Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of expression, including for the press, but the government sometimes restricted this right.
Freedom of Expression: In 2017 a branch of the High Court declared unconstitutional Section 132 of the Penal Code, which 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 National Cohesion and Integration Act prohibiting hate speech and incitement to violence remained in force. Authorities arrested numerous members of parliament (MPs) on incitement or hate speech charges. In September 2017 authorities arrested MP Paul Ongili (aka Babu Owino) on charges of subversion and incitement and later charged him with causing grievous harm to a voter. These charges remained pending. In March the Nairobi High Court nullified Ongili’s election as an MP on charges of electoral malpractice and related violence. In June the Appeals Court overturned the High Court decision, reinstating Ongili’s election.
Press and Media Freedom: The government occasionally interpreted laws to restrict press freedom, and officials occasionally accused the 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 the media’s largest source of advertising revenue, and regularly used this as a lever to influence media owners.
Sixteen other laws restrict media operations and place restrictions on freedom of the press. In 2016 the president signed into law the Access to Information bill, which media freedom advocates lauded as progress in government transparency.
In March eight prominent columnists collectively resigned from the National Media Group, the country’s largest media group, via a joint statement citing a “loss in editorial independence,” including as an example the firing of managing editor Denis Galaya over an editorial critical of President Kenyatta.
Violence and Harassment: Journalists alleged security forces or supporters of politicians at the national and county levels sometimes harassed and physically intimidated them. The government at times failed to investigate allegations of harassment, threats, and physical attacks on members of the media.
In March, according to multiple reports, police physically assaulted television and print journalists at Nairobi’s international airport covering the return of opposition lawyer Miguna Miguna from abroad. Reporters from KTN, NTV and Citizen TV alleged injuries from the altercation.
Numerous news outlets and NGOs reported that intimidation of journalists following the 2017 elections continued into the year. On September 9, police in Nyeri County arrested Irene Mugo of Daily Nation and Lydia Nyawira of Standard media for interviewing relatives of a man arrested for wearing a T-shirt carrying a message presumed to be against Deputy President William Ruto. Authorities released the journalists without charges the next day.
Most news media continued to cover a wide variety of political and social issues, and most newspapers published opinion pieces criticizing the government.
Censorship or Content Restrictions: The 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 avoided covering issues or writing stories they believed their editors would reject due to direct or indirect government pressure. On January 30, the government blocked KTN, NTV, and Citizen TV over plans to broadcast a public ceremony held by elements of the opposition coalition to symbolically swear in Raila Odinga as “the people’s president.” On January 31, the High Court ordered the ban suspended for 14 days while the court examined the case. The government refused to comply with the court order, calling the matter a security issue. On February 5, the government permitted NTV and KTN to resume broadcasting, and Citizen TV returned to the air on February 8.
Journalists practiced self-censorship to avoid conflict with the government on sensitive subjects, such as the first family.
Libel/Slander Laws: In 2017 a branch of the High Court declared unconstitutional Section 194 of the Penal Code, which defined the offense of criminal defamation. Libel and slander remain civil offenses.
National Security: The government cited national or public security as grounds to suppress views that it considered politically embarrassing. The government cited security grounds for preventing media houses from covering the January 30 symbolic swearing in of Raila Odinga.
The government did not restrict or disrupt access to the internet or censor online content, and there were no credible reports that the government monitored private online communications without appropriate legal authority. Authorities, however, monitored websites for violations of hate speech laws. On May 16, President Kenyatta signed into law the Computer Misuse and Cybercrime Act, which was to come into force on May 30. On May 29, the High Court suspended enforcement of 25 sections of the new law pending further hearings. The court based the suspension on complaints that the law was overly vague and subject to misuse, that it criminalized defamation, and that it failed to include intent requirements in key provisions and exceptions for public use and whistleblowers. The hearings remained pending as of the year’s end.
By law, mobile telephone service providers may block mass messages they judge would incite violence. The National Cohesion and Integration Commission (NCIC) tracked bloggers and social media users accused of spreading hate speech. Leading up to the 2017 election season, hate speech, disinformation, and surveillance were reported, and the Communications Authority of Kenya issued regulations that could limit disinformation online.
According to the International Telecommunication Union, 17.8 percent of the population used the internet in 2017.
ACADEMIC FREEDOM AND CULTURAL EVENTS
There were no government restrictions on academic freedom or cultural events. In 2016 the president signed into law the Protection of Traditional Knowledge and Cultural Expressions Bill.
b. Freedom of Peaceful Assembly and Association
FREEDOM OF PEACEFUL ASSEMBLY
Although the constitution and law provide for freedom of assembly, the government sometimes restricted this right. Police routinely denied requests for meetings filed by human rights activists, and authorities dispersed persons attending meetings that had not been prohibited beforehand. Organizers must notify local police in advance of public meetings, which may proceed unless police notify organizers otherwise. By law authorities may prohibit gatherings only if there is another previously scheduled meeting at the same time and venue or if there is a perceived specific security threat.
Police used excessive force at times to disperse demonstrators. The local press reported on multiple occasions that police used tear gas to disperse demonstrators or crowds of various types, including looters at the demolition of a shopping mall in September. On August 6, police tear-gassed Kenyatta National Hospital staff staging a peaceful protest over nonpayment of their health service allowances. IPOA’s investigation of resulting complaints continued as of year’s end.
FREEDOM OF ASSOCIATION
The constitution and law provide for freedom of association, and the government generally respected this right, but there were reports that authorities arbitrarily denied this right in some cases. A statement by the UN Office of the High Commissioner for Human Rights dated July 11 noted reprisals faced by numerous human rights defenders and communities that raised human rights concerns. Reprisals reportedly took the form of intimidation, termination of employment, beatings, and arrests and threats of malicious prosecution. There were reports of restrictions on workers’ freedom of association, including in the agribusiness and public sectors. Trade unionists reported workers dismissed for joining trade unions or for demanding respect for their labor rights.
The Societies Act requires that every public association be either registered or exempted from registration by the Registrar of Societies. The NGO Coordination Act requires that NGOs dedicated to advocacy, public benefit, or the promotion of charity or research register with the NGO Coordination Board. In February the High Court ordered the NGO Coordination Board to pay the Kenya Human Rights Commission KSH two million ($20,000) compensation for illegally freezing its accounts and attempting to deregister it in 2017. The NGO Coordination Board had also attempted to deregister the Africa Centre for Open Governance, but a court overturned that decision in December 2017.
The NGO Coordination Act of 1990 requires organizations employing foreign staff to seek authorization from the NGO Coordination Board before applying for a work permit.
In 2016 the Ministry of Devolution and Planning announced its intention to implement immediately the 2013 Public Benefits Organization (PBO) Act, an important step in providing a transparent legal framework for NGO activities. Despite two court rulings ordering the government to operationalize the PBO Act. In September the interior cabinet secretary pledged to operationalize the PBO Act by the end of the year but the government failed to do so.
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at www.state.gov/religiousfreedomreport/.
The constitution and legal framework provide for freedom of internal movement, foreign travel, emigration, and repatriation for citizens. Refugees and asylum seekers require registration with the National Registration Bureau, and the Security Law Act of 2014 reiterates strict implementation of the encampment policy.
The government generally cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons (IDPs), refugees, asylum seekers, and other persons of concern. In October 2017 the country pledged to apply the Comprehensive Refugee Response Framework to enhance refugee self-reliance, increase access to solutions, and improve conditions in countries of origin for safe and voluntary returns.
In 2017 the High Court blocked the government’s plan to close the Dadaab refugee complex, ruling the plan violated the principle of nonrefoulement and refugees’ constitutional rights to fair administrative action. The court’s decision eased pressure on Somalis who feared the camp would close by the government-imposed deadline. As of the end of the year, the government had taken no new steps to close Dadaab, but reportedly planned to close it in 2019.
Abuse of Migrants, Refugees, and Stateless Persons: Police abuse, including detention of asylum seekers and refugees, continued, often due to a lack of awareness and understanding of the rights afforded to refugee registration cardholders. Most were released after a court appearance and/or intervention by organizations such as the Refugee Consortium of Kenya.
In April the Interior Ministry issued a 60-day ultimatum calling on foreign workers to regularize their work permits. Following the announcement, authorities reportedly arrested 375 refugees and asylum seekers, and 16 remained in detention as of the end of the year. UNHCR and some NGOs advocated that refugees and asylum seekers not be affected by the directive.
Exploitation of refugees with promises of assistance in the resettlement process or to secure movement passes remained a concern.
The security situation in Dadaab improved during the year, but 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 the local police remained strong and led to improvements in camp security through community policing and neighborhood watch initiatives. In January members of the host community held protests in response to UNHCR’s planned closure of the IFO 2 camp in Dadaab, which closed in March.
Sexual and gender-based violence (SGBV) against refugees and asylum seekers remained a problem, particularly for vulnerable populations including women, children, and lesbian, gay, bisexual, transgender, and intersex (LGBTI) refugees. Reported incidents included domestic violence, rape, sexual assault, physical assault, psychological abuse, FGM/C, early and forced marriage, particularly of young Sudanese, South Sudanese, and Somali girls. Despite strong awareness programs in the camps, under-reporting persisted due to community preference for “maslaha,” a traditional form of jurisprudence prevalent in the region, as an alternative dispute resolution mechanisms; shortages of female law-enforcement officers; limited knowledge of SGBV, and the medical forensic requirements for trying alleged rape cases.
Refugees generally dealt with criminality in accordance with customary law and traditional practices rather than through the country’s justice system. Other security problems in refugee camps included petty theft, banditry, ethnic violence, and the harassment of Muslim converts to Christianity, according to UNHCR.
In-country Movement: The country hosts an estimated 469,700 refugees and asylum seekers. Prolonged insecurity and conflict in the region forced the country to play a leading role in coping with refugee flows, especially from Somalia, South Sudan, and the Democratic Republic of the Congo (DRC). The government actively enforced an encampment policy for refugees. Refugees needing to move outside the designated areas (Kakuma camp, Kalobeyei settlement, and the Dadaab refugee complex) must obtain a temporary movement pass issued by the Refugee Affairs Secretariat (RAS). Stringent vetting requirements and long processing times have delayed the issuance of temporary movement passes in the camps.
The Kenyan Refugee Act of 2006 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, to refugees enrolled in public schools, and to refugees in the resettlement pipeline. 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. Between January and September, RAS issued 4,393 temporary movement passes.
INTERNALLY DISPLACED PERSONS (IDPS)
The National Consultative Coordination Committee on IDPs (the committee) operates under the Ministry of Interior and Coordination of National Government. According to the committee, in 2016 it compensated 44,577 IDPs who remained in camps after the 2007-08 postelection violence with approximately $500 to aid their reintegration into society. The committee planned to compensate the remaining 39,314 by the end of the year.
Violence in Mandera County in 2014 between the communities of Mandera North District and Banisa District, and on the border between Mandera and Wajir counties, resulted in displacement of an estimated 32,000 households. According to the Ministry of Devolution and Planning, the committee provided Mandera County with financial assistance for 6,890 IDP households that had not been able to return home, and assistance to the IDPs continued.
Water scarcity exacerbated communal conflict and left an unknown number of citizens internally displaced. IDPs from all locations generally congregated in informal settlements and 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 or gather food and fuel locally. In the north, IDP settlements primarily consisted of displaced ethnic Ethiopians and Somalis and were targets of clan violence or involved in clashes over resources.
PROTECTION OF REFUGEES
Refoulement: There were no confirmed cases of refoulement.
During the year, UNHCR assisted 7,130 persons to return voluntarily to their places of origin, of whom 6,939 returned to Somalia and 191 returned to Burundi. UNHCR organized “go and see” visits to Somalia for Somali refugees as well as visits from Somali government officials to Dadaab refugee complex to provide information to refugees about current conditions in Somalia. UNHCR reported that fewer Somali refugees opt to repatriate voluntarily as compared with previous years due to: concerns of forced recruitment by terrorist and militia organizations in Somalia, general insecurity, and lack of access to education and livelihoods.
Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has a system for providing protection to camp-based refugees. While the government generally coordinated with UNHCR to provide assistance and protection to refugees in the Dadaab and Kakuma refugee camps, cooperation was limited in urban areas. The government had yet to register nearly 10,119 refugees and asylum seekers in Dadaab, the majority of whom are Somali. Pressure from UNHCR and the international community has resulted in the government’s registration of a number of extremely vulnerable individuals. South Sudanese refugees maintain prima facie refugee status.
According to UNHCR, as of September the country hosted 469,769 registered refugees and asylum seekers, including 208,891 in the Dadaab refugee complex, 186,205 in Kakuma camp, and 74,673 in the Nairobi area. The majority of refugees and asylum seekers were from Somalia (256,326), with others coming from South Sudan (114,765), the DRC (39,757), Ethiopia (29,509), Burundi (13,161), and other countries (16,245). Most refugees arriving in Kakuma were from South Sudan and the refugee population in Dadaab was primarily Somali. New arrivals also included individuals from Burundi, the DRC, Ethiopia, and Uganda. The Somali refugee influx was lower than in previous years. An agreement on voluntary repatriation between Kenya, Somalia, and UNHCR expired in November, although is still de facto in place. Since 2014, 82,339 Somali refugees have voluntarily returned to Somalia from Kenya under the agreement.
In May 2016 the government disbanded the Department of Refugee Affairs and replaced it with a Refugee Affairs Secretariat to carry out the department’s previous work. The Refugee Affairs Secretariat, within the Interior Ministry, maintained a cooperative working relationship with UNHCR.
Employment: Refugees are generally not permitted to work in the country.
The constitution and the 2011 Citizen and Immigration Act provide for the protection of stateless persons and for legal avenues for eligible stateless persons to apply for citizenship. UNHCR estimated that 18,500 stateless persons were registered in the country; the actual number, however, was unknown.
Communities known to UNHCR as stateless include the Pemba in Kwale (approximately 5,000) and the Shona (an estimated 4,000). The 9,500 remaining include: persons of Rwandan, 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 Kenya’s border with Somali and Ethiopia, including the Daasanach and returnees’ from Somalia residing in Isiolo. Children born in Kenya to British oversees citizens are stateless due to conflicting nationality laws in Kenya and the United Kingdom.
Many stateless persons did not qualify for protection under the local refugee determination apparatus. Among these were Somali refugees born in Kenyan refugee camps and Sudanese and South Sudanese refugees.
In collaboration with the Department of Immigration Services and the Kenya Human Rights Commission, UNHCR was collecting data on the Shona in the country. The Kwale County government was in dialogue with the Pemba community to petition the president to grant nationality to them, according to UNHCR.
Although legal safeguards and pathways to citizenship for stateless persons exist, the government lacked a strategy to identify and register them, significantly limiting their ability to acquire legal residence or citizenship. Stateless persons had limited legal protection and encountered travel restrictions, social exclusion, and heightened vulnerability to trafficking, sexual and gender-based violence, exploitation, forced displacement, and other abuses. UNHCR reported that stateless persons faced restrictions on internal movement and limited access to basic services, property ownership, and registration of births, marriages, and deaths. Inadequate documentation sometimes resulted in targeted harassment and extortion by law enforcement 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. 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.