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 &
et.al. 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.