Kenya -
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
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 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
organizations have voiced
continued criticism of the country's
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 .
However, allegations of torture continue,
and Kenya's Standing Committee on
, 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
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: Watch.
Africa
Watch. 1993. Divide and Rule: State-Sponsored
Ethnic Violence in Kenya. New York:
Watch.
Resources researched
by
Abdelaziz Marhoum, & David A. Samper
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