Section 2. Respect for Civil Liberties
The law provides for freedom of expression, including for members of the press and other media, but the government sometimes restricted this right. Government failure to investigate or prosecute attacks on human rights defenders and peaceful protesters led to de facto restrictions on freedom of assembly and association.
Freedom of Expression: In 2017 a branch of the High Court declared unconstitutional the section of the penal code that criminalized “undermining the authority of a public officer,” ruling the provision violated the fundamental right of freedom of expression. Other provisions of the constitution and the law prohibiting hate speech and incitement to violence remained in force. The Judicial Service Commission, however, reported many cases were withdrawn due to failure of witnesses to appear in court or to facilitate mediation. Cases that did proceed often failed to meet evidentiary requirements.
Freedom of Expression for Members of the Press and Other Media, Including Online Media: The government occasionally interpreted laws to restrict freedom of expression for members of the press, and officials occasionally accused international media of publishing stories and engaging in activities that could incite violence. Two laws give the government oversight of media by creating a complaints tribunal with expansive authority, including the power to revoke journalists’ credentials and levy debilitating fines. The government was media’s largest source of advertising revenue and regularly used this as a lever to influence media owners. Most news media continued to cover a wide variety of political and social issues, and most newspapers were free to publish opinion pieces criticizing the government.
Sixteen other laws restrict media operations and place restrictions on freedom of expression for members of the press. As of year’s end, the government had not issued regulations required to implement fully the 2016 Access to Information Act, which promotes government transparency, and civil society organizations reported government departments failed in some instances to disclose information.
Violence and Harassment: Journalists alleged security forces or supporters of politicians at the national and county levels sometimes harassed and physically intimidated or assaulted them. The government at times failed to investigate allegations of harassment, threats, and physical attacks on members of media or failed to provide victims access to information about their cases. The NGO Article 19 Eastern Africa reported there were 51 attacks against journalists between May 2020 and April, including nine female journalists, compared with 59 such incidents during the prior year. Attacks included threats, intimidation, online and offline harassment, invasion of media houses, and physical assaults resulting in some journalists seeking self-exile or engaging in self-censorship.
In March journalists Regina Wangui, Kigotho John Mwangi, Evans Asiba, and Elijah Cherutich sustained serious injuries from attacks by supporters of the United Democratic Alliance party while covering voting in a by-election at Milimani Primary School in Nakuru County. One of the victims of the incident told Article 19 Eastern Africa that despite filing a report at the Nakuru central police station, there was no evidence of an investigation into the attacks, and that police were unable to provide information on the status of the case.
In April police assaulted nine journalists in Embu County who were covering a story regarding the forceful eviction by police officers of families from contested land allegedly belonging to the Tana and Athi River Development Authority (TARDA). In May police again beat and arrested three journalists reporting on a demonstration by residents who opposed a land demarcation claimed by TARDA.
In April police officers beat and arrested Milele FM journalist David Omurunga for violating the COVID-19 curfew while walking home after work, although he presented his national identification card and official press card.
Censorship or Content Restrictions: Mainstream media were generally independent, but there were reports by journalists that government officials pressured them to avoid certain topics and stories and intimidated them if officials judged they had already published or broadcast stories too critical of the government. There were also reports journalists were fired due to pressure from government officials seeking to sway editorial content. This caused some journalists to avoid covering issues or writing stories they believed their editors would reject due to direct or indirect government pressure. Journalists practiced self-censorship to avoid conflict with the government on sensitive subjects, such as the first family or assets owned by the Kenyatta family.
In April the director of criminal investigations (DCI) issued a summons to Royal Media Services journalists in response to the broadcast of a television expose on the sale and rental of firearms and other equipment from police officers. The DCI accused Royal Media Services of “abuse of media freedom” and called the program, which was shown on April 18, “a malicious attempt to discredit the National Police Service.”
Libel/Slander Laws: In 2017 a branch of the High Court declared unconstitutional a portion of the law that defined the offense of criminal defamation. Libel and slander remain civil offenses.
In August the cabinet secretary for the Ministry of Interior and Coordination of National Government threatened to sue political strategist Dennis Itumbi for libel stemming from a series of tweets in which Itumbi accused the cabinet secretary of stealing land. The cabinet secretary threatened legal action if Itumbi did not issue an unconditional apology and retract the tweets.
Although the constitution and law provide for the freedoms of assembly and association, the government sometimes restricted these rights.
See the Department of State’s International Religious Freedom Report at https://www.state.gov/religiousfreedomreport/.
d. Freedom of Movement and the Right to Leave the Country
The law provides for freedom of internal movement, foreign travel, emigration, and repatriation for citizens, and the government respected these rights, but it placed restrictions on movement for refugees.
In-country Movement: Refugees and asylum seekers were required to register with the Interior Ministry’s Refugee Affairs Secretariat (RAS), and the law reiterates strict implementation of the encampment policy. The RAS is responsible for refugee management in the country and continued to enforce the encampment policy requiring all refugees and asylum seekers to reside in the designated refugee camps, despite a 2017 Court of Appeal decision to the contrary.
Typically, the RAS issued newly arrived asylum seekers registration documents and movement passes requiring them to report to the camps. The government, however, declined to provide registration services to asylum seekers from Somalia, leaving an estimated 19,000 Somali asylum seekers vulnerable to harassment from law enforcement officials due to irregular immigration status in the country.
Refugees needing to move outside the designated areas (Kakuma camp, Kalobeyei settlement, and the Dadaab refugee camp complex) had to obtain a temporary movement pass issued by the RAS. Stringent vetting requirements and long processing times delayed the issuance of temporary movement passes in the camps.
Given the government’s COVID-19 prevention protocols for staff, the RAS continued significantly reduced client-facing activity in its Nairobi office, including reducing the registration of new arrivals, which further influenced refugee movement. The Nairobi RAS office also moved locations and underwent a period of closure for several weeks during the transition, further restricting refugees’ access to government officials responsible for providing documents and other services to refugees.
The law allows exemption categories for specific groups to live outside designated camp areas, including in protection and medical cases. The government granted limited travel permission to refugees to receive specialized medical care outside the camps, and to refugees enrolled in public schools. It made exceptions to the encampment policy for extremely vulnerable groups in need of protection. The government continued to provide in-country movement and exit permits for refugee interviews and departures for third-country resettlement, including during the COVID-19 pandemic.
Although there were no restrictions on movements of internally displaced persons (IDPs), stateless persons in the country faced restrictions on their movement (see section 2.g.).
The NGO Internal Displacement Monitoring Centre estimated there were 394,000 IDPs in the country and 3,900 new displacements at the end of 2020. Communities were sometimes displaced due to interethnic violence and conflict, as well as natural disasters such as flooding.
State and private actors caused some displacements, usually during the construction of dams, railways, and roads. There is no mechanism to provide compensation or other remedies to victims of these displacements. Additionally, some residents remained displaced during the year due to land tenure disputes, particularly in or around natural reserves (see section 1.e.).
Water and pasture scarcity exacerbated communal conflict and left an unknown number of citizens internally displaced, especially in arid and semiarid areas. IDPs generally congregated in informal settlements and transit camps. Living conditions in such settlements and camps remained poor, with rudimentary housing and little public infrastructure or services. Grievances and violence between IDPs and host communities were generally resource based and occurred when IDPs attempted to graze livestock. In the north IDP settlements primarily consisted of displaced ethnic Somalis and were targets of clan violence or involved in clashes over resources.
f. Protection of Refugees
The national government’s relationship with the Office of the UN High Commissioner for Refugees (UNHCR) worsened during the year, making it more difficult for UNHCR and other humanitarian organizations to provide protection and assistance to IDPs, refugees, asylum seekers, and other persons of concern. In March the government called on UNHCR to close all refugee camps in the country by June 30, 2022, citing national security concerns. The government requested UNHCR develop a plan of action to promote large-scale refugee repatriation within 114 days of its call to close all camps. The government previously called for the closure of Dadaab camp, but the High Court blocked the plan, determining it violated the principle of nonrefoulement and refugees’ constitutional right to fair administration action.
In April the High Court issued a temporary stay against the government’s call for camp closures but did not rule on the legality of the plan. The plan put into jeopardy the protection of approximately 440,000 camp-based refugees living in the country. In May the government and UNHCR launched a National Joint Commission to discuss the future of camp-based refugees in the country. The government said it would respect its international obligations but declined to commit to providing protections for refugees in the country or future new asylum seekers after the government-declared deadline of June 30, 2022.
The government issued a plan to implement the Comprehensive Refugee Response Framework (CRRF) in February, which would enhance refugee self-reliance, but the March announcement about camp closures stalled CRRF implementation indefinitely. In August President Kenyatta declined to assent to the National Assembly-approved Refugee Bill, sending it back to parliament for further revision. President Kenyatta subsequently signed the bill into law on November 17 following amendments by the National Assembly, which could help some refugees gain greater access to employment opportunities and improved freedom of movement.
Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to camp-based refugees. The government generally coordinated with UNHCR to assist and protect refugees in the Dadaab and Kakuma refugee camps and urban areas. The government had yet to register nearly 19,000 refugees and asylum seekers estimated to reside in Dadaab. South Sudanese refugees received prima facie refugee status.
According to UNHCR, as of September 30, the country hosted 534,622 registered refugees and asylum seekers, including 230,137 in the Dadaab refugee camp complex, 177,126 in Kakuma camp, 43,787 in Kalobeyei settlement, and 83,572 in urban areas. Most refugees and asylum seekers were from Somalia (274,499), with others coming from South Sudan (135,771), the Democratic Republic of the Congo (30,576), Ethiopia (20,668), and Burundi (7,160). Most refugees arriving in Kakuma were from South Sudan, and the refugee population in Dadaab was 96 percent Somali. New arrivals also included individuals from Burundi, the Democratic Republic of the Congo, Ethiopia, and Uganda. The tripartite agreement on voluntary repatriation between Kenya, Somalia, and UNHCR expired in 2018, although the spirit of the agreement and coordination remained.
The RAS, responsible for refugee management in the country, maintained a generally cooperative working relationship with UNHCR, which continued to provide it with technical support and capacity building.
Abuse of Migrants and Refugees: Police abuse, including detention of asylum seekers and refugees, continued, often due to a lack of awareness and understanding of the rights afforded to those holding refugee or asylum-seeker documentation or those who entered the country and were apprehended before obtaining asylum seeker documents. Most detainees were released after a court appearance or intervention by local legal aid organizations such as the Refugee Consortium of Kenya or Kituo Cha Sheria.
During the year the security situation in Dadaab remained precarious. There were no attacks on humanitarian workers and no detonations of improvised explosive devices within 15 miles of the refugee complex during the year. The security partnership between UNHCR and local police remained strong and led to improvements in camp security through community policing and neighborhood watch initiatives. UN security teams reported unspecified kidnapping threats against humanitarian workers during the year, but no humanitarians were attacked or abducted.
Gender-based violence against refugees and asylum seekers remained a problem, particularly for vulnerable populations, including women, children, and lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) refugees and asylum seekers. Reported incidents included domestic violence, rape, sexual assault, physical assault, psychological abuse, female genital mutilation/cutting (FGM/C), and early and forced marriage, particularly of Sudanese, South Sudanese, and Somali girls (see section 6, Women). Most urban refugees resided in informal settlements, where insecurity and gender-based violence were rampant. Although there was increased community engagement to reduce gender-based violence and strengthened partnerships, including with the local authorities, women in female-headed households, young girls separated from families due to conflict, and women and girls of lower social and economic status were most at risk. Girls and boys out of school were at risk of abuse, survival sex, and early marriage. Despite awareness programs in the camps, underreporting persisted due to community preference for maslaha, a traditional form of jurisprudence prevalent in the region, as an alternative dispute resolution mechanism; shortages of female law enforcement officers; limited awareness of what constitutes gender-based violence among vulnerable populations; and barriers to meeting the medical forensic requirements for trying alleged rape cases.
Refugees have equal access to justice and the courts under the law, although following the start of the COVID-19 pandemic, courts scaled down operations, prioritizing urgent cases and deferring nonurgent cases. Refugees were often unable to obtain legal services because of the prohibitive cost and their lack of information on their rights and obligations, even prior to the COVID-19 pandemic. UNHCR, through its partners, continued to provide legal assistance and representation to refugees to increase their access to justice. The law specifically provides that refugees are eligible to receive legal aid services. The law, however, had not been fully operationalized.
Many refugees dealt with criminality in accordance with their own customary law and traditional practices, although some opted to go through the country’s justice system. Other security problems in refugee camps included petty theft, banditry, and ethnic violence, according to UNHCR.
Freedom of Movement: Refugees’ freedom of movement was significantly restricted due to the country’s strict encampment policies as well as COVID-19 (see section 2.d.).
Employment: By law refugees are generally not permitted to work in the country. While the law allows recognized refugees to engage in any occupation, trade, business, or profession upon approval of applications for a Class M work permit, many barriers and red tape hindered refugees’ ability to secure work permits. Only refugees with specialized skills or those who could invest were successful in obtaining a work permit from the Immigration Department.
Access to Basic Services: Despite the encampment policy, many refugees resided in urban areas, even though they lacked documentation authorizing them to do so. This affected their access to basic government services, including the National Hospital Insurance Fund, education, employment, business licenses, financial institutions, mobile phones, and related services. Additionally, they were vulnerable to arrest, police harassment, and extortion.
Durable Solutions: During the year UNHCR assisted 1,461 refugees with voluntary repatriation to their places of origin, including Ethiopia, Somalia, and Burundi. Insecurity and unfavorable conditions in countries of origin such as South Sudan and Somalia limited the desire among refugees for voluntary repatriation assistance.
The constitution and law provide for the protection of stateless persons and for legal avenues for eligible stateless persons to apply for citizenship. UNHCR estimated 15,500 stateless persons were registered in the country; the actual number was unknown.
In July the government formally granted citizenship to 1,670 Shona and 1,300 individuals of Rwandan descent who were previously stateless.
Communities known to UNHCR as stateless include the Pemba in Kwale (approximately 7,000 persons) and persons of Burundian or Congolese descent; some descendants of slaves from Zambia and Malawi; the Galjeel, who were stripped of their nationality in 1989; and smaller groups at risk of statelessness due to their proximity to the country’s border with Somalia and Ethiopia, including the Daasanach and returnees from Somalia (the Sakuye) residing in Isiolo. The Pare are a group who intermarried with Kenyans for many years who reside at the border with Tanzania but are at risk of statelessness since they do not hold marriage certificates or other identity documents. Children born in the country to British overseas citizens are stateless due to conflicting nationality laws in the country and in the United Kingdom, although the estimated affected population size was unknown.
The country’s legislation provides protection, limited access to some basic services, and documentation to stateless persons and those at risk of statelessness. The constitution contains a progressive bill of rights and a revised chapter on citizenship, yet it does not include any safeguards to prevent statelessness at birth. The law provides a definition of a stateless person and opportunities for such a person as well as his or her descendants to be registered as citizens so long as the individual was a resident in the country at the time of its independence.
Stateless persons had limited legal protection, and many faced social exclusion. Others encountered travel restrictions and heightened vulnerability to sexual and gender-based violence, exploitation, forced displacement, and other abuses. UNHCR reported stateless persons faced restrictions on internal movement and limited access to basic services, property ownership, and registration of births under the late birth registration procedures, marriages, and deaths. Inadequate documentation sometimes resulted in targeted harassment and extortion by officials and exploitation in the informal labor sector.
National registration policies require citizens age 18 and older to obtain national identification documents from the National Registration Bureau (NRB). Failure to do so is a crime. Groups with historical or ethnic ties to other countries faced higher burdens of proof in the registration process. During the participatory assessments UNHCR conducted in 2018 and 2019, stateless persons said they could not easily register their children at birth or access birth certificates because they lacked supporting documents. The lack of permanent NRB offices near refugee camps also made it more difficult for refugees to register births, leading to an increased risk of statelessness. UNHCR and NGO partners worked with the government during the year to facilitate regular missions to the camps by NRB officials to conduct birth registrations. A backlog of older cases remained, but all refugees became able to register births within six months.
Formal employment opportunities, access to financial services, and freedom of movement continued to be out of reach for stateless persons due to lack of national identity cards. Stateless persons without identity cards cannot access the National Hospital Insurance Fund, locking them out of access to subsidized health services, including maternity coverage.