Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and other Unlawful or Politically Motivated Killings
There were numerous reports the government or its agents committed arbitrary and unlawful killings, particularly of known or suspected criminals, including terrorists. In September eight nongovernmental organizations (NGO) based in the northern region jointly issued a statement listing extrajudicial killings and enforced disappearances at top of their list of human rights concerns. In September the NGO HAKI Africa provided the ODPP a list of 34 youth whom police allegedly executed over nine months since the beginning of the year. The ODPP committed to pursue investigations and requested additional evidence and assistance from HAKI. The NGO Independent Medico Legal Unit alleged that police in Nairobi summarily executed 58 individuals, mostly in informal settlements, between January to June. In March 2017 video footage surfaced on the internet of an alleged plainclothes police officer shooting two subdued suspects in the Nairobi neighborhood of Eastleigh. According to the newspaper Daily Nation, the Nairobi police commander defended the shooting, calling the victims “gangsters.” The Inspector General’s investigation continued as of year’s end.
In August IPOA reported a summary execution of a suspected carjacker. The police, who had allegedly shot the victim twice, hauled him from a church where he had sought refuge. IPOA’s investigation continued as of the year’s end.
Some groups alleged authorities significantly underestimated the number of extrajudicial killings by security forces due to underreporting of such killings in informal settlements, including those in dense urban areas. The NGO Mathare Social Justice Center estimated police killed at least one young male every week in the Mathare neighborhood of Nairobi. During the year IPOA received 461 complaints regarding deaths resulting from police actions, including 15 fatal shootings involving police and 446 deaths due to other actions by police.
NGOs and the autonomous governmental entity Kenyan National Commission on Human Rights (KNCHR) reported in 2017 that authorities killed between 35 and 100 persons and injured many others in opposition strongholds following the August 2017 elections. A KNCHR report released in November documented 201 cases of sexual assault in nine counties emanating from the post-election violence, primarily during periods of increased civil unrest. The study found that police and other security officers committed 55 percent of the documented sexual assaults (see section 6). The report indicated that KNCHR turned over its findings to IPOA for official inquiry. IPOA’s investigations stemming from election violence continued as of the year’s end.
Media reports and NGOs attributed many of the human rights abuses not related to elections to Kenya Defense Forces counterterrorism operations in the northeast counties of Mandera, Garissa, and Wajir bordering Somalia. In September rights groups including Muslims for Human Rights led protests in Mombasa against extrajudicial killings and abductions by security forces. The groups alleged that on September 6, authorities gunned down three youths, ages 17, 17, and 19, absent proof of guilt. Police responded that the three had been caught preparing to commit a crime.
Impunity remained a serious problem (see section 1.d.).
Al-Shabaab terrorists conducted deadly attacks and guerilla-style raids on isolated communities along the border with Somalia. For example, in September al-Shabaab fighters reportedly stopped a bus in Lamu County, separated the passengers by religion, and then executed two Christian passengers before setting free the other passengers.
Observers and NGOs alleged members of the security forces were culpable of forced disappearances. In June media reported civilian protests in Garissa County over the alleged disappearance of 14 residents. There were accusations of government involvement and use of police officers. On July 26, human rights lobby group HAKI Africa reported that between January and June, the Garissa police abducted or forced the disappearance of 46 civilians.
The media also reported on families on the coast and in northeastern counties searching for relatives who disappeared following arrest and of authorities holding individuals incommunicado for interrogation for several weeks or longer (see section 1.d.).
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
In 2017 President Kenyatta approved the Prevention of Torture Act, which provides a basis to prosecute torture. The law provides a platform to apply articles of the 2010 constitution, including: Article 25 on freedom from torture and cruel, inhuman, or degrading treatment or punishment; Article 28 on respect and protection of human dignity; and Article 29 on freedom and security of the person. The law brings all state agencies and officials under one, rather than multiple pieces of legislation. Additionally, the law provides protections to vulnerable witnesses and law enforcement officials who refuse to obey illegal orders that would lead to torture. The government, however, had not implemented the guidelines required to operationalize the Prevention of Torture Act.
Pretrial detainees accused police of use of torture. In September a shooting suspect filed a formal complaint with IPOA alleging torture by police and continued detention beyond the maximum legal duration. That investigation continued as of year’s end.
Police reportedly used torture and violence during interrogations as well as to punish both pretrial detainees and convicted prisoners. According to human rights NGOs, physical battery, bondage in painful positions, and electric shock were the most common methods of torture used by police. A range of human rights organizations and media reported police committed torture and indiscriminate violence with impunity. For example, there were numerous press and NGO reports of police brutality against protestors and unarmed citizens, including in house-to-house operations in the days following the August 2017 elections (see section 3).
Prison and Detention Center Conditions
Human rights organizations reported that prison, detention center, and police station conditions were harsh due to overcrowding, food and water shortages, and inadequate sanitary conditions and medical care. A Directorate of Health Services in the Prisons Department oversees health and hygiene issues.
Physical Conditions: According to the Kenya Prisons Service (PS), the prison population as of September was 51,130, held in prisons with a designated capacity of 26,837. More than 90 percent of prisoners were men. According to the National Council on the Administration of Justice’s (NCAJ) January report, the country has 105 prisons–87 for men and 18 for women. While the PS noted that seven prisons have been constructed since 2012, serious overcrowding was the norm, with an average prisoner population of nearly 200 percent capacity and some prisons housing up to 400 percent of capacity. Authorities continued a “decongestion” program that entailed releasing petty offenders and encouraging the judiciary to increase use of the Community Service Orders program in its sentencing.
The PS reported 131 deaths as of September, many attributable to sicknesses caused or exacerbated by overcrowding, lack of access to clean water, poor hygiene, and inadequate medical care. According to a study by the NCAJ released in 2017, sanitary facilities were inadequate, and tuberculosis remained a serious problem at eight prisons.
In January 2017 the NCAJ reported that despite the legal requirement to separate male prisoners from women and children, the mixing of genders and ages remained a problem in some prisons. Between January and June 2017, IPOA observed that authorities separated women from men in detention facilities on average 89 percent of the time in the 29 detention facilities its representatives visited. In smaller jails, female prisoners were not always separated from men. There were no separate facilities during pretrial detention, and sexual abuse of female prisoners was a problem. Human rights groups reported that police routinely engaged in non-consensual sex with female prisoners and that many female inmates resorted to prostitution to obtain necessities, such as sanitary items and underwear, which the Prisons Service did not provide.
Authorities generally separated minors from adults except during the initial detention period at police stations, when authorities often held adults and minors of both sexes in a single cell. Minors often mixed with the general prison population during lunch and exercise periods, according to the Coalition for Constitutional Interpretation, a domestic NGO. Prison officials reported that because there were few detention facilities for minors, authorities often had to transport them long distances to serve their sentences, spending nights at police stations under varying conditions along the way. In October 2017 the Daily Nation newspaper reported a witness had accused a police officer of raping a 13-year-old victim while she was held overnight at a police station for alleged theft. IPOA investigated the incident. A criminal prosecution was proceeding in the courts.
The law allows children to stay with their inmate mothers in certain circumstances until age four or until arrangements for their care outside the facilities are concluded, whichever is earlier.
Prisoners generally received three meals a day, but portions were inadequate. The PS stated in August that it no longer served a penal diet for punishment. Water shortages, a problem both inside and outside of prison, continued. Prisoners generally spent most of their time indoors in inadequately lit and poorly ventilated cellblocks. This was especially true for the more than one-third of inmates awaiting trial, as they were not engaged in any work programs that would allow them to leave their cells regularly.
Administration: Mechanisms for prisoners to report abuse and other concerns improved due to collaboration between the PS and the KNCHR to monitor human rights standards in prison and detention facilities. By law, the Commission on the Administration of Justice serves as ombudsman on government administration of prisons. It is to receive and treat as confidential correspondence from inmates and recommend remedies to address their concerns, including those pertaining to prison living conditions and administration. Government-established special committees, which included paralegals and prison officials, also served to increase prisoners’ access to the judicial system. The Legal Aid Center of Eldoret noted there was no single system providing “primary justice” to prisoners and detainees, who instead relied on a patchwork of services largely provided by NGOs. Many government-designated human rights officers lacked necessary training, and some prisons did not have a human rights officer.
Noncustodial community service programs and the release of some petty offenders alleviated somewhat prison overcrowding. The total prison population did not decrease substantially, however, because of unaffordable bail and bond terms for pretrial detainees, high national crime rates, overuse of custodial sentencing, and a high number of death row and life-imprisoned inmates. Legal rights NGOs and prison officials reported overuse of the charge of “robbery with violence,” which may carry a life sentence, without sufficient evidence to support it. Some petty offenders consequently received disproportionately heavy sentences.
Prison officials sometimes denied prisoners and detainees the right to contact relatives or lawyers. Family members who wanted to visit prisoners commonly reported bureaucratic obstacles that generally required a bribe to resolve. According to the Legal Resources Foundation, prisoners had reasonable access to legal counsel and other official visitors, although there was insufficient space in many prisons and jails to meet with visitors in private and conduct confidential conversations.
Independent Monitoring: The government permitted prison visits by independent nongovernmental observers.
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.
Section 3. Freedom to Participate in the Political Process
The constitution and law provide citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
Elections and Political Participation
Recent Elections: In August 2017 citizens voted in the second general election under the 2010 constitution, electing executive leadership and parliamentarians, county governors, and members of county assemblies. International and domestic observers, such as the Kenya Elections Observation Group, African Union Observer Mission, and the Carter Center, judged the elections generally credible, although some civil society groups raised concerns about irregularities. In the presidential election, Jubilee Party candidate Uhuru Kenyatta won with a margin significantly above that of runner-up candidate Raila Odinga of the National Super Alliance (NASA). NASA challenged the results in a petition to the Supreme Court. In September 2017 the court ruled in NASA’s favor, annulling the presidential elections and citing the IEBC for irregularities in voter registration and technical problems with vote tallying and transmission. The court ordered a new election for president and deputy president, which was held on October 26, 2017.
On October 10, 2017, Odinga announced his withdrawal from the new election, saying the IEBC had not taken sufficient steps to ensure a free and fair election. The October 26 vote was marred by low voter turnout in some areas and protests in some opposition strongholds. Human Rights Watch documented more than 100 persons badly injured and at least 33 killed by police using excessive force in response to protests following the August election, and the Independent Medico-Legal Unit reported another 13 deaths before, during, and after the October vote. On October 30, 2017, the IEBC declared Kenyatta the winner of the new election. On November 20, 2017, the Supreme Court rejected petitions challenging the October 26 elections and upheld Kenyatta’s victory. Odinga refused to accept Kenyatta’s re-election and repeated his call for people’s assemblies across the country to discuss constitutional revisions to restructure the government and the elections process. On January 30, elements of the opposition publicly swore Odinga in as “the People’s President,” and the government shut down major public media houses for several days to prevent them from covering the event. Kenyatta and Odinga publicly reconciled on March 9 and pledged to work together towards national unity.
To reduce voter fraud, the government used a biometric voter registration system, first used in 2013. Possession of a national identity card or passport was a prerequisite for voter registration. According to media reports, political parties were concerned about hundreds of thousands of national identity cards produced but never collected from National Registration Bureau offices around the country, fearing that their supporters would not be able to vote. Ethnic Somalis and Muslims in the coast region and ethnic Nubians in Nairobi complained of discriminatory treatment in the issuance of registration cards, noting that authorities sometimes asked them to produce documentation proving their parents were citizens.
Participation of Women and Minorities: Voting rates and measures of other types of participation in the political process by women and members of minorities remained lower than those of men.
The constitution provides for parliamentary representation by women, youth, persons with disabilities, ethnic minorities, and marginalized communities. The constitution specifically states no gender should encumber more than two-thirds of elective and appointed offices (the Two-Third Gender Rule). The Supreme Court set an initial August 2016 deadline for implementation of this provision, but that passed without action and the National Assembly failed to meet a second deadline in May 2017. In August 2017 two NGOs filed a petition for the High Court to declare the composition of the National Assembly and Senate unconstitutional for failure to meet the Two-Third Gender rule. The petition had not been heard as of November. During the year men composed the entirety of the leadership of the National Assembly, unlike the previous parliament, in which both the deputy speaker and deputy majority leader were women. The cabinet also did not conform to the two-thirds rule; President Kenyatta appointed six women to the cabinet, representing 21 percent of the seats.
A September 2017 forum on Violence Against Women in Elections (VAWIE) that included the Elections Observation Group and the Federation of Women Lawyers in Kenya (FIDA) identified significant barriers to women’s participation in the political process. The chief concerns were violence and insecurity stemming from economic and financial intimidation, harassment based on perceived levels of sexual or moral purity, threats of divorce, and other familial or social sanctions. The 2013 study by FIDA and the National Democratic Institute, A Gender Audit of Kenya’s 2013 Election Process, highlighted challenges particular to female candidates, including irregularities in political party primaries that prevented women from competing in elections and the consistent failure of political parties to adhere to their own stated procedures for choosing candidates. FIDA reported a drop in verifiable VAWIE cases from 5,000 in 2013 to 300 in 2017, but identified serious political backlash for reporting abuses, harassment, or discrimination within the political parties.
The overall success rate of women candidates who ran for positions in the 2017 national elections was 16 percent, with 47 women elected to the National Assembly and three to the Senate. Women were elected to three of the 47 governorships. The constitution provides for the representation in government of ethnic minorities, but implementation was incomplete. The constitution also calls for persons with disabilities to hold a minimum of 5 percent of seats in the Senate and National Assembly. According to an October report by the Committee on the Elimination of all Forms of Discrimination against Women (CEDAW), persons with disabilities comprised only 2.8 percent of the Senate and National Assembly.