injury–and result in an automatic investigation. In Category Two serious crimes, such as assault without serious injury, are investigated on a case-by-case basis. Categories Three to Five, for less serious crimes, are generally not investigated, although during the year IPOA and the IAU entered into regular dialogue about referring cases deemed less serious offenses for disciplinary action. If, after investigation, IPOA determines there is criminal liability in a case, it forwards the case to the ODPP. As of June, IPOA launched 489 investigations.

The law requires the NPSC eventually to vet all serving police officers. Vetting required an assessment of each officer’s fitness to serve based on a review of documentation, including financial records, certificates of good conduct, and a questionnaire, as well as public input alleging abuse or misconduct. The NPSC reported it had vetted more than 15,000 officers since 2012. The NPSC, however, had not vetted any officers since the new commission took office in January. Some legal challenges brought by officers removed from the service after vetting continued in court.

Section 7. Worker Rights

d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination on race, sex, ethnicity, religion, and several other criteria, but it does not explicitly prohibit discrimination based on sexual orientation or gender identity. Several regulatory statutes explicitly prohibit discrimination against persons with disabilities; provide a legal framework for a requirement for the public and private sectors to reserve 5 percent of employment opportunities for persons with disabilities; tax relief and incentives for such persons and their organizations; and reserves 30 percent of public-procurement tenders for women, youth, and persons with disabilities.

The government did not effectively enforce the law. Gender-based discrimination in employment and occupation occurred, although the law mandates nondiscrimination based on gender in hiring. The average monthly income of women was approximately two-thirds that of men. Women had difficulty working in nontraditional fields, received slower promotions, and were more likely to be dismissed. According to a World Bank report, both men and women experienced sexual harassment in job recruitment, but women more commonly reported it. Women who tried to establish their own informal businesses were subjected to discrimination and harassment. One study of women street vendors in Nairobi found harassment was the main mode of interaction between street vendors and authorities. The study noted demands for bribes by police amounting to 3 to 8 percent of a vendor’s income as well as sexual abuse were common.

In an audit of hiring practices released in 2016, the National Cohesion and Integration Commission accused many county governors of appointing and employing disproportionate numbers of the dominant tribe in their county. According to the commission, 15 of the 47 counties failed to include a single person from a minority tribe either on the county’s public service board or as county executive committee members. For example, all 10 of West Pokot’s committee members were Pokots. These problems were aggravated by the devolution of fiscal and administrative responsibility to county governments. Other counties, for example, Nairobi City County, were notable for apportioning roles inclusively. Observers also noted patterns of preferential hiring during police recruitment exercises (see section 1.d.).

In both private business and in the public sector, members of nearly all ethnic groups commonly discriminated in favor of other members of the same group.

The law provides protection for persons with disabilities against employment discrimination, although many employers still discriminated against persons with disabilities during hiring processes (see section 6, Persons with Disabilities). Due to societal discrimination, there were very limited employment opportunities for persons with albinism. There are no legal employment protections for LGBTI persons, who remained vulnerable to discrimination in the workplace. Discrimination against migrant workers also occurred.

e. Acceptable Conditions of Work

Regulation of wages is part of the Labor Institutions Act, and the government established basic minimum wages by occupation and location, setting minimum standards for monthly, daily, and hourly work in each category. The minimum wage for all occupations exceeded the World Bank poverty rate.

The law limits the normal workweek to 52 hours (60 hours for night workers); some categories of workers had lower limits. It specifically excludes agricultural workers from such limitations. It entitles an employee in the nonagricultural sector to one rest day per week and 21 days of combined annual and sick leave. The law also requires total hours worked (regular time plus overtime) in any two-week period not exceed 120 hours (144 hours for night workers), and provides premium pay for overtime.

The government did not effectively enforce the law. Authorities reported workweek and overtime violations. Workers in some enterprises, particularly in the EPZs and those in road construction, claimed employers forced them to work extra hours without overtime pay to meet production targets. Hotel industry workers were usually paid the minimum statutory wage, but employees worked long hours without compensation. Additionally, employers often did not provide nighttime transport, leaving workers vulnerable to assault, robbery, and sexual harassment.

The law details environmental, health, and safety standards. The Ministry of Labour and Social Protection’s Directorate of Occupational Health and Safety Services has the authority to inspect factories and work sites, but employed an insufficient number of labor inspectors to conduct regular inspections. Fines generally were insufficient to deter violations.

The directorate’s health and safety inspectors can issue notices against employers for practices or activities that involve a risk of serious personal injury. Employers may appeal such notices to the Factories Appeals Court, a body of four members, one of whom must be a High Court judge. The law stipulates factories employing 20 or more persons have an internal health and safety committee with representation from workers. According to the government, many of the largest factories had health and safety committees.

The law provides for labor inspections to prevent labor disputes, accidents, and conflicts and to protect workers from occupational hazards and disease by ensuring compliance with labor laws. The government paid low salaries to labor inspectors and did not provide vehicles, fuel, or other resources, making it very difficult for labor inspectors to do their work effectively and leaving them vulnerable to bribes and other forms of corruption.

The law provides social protections for workers employed in the formal and informal sectors. Informal workers organized into associations, cooperatives, and, in some cases, unions. All local employers, including those in the informal sector, are required to contribute to the National Hospital Insurance Fund and the National Social Security Fund; these provide health insurance and pensions.

Workers, including foreigners and immigrants, have the legal right to remove themselves from situations that endanger health or safety without jeopardy to their employment. The Ministry of Labour and Social Protection did not effectively enforce these regulations, and workers were reluctant to remove themselves from working conditions that endangered their health or safety due to the risk of losing their jobs. In November a harvester lost an eye in an accident on a tea plantation. The Kenya Federation of Employers provided training and auditing of workplaces for health and safety practices.

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