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Kenya --Human Rights

The thirteen sections of Kenya's constitution are known as the Bill of Rights (BOR). These sections were drafted at the constitutional conference held in London in 1962. The BOR aims to provide comprehensive protection of citizens' fundamental rights and freedoms. The document affirms both substantive and procedural rights, together with traditional political and civil liberties. Citizens are afforded protections against inhumane treatment in prison and against arbitrary search and entry of premises. Freedoms of conscience, thought, and religion are affirmed, as are freedom of expression and assembly, including the right to form labor unions and other associations. There are strong protections for property rights. The Bill declares that no person shall be discriminated against on grounds of "race, tribe, place of origin or residence or other local connection, political opinions, color, or creed." These protections do not, however, apply to non-citizens. Nor do they extend into personal matters including marriage, divorce, and burial, nor to matters settled by customary law.

The BOR enjoyed a special status in the Kenyan constitutional system that was still unchallenged by 1975. The Kenyatta government continued to allow constitutional procedures in its legislative and executive acts. Political freedoms were increasingly legally curtailed. A constitutional change in 1966 brought a preventive detention law, which, when passed into law, allowed the government to detain persons or restrict their movements if the minister of home affairs "is satisfied that it is necessary for the preservation of public security." Charges against such persons need not be revealed, nor are such persons guaranteed the right to communicate with lawyers or family members. There is no guaranteed recourse to the courts, and the length of detention is not limited by law. Between 1966 and 1969, thirteen people were detained under this act, all of whom were associated with the KPU, the opposition party led by the former vice president, Oginga Odinga.

During the early 1970s President Kenyatta became increasingly reclusive and autocratic. When he died in August 1978, Daniel Arap Moi, the vice-president, became president.[1] Four years later, a part of the Kenyan air force attempted a coup in Nairobi. Following the attempted coup, some 2000 air force personnel and 1000 civilians were detained. As a precautionary measure, the government disbanded the air force and closed the university. In March 1986 Moi's government revealed that it had detained several Kenyans under the provisions of the Public Security Act, and that others were to face charges of publishing seditious documents. However, international criticism of President Moi's government intensified as further human rights abuses were uncovered. In early June 1989 President Moi released all political prisoners being detained without trial, and extended amnesty to dissidents living in exile. In February 1990 the minister of foreign affairs and international co-operation, Dr. Robert Ouko, died in suspicious circumstances, prompting allegations that the government had cooperated in murdering him. These allegations led to riots after the minister's funeral in protest against the government in Nairobi and in the western town of Kisumu.

In the early 1990's a broad alliance of intellectuals, lawyers and church leaders began to increase pressure on the government to end KANU's political monopoly and to legalize political opposition. In early July, 1990, Moi ordered several alliance leaders arrested. Rioting ensued in Nairobi and in the Kikuyu-dominated Central province. More than 20 people were killed, and more than 1,000 rioters arrested. In March, 1991, a prominent human rights lawyer and magazine editor was arrested and charged with sedition for accusing President Moi of promoting the interests of his native Kalenjin tribe and of having published the manifesto of the banned National Democratic Party (NDP) party. In late September, 1991 a judicial inquiry into the death of Dr. Ouko presented evidence that he had been murdered. In mid-November, 1991, several members of the Forum for the Restoration of Democracy (FORD) were arrested just prior to a pro-democracy rally in Nairobi during which protesters were dispersed by security forces. The Kenyan authorities were widely condemned for suppressing the demonstration, and, as a consequence, most of the detained opposition figures were subsequently released. In early December, 1991 a special conference of KANU delegates chaired by President Moi yielded to domestic and international pressure for reform and for the introduction of a multi-party political system. When western Kenya saw tribal clashes in 1992, and as many as 2,000 people were reportedly killed and some 20,000 made homeless, opposition leaders accused the government of inciting the violence in an effort to sabotage steps towards a multi-party political system.[2]

Since Kenya adopted a multiparty political system, national and international human rights organizations have voiced continued criticism of the country's human rights record. Kenyan authorities have recently responded with legal reforms. These have included acceding in early 1997 to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and establishing a Standing Committee on Human Rights. However, allegations of torture continue, and Kenya's Standing Committee on Human Rights, an organization with a restricted mandate, has yet to publish a report. In December, 1991, when Kenyans amended the Constitution to allow for a multiparty political system, one intention had been to advance rights to freedom of association and expression. In practice, however, these freedoms continued to be restricted, contrary to international standards. In the 1997 presidential and parliamentary elections, opposition parties had their activities restricted and their rights of free expression and association limited. Pro-democracy rallies in various regions of Kenya were violently broken up by municipal police, riot squads, the General Service Unit and the Administrative Police. In Nairobi, City Council askaris (council security guards) were enlisted to put down the rallies, contrary to Kenyan law. Their intervention left at least nine people dead. KANU youth members were also called on to disperse forcibly a peaceful pro-democracy demonstration. Since KANU supporters may meet and demonstrate freely, observers fear that widespread clashes with pro-reform activists will be increasingly likely. In April, 1997, opposition Members of Parliament were repeatedly targeted by authorities.

The results of elections of 1992 were disputed by several election-monitoring groups. The National Election Monitoring Unit (NEMU) concluded that "the December 1992 Elections were not free and fair." The Commonwealth Observer Group concurred, though its criticisms were not as comprehensive. Amnesty International has published numerous reports alleging that human rights defenders have been threatened, harassed, beaten or arbitrarily arrested for non-violent activities. Meetings have been disrupted and party premises raided. Journalists reporting on political events have been assaulted by police and by members of the KANU youth wing, and have endured arrest and confiscation of cameras and film. Opposition newspapers have been impounded and printing presses put out of action.

There are some protections against police intervention under Kenyan law, which gives police broad powers of arrest without warrant if they suspect a person of having committed or being about to commit an offense. Nevertheless, police have often exceeded these laws, for example, by arresting wives, sisters, and daughters of alleged criminals and political prisoners. Refugees have also suffered arbitrary arrest and deportation. In July, 1996, for example, over 900 Somali refugees were forcibly returned to Somalia only six days after having sought asylum in Kenya. In March 1996, seven legitimate Ethiopian refugees and several others were illegally detained and threatened with deportation. Following national and international appeals, they were eventually released. Many observers charge that the Kenyan justice system has failed to defend its people's basic rights. In particular, charges are frequently made that the judiciary is subjected to undue government pressure and interference. For example, judges are appointed to the High Court and Court of Appeal Judges by the President on the advice of the Judicial Services Commission who are themselves appointed by the President. Magistrates who act independently and impartially have been transferred to outlying stations. In September, 1994, for example, the Nairobi Chief Resident Magistrate was transferred to Kitui, 130 km. east of Nairobi, after he refused to accept the confessions of six men extracted under torture after a raid on the Ndeiya Chief's Camp. The Magistrate censured the police, directing the Commissioner of Police to take immediate action against the men responsible for the torture, stating that "it would be good practice where matters of torture are apparent in the course of a trial to direct that investigations be conducted by the Commissioner of Police." In a recent report titled "The Legal System and Independence of the Judiciary in Kenya", the International Bar Association noted that "whatever judicial independence there may be in Kenya, there certainly, with few exceptions, does not seem to be a proper degree of independence of the judiciary from the main executive arm". The report goes on to charge that President Moi's intervention in the Kenyan judiciary has contravened the United Nations Basic Principles on the Independence of the Judiciary.

[1] Kaplan, Irving & 1976. Area Handbook for Kenya, Second Ed., U.S. Government Printing Office: Washington, D.C. pp. 191-92.

[2] 1992. Africa South of the Sahara, pp. 439-41.

For Further Reading:
Africa Watch. 1991. Kenya: Taking Liberties. New York: Human Rights Watch.
Africa Watch. 1993. Divide and Rule: State-Sponsored Ethnic Violence in Kenya. New York: Human Rights Watch.

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