Country Report on Human Rights Practices for 1989
KENYA
.
Kenya has had an elected civilian government since
independence in 1963. It has been a de facto one-party state
almost since independence and a de jure one-party state since
1982. President Daniel T. arap Moi maintains firm control
over both the Government and the party, the Kenyan African
National Union (KANU) . KANU membership is a prerequisite for
participation in national political affairs. The popularly
elected National Assembly (unicameral Parliament) of 202
members (including 12 appointed by the President and 2 ex
officio members) has little independent power in national
political affairs, but it is usually involved in local and
regional issues or in affirming the President's initiatives.
The Kenyan armed forces constitute a small professional
establishment with a total strength of 22,500 members. Kenya
has an internal security apparatus that includes the police
criminal investigation department (CID) , the paramilitary
general services unit (GSU) , and the directorate of security
and intelligence (DSI or Special Branch). The CID and Special
Branch investigate criminal activity and are also used to
monitor persons whom the State considers subversive.
Kenya's modern, market-oriented economy includes a
well-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. Kenya's well-developed tourism
industry has surpassed coffee and tea as the top foreign
exchange earner. In 1989 a continued decline in world coffee
prices exacerbated a balance of payments problem. Although
economic growth continued, a persistently high population
growth rate contributed to a serious and growing problem of
unemployment. Kenyans are free to engage in private economic
activity and own property without government interference.
Human rights continue to be significantly restricted in Kenya,
and in 1989 there was further erosion in the respect for civil
liberties and political rights. With forced deportations, the
environment for refugees worsened in 1989. By-elections were
marked by government interference in support of particular
candidates and, in some cases, violence. In addition, the
Government banned two magazines, and Parliament barred the
largest English-language daily from covering legislative
affairs for a 4-month period. A number of persons were
charged with behaving "in a manner likely to cause a breach of
the peace," often in connection with making statements
critical of the Government or of political figures. There
were new charges of police brutality and also growing signs of
executive manipulation of the judicial system. In early June,
the Government released the seven political detainees held
under the Preservation of Public Security Act which allows
indefinite detention without charge or trial in national
security cases. Eight persons were publicly tried and
convicted on security charges (9 in 1988, and 39 in 1987).
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for Integrity of the Person, Including
Freedom from:
a. Political and Other Extrajudicial Killing
There were no political killings in 1989. However, deaths of
suspects in police custody in suspicious circumstances
continued to occur, including the death of former Nairobi
student leader Titus Adungosi. The press reported that
Adungosi died in Kenyatta hospital of a stomach ailment while
serving a 10-year jail term for his complicity in the 1982
coup attempt.
Several deaths of prisoners held on other than security
charges occurred during 1989. The Government generally
conducts inquests into deaths in custody, though inquest
results are not often made public. In February four of the
five CID officers charged in connection with the 1988 death in
Mombasa police custody of Zairian musician Taabu Kotela
Kiombwe were found guilty of manslaughter and sentenced to 5
years each. In September the State agreed to pay Kiombwe *s
family damages in an out-of-court settlement.
By the end of 1989, no officials had been held responsible for
the 1986-87 deaths in custody of two persons allegedly
involved in the underground movement Mwakenya.
Human rights activists have also commented that over the past
several years numerous suspects have been fatally shot by the
police, allegedly while fleeing.
b. Disappearance
There were no reports of politically related disappearances in
1989.
c. Torture and Other Cruel, Inhuman, and Degrading
Treatment or Punishment
Torture is proscribed under the Kenyan Constitution. However,
torture and police brutality remained an important issue in
1989. While in 1989 there were markedly fewer public
allegations of torture and abuse by persons held on
political/security charges than in recent years, a number of
Kenyans told the press they were physically abused by the
police. Professor Maina wa Kinyatti, who was released from
jail in 1988, told the U.S. press after fleeing Kenya that
"people are still being put in water while in detention," (see
Section l.d.). President Moi and senior government officials
publicly condemned police brutality and torture, and some
police officials were convicted of human rights abuses in 1989.
Prison conditions in Kenya are poor and sometimes dangerous to
life and health. Detainees and prisoners have complained of
beatings, poor food, corruption, and inadequate facilities and
medical care. Prisoners often must sleep on cement floors.
Overcrowding persisted in 1989 and contributed to the rapid
spread of meningitis among prisoners. In August the director
of medical services said at least 20 inmates at Kodiaga
maximum security prison and 12 inmates at Bungoma prison died
of meningitis. The Government later provided inoculations for
prisoners. In a directive aimed at reducing prison
overpopulation. President Moi released 10,274 petty criminals
in October on the 11th anniversary of his presidency.
The Preservation of Public Security Act (PPSA) allows for
solitary confinement in security-related cases, with no
contact with family or legal counsel, although in some cases
lawyers and families have been permitted to visit detainees.
Correspondence with prisoners is monitored and occasionally
not delivered. Prisoners held on other than security grounds
are allowed one brief visit per month by family members.
Prison or security officers are usually present during visits
by family members or lawyers.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides that most arrested or detained
persons shall be brought before a court "as soon as is
reasonably practicable," and that if such person is not
brought within 24 hours of 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 long
periods before being brought before a court.
Kenya's PPSA allows the State to detain a person indefinitely
without charges or trial. A formal detention order must be
signed and publicly gazetted. There is no judicial review of
the legality of detention. Detention cases are reviewed by a
board appointed by the President which meets in camera every 6
months, but the Government is not bound by this board's
recommendations. In 1989 there were no new detentions under
this Act, and in June President Moi released all seven
detainees previously held.
In other cases, the number of which is difficult to gauge,
people were held in police custody and questioned without
being charged or officially detained under any specific
authority. For example, in 1989 a former Member of Parliament
was picked up by Nairobi police and questioned for 1 day. He
was not charged or detained. Observers estimate that there
are from four to eight people being held by Nairobi police in
this fashion at any given time—some held for hours, some for
days or even weeks.
Traditionally, neither exile nor threat of exile has been used
by the Government as a means of intimidation or punishment.
In June, however, Nairobi businessman Idris Osman, an ethnic
Somali, was deported to Ethiopia for alleged activities
incompatible with national interests and state security.
Although Osman held a Kenyan passport, Kenyan authorities
claimed his passport had been issued in an illegal manner.
Osman was deported despite a court order to airport and
immigration officials enjoining such action. In December two
other ethnic Somalis were deported under similar circumstances.
A number of Kenyan dissidents have resorted to self-exile. In
most cases, the exiles have not been formally charged with
crimes. In April, fearing rearrest, historian and former
university lecturer Maina v;a Kinyatti fled to Tanzania and
eventually emigrated to the United States. Kinyatti, who
reported being beaten and otherwise mistreated in prison, had
completed a 6-year jail term in October 1988 for possession of
an allegedly seditious document. In June President Moi
publicly announced a general amnesty and pardon to Kenyan
dissidents abroad who were willing to return home. Two such
exiles returned in 1989.
With regard to forced or compulsory labor, see Section 6.c.
e. Denial of fair Public Trial
Kenya's legal system, as defined in the Judicature Act of
1967, is based on the Kenyan Constitution, laws passed by
Parliament, and conunon 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 a Court of Appeals, a High Court, and
two levels of magistrates' courts where most criminal and
civil cases originate. Civilians are tried in civilian
courts, and verdicts may be appealed to the Kenyan High Court
and ultimately to the Court of Appeal. Kenyans do not have a
right to legal counsel 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 appoints the Chief Justice and appoints High
Court judges with the advice of the judicial service
commission. The President also appoints the Attorney
General. His power over the judicial system has steadily
increased through constitutional amendments adopted in 1986
and 1988, one of which gave the Government greater control
over the firing of judges. Among other things, these changes
give the President authority to fire the Attorney General, the
Auditor General, and High Court judges. Many observers in
Kenya and abroad have described these amendments as
undermining the independence of the judiciary.
The constitutional right to a fair public trial has been
circumscribed in many instances, notably in political/security
cases such as those involving alleged Mwakenya or Kenya
Patriotic Front (KPF) members. In cases involving the PPSA,
the courts have upheld the constitutionality of properly
executed actions taken under the authority of that Act but
have limited themselves to ensuring compliance with procedural
provisions. In cases without political implications the right
to a fair public trial is normally observed, although long
delays and postponements are common.
In 1989 there were 8 public convictions involving security
charges. In the first public prosecution in 1989 involving
membership in a subversive organization (in this case, the
KPF), Zachary Kariuki Paul Mwati admitted in court to three
charges of spying on Kenyan military installations, receiving
money from self-exile Koigi wa Wamwere, and sending seditious
documents to the British Broadcasting Corporation (BBC).
Mwati was held incommunicado before appearing in court. As in
most security-related trials of previous years, his conviction
was based on his "confession" that he was a KPF member.
Unrepresented, Mwati was sentenced to 4 years.
In March Joseph Andrew Kibagendi and James Ondari Omariba were
given 9 months each after being tried and convicted of
possession of a subversive document. Both men had legal
representation. Also, in March Daniel John Mwangi Theuri was
jailed for 20 months on his confession in court that he joined
the KPF. He was unrepresented.
In October Dixon Jowe Alieth, unrepresented by legal counsel,
was sentenced to 6 years in jail for possessing seditious
publications. Also in October, prison warden Wilson Awuor
Angonga was jailed for 4 1/2 years for membership in the
underground movement Mwakenya. Angonga, who also was not
represented by a lawyer, was held incommunicado for
approximately 4 weeks before he pled guilty.
In November former primary school teacher Benjamin Andayi
Muhehe was sentenced to 12 months in jail after confessing to
a charge of leaving Kenya illegally to obtain military
training from a clandestine movement. Muhehe was held
incommunicado for more than a month. He, too, apparently was
not represented by a lawyer. Also in November, former
community development officer Stephen Mulili Kituu pled guilty
and was sentenced to 4 years for membership in Mwakenya.
Kituu, who had been held for 1 month before being sentenced,
was apparently not represented by legal counsel.
The draft version of the advocates bill which went before
Parliament in December contained no requirement that lawyers
obtain licenses. The Law Society of Kenya had argued
vigorously against the 1988 Government proposal that lawyers
be licensed. However, in December, the Kenyan press reported
that KANU planned to affiliate the Law Society to the ruling
party. The Law Society objected strongly to the proposed
affiliation, and President Moi later said that KANU had no
plans to merge the two organizations.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
Searches without warrants are allowed under the Constitution
in certain instances "to promote the public benefit,"
including 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, as have the
residences of foreign missionaries. Security forces
reportedly employ a variety of surveillance techniques,
including electronic surveillance and a network of informers.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Although the Constitution provides for freedom of speech and
press, the exercise of these rights is restricted. No
criticism of the President is tolerated in any form. Kenya's
sedition laws have been criticized in Kenya and abroad for
failing to distinguish between violent and nonviolent
opposition to the Government. The threat of detentions and
prosecutions have been used to restrict freedom of speech and
press. For example, in April three Standard newspaper
reporters were picked up by police on separate occasions in
and around Embu, in apparent response to their coverage of a
political controversy involving KANU and a local bishop.
In 1989 there was an increasing pattern of arrests on charges
of behaving in a manner "likely to cause a breach of the
peace," often in connection with statements critical of the
Government or government officials. For example, in June a
man was jailed for 6 months for shouting in a bar that the
Government had failed to assist two self-exiles. In September
a high school business teacher was jailed for 3 months for
saying that the head of the civil service should "drop dead"
as he was misadvising the President.
Parliament rarely debates national issues such as foreign
policy. Government and KANU action against outspoken
politicians, clergymen, and lawyers, as well as the detention
provisions of the PPSA and the 1988 amendment, discourage
public exchange of views on political topics the Government
considers sensitive. Sharp government criticism of churchmen
who opposed government policies continued in 1989 (see Section
2.C.). At the end of the year, the leader of the Green Belt
movement was heavily criticized by politicians and government
officials for her criticism of the plan to construct a
60-story building on open space in central Nairobi. The
movement was evicted from its government-owned headquarters on
1 day's notice (see also Section 5).
The single television and all radio stations are owned and
controlled by the Government. In June after the Daily Nation
newspaper was barred by Parliament from covering house
proceedings, the Voice of Kenya Press Review program dropped
its coverage of Nation news stories, allegedly on State House
instructions, for the 4-month period the Nation was barred.
Previously the Press Review program had highlighted main
articles in all three English-language dailies.
Privately owned newspapers and journals are published in
Kenya, and newspapers, magazines, and books from abroad are
readily available. There is no systematic censorship of the
press, although the press practices self-censorship and
confines its commentary within usually understood but legally
undefined limits. The press criticizes some government
policies and occasionally government officials but never the
President.
At times the Government intervenes to tell editors how to
handle sensitive stories. As former Assistant Minister in the
now-defunct Ministry of National Guidance and Political
Affairs Shariff Nassir commented, "although there is press
freedom in Kenya, editors should not be left to write whatever
they want." In December 1988, Financial Review editor Peter
Kareithi was picked up from his office by plainclothes police,
locked up for several hours, questioned, and then released.
Later, in April 1989, this popular weekly news/economics
publication was banned after it published controversial
articles on the Government's economic policies. Financial
Review Limited, publishers of the magazine, were also
proscribed from publishing under any other trade name.
In August the Government banned another magazine--the Nairobi
monthly Development Agenda. The magazine, only two issues
old, focused on the economy and current events. Unlike the
negative publicity which preceded the banning of the Financial
Review, the banning of Development Agenda occurred with no
warning; no Kenyan, official or private, had publicly
criticized the publication prior to its banning, and the
Government made no effort to explain the banning or offer any
justification for it.
The most salient example of curbs on press freedom occurred in
June when Parliament barred for 4 months the largestcirculation
English newspaper, Daily Nation, from covering
proceedings of the National Assembly. Parliamentary
criticism, which appeared to be well-coordinated, echoed
criticisms which had been made by the President several weeks
earlier. Members of Parliament (all of whom belong to KANU)
debated accusations against the paper's owners and editors,
including biased, inaccurcte, and critical reporting; foreign
ownership (with a subtheme of encouraging foreign reporting
against Kenya's interests) and an unduly high percentage of
ethnic Kikuyu management.
In August, after a year of court delays, the Government
conceded the appeal of Bedan Mbugua, former editor-in-chief of
the proscribed Christian magazine Beyond (banned last year).
Mbugua had been charged and convicted of failure to file
annual financial returns. However, it was widely believed
that the real reason for the banning was his publication of an
article criticizing queue voting and KANU's conduct during the
1988 elections. Mbugua had served 14 days of his 9-month
sentence before being released on bail pending appeal. The
judicial procedure followed in Mbugua 's case was highly
irregular. Rather than make a determination on the merits of
the appeal, the deputy public prosecutor requested that the
court set aside the conviction and sentence. Beyond magazine
remained banned at the end of the 1989.
More than 100 foreign journalists representing Western news
organizations are based in Kenya. In 1989 the Government
continued to criticize the foreign press for its coverage of
Kenyan issues. Local reporters increasingly came under attack
as well.
While there are no legal restrictions on academic freedom,
there are a number of de facto ones. The Government has
employed students and professors to monitor classroom
exchanges. Past detentions and trials of students and
professors for alleged seditious activities have inhibited
academic inquiry that might be construed as critical of the
Government.
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, and politicians have been
arrested for violations of this Act. Although licenses to
hold public meetings are rarely denied, Bishop David Gitari
had difficulty obtaining permits to conduct fundraising
meetings for his church. Bishop Okullu was roundly criticized
by the Government for supporting the right of students to
protest 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. Some groups
have had difficulty obtaining registration or have been
deregistered. With the exception of civil servants, who are
required to join KANU, Kenyans are not legally bound to join
any political organization. Although the party and the
Government emphasize that it is voluntary, KANU party
membership is a prerequisite for voting and holding public
office. No other political party is permitted.
For a discussion of freedom of association as it applies to
labor unions, see Section 6. a.
c. Freedom of Religion
Kenya has no state religion. Freedom of worship is
acknowledged in the Constitution and generally allowed.
Foreign missionaries of many denominations are permitted to
work in Kenya, though on occasion the President and other
officials have publicly questioned the motives of certain
missionaries and accused them of interfering in politics.KENXA
Four American missionaries were deported in 1989. The four
were affiliated with Associated Christian Churches of Kenya
(ACCK) , a U.S. -based missionary group which was deregistered
in 1988. The Government maintained that the four missionaries
were working in Kenya illegally.
Churches new to Kenya must obtain government approval to be
registered. The Church of Jesus Christ of Latter-Day Saints
has tried without success for 8 years to obtain registration.
In 1987 the Jehovah's Witnesses were deregistered but
continued to hold services under a stay order from the High
Court.
There is no religious requirement for voting or holding
office. Clergymen in Kenya have spoken out on political as
well as religious issues from their pulpits. In 1989 senior
officials sharply criticized certain clergymen, including
Anglican bishops Alexander Muge, Henry Okullu, David Gitari,
and Presbyterian Church of East Africa Reverend Timothy Njoya
for making political statements. In April, 30 armed thugs
raided Bishop Gitari 's home, and KANU youths disrupted a
sermon given by the prelate. The attacks came after Gitari
referred in a sermon to the blatant rigging of the February
elections in Kiharu district. The results of a State
House-commissioned police inquiry into the attack on Gitari 's
house, which allegedly found that the raid was organized by a
local government official, were not made public. In August
Reverend Timothy Njoya was summoned to appear before the Nyeri
District security committee and questioned for nearly 4 hours.
d. Freedom of Movement within the Country, Foreign
Travel, Emigration, and Repatriation
Although most Kenyans can travel freely within the country,
the Government has in the past used the PPSA to limit the
movement of persons deemed to be dangerous to the public
security. Persons traveling by road to sections of
Northeastern Province are required, due to the prevalence of
highway banditry in the area, to travel in convoys headed by
Kenyan police.
Kenya does not generally prohibit emigration of its citizens
but on occasion does prevent travel abroad, usually by critics
of the Government. In particular, it sometimes refuses to
return passports or issue new ones to people detained under
the PPSA for some time after they are released. The
Government does not regard the issuance of passports to
citizens as a right and reserves the authority to issue or
deny passports at its discretion. In 1989 lawyers Gibson
Kamau Kuria and Paul Muite were still unable to obtain their
passports. Kuria, who had been jailed for 9 months in
previous years after defending three political detainees, has
been forbidden to leave Kenya since his arrest 2 years ago
(see Section 4 ) .
During 1989 there was no known instance in which citizenship
was revoked for political reasons. In the case of Idris
Osman, an ethnic Somali, the Government alleged that he had
obtained his Kenyan passport by illegal means (see Section
l.d.). In December two additional ethnic Somali businessmen
were deported under similar circumstances.
In 1989 Kenya continued to accept some refugees for permanent
resettlement, though its acceptance rate dropped from 90
percent in 1988 to under 10 percent in the first half of 1989,
subsequently increasing to 50 percent for the rest of 1989.
In 1989 the Kenyan Government stopped accepting virtually all
Ugandans for permanent resettlement. On April 5, Kenyan
officials entered a refugee camp outside Nairobi, rounded up
238 Ugandan refugees, and forcibly returned them to Uganda.
Although the United Nations High Commissioner for Refugees
(UNHCR) protested the deportations, the Kenyan Government
publicly maintained that the refugees had volunteered to
return to Uganda.
In September an estimated 3,000 Somalis fled into northeastern
Kenya near the town of Liboi to escape fighting around the
Somali border town of Doble. In late September, 60 Somali
refugees were involuntarily returned to Somalia. During this
time the Government refused to permit the UNHCR and the Kenyan
Red Cross to travel or provide food to the Liboi area. In
November the Government reversed its decision and decided to
permit the UNHCR and the Red Cross to travel to the area. By
the end of the year unfavorable weather conditions, an
impassable road, and a flooded airstrip prevented UNHCR travel
to the border.
In an effort to control the refugee presence (around 12,000),
the Government initiated a series of procedures which confined
mandated refugees (i.e., refugees not accepted by Kenya and
awaiting resettlement to a third country) to the Thika refugee
camp. The Government also started limiting refugee cards to 2
years' duration rather than giving refugees indefinite or
permanent resettlement.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Citizens cannot change the system of government in Kenya or
replace the party in power through the electoral process. The
Constitution prohibits formation of any political party other
than KANU, and President Moi and a small group of advisers
control all major policy decisions within the Government and
the party. Since 1964, when Kenya adopted a presidential
system, the party's candidate for President has been
unopposed. President Moi was reelected in 1988 to a third
5-year term. Numerous candidates compete in party and
parliamentary elections—also held every 5 years—but all
candidates must be KANU members, and the national party
headquarters has exclusive authority to approve candidates for
political office.
In 1988 KANU adopted a controversial queuing system for
electing KANU nominees. It requires voters to line up in
public behind photographs of the candidates. Only those
voters who have KANU membership cards are permitted to
participate in the nomination process. KANU members comprise
at most 50 percent of the voting age population. Candidates
who receive 70 percent of the vote in the queuing stage are
automatically elected without having to contest the
second-stage secret ballot election. In the 1988 elections,
one-third of the candidates were elected in this manner.
The public nature of the queuing process continues to raise
obvious questions about voter intimidation. In the 1988
elections none of the candidates known to be critical of
government/party policies was elected. Allegations regarding
the abuse of secret ballots continue as well. There were 24
petitions filed contesting the results of the 1988 races. The
High Court did not begin hearing the petitions until 1 yearKEfiXA
after the elections: 10 were withdrawn by the petitioners, 11
were dismissed by the High Court on technical grounds, and 3
were won by the petitioners.
KANU party branches, which often take their cues from State
House, have the power to suspend or expel members from the
party. There are no clear guidelines for activities requiring
disciplinary action. Thus party officials wield significant
power and can remove their political opponents from the
party. Since party membership is required to hold public
office, expulsion from KANU signifies political death, at
least for the short term. Expelled officials may eventually
be allowed back into the party but then are expected to adhere
to party policies.
In an extensive June 1989 KANU purge, 14 party members,
including former Vice-President Josephat Karanja, several
former cabinet ministers and 4 sitting Members of Parliament
were expelled from the party, thereby precluding their
participation in Kenyan politics. By-elections were held to
fill six vacant parliamentary seats. In two constituencies,
the voting was marred by violence and allegations of polling
irregularities. In two others, it was characterized by voter
apathy and extremely low turnouts.
The February by-election in Kiharu (necessitated by a
resignation from Parliament in December) was perceived by many
Kenyans as the most blatantly unfair of recent political
contests. In that by-election G.M.K. Mweru was declared the
winner (over Julius Kiano) with over 70 percent of the queue
vote in the party election, although the press reported
credible accounts which indicated that Mweru actually polled
no more than 800 votes to Kiano's approximately 9,500. (Kiano
was later named to head the Kenya Broadcasting Corporation.)
Local KANU officials who spoke out against the election
results later recanted after being threatened with expulsion
from the party. Despite protests by local KANU party and
church officials and petitions circulated among voters, the
results in this election were sustained.
The Sabatia seat left open by Moses Mudavadi's death was
filled by Mudavadi's son, Musalia Mudavadi, without an
election. KANU party officials exhorted voters to elect the
young Mudavadi unopposed. The candidates who had voiced an
interest in the seat backed out of the race, thereby paving
the way for Mudavadi to take the seat without a contest.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government reacts negatively to criticism of its human
rights record and discourages Kenyans from providing outside
human rights groups with information. President Moi has
publicly attacked Amnesty International and other groups for
"meddling" in Kenya's internal affairs.
In December 1988, two American lawyers from the Lav/yers
Committee on Human Rights sought and obtained high level
appointments with government officials to discuss human rights
concerns. In March a delegation from the Robert F. Kennedy
Memorial Center visited Kenya to present lawyer Gibson Kamau
Kuria with the RFK human rights award. The group met with
President Moi and other high-ranking government officials and
was able to move about freely in Kenya to speak to human
rights advocates. Although the presentation of the award was
freely conducted before a large audience, the press conference
given by Kerry Kennedy on their last day provoked a series of
virulent anti-Kennedy parliamentary speeches and a week-long
anti-Kennedy press campaign.
Several Kenyan organizations, such as the Law Society of Kenya
and churches, address issues related to human rights, but none
focuses exclusively on human rights concerns. Kenya has not
ratified the Organization of African Unity's Human and
People's Rights Charter, adopted in 1981 in Nairobi.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
Kenya is a diverse country that does not mandate legal
discrimination on the basis of race, sex, religion, language
or social status. However, in November the Government
required all Kenyans of ethnic Somali origin to go through a
screening program designed to weed out illegal Somali aliens,
who, because the international border traverses areas
traditionally inhabited by ethnic Somalis, are
indistinguishable from Kenyan nationals of Somali origin. The
Government stated the screening was triggered in part by
security-related incidents (game park poaching and attacks on
tourists) in areas accessible from Somalia. As part of this
campaign the Government required Kenyan ethnic Somalis to
carry an additional form of identification stating that they
have proven themselves to be Kenyan citizens. They are the
only ethnic group in Kenya required to do so. Some ethnic
Somalis have refused to participate as a matter of principle.
The clergy, the Law Society of Kenya, and members of the
ethnic Kenyan Somali community criticized the screening
process as discriminatory and illegal.
Members of all ethnic groups may run for office, and ethnic
representation at the minister and assistant minister level is
broad. Twelve of Kenya's ethnic groups are represented in the
Cabinet. Members of 18 indigenous ethnic groups and 1
Caucasian hold positions at the assistant minister level.
The Asian community, numbering about 65,000, accounts for a
disproportionate share of the nation's economic wealth and
output. The Government's policy of Africanization of the
economy has resulted in some Asian emigration. Kenya amended
its citizenship law in 1984, depriving some Asians and
Europeans of citizenship. Under present law, persons born in
Kenya of non-Kenyan parents can no longer claim citizenship.
There is no legal discrimination against women, but
traditional culture and attitudes have long prescribed limited
roles for women. For example, in responding to criticism of
the Government by an environmental group (led by a female
professor) President Moi in December stated that the African
tradition is for women to respect men. Women may own property
and businesses. Women's roles are particularly restricted in
rural areas where they account for 75 percent of the total
agricultural work force.
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 (in contrast to much customary law
which favors the eldest male children).
Violence agains women, especially wife beating, has emerged in
Kenya as a fairly widespread and growing problem, according to
many doctors. While there are legal remedies, police and
judicial authorities are sometimes reluctant to intervene or
prosecute husbands who physically abuse their wives. The
Government has done little to address this issue beyond
general support to women's organizations. In the case of
female circumcision, which is still practiced by some Kenyan
ethnic groups and is not illegal, the Government officially
discourages the practice but leaves it to women's groups to
actively oppose female circumcision through health education
programs. In December President Moi publicly asked Kenyan
communities which still circumcise women to stop the
practice. Moi called female circumcision "outdated" and said
it was "unacceptable in modern Kenya."
Section 6 Worker Rights
a. The Right of Association
Civil servants, who comprise 21 percent of total wage earners
(and 41 percent of public sector wage earners) in Kenya, have
been barred from forming or joining unions since President Moi
deregistered their union in the early 1980's. Moreover, since
1985 all civil servants have been required to be members of
the ruling party, KANU. Other workers are, by law, free to
form and join unions but, except for the Kenya National Union
of Teachers (KNUT) , all unions must belong to the single trade
union confederation. The Central Organization of Trade Unions
(COTU) . KNUT is a separate organization that maintains
"fraternal" relations with COTU. During 1989 the Government
considered affiliating COTU to the ruling KANU party. In May
1989 the Government decided that COTU and KANU should
"cooperate" rather than be affiliated. The Government, COTU,
and KANU agreed that there should be no interference by the
party in the collective bargaining process.
The Committee on Freedom of Association (CFA) of the
International Labor Organization (ILO) has discussed the ban
on civil service trade unions for the last several years. In
early 1989 the CFA expressed concern at the length of time the
Government was taking to follow through on the implementation
of "measures to permit the establishment of organizations
through which the Kenyan civil servants will be able to pursue
normal trade union activities" and asked for an update on the
plans originally promised in 1987.
The Government and KANU exercise considerable influence over
COTU and through COTU the entire trade union movement. The
President has the right to appoint or remove union leaders in
COTU for the positions of the Secretary General, the Deputy
Secretary General, and the Assistant Secretary General, though
it should be noted that the President has not exercised this
right and has permitted the unions to select COTU leaders.
Union leaders are discouraged but not prohibited from holding
political positions. Currently Sam Muhanji, the General
Secretary of the Kenya Union of Food, Commercial, and Allied
Workers (the largest union in Kenya) and W. Ndumbe, the
General Secretary of the Local Government Workers Union are
Members of Parliament.
The only workers prohibited by law from striking are members
of the armed forces, the police forces, the prison service,
and the national youth service. Other workers have the right
to strike 21 days after a written report of the dispute is
submitted to the Minister of Labor. However, this right is
limited by the broad power given the Minister by the Trade
Disputes Act whereby the Minister has the authority to require
the two parties to go to the industrial court for mandatory
arbitration of their differences. Public sector workers are
not specifically prohibited from striking, but the Minister of
Labor enjoys broad authorities to prohibit public sector
strikes. In 1988 there were 92 strikes, mostly illegal
wildcat work stoppages occurring at a local level over
specific issues, often without permission from the national
union and often without providing the Minister with written
notification. The Government has not prosecuted trade
unionists involved in these wildcat strikes unless criminal
activity such as vandalism has taken place. The last public
sector strikes in Kenya occurred in 1986 when there were two
strikes involving 41 workers with 35 workdays lost.
COTU is affiliated with the Organization of African Trade
Union Unity and maintains relations, though not affiliation,
with the International Confederation of Free Trade Unions
(ICFTU). It sends observers to meetings of the ICFTU and the
Communist-controlled World Federation of Trade Unions.
b. The Right to Organize and Bargain Collectively
Collective bargaining is protected by law and is freely
practiced throughout the country. The only government
restriction on collective bargaining is that wage settlements
not exceed 75 percent of the rate of inflation. Between 300
and 400 collective bargaining agreements are registered with
the Government every year and cover most of Kenya's
nonagricultural wage sectors. Most public sector workers are
covered by collective bargaining agreements but not the large
numbers of civil servants (and some university professors
defined as "management"). Although no statistics are
available, it is estimated that over 50 percent of Kenya's
wage workers fall under a collective bargaining agreement,
though less than 20 percent are union members. Kenya does not
permit closed shops, and unions have been complaining for
years over the problem of "free riders." Although no export
processing zones exist at the moment, the Government plans to
open two in the near future. No restrictions on worker rights
are planned in these zones.
The Government promotes voluntary negotiations between
employers' and workers' organizations and encourages workers
to join unions. Both in law and practice, union officials are
protected against discrimination or penalties based on their
union activities. There is an industrial court that would
hear such complaints, although there have been none in recent
years.
c. Prohibition of Forced or Compulsory Labor
Under the Chief's Authority Act, a local authority can require
the performance of limited communal activities for the benefit
of the local community. While this provision is rarely
invoked, the ILO Committee of Experts has called on the
Government to bring this Act into conformity with ILO Forced
Labor Conventions (to which Kenya subscribes) and has noted
that talks are continuing for the introduction of the
necessary amendments. There are a number of provisions in
other legislation (e.g.. Penal Code, Public Order Act,
Prohibited Publications Order, Merchant Shipping Act, and the
Trade Disputes Act) which the Committee has found to be
inconsistent with the Conventions.
d. Minimum Age for Employment of Children
The legal minimum age for employment is 16. Employment and
working conditions in some occupations are limited for those
under 18. The minimum age regulations do not apply for
agricultural employment, where many children work on family
farms, or for domestic work. Although enforcement of child
labor laws is lax, child labor is not a problem in the
industrial sector or in dangerous occupations given Kenya's
high unemployment rate. The Ministry of Labor has difficulty
enforcing minimum age laws.
e. Acceptable Conditions of Work
Over 80 percent of the Kenyan work force does not hold jobs in
the wage sector and is not covered by minimum wage law. For
those covered, there is a complicated minimum wage scheme
which is divided by age, locale, and occupation. Currently
the minimum wage (last revised June 1, 1989) ranges from
$14.50 per month for a rural unskilled worker under age 18 to
about $82 dollars per month for a cashier in Nairobi or
Mombasa. Wage earners get additional benefits including a
15-percent supplement for housing which is not included in the
above minimum wages. A Nairobi wage earner making $50 per
month would have a great deal of trouble providing for his
f ami ly--which most likely is very large since Kenya has one of
the highest birth rates in the world. Many families
supplement a wage earner's salary by selling agricultural
produce or by having additional family members in the work
force.
The standard legal workweek in Kenya as defined by the
regulation of wages order is 52 hours over 6 days, except for
night duty workers who can be employed for up to 60 hours per
week. Agricultural workers are exempt from this order.
Kenyan labor law requires weekly (not daily) rest periods,
full payment for public holidays, 21 days of paid annual leave
per year, sick leave (7 days of full pay and 7 additional days
of half pay) and 2 months at full pay of maternity leave,
though women using maternity leave lose their annual leave for
that year. Observance of these regulations is mixed and the
Ministry of Labor, which has the obligation to enforce them,
acts on the basis of complaints, which are few.
The Government does set health and safety standards for
factories, the construction industry, and docks. However, the
law does not cover the large agriculture work force where many
workers are exposed to dangerous pesticides. The Government
is considering a revision of the "factories act" which will
expand the act's coverage into the agricultural sector and
will update its standards to include regulating the use of new
chemical products.
Enforcement of health and safety standards remains a problem.
Safety and health inspectors have the legal power to "enter,
inspect, and examine, by day or night" a factory where he or
she has "reasonable cause" to believe there may be a
violation. Inspectors usually respond to worker complaints
and try to enforce standards, but rarely do they make surprise
inspections of factories. The "factories act" does not
contain any language protecting workers who file complaints
