Country Report on Human Rights Practices for 1991
KENYA
After strenuously rejecting calls for political reform
throughout 1991 and harassing and intimidating groups and
individuals advocating multiparty democracy, Kenyan President
Daniel T. Arap Moi, in a surprise move in December, recommended
that Kenya again adopt a multiparty system. Although Kenya has
had an elected civilian government since independence in 1963,
the Kenya African National Union (KANU) has been de facto the
sole political party almost since independence; since 1982 it
has held that status de jure. Passage of the enabling
legislation on December 10 opened the way for multiparty
elections, which must be held by mid-1993 at the latest, for
the elected National Assembly (unicameral Parliament) of 188
members, plus 12 members appointed by the President and 2 ex
officio members. Parties were expected to begin registration
immediately in anticipation of the possibility of early
elections. As of mid-December, legislation was also under
consideration that would increase the number of possible
elected seats in the National Assembly from its present limit
of 188 to a maximum of 210. In its one-party configuration,
the National Assembly has virtually no independent power in
national political affairs, but its sessions provide a forum
for members to raise local or regional issues.
Kenya has a large and growing internal security apparatus that
includes the police Criminal Investigation Department (CID),
the paramilitary General Service Unit (GSU), and the
Directorate of Security and Intelligence (DSI or Special
Branch) . The CID and Special Branch investigate criminal
activity and also monitor persons the State considers
subversive. The internal security apparatus has been used to
intimidate and harass politicians, opponents of the Government,
and dissidents, sometimes resorting to torture and other
mistreatment (see Section I.e.).
Kenya's economy, despite the dominance of public and
state-owned enterprises, includes a we 11 -developed private
sector for trade and light manufacturing as well as an
agricultural sector that provides food for local consumption
and substantial exports of coffee, tea, and other commodities.
Tourism is the top foreign exchange earner but grew at a slower
pace in 1991 due to the Gulf War. Although economic growth
continued in 1991, a persistently high population growth rate
contributed to serious and growing unemployment.
While there were signs of improvement in human rights in late
1991, human rights were circumscribed for most of the year, and
significant restrictions remained at year's end. For the first
10 months of 1991 KANU resisted reform. President Moi
repeatedly asserted that Kenya was not ready for multiparty
democracy, and movement towards political change was blocked in
various ways. The Government refused applications for licenses
to hold opposition political meetings, and church groups and
the Law Society canceled prayer meetings on political topics
following government intimidation. The Government denied
registration to a newly formed political party, and KANU
expelled, under the guise of "deregistration" from the party,
several members who joined an informal group advocating change
(the Forum for the Restoration of Democracy—FORD). In 1991
the Attorney General lifted restrictions on the Nairobi Law
Monthly, originally banned for its coverage of the multiparty
debate, and the Government released from custody the three
prominent detainees held under the controversial Preservation
of Public Security Act (PPSA), Kenneth Matiba, Charles Rubia,
and Raila Odinga. A number of sedition trials were also
concluded in 1991; many questions were raised about the
fairness of these trials, and there were credible charges of
police brutality and torture.
Former Member of Parliament (M.P.) George Anyona and three
codefendants were convicted on circumstantial evidence which
depended heavily on inferences from ambiguous documents found
in the possession of the accused. Former M.P. Koigi Wa
Wamwere, arrested in October 1990 on charges of treason,
continued to be held in prison at year's end, awaiting trial.
In what appeared to be a politically motivated decision,
officers of the Kenyan Law Society were convicted of contempt
of court resulting from an order forbidding them from making
statements critical of the Government.
At year's end, the Government had failed to investigate several
cases of physical attacks on well-known government opponents
and their families. Serious questions remained about the
Government's handling of the investigation into the 1990 murder
of Foreign Minister Robert Ouko. The fall of the Somali and
Ethiopian Governments in the first 6 months of 1991 triggered
an influx of refugees. The Government was reluctant to grant
full refugee status to asylum seekers. Many refugees suffered
police harassment and sporadic refoulements, culminating in a
refoulement by the Kenyan Navy which resulted in the loss of 37
Somali lives.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killings
Following the murder of Foreign Minister Robert Ouko in 1990,
which many believe was politically motivated, the Government
called in a team from Britain's New Scotland Yard to assist in
the investigation. A judicial inquiry began in October 1990
and heard testimony for over a year. President Moi, however,
abruptly terminated the inc[uiry on November 26 and asked the
police to resume investigating the case. On December 9, a
former district commissioner was charged with murder in the
case. Two other suspects, former Energy and Industry Minister
Nicholas Biwott and former Permanent Secretary for Internal
Security and Provincial Administration Hezekiah Oyugi, were
arrested November 26 but released without charge 2 weeks later
due to lack of evidence. The judicial inquiry had heard
substantial testimony regarding corruption on the part of
Biwott and Oyugi, with the implication that corruption had
played a part in motivating Dr. Ouko ' s murder. On the last day
of the inquiry, its commissioners published a statement saying
that their telephones had been bugged by the police and that
they had heard rumors of a plot to assassinate one of their
number to end the inquiry. There has been no investigation of
these charges.
On June 30, during a riot over student allowances, one Moi
University student, Shadrack Opiyo, was shot dead by the
police. No investigation followed the incident.
Reports by survivors indicate that on May 25 the Kenyan Navy
towed two boats of Somali asylum seekers out to sea in order to
repatriate them against their will. Cut adrift in rough water,
the unseaworthy boats capsized, and 37 refugees drowned. The •
Navy showed extreme negligence over the possible loss of life.
The Ministry of Home Affairs, responsible for refugee matters,
issued a statement exonerating the Navy, saying that naval
vessels had not towed the refugees to sea but had come to
assist an overloaded refugee boat. While towing the refugees
to safety, the line broke, and the boat capsized. Although the
United States Government and the United Nations High
Commissioner for Refugees (UNHCR) requested an official
investigation, at year's end no such inquiry had begun.
b. Disappearance
There were no reports of disappearance.
c. Torture and other Cruel, Inhximan, and Degrading
Treatment or Punishment
Torture is proscribed under the Constitution, but there
continued to be persistent credible reports of severe police
brutality and abuse of prisoners in 1991. For example, when
Reverend Lawford Ndege Imunde was released in March and his
sentence commuted to time served, he alleged that during his
imprisonment he had been beaten, denied appropriate medical
treatment, and held in a prison for the criminally insane.
In the sedition trial of George Anyona and his associates,
defendant Edward Akong'o Oyugi claimed that for 10 days during
his interrogation, he was beaten, kept naked in a flooded cell,
and not given enough food. There has been no investigation of
these allegations, which are the subject of pending litigation.
During the same trial, George Anyona described his
interrogation at Nyayo House in Nairobi, claiming that several
floors of the building contained torture chambers and asking
the magistrate to investigate the charge. The state prosecutor
said that those areas of Nyayo House came under the Restricted
Areas Act, and no further investigation occurred. E. Barrack
Mbajah, brother of murdered Foreign Minister, Robert Ouko,
claimed in an affidavit prepared in the United States that: "I
was arrested, confined for 5 days and nights, and severely
beaten by Kenya (sic) security after I refused to cooperate
with them in covering up the assassination." A defendant in
the Koigi Wa Wamwere treason trial. Rumba Kinuthia, says he was
tortured and kept chained in a water-logged cell. Detailed
accounts of beatings and painful, extended torture reported in
past years have never been investigated. The Government seems
to make no attempt to identify or prosecute those responsible.
Prison conditions in Kenya are harsh due to overcrowding and
insufficient funding for prison operations. Corruption and
sexual abuse occur. Food and medical facilities are in short
supply. Malnutrition particularly affects nursing and pregnant
mothers, whose small children stay in prison with them. In
March the Government made available information about the
conditions under which the three Preservation of Public Safety
Act detainees were held (see Section l.d.), specifically the
frequency of family visits and access to legal and medical
advice. It showed that medical and family access to these
detainees was very limited. In the case of Raila Odinga, all
requests for visits by legal counsel had been refused.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides that most persons arrested or
detained (other than those detained under the PPSA) shall be
brought before a court "as soon as is reasonably practicable."
If such person is not brought within 24 hours after his arrest
or from the commencement of his detention, the burden of
explanation is on the authorities.
The Constitution was amended in 1988 to allow the police to
hold people suspected of capital offenses for 14 days before
being brought before a court. Capital offenses include such
crimes as murder and treason. In practice, suspects of all
types are often held incommunicado for 2 to 3 weeks before
being brought to court. Family members often bring law suits
to compel authorities to produce "missing" prisoners.
Bail is frec[uently granted in nonpolitical cases. In late
1991, the courts more frequently granted bail in "political"
cases than had been the case earlier in the year. When Gitobu
Imanyara was arrested on sedition charges, which were
subsequently dropped by the Attorney General, he was denied
bail, even though he suffered from severe health problems.
When he was hospitalized in recognition of the threat to his
health, he was chained to his hospital bed. Luke Obok, an
associate of Luo politician Oginga Odinga, was charged with
possessing seditious documents and was repeatedly denied bail.
Kenya's PPSA allows the State to detain a person indefinitely
without charges or trial upon a determination "that it is
necessary for the preservation of public security."
"Preservation of public security" includes "prevention and
suppression of rebellion, mutiny, violence, intimidation, .
disorder and crime, unlawful attempts and conspiracies to
overthrow the government or the constitution," and several
other grounds. A formal detention order must be signed and
published in the Kenya Gazette. There is no judicial review of
the legality of detention. A board appointed by the President,
meeting in camera, reviews detention cases every 6 months, but
its recommendations are not binding.
The Government has used the PPSA repeatedly in recent years to
silence opposition. The issue of the three detainees held
under the Act was a major human rights issue of the first half
of 1991. Charles Rubia was released on April 12, Kenneth
Matiba on June 8, and Raila Odinga on June 21, all on health
grounds. As PPSA detainees, they were never formally charged.
Rubia and Matiba subsecjuently sought medical treatment abroad;
Raila Odinga was denied a passport to travel for treatment.
Lawyers, churchmen, and politicians have called for the
abolition of the PPSA, but the law remains in force.
Former MP Koigi Wa Wamwere, arrested in 1990 on charges of
treason, remained in prison throughout 1991 awaiting trial.
According to Kenyan authorities, Wamwere was arrested in
possession of a secret cache of arms, which he intended to use
to overthrow the Kenyan Government. He claims to have been
kidnaped from Uganda and brought by the Kenyans to Nairobi,
where he says the arms were planted on him. On December 16,
Koigi 's lawyers protested to the High Court that all 7
defendants in the case suffered from harsh prison conditions,
including solitary confinement 23 hours a day, a substandard
diet, lack of family visits, and cells without blankets or
mattresses.
On September 24, the police arrested Ahmed Salim Bamahriz, a
founding member of the Forum for the Restoration of Democracy,
in Nairobi after President Moi publicly called for harsh
measures against troublemakers. The police said his arrest was
unrelated to his political views and pertained instead to an
unspecified criminal matter related to his business dealings.
Bamahriz was taken to Mombasa, questioned, and released.
In many other cases, Kenyans were visited and questioned by the
police or held in police custody for periods ranging from a few
hours to several days without being charged or officially
detained under any specific authority. The purpose seemed to
be the intimidation of critics of the Government. Several
priests and ministers, such as the head of the Kenya National
Evangelism Fellowship Church, have been questioned in this
fashion.
From May 8 to 10, the police interrogated the 82-year-old
father of the Reverend Timothy Njoya. Njoya, a minister of the
Presbyterian Church of East Africa and well known government
critic, later issued a statement saying the interrogation was
meant to pressure his father to disown him.
On August 7, the police picked up three farmers from Nakuru
district, holding and questioning them for a week for allegedly
belonging to an antigovernment political party and recruiting
other members. They denied all these charges, and one claimed
that he was tortured by the police.
Traditionally, the Government has used neither exile nor the
threat of exile as a means of intimidation or punishment. At
the end of October, Raila Odinga fled Kenya after government
harassment for his political beliefs and received asylum in
Norway. In 1991 the Government appealed to politically
motivated emigres abroad to return to join in Kenyan nation
building. Early in 1991, some of the exiles asked for
government guarantees that they would not be rearrested on
arrival. Later that year, some of them indicated they wished
to return as a result of the restoration of multiparty
democracy to Kenya. According to press accounts, in a December
18 speech President Moi said that exiles who left Kenya without
passports should not expect to receive them now.
e. Denial of Fair Public Trial
Kenya's legal system, as defined in the Judicature Act of 1967,
is based on the Constitution, laws passed by Parliament, and
common law or court precedent. Customary law is used as a
guide in civil matters affecting people of the same ethnic
group so long as it does not conflict with statutory law.
Kenya does not have the jury system. The court system consists
of the Court of Appeals, the High Court, and two levels of
magistrates' courts where most criminal and civil cases
originate. In 1989 Justice Dugdale decided the courts have no
power to enforce the Kenyan Bill of Rights. Applications for
habeas corpus have never been successful in the High Court.
Civilians are tried in civilian courts, and verdicts may be
appealed to the Kenyan High Court and ultimately to the Court
of Appeals. Kenyans do not have a right to legal counsel at
state expense except in certain capital cases. Most persons
tried for capital offenses are provided counsel free of charge
if they cannot afford it. Military personnel are tried by
military courts, and verdicts may be appealed. Attorneys for
military personnel are appointed on a case by case basis by the
Chief Justice.
The President has extensive powers over the judiciary. He
appoints the Chief Justice and the Attorney General and
appoints High Court judges with the advice of the Judicial
Service Commission. His power was significantly increased
through constitutional amendments adopted in 1986 and 1988,
which gave him discretionary authority to dismiss judges, the
Attorney General, and certain other officials. In late 1990,
this power of dismissal was restricted when Parliament adopted
a constitutional amendment specifying that the President may
only dismiss those officials upon the recommendation of a
special, presidentially appointed tribunal. Some hailed this
as a restoration of the security of judicial tenure, but many
lawyers criticized it as inadequate to restore judicial
independence. The amendments have not yet been tested because
there has been no government effort to date to remove from
office an officer affected.
A number of trials stemming from Kenya's sedition laws were
concluded in 1991. The Reverend Lawford Ndege Imunde,
convicted of seditious publication on the strength of a private
diary entry, had his sentence commuted to time served, although
the conviction was not overturned.
Press reporting of the sedition trial of George Anyona and his
three codefendants underlined the problematic character of the
verdict, which was based on circumstantial evidence. Anyona
and his three codefendants met in a bar on July 11, 1990, just
after Nairobi was shaken by rioting on July 7. The men were
arrested, charged with plotting the overthrow of the
Government, and held without bail for a year.
When the trial was concluded in July 1991, all four men were
convicted and given 7-year sentences. The prosecution
maintained that the defendants met in a private room to discuss
the overthrow of the Government, but no witnesses came forward
to substantiate this claim. The Government's case depended on
documents, found in the possession of the accused, which were
held to be seditious. One was a piece of paper with the words
"Charles" and "Ken;" the prosecution said the words referred to
Charles Matiba and Kenneth Rubia, two of the detainees released
in 1991. The other most incriminating piece of evidence was
the so-called shadow cabinet list, a list of government
positions paired with the names of government critics. The
prosecution held that the list demonstrated plans to overthrow
the Government and replace ministerial positions from the ranks
of the ant i government activists; the defense said the document
was a crude forgery planted on Anyona by the police. Under
Kenyan law, any publication calculated to excite "hatred or
disaffection" toward the Government is deemed seditious. Some
of the publications found in the possession of the accused and
alleged to be seditious have never been banned in Kenya.
Anyona and his codefendants appealed their convictions. The
case is to be heard in February 1992.
Defendants have occasionally been denied the right to employ
legal counsel of their choice. Kenya theoretically permits all
commonwealth lawyers to practice and also employs British
judges, including the Chief Justice. Yet in 1991 two
defendants, Mirugi Kariuki and Paul Muite, were denied the
right to employ British barristers in their defense.
In some cases, legislation precludes a fair trial. A relic of
the colonial period, the Chief's Authority Act gives low-level
administration officials, called chiefs, wide-ranging powers,
including the power to arrest and hold persons and to restrict
a person's movement without trial. The Kenya Law Reform
Commission has recommended that the law be abolished.
f . Arbitrary Interference with Privacy, Family, Home, or
Correspondence
Generally, judicially issued search warrants are required and
obtained, but searches without warrants are allowed under the
Constitution in certain instances "to promote the public
benefit," including in security cases. Security officials also
conduct searches without warrants to apprehend suspected
criminals or to seize property suspected to be stolen. Homes
of suspected dissidents have been searched without warrants,
and evidence so obtained has been admissible to support
convictions.
Security forces reportedly employ a variety of surveillance
techniques, including electronic surveillance and a network of
informers. Political activists have been subject to police
surveillance as have some of their visitors. Paul Muite,
Gitobu Imanyara, and ex-detainee Raila Odinga all experienced
physical attacks which appear to have had a political
motivation. In the most serious of these incidents, Raila
Odinga, while driving family members in his car, was hit by a
stone and subsequently required hospitalization. Former Vice
President Oginga Odinga alleges that an unsuccessful break-in
of his house in May was an attempt to plant arms in his house
prior to his arrest. At the time of Gitobu Imanyara 's arrest
in March, on the grounds of seditious publication (Section
2.a.), both his home and the offices of the Nairobi Law Monthly
were searched without a warrant.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and press and
outlaws discrimination against any Kenyan on grounds of
political opinion. However, there are numerous restrictions
and inhibitions on the exercise of free speech, although they
are not consistently effective. The legality of the Nairobi
Law Monthly has been upheld; and some public figures,
churchmen, and former Members of Parliament, have spoken
vigorously against the Government. A number of prosecutions
for sedition were withdrawn in 1991, but enough were carried
through to create a climate in which free debate is discouraged
and sometimes penalized. Kenyans have been charged with such
offenses as wearing a badge with a V symbol, which was
interpreted as "creating a disturbance" by seeming to advocate
multiparty politics. In another case, a woman was charged with
creating a disturbance for saying that there is "no justice"
under the present Government. Some small businesses in Kenya
have been fined by the police for the offense of operating
without displaying a picture of the President, even though no
law requires such display.
Free speech and association in Kenya is also inhibited by an
atmosphere of repression created when KANU and government
officials make public statements threatening violence or
repression against dissidents. At a public rally. Minister of
Energy Biwott threatened that if Paul Muite were jailed he
"might not come out alive." President Moi himself publicly
called on KANU members to "act as agitators," and on another
occasion to deal firmly with troublemakers. In September, as
tensions role in anticipation of the planned October 5
demonstration. Energy Minister Biwott and 19 Rift Valley M.P.s
threatened in a rally to "crush" the Forum for the Restoration
of Democracy (FORD) and told the populace to "arm themselves"
against FORD. At a similar rally. Minister of State Barudi
Nabwera urged KANU youthwingers to "do the needful," a clear
threat, if they encountered FORD organizers.
One television station and all radio stations are owned and
controlled by the Government. A second television station is
owned by KANU and adheres to self-imposed guidelines. The
KANU-owned outlet carries Cable News Network programs,
generally without restriction, although at times stories about
Kenya have been deleted. Privately owned newspapers and
journals are published in Kenya, and there is no systematic
censorship of the press. However, in early 1991 some
publications were seized, and until late 1991 the press
practiced self-censorship and confined its commentary within
usually understood but legally undefined limits. Further,
press members were subject to intimidation by persons
associated with the Government. Despite these limitations,
Kenyan press reporting on local issues remains spirited, and,
after the constitutional changes in late 1991, there was a
significant increase in press commentary critical of the
Government and, most notably, the President.
Newspapers, magazines, and books from abroad are readily
available. In late 1991, Kenya ceased to exclude individual
editions of foreign papers which contained articles critical of
Kenya. More than 100 foreign journalists representing Western
news organizations operate from Nairobi.
Free speech won a notable victory in Kenya when the Attorney
General dropped all sedition charges against Gitobu Imanyara
and subsequently lifted the ban on the Nairobi Law Monthly.
Imanyara was first charged with sedition in 1990 because of the
Nairobi Law Monthly's coverage of the multiparty debate.
Imanyara was taken into custody for the second time on sedition
charges in March, when the Nairobi Law Monthly published an
editorial claiming that the Government distributed jobs in
state-owned companies on the basis of ethnicity. Imanyara 's
printer was heavily fined for pviblishing the magazine without
posting a legally required bond. On May 28, following strong
domestic and international criticism, the Government released
Imanyara and dropped all sedition charges against him. On July
4, the ban on the Nairobi Law Monthly was officially lifted,
thus upholding an October 1990 judgment suspending the ban.
Several other magazines, however, are still proscribed.
Several plays, including a Kiswahili translation of "Animal
Farm" and a Dario Fo play about a rent strike, have been
censored.
Possession, distribution, or publication of banned writing is
subject to a punishment of up to 7 years' imprisonment.
Several persons were charged and convicted of this offense in
1991. In December, after the announcement of the change to
multipartyism, the press continued to report cases of citizens
charged with the possession of seditious literature. None of
these cases has yet come to court since the constitutional
change was recommended.
Another case dramatizing the limits of free speech in Kenya was
the injunction issued by the High Court against Paul Muite,
chairman of the Law Society of Kenya (LSK) and other members of
the Law Society council. Muite, in his acceptance speech as
chairman, had urged the registration of the National Democratic
Party (see Section 2.b.).
Progovernment members of the LSK sought the injunction against
Muite to prevent him from speaking on political topics in his
capacity as LSK chairman. In May Muite, along with other LSK
council members, published a statement criticizing the record
of legal judgments by British expatriate judges, including
Justice Dugdale. Alleging that Muite had violated the
injunction forbidding him to pronounce on political topics,
four lawyers brought an action for contempt of court against
Muite. To do so, they were required to ask the duty judge for
leave for the action to go forward; the judge who granted leave
was Dugdale. The Attorney General has stated that the
Government has no involvement in this case and that it is
private suit brought by one group of lawyers against another.
On October 23, the Court of Appeal found Muite and his
colleagues guilty of contempt of court for disobeying an
injunction prohibiting them from making political statements.
They were ordered to pay a fine of approximately $350.
b. Freedom of Peaceful Assembly and Association
Freedom of assembly, while provided for in the Constitution, is
seriously limited by the Public Order and Police Act, which
gives authorities power to control public gatherings, defined
as meetings of three or more persons. It is illegal to convene
an unlicensed meeting. The ban does not extend to persons
meeting on church property for religious purposes. On April
28, the Reverend Timothy Njoya of the Presbyterian Church of
East Africa, known for his advocacy of multiparty politics,
held an open air prayer meeting without a license. Before the
meeting began, police in riot gear confronted the gathering of
300 people. Security personnel beat up several journalists and
took their cameras, and government figures criticized Njoya for
leading his parishioners to confrontation. On July 28, the
Church of the Province of Kenya (CPK) and the Law Society of
Kenya proposed to call believers to a session of prayers for
peace and justice. According to a schedule published
beforehand, the prayers were to cover many of the issues on the
dissident agenda. The Government refused a request for a
license to hold a procession before the prayers, and the
meeting was called off after the authorities exerted
considerable pressure on the churchmen.
The FORD attempted to hold an unlicensed political meeting on
November 16. A number of FORD members and presumed
sympathizers were picked up before the day of the meeting;
others were arrested on their way to the meeting. In spite of
some stone throwing clashes with the police, the crowd was
essentially peaceful. At least 87 people were arrested for
participating in the banned gathering or urging others to do
so. Charges against most of the FORD members and prominent
sympathizers were swiftly dropped, but the outcome of the
charges against many ordinary citizens arrested in connection
with the rally is still unclear. After the announcement of the
change to multiparty democracy, Nairobi saw a number of
spontaneous small street demonstrations which dispersed on
their own accord without police intervention, but on December 9
the police broke up a peaceful pro-FORD demonstration and
arrested 17 people. However, on January 18, 1992, the
Government authorized a FORD rally in downtown Nairobi. Over
100,000 persons attended the event, which unfolded peacefully.
Freedom of association is governed by the Societies Act, which
states that every association must be registered or exempted
from registration by the Registrar of Societies. In February
Jaramogi Oginga Odinga, Kenya's first Vice President, attempted
to register a new political party, the National Democratic
Party (NDP) . The request was refused under section 2(A) of the
Constitution, which makes Kenya a one-party state. The NDP
argued without success that it was not a political party in the
proscribed sense, since it did not plan to field electoral
candidates, but- would confine itself to propagating its views
on political topics, especially regarding the elimination of
section 2(A) of the Constitution. Later in the year, Oginga
Odinga joined with others to propose a new grouping, the Forum
for the Restoration of Democracy. FORD members urged Kenyans
to form themselves into 9-member groups, since only
associations of 10 or more members legally require registration.
President Moi denounced the FORD as "the NDP in disguise" and
termed it "illegal" and nonexistent. One FORD organizer, Ahmed
Salim Bamahriz, is an elected member of the Mombasa municipal
council. When Bahmariz announced his association with the
FORD, attempts were made to suspend him from KANU and to strip
him of his councillorship. In September Bamahriz and other
FORD members were "deregistered" from KANU by the KANU special
delegates' conference. There is, however, no provision at all
for deregistration in the KANU constitution. KANU, having
agreed under pressure in 1990 to stop expelling members as a
disciplinary measure, seems to be looking for other names under
which to achieve the same effect: suppressing dissent in its
ranks. It is not yet clear whether expulsions will become more
or less common now that Kenyans are legally free to form and
join parties other than KANU.
c. Freedom of Religion
Kenya has no state religion. Freedom of worship is
acknowledged in the Constitution and generally allowed, but
churches new to Kenya must obtain government approval to be
registered. Some church figures have voiced concern about a
new bill to regulate nongovernmental organizations (NGO's) in
Kenya, which might impose some government controls over church
projects. NGO's will henceforth have to reregister every 5
years, and those deemed not to act in the public interest may
suffer deregistration
Throughout 1991 activist churchmen were denounced by Parliament
and the press, and the organizers of the abortive July 28
prayer meeting, sponsored jointly by the Law Society of Kenya,
the Church of the Province of Kenya, and the National Council
of Christian Churches, were subjected to government pressure
(see Section 2 .b. ).
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Kenyans may travel freely within the country. In September
several Rift Valley politicians attending a political rally
purported to "ban" members of the FORD from entering the
Valley. They threatened reprisals against members of the
Kikuyu ethnic group and multiparty supporters settled in the
region. Implementation of these proposals is unlikely. Kenyan
law gives all Kenyans the right to settle and conduct business,
which includes obtaining land titles, in any area of the
country.
Kenya does not generally prohibit emigration of its citizens
but on occasion does prevent travel abroad by critics of the
Government. The Government does not regard issuance of
passports to citizens as a right and reserves the authority to
issue or deny passports at its discretion. In 1991 the
Government seized or declined to issue passports to over 20
Kenyans. In two cases, the Government seized the passports of
persons returning from abroad who had made political speeches
during their trips.
In July labor leader Dennis Akumu and former parliamentarian
Martin Shikuku were removed from an aircraft they had boarded
to travel to London. Their passports were not taken, but their
right to travel was denied without any administrative or
judicial proceeding.
In 1991 large numbers of Somali and Ethiopian refugees fled to
Kenya after their governments collapsed. Kenya has accepted
most asylum seekers, though sometimes entry is delayed,
resulting in hardship and denial of assistance, and many
suffered police harassment. Thirty-seven Somali asylxim seekers
drowned when the Kenya Navy towed their boats to the open sea.
(see Section l.a.).
None of these refugees has been granted legal status other than
that of asylum seeker. About 50,000 refugees reside in camps,
and at least double that number live outside the camps, in
cities as well as rural areas. Refugees outside of the camps
are extremely vulnerable to arrest. Refugees who purchase fake
identity papers and visas put themselves even further at risk.
Conditions in the camps have caused several riots, one of which
led to a number of hospitalizations. The Government promised
to investigate the incident but has yet to do so.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Citizens in 1991 had neither the right nor the ability to
change the one party system of government through the electoral
process. However, the year-end recommendations for
constitutional change would permit multiparty elections by
mid-1993 at the latest, which, if conducted freely and fairly,
would give Kenyans this right. At year's end, it was not clear
whether independent, as well as party-based candidates, would
be permitted to contest the elections. Although the President
said that each electoral district will be contested by a single
KANU candidate, since the KANU nomination process was abolished
in June, the selection mechanism within KANU remained unclear.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
There are no local organizations solely devoted to
investigating human rights abuses, but the Law Society of
Kenya, some church groups, some periodicals, a few
organizations, and individual attorneys function as de facto
human rights monitors. However, through most of 1991 they
faced serious obstacles, including harsh government criticism,
restrictions on free speech and assembly, and, in some cases,
torture and harassment by the police (see Section l.a.). The
Government reacts negatively to criticism of its human rights
record, at home and abroad, and through its accusations of
association with "foreign masters" discourages Kenyans from
providing outside human rights groups with information.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
Kenya's Constitution and laws prohibit discrimination on the
basis of race, sex, religion, language, or social status.
However, the situation of Kenyans of Somali ethnic origin is a
major concern. Ethnic Somalis are the only ethnic group in
Kenya for which the Government requires an additional form of
identification, stating that they are Kenyan citizens.
In 1990 the Government reqiiired that ethnic Somalis have their
claim to Kenyan citizenship verified through a "screening"
process involving verification by a panel of Somali elders.
This screening effort continued through the first 3 months of
1990 and then was phased out, although its practical effects
remained. The screening has been widely criticized as
discriminatory, unconstitutional, and without basis in law.
Ethnic Somalis must still produce upon demand their Kenyan
identification card and a second identification verifying
"screening." Both cards are also required to apply for a
passport, and airlines have been required to submit passports
held by Kenyan Somalis for verification before issuing tickets
to such persons.
Members of all ethnic groups may run for office, and ethnic
representation at the minister and assistant minister level is
broad. The Asian community, numbering about 65,000, accounts
for a disproportionate share of the nation's economic wealth
and output, but very few Asians participate in electoral
politics. The Kikuyu remain the largest and richest ethnic
group in Kenya. But anti-Kikuyu language from ministers and
other officials entered the public domain in 1991 without
official rebuke, particularly in connection with Kikuyu land
purchases in areas traditionally inhabited by other tribes.
While there is no legal discrimination against women,
traditional culture and attitudes have long prescribed limited
roles for women. Women's roles are particularly restricted in
rural areas where they account for 75 percent of the total
agricultural work force. Rural families are more reluctant to
invest in educating girls than in educating boys, especially at
the higher levels. The number of girls and boys in school are
roughly equal at the primary and secondary levels, but men
outnumber women by almost two to one in higher education.
Though women are increasingly active in the modern economy, the
number of women in professional roles is still limited. The
number of female unemployed is double that of men. Women
sometimes receive lower rates of pay than men performing the
same job, and disparities in fringe benefits occur, e.g., some
businesses give housing allowances to men but not to married
women. Women are legally able to own property and businesses.
Polygamy is not legal for people married under the Christian
Marriage Act, but it is permitted for those who marry under
African customary law. Kenya's law of succession, which
governs inheritance rights, provides for equal treatment of
male and female children.
The Government strongly condemns extreme violence towards
women, specifically murder, female circumcision, rape, and
incest. In many cases, rapists, particularly of minors, are
given sentences of up to 14 years in prison. However, the
ambivalence of Kenyans to the abuse of women was graphically
demonstrated by the public response to a case of multiple rape
and manslaughter at St. Kizito boarding school. In July, on a
Saturday night when few teachers or staff were at the school, a
group of 50 adolescent boys attending St. Kizito broke into the
crowded dormitory housing their female contemporaries. In the
panic that ensued, 19 girls suffocated, and 71 were raped.
Despite public expressions of horror at the event, many Kenyans
acknowledge that rapes are frequent in Kenyan schools. This
seems borne out by a published comment by the principal of the
school, who said: "The boys meant no harm, they just wanted to
rape.
"
Domestic violence occurs in Kenya, but little information is
available on the extent of the problem. In practice, most
cases of domestic violence are settled outside of the courts.
The maximum legal penalty for wife beating is 5 years in
prison. Women may also sue for civil damages. Female
circumcision is illegal but still practiced by some Kenyan
ethnic groups on girls under the age of 16. The Government
officially discourages the practice but leaves it to women's
groups to actively oppose female circumcision through health
education programs. Murder or manslaughter charges are brought
when circumcisions result in death. There are press reports of
both male and female community-forced circumcisions, but
charges are never brought in such cases.
Section 6 Worker Rights
a. The Right of Association
Save for the central Government's civil servants, all workers
are free to join unions of their own choosing. The law
provides that as few as seven workers may establish a union,
provided the objectives of the union do not contravene Kenyan
law and another union is not already representative of the
employees in question. The Government may deregister a union,
but the Registrar of Trade Unions must give the union 60 days
to challenge the deregistration notice; an appeal of the
Registrar's final decision may be brought before the High
Court. The Kenya Civil Servants Union was deregistered more
than 10 years ago by President Moi.
There are at least 33 unions in Kenya representing
approximately 350,0000 to 385,000 workers, or 3 percent of the
country's work force. Except for the 150,000-165,000 teachers
believed to be members of the Kenya National Union of Teachers
and four other smaller unions, which have been registered by
the Government, all other unions are affiliated with one
central body, the Central Organization of Trade Unions (COTU).
The Government created COTU in 1965 as the successor to both
the Kenya Federation of Labor and the Kenya African Workers
Congress. This amalgamation was effected allegedly to
eliminate instability and rivalries within the nation's trade
union movement.
COTU is independent of the Government and KANU in name only.
The 1965 decree establishing COTU gives the President the power
to remove from office the central body's senior leaders. Rule
5 of the COTU constitution accords nonvoting membership on the
executive board (COTU' j managing body) to a representative of
the Labor Ministry as well as of KANU. Moreover, COTU and its
Secretary General Joseph Mugalla are firmly allied with the
President and KANU against those who advocate greater
democratization. In June, seeking to keep pliant unionists in
office, the President offered to underwrite the costs of union
elections which he had announced some 5 months earlier. At
year's end, Mugalla was reelected Secrete «:y General, but his
opponents declared their intention to form a rival
Confederation. The Court of Appeals enjoined the Registrar
from certifying the election pending a hearing on a suit
brought by the opponents.
The Trade Disputes Act permits workers to strike provided that
21 days have elapsed following the submission to the Minister
of Labor of a written report detailing the nature of the
dispute. During this 21-day period, the Minister may either
mediate the dispute himself, nominate a person to investigate
and propose a solution, or refer the matter to the Industrial
Court, a body of five judges appointed by the President, for
binding arbitration. Once a dispute is referred to either
meditation, fact finding, or arbitration, any subsequent strike
is illegal.
The military, police, prison guards, and members of the
National Youth Service are precluded by law from striking.
Under the Trade Disputes Act, other civil servants, like their
private sector counterparts, may strike following the 21-day
notice period (28 days if it is an essential service, e.g.
,
water, health, education, air traffic control). However, the
Labor Minister may at any time preempt a strike involving civil
servants by referring the dispute to the Industrial Court for
resolution. Save for the wildcat strikes involving the bank
employees in November and Mombasa's dockworkers in December,
there were no significant strikes in 1991.
Internationally, COTU is now affiliated to both the
continentwide Organization of African Trade Union Unity and the
International Confederation of Free Trade Unions. Its
affiliates are free to establish links to international trade
secretariats of their choosing. A veteran trade union leader,
associated with the political opposition, however, was
prevented from leaving the country in June (see Section 2.d.).
b. The Right to Organize and Bargain Collectively
While not having the force of law, the 1962 Industrial
Relations Charter, executed by the Government, COTU, and the
Federation of Kenya Employers, gives workers the right to
engage in legitimate trade union organizational activities.
Both the Trade Disputes Act and the Charter authorize
collective bargaining between unions and employers. Wages and
conditions of employment are established in the context of
negotiations between unions and management. The Government has
promulgated wage policy guidelines limiting wage increases to
75 percent of the annual rate of inflation. Collective
bargaining agreements must be registered with the Industrial
Court for the purpose of guaranteeing adherence to these
guidelines. In 1990 there were 1,875 agreements registered
with the court. Some 1 million workers (union and nonunion)
were covered by these accords.
The Trade Disputes Act makes it illegal for employers to
intimidate workers. Employees wrongfully dismissed for union
activities are generally awarded damages in the form of lost
wages by the Industrial Court; reinstatement is not a common
remedy. This is due in large measure to the fact that most
aggrieved workers have found alternative employment in the
lengthy period prior to the hearing of their cases.
While legislation authorizing the creation of export processii^
zones was passed in November 1990, such entities have been slow
to get off the ground. The first such zone, developed by a
subsidiary of Firestone East Africa, has only succeeded in
attracting a few investors. The Government has yet to decide
definitively whether the provisions of the Trade Disputes Act,
the Trade Unions Act, or the Regulation of Wages and Conditions
of Employment Act will be extended to the zone (see also
Section 6.e. ).
c. Prohibition of Forced or Compulsory Labor
The Constitution proscribes slavery, servitude, and forced
labor. Under the Chiefs' Authority Act, a local authority can
require people to perform community services in an emergency,
but there were no known instances of this practice in 1991.
People so employed must be paid the prevailing wage for such
employment. The International Labor Organization (ILO)
Committee of Experts (COE) has found these and other provisions
of Kenyan law to contravene ILO Conventions 29 and 105
concerning forced labor. The COE's 1991 report noted the
Government's intention to repeal or amend the offending
provisions of the law in order to bring them into compliance
with the Conventions. The Government, however, has not given a
definite timetable for the introduction of remedial legislation.
d. Minimum Age for Employment of Children
The Employment Act of 1976 proscribes the employment in any
industrial undertaking of children under the age of 16. This
enactment applies neither to the agricultural sector, where the
overwhelming majority of the labor force is employed, nor to
children serving as apprentices under the terms of the
Industrial Training Act. Ministry of Labor officers are
authorized to enforce the minimum age statute. Given the high
levels of adult unemployment and underemployment, the
employment of children in the formal wage sector in violation
of the Employment Act is not a significant problem.
e. Acceptable Conditions of Work
The legal minimum wage for workers in the wage sector varies by
location, age, and skills. On May 10, the minimum wage was
raised an average of 16 percent. At the bottom rung of the
adult minimum wage scale is the rural general laborer; the
highest minimum was paid in Nairobi and Mombasa to drivers of
heavy commercial vehicles. Violations of the minimum wage
guidelines are not a recurring problem in the modern wage
sector. Despite nominal wage increases, inflation over 20
percent and the precipitous decline in the shilling's value
substantially eroded workers' living standards during 1991.
Most workers continued to lead the most marginal of existences.
The Regulation of Wages and Conditions of Employment Act limits
the normal workweek to 52 hours. Nighttime employees, however,
may be employed for 60 hours a week. As is the case with
respect to minimum age limitations, the Act specifically
excludes agricultural workers from its purview. An employee in
the nonagricultural sector is entitled to 1 rest day in a
week. There are also provisions for annual leave and sick
leave. Concerning limits on overtime, Kenyan law provides that
the total hours worked (i.e., regular time plus overtime) in
any 2-week period by night workers may not exceed 144 hours;
the limit is 120 hours for other workers. The Ministry of
Labor is tasked with enforcing these regulations, but reported
violations are few.
The Factories Act of 1951 sets forth detailed health and safety
standards; the Act was amended in 1990 to encompass the
agriculture, service, and government sectors. The 65 health
and safety inspec.tors attached to the Ministry of Labor's
Directorate of Occupational Health and Safety Services have the
authority to inspect factories and work sites if they have
reason to believe that a violation of the Act has occurred, or
upon receipt of a complaint from a worker . As a result of the
1990 amendments, the Directorate's inspectors may now issue
notices enjoining employers from practices or activities which
involve a risk of serious personal injuries. Previously, only
magistrates were vested with this authority.
Such notices may be appealed to the Factories Appeals Court, a
body of four members, one of whom must be a High Court judge.
In practice, inspectors, who conduct 2,000 to 3,000 inspections
annually, generally respond only to worker complaints.
"Whistle blowers" are not protected by the Factories Act. On
May 31, the Government exempted enterprises in the export
processing zones from the occupational health and safety
requirements of the Factories Act.
