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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.

c. Freedom of Religion

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

f. Protection of Refugees

The government generally cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to IDPs, refugees, asylum seekers, and other persons of concern. In 2017 the country pledged to apply the UNHCR Comprehensive Refugee Response Framework to enhance refugee self-reliance, increase access to solutions, and improve conditions in countries of origin for safe and voluntary returns. Implementation, however, has been lacking.

In 2017 the High Court blocked the government’s plan to close the Dadaab refugee camp complex, ruling the plan violated the principle of nonrefoulement and refugees’ constitutional rights to fair administrative action. While the court’s 2017 decision eased pressure on Somalis who feared the camp would close by the government-imposed deadline, during the year the government expressed a renewed interest in closing Dadaab, requesting UNHCR to relocate all refugees from Dadaab. The camp closure discussion created uncertainty for the more than 200,000 refugees residing there.

Abuse of Migrants, Refugees, and Stateless Persons: Police abuse, including detention of asylum seekers and refugees, continued, often due to a lack of awareness and understanding of the rights afforded to refugee registration card holders. Most detainees were released after a court appearance or intervention by organizations such as the Refugee Consortium of Kenya.

During the year the security situation in Dadaab improved but remained precarious. There were no attacks on humanitarian workers and no detonations of improvised explosive devices within 15 miles of the refugee complex during the year. The security partnership between UNHCR and local police remained strong and led to improvements in camp security through community policing and neighborhood watch initiatives.

Sexual and gender-based violence against refugees and asylum seekers remained a problem, particularly for vulnerable populations including women, children, and lesbian, gay, bisexual, transgender, and intersex (LGBTI) refugees and asylum seekers. Reported incidents included domestic violence, rape, sexual assault, physical assault, psychological abuse, female genital mutilation mutilation/cutting (FGM/C), and early and forced marriage, particularly of Sudanese, South Sudanese, and Somali girls. Although there was increased community engagement to reduce sexual and gender-based violence and strengthened partnerships, including with the local authorities, sexual and gender-based violence continued to affect women and girls due to their low social and economic status in the community. Most urban refugees reside in slum areas where insecurity and sexual and gender-based violence is rampant. Female-headed households and young girls separated from families due to conflict are most at risk due to lack of male protection within their families. Girls and boys out of school are at risk of abuse, survival sex, and early marriage. Despite strong awareness programs in the camps, underreporting persisted due to community preference for maslaha, a traditional form of jurisprudence prevalent in the region, as an alternative dispute resolution mechanism; shortages of female law enforcement officers; limited knowledge of sexual and gender-based violence; and the medical forensic requirements for trying alleged rape cases.

Refugees have equal access to justice and the courts under the law. They were often unable, however, to obtain legal services because of the prohibitive cost and their lack of information on their rights and obligations. UNHCR continued to provide legal assistance and representation to refugees to increase their access to justice. The law specifically provides that refugees are eligible to receive legal aid services. The law, however, has not been fully operationalized.

Refugees generally dealt with criminality in accordance with their own customary law and traditional practices rather than through the country’s justice system. Other security problems in refugee camps included petty theft, banditry, ethnic violence, and the harassment of Muslim converts to Christianity, according to UNHCR.

Exploitation of refugees with false promises of assistance in the resettlement process or in securing movement passes remained a concern.

Refoulement: There were no confirmed cases of refoulement.

During the year UNHCR assisted more than 2,500 persons to return voluntarily to their places of origin, of whom 1,889 returned to Somalia and 737 returned to Burundi. Insecurity and unfavorable conditions in countries of origin such as South Sudan, Yemen, and Somalia hindered returns.

Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has a system for providing protection to camp-based refugees. While the government generally coordinated with UNHCR to provide assistance and protection to refugees in the Dadaab and Kakuma refugee camps, cooperation was limited in urban areas. The government had yet to register more than 15,000 refugees and asylum seekers estimated to reside in Dadaab, the majority of whom were Somali. Pressure from UNHCR and the international community resulted in the government’s registration of a number of extremely vulnerable individuals. South Sudanese refugees maintain prima facie refugee status.

According to UNHCR, as of November the country hosted 488,867 registered refugees and asylum seekers, including 217,139 in the Dadaab refugee camp complex, 193,429 in Kakuma camp, and 78,299 in urban areas. Most refugees and asylum seekers were from Somalia (260,683) with others coming from South Sudan (119,110), the Democratic Republic of the Congo (DRC) (43,186), Ethiopia (27,989), Burundi (14,674), and other countries (16,810). Most refugees arriving in Kakuma were from South Sudan, and the refugee population in Dadaab was primarily Somali. New arrivals also included individuals from Burundi, the DRC, Ethiopia, and Uganda. An agreement on voluntary repatriation between the country, Somalia, and UNHCR expired in November 2018, although it was still de facto in place. Since 2014 a total of 84,714 Somali refugees have voluntarily repatriated under the agreement.

The RAS, responsible for refugee management in the country, maintained a cooperative working relationship with UNHCR, which continued to provide technical support and capacity building to the RAS.

Freedom of Movement: Refugees’ freedom of movement was significantly restricted due to the country’s strict encampment policies (see section 2.d.).

Employment: Refugees are generally not permitted to work in the country.

Access to Basic Services: Despite the encampment policy, many refugees resided in urban areas, even though they lacked documentation authorizing them to do so. This affected their access to basic government services, including the National Health Insurance Fund, education, employment, business licenses, financial institutions, mobile phones, and related services. In addition they are subject to arrest, police harassment, and extortion.

Section 6. Discrimination, Societal Abuses, and Trafficking in Persons

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers, including those in export processing zones (EPZs), to form and join unions of their choice and to bargain collectively. For the union to be recognized as a bargaining agent, it needs to represent a simple majority of the employees in a firm eligible to join the union. This provision extends to public and private sector employees. Members of the armed forces, prisons service, and police are not allowed to form or join trade unions.

The law permits the government to deny workers the right to strike under certain conditions. For example the government prohibits members of the military, police, prison guards, and the National Youth Service from striking. Civil servants are permitted to strike following a seven-day notice period. A bureau of the Ministry of Labour and Social Protection typically referred disputes to mediation, fact-finding, or binding arbitration at the Employment and Labour Relations Court, a body of up to 12 judges that has exclusive jurisdiction to handle employment and labor matters and that operates in urban areas, including Nairobi, Mombasa, Nyeri, Nakuru, Kisumu, and Kericho. The Employment and Labour Relations Court also has subregistries in Meru, Bungoma, Eldoret, Malindi, Machakos, and Garissa.

By law workers who provide essential services, interpreted as “a service the interruption of which would probably endanger the life of a person or health of the population,” may not strike. Any trade dispute in a service listed as essential or declared an essential service may be adjudicated by the Employment and Labour Relations Court.

Strikes must concern terms of employment, and sympathy strikes are prohibited.

The law permits workers in collective bargaining disputes to strike if they have exhausted formal conciliation procedures and have given seven days’ notice to the government and the employer. Conciliation is not compulsory in individual employment matters. Security forces may not bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, to negotiate wages and conditions matching the government’s minimum wage guidelines and advocate for better working conditions and representation in the Employment and Labour Relations Court. The bill of rights in the constitution allows trade unions to undertake their activities without government interference, and the government generally respected this right.

The law prohibits antiunion discrimination and provides for reinstatement of workers dismissed for union activity. The Employment and Labour Relations Court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. Labor laws apply to all groups of workers.

The government enforced the decisions of the Employment and Labour Relations Court inconsistently. Many employers did not comply with reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases employers successfully appealed the Employment and Labour Relations Court’s decisions to a branch of the High Court. The enforcement mechanisms of the Employment and Labour Relations Court remained weak, and its case backlog raised concerns about the long delays and lack of efficacy of the court.

The Employment and Labour Relations Court received many cases arising from the implementation of new labor laws. The parties filed most cases directly without referral to the Ministry of Labour and Social Protection for conciliation. The court was running a significant backlog.

The chief justice designated all county courts presided over by senior resident Magistrates and higher-ranking judges as special courts to hear employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers cited the ability of workers to submit labor-related cases throughout the country as a positive step. In 2016 the Judiciary finalized the Employment and Labor Relations (Procedure) Rules. The significant changes introduced in the new court procedure rules provide parties access to file pleadings directly in electronic form, new pretrial procedures, and alternative dispute resolution. The rules also set a 30-day time limit for the court to submit a report on disagreements over collective bargaining agreements filed.

The government generally respected freedom of association and the right to bargain collectively, although enforcement was inconsistent. The government expressed its support for union rights mandated in the constitution.

Airport workers at Nairobi’s Jomo Kenyatta International Airport also went on strike in March to protest potential restructuring of the airport. Six striking workers were injured during clashes with police, and 10 members of the Kenya Aviation Workers Union, including its secretary-general, were arrested. After negotiation, the union agreed to end the strike in exchange for release of the arrested union officials and an agreement not to fire striking workers.

Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers and others who operated in private settings were vulnerable to exclusion from legal protections, although domestic workers’ unions exist to protect their interests.

The government deployed labor attaches to Qatar, Saudi Arabia, and the United Arab Emirates (UAE) to regulate and coordinate contracts of migrant workers from the country and promote overseas job opportunities. The Ministry of East African Community and Regional Development also helped domestic workers understand the terms and conditions of their work agreements. The government operationalized a 2017 bilateral agreement with Saudi Arabia in January after revetting recruitment agencies in Riyadh. The government has additional bilateral agreements with Qatar and UAE. The ministry has a directorate to regulate the conduct of labor agents for local migrant workers, including requiring the posting of a 500,000 shilling ($4,910) performance-guarantee bond for each worker.

The misuse of internships and other forms of transitional employment threatened the survival of trade unions, with employers often not hiring employees after an internship ends. State agencies increasingly outsourced jobs to the private sector, and in the private sector, casual workers were employed on short-term contracts. This shift contributed to declining numbers in trade unions. In July the Public Service Commission introduced a plan to place civil servants on three-year employment contracts and eliminate permanent and pensionable terms, but a worker’s union obtained a court order to halt the policy shift. NGOs and trade unionists reported replacement of permanent positions by casual or contract labor, especially in the EPZs, the Port of Mombasa, and in the agricultural and manufacturing sectors. In some cases employers staffed permanent jobs with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in these positions for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, employers replaced them with new trainees at the end of three years.

Workers exercised the right to strike. The health sector witnessed industrial strikes by county government health professionals to protest delayed salary payments. The strikes occurred intermittently in various counties, since under the 2010 constitution each county manages its own health system as part of the devolution of resources and services from the national government. According to the Kenya County Government Workers Union, during the year 21 counties had delayed salary payments. The strikes affected delivery of services in counties like Meru and Embu, but negotiations averted some threatened strikes.

b. Prohibition of Forced or Compulsory Labor

The law prohibits most forms of forced or compulsory labor, including by children. The country made moderate advances to prevent or eliminate forced labor.

The government did not effectively enforce the law, and forced labor occurred, including forced child labor (see section 7.c.). Certain legal provisions, including the penal code and the Public Order Act, impose compulsory prison labor. Resources, inspections, and remediation were not adequate to prevent forced labor, and penalties were not sufficient to deter violations. Violations included debt bondage, trafficking of workers, and compulsion of persons, even family members, to work as domestic servants. Domestic workers from Uganda, herders from Ethiopia, and others from Somalia, South Sudan, and Burundi were subjected to forced labor in the country; however, this trend was reportedly decreasing.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The government prohibits most, but not all, of the worst forms of child labor. The minimum age for work (other than apprenticeships) is 16, and the minimum age for hazardous work is 18. These protections, however, only extend to children engaged under formal employment agreements and do not extend to those children working informally. The ministry published a list of specific jobs considered hazardous that would constitute the worst forms of child labor. This list includes but is not limited to scavenging, carrying stones and rocks, metalwork, working with machinery, mining and stone crushing. The law explicitly prohibits forced labor, trafficking, and other practices similar to slavery; child soldiering; prostitution; the use, procuring, or offering of a child for the production of pornography or for pornographic performances; and the use by an adult for illegal activities (such as drug trafficking) of any child up to age 18. The law applies equally to girls and boys. The International Labor Organization (ILO) identified gaps in the law with regards to children working as cadets at sea.

The law allows children ages 13 to 16 to engage in industrial undertakings when participating in apprenticeships. Industrial undertakings are defined under law to include work in mines, quarries, factories, construction, demolition, and transportation, which are legally categorized as hazardous work.

The law provides for penalties for any person who employs, engages, or uses a child in an industrial undertaking in violation of the law. Fines in the formal sector were generally enough to deter violations. Employment of children in the formal industrial wage sector in violation of the Employment Act was rare. The law does not prohibit child labor for children employed outside the scope of a contractual agreement. Child labor in the informal sector was widespread, but the government did not effectively monitor or control it.

The Ministry of Labour and Social Protection enforces child labor laws, but enforcement remained inconsistent. Supplementary programs, such as the ILO-initiated Community Child Labor monitoring program, helped provide additional resources to combat child labor. These programs identified children who were working illegally, removed them from hazardous work conditions, and referred them to appropriate service providers. The government also worked closely with the Central Organization of Trade Unions, and the Federation of Kenyan Employers to eliminate child labor.

In support of child protection, the Ministry of Labour and Social Protection launched a national online database system in 2017. The Child Protection Information Management System collects, aggregates and reports on child protection data that informs policy decisions and budgeting for orphans and vulnerable children. The web-based system allows for an aggregate format of data to be made available to all the child protection stakeholders. In 2017, two new child rescue centers were established in Siaya and Kakamega counties, bringing the total number of these centers to eight. Child rescue centers remove child laborers from the workplace, rehabilitate them, and provide counseling and life-skills training.

The government continued to implement the National Safety Net Program for Results, a project that seeks to establish an effective national safety net program for poor and vulnerable households, and the Decent Work Country Program, a project designed to advance economic opportunities. Under these programs, the government pays households sheltering orphans or other vulnerable children to deter the children from dropping out of school and engaging in forced labor. For example there were some cases reported in the western part of the country of girls dropping out of secondary school and engaging in sex work in order to afford basic supplies.

Many children worked on family plots or in family units on tea, coffee, sugar, sisal, tobacco, and rice plantations, as well as in the production of khat. Children worked in mining, including in abandoned gold mines, small quarries, and sand mines. Children also worked in the fishing industry. In urban areas businesses employed children in hawking, scavenging, carrying loads, fetching and selling water, selling food, and forced begging (that puts children at risk of being involved in criminal acts). Children often worked long hours as domestic servants in private homes for little or no pay, and there were reports of physical and sexual abuse of child domestic servants. Parents sometimes initiated forced or compulsory child labor, such as in agricultural labor and domestic service, but also including commercial sexual exploitation.

Most of the trafficking of children within the country appeared related to domestic labor, with migrant children trafficked from rural to urban areas.

Also, see the Department of Labor’s Findings on the Worst Forms of Child Labor at https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings , and the Department of Labor’s List of Goods Produced by Child Labor or Forced Labor at https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods .

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