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Kenya

Executive Summary

Kenya is a republic with three branches of government: an executive branch, led by a directly elected president; a bicameral parliament consisting of the Senate and the National Assembly; and a judiciary. On August 8, the country held its second general election under the 2010 constitution. Citizens cast ballots for president and deputy president, parliamentarians, and county governors and legislators. International and domestic observers judged the elections generally credible, although some civil society groups and the opposition pointed to irregularities. On August 11, the Independent Electoral and Boundaries Commission (IEBC) declared Jubilee Coalition Party candidate Uhuru Kenyatta had won reelection as president. Opposition presidential candidate Raila Odinga challenged the presidential election result in court. On September 1, the Supreme Court annulled the results for president and deputy president, citing chiefly irregularities in the transmission and verification of the poll tabulations. The court ordered a new vote for president and deputy president for October 26. Odinga withdrew from the new election on October 10 and called for his supporters to boycott the vote. Low voter turnout in many areas and episodic violence in opposition strongholds characterized the October 26 vote. The IEBC declared President Kenyatta the winner of the October 26 vote, and the Supreme Court upheld the results on November 20.

Civilian authorities at times did not maintain effective control over the security forces.

The most significant human rights issues included: unlawful and politically motivated killings; forced disappearances; torture; harsh and life-threatening prison conditions; impunity; arbitrary arrest and detention; an inefficient judiciary; arbitrary infringement of citizens’ privacy rights; restrictions on press freedom and freedom of assembly; lack of accountability in many cases involving violence against women, including rape and female genital mutilation/cutting (FGM/C); and criminalization of same-sex sexual conduct.

The governmental Independent Policing Oversight Authority (IPOA) established to provide civilian oversight over the work of police, investigated numerous cases of misconduct. Impunity at all levels of government continued to be a serious problem, despite public statements by the president and deputy president and police and judicial reforms. The government took only limited and uneven steps to address cases of alleged unlawful killings by security force members, although the IPOA continued to increase its capacity and referred cases of police misconduct to the Office of the Director of Public Prosecution (ODPP) for prosecution. Impunity in cases of alleged corruption was also common. President Kenyatta continued his anticorruption campaign launched in March 2015, and the inspector general of police continued his strong public stance against corruption among police officers.

Al-Shabaab terrorists conducted deadly attacks and guerilla-style raids on isolated communities along the border with Somalia, targeting both security forces and civilians. Human rights groups alleged that security forces committed abuses while conducting counterterror operations.

Section 1. Respect for the Integrity of the Person, Including Freedom from:

f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

The constitution and law prohibit such actions, except “to promote public benefit,” but authorities sometimes infringed on citizens’ privacy rights. The law permits police to enter a home without a search warrant if the time required to obtain a warrant would prejudice an investigation. Although security officers generally obtained search warrants, they occasionally conducted searches without warrants in the course of large-scale security sweeps to apprehend suspected criminals or to seize property believed stolen. For example, on August 11 and 12, according to multiple press and NGO reports, police conducted house-to-house operations in Kisumu County in connection with protests in the wake of the August 8 election. In one of the homes, police allegedly beat a husband, wife, and their six-month-old daughter. KNCHR confirmed the infant died of her injuries on September 15. In November, IPOA completed its investigation into the infant’s death and referred the case to the ODPP for potential prosecution.

Human rights organizations reported police officers raided homes in informal settlements in Nairobi and communities in the coast region in search of suspected terrorists and weapons. The organizations documented numerous cases in which plainclothes police officers searched residences without a warrant and household goods were confiscated when residents were unable to provide receipts of purchase on demand.

Section 4. Corruption and Lack of Transparency in Government

The law provides criminal penalties for official corruption. Despite some progress in fighting corruption during the year, the government did not implement relevant laws effectively, and officials frequently engaged in alleged corrupt practices with impunity. There were numerous reports of government corruption, including land seizures, conflicts of interest in government procurement, favoritism and nepotism, and bribery.

Officials from agencies tasked with fighting corruption, including the Ethics and Anticorruption Commission (EACC), an independent agency; the ODPP; and the judiciary were sometimes the subjects of corruption allegations.

The public continued to perceive corruption as a severe problem at all levels of government. According to an EACC national survey released in March 2016, 75 percent of respondents characterized corruption levels as “very high” in the country, and a slight majority said that corruption had increased during the previous year. A slight majority, however, also said the government was committed to the fight against corruption. Bribery was the most commonly reported type of corruption, with 38 percent of respondents reporting they had paid a bribe in the last year.

According to the 2017 Ernest and Young Fraud Survey, 90 percent of respondents agreed that corruption is widespread in businesses. Corruption reportedly often influences the outcomes of government tenders. Foreign firms reported having limited success bidding on public procurements, and asset misappropriation, bribery, and procurement fraud were serious challenges. The law provides penalties for corruption, but no senior officials were successfully prosecuted for corruption in the last year.

The EACC has the legal mandate to investigate official corruption allegations, develop and enforce a code of ethics for public officials, and engage in public outreach on corruption. The EACC, however, lacks prosecutorial authority and must refer cases to the ODPP to initiate prosecutions. Both agencies lacked the technical and financial capacity to execute their mandates fully, even as the government increased the EACC’s budget from 2.8 billion shillings ($28 million) in 2016 to 4.0 billion shillings ($40 million). At the end of 2016, the EACC reported having more than 420 corruption cases pending in court, and almost 1,000 active asset forfeiture cases in court in September. The EACC had secured 22 convictions as of September.

The government took modest steps towards combatting corruption, including progress on implementing President Kenyatta’s November 2015 anticorruption strategy. The government made limited progress on other commitments, including the adoption of international anticorruption standards and the digitization of government records and processes. Because courts remained subject to significant case backlogs, cases can take years to resolve.

Corruption: While police and government corruption was widely viewed as endemic, authorities rarely arrested and prosecuted public officers (see section 1.d.).

Police corruption remained a significant problem. Human rights NGOs reported that police often stopped and arrested citizens to extort bribes. Police sometimes jailed on trumped-up charges or beat those who could not pay the bribes. During police vetting conducted by the NPSC, multiple police officers were exposed as having the equivalent of hundreds of thousands of dollars in their bank accounts, far exceeding what would be possible to save from their salaries. Mobile money records showed that some officers also transferred money to superior officers. Media and civil society groups reported that police used illegal confinement, extortion, physical abuse, and fabricated charges to accomplish law enforcement objectives as well as to facilitate illegal activities.

The Judiciary and National Police Service continued measures to reform the handling of traffic cases by police and courts, streamlining the management of traffic offenses to curb corruption. Despite the progress noted above, no senior official was convicted or jailed for corruption-related offenses.

Investigations into corruption allegations against 124 government officials named in a 2014 EACC report–including five former cabinet secretaries and three principal secretaries–were dismissed following a court ruling that the EACC was not properly constituted at the time the names of the accused were submitted to ODPP for prosecution. In July the Court of Appeal permanently quashed the anticorruption court’s prosecution of one of the accused, former transport cabinet secretary Michael Kamau. The court ruled the EACC’s secretariat had no authority to recommend charges with fewer than three sitting commissioners.

Financial Disclosure: The law requires all public officers to declare their income, assets, and liabilities to their “responsible commission” (for example, the Parliamentary Service Commission in the case of members of parliament) every two years. Public officers must also include the income, assets, and liabilities of their spouses and dependent children under the age of 18. Information contained in these declarations was not readily available to the public, and the relevant commission must approve requests to obtain and publish this information. Any person who publishes or otherwise makes public information contained in public officer declarations without such permission may be subject to imprisonment for up to five years, a fine of up to 500,000 shillings ($5,000), or both. Authorities also required police officers undergoing vetting to file financial disclosure reports for themselves and their immediate family members. These reports were publicly available.

The 2012 Leadership and Integrity Act requires public officers to register potential conflicts of interest with the relevant commissions. The law identifies interests that public officials must register, including directorships in public or private companies, remunerated employment, securities holdings, and contracts for supply of goods or services, among others. The law requires candidates seeking appointment to nonelective public offices to declare their wealth, political affiliations, and relationships with other senior public officers. This requirement is in addition to background screening on education, tax compliance, leadership, and integrity. Many officials met these requirements and reported potential conflicts of interest. Although the government generally did not seek criminal or administrative sanctions for noncompliance, former EACC chairman Philip Kinisu resigned his position after being accused of failing to disclose a conflict of interest properly. Authorities did not strictly enforce ethics rules relating to the receipt of gifts and hospitality by public officials.

There were no reported challenges to any declarations of wealth–which normally are not made public–filed by public officials.

Section 6. Discrimination, Societal Abuses, and Trafficking in Persons

Women

Rape and Domestic Violence: The law criminalizes rape, defilement, sexual violence within marriage, and sex tourism, but enforcement remained limited. The law criminalizes abuses that include early and forced marriage, FGM/C, forced wife “inheritance,” and sexual violence within marriage. The law’s definition of violence also includes damage to property, defilement, economic abuse, emotional or psychological abuse, harassment, incest, intimidation, physical abuse, stalking, verbal abuse, or any other conduct against a person that harms or may cause imminent harm to the safety, health, or well-being of the person. Under law, insulting the modesty of another person by intruding upon that person’s privacy or stripping them of clothing are criminal offenses punishable by imprisonment for up to 20 years.

The law provides a maximum penalty of life imprisonment for rape, although sentences were at the discretion of the judge and usually no longer than the minimum of 10 years.

Citizens frequently used traditional dispute resolution mechanisms to address sexual offenses in rural areas, with village elders assessing financial compensation for the victims or their families. They also used such mechanisms occasionally in urban areas. In October, CEDAW reported the government failed to provide substantial assistance to female victims of gender-based violence as recommended by the Commission of Inquiry into the Post-Election Violence of 2007.

The Coalition on Violence against Women estimated 16,500 rapes occurred per year. IPOA investigated eight reported cases of sexual assault by police officers between April and September.

Although police no longer required physicians to examine victims, physicians still had to complete official forms reporting rape. Rural areas generally had no police physician, and in Nairobi there were only two. NGOs reported police physicians often but inconsistently accepted the examination report of clinical physicians who initially treated rape victims.

Domestic violence against women was widespread. Police officers generally refrained from investigating domestic violence, which they considered a private family matter.

Female Genital Mutilation/Cutting (FGM/C): The law makes it illegal to practice FGM/C, procure the services of someone who practices FGM/C, or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM/C. Nevertheless, individuals practiced FGM/C widely, particularly in some rural areas. Government officials often participated in public awareness programs to prevent the practice.

Media reported growing numbers of female students refused to participate in FGM/C ceremonies, traditionally performed during the August and December school holidays. Media reported arrests of perpetrators and parents who agreed to FGM/C, but parents in regions with a high prevalence of FGM/C frequently bribed police to allow the practice to continue. There were also reports the practice of FGM/C increasingly occurred underground to avoid prosecution.

For more information, see data.unicef.org/resources/female-genital-mutilation-cutting-country-profiles/ .

Other Harmful Traditional Practices: Certain communities commonly practiced wife inheritance, in which a man inherits the widow of his brother or other close relative, regardless of her wishes. Such inheritance was more likely in cases of economically disadvantaged women with limited access to education living outside of major cities. Other forced marriages were also common. The law codifies the right of men to enter into consensual marriage with additional women without securing the consent of any existing wife.

Sexual Harassment: The law prohibits sexual harassment. Sexual harassment was often not reported, and victims rarely filed charges.

Coercion in Population Control: There were no reports of coerced abortion, involuntary sterilization, or other coercive population control methods. Estimates on maternal mortality and contraceptive prevalence are available at: www.who.int/reproductivehealth/publications/monitoring/maternal-mortality-2015/en/ .

Discrimination: The constitution provides equal rights for men and women and specifically prohibits discrimination on the grounds of race, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language, or birth. The justice system and widely applied customary laws often discriminated against women, limiting their political and economic rights.

The constitution prohibits gender discrimination in relation to land and property ownership and gives women equal rights to inheritance and access to land. The constitution also provides for the enactment of legislation for the protection of wives’ rights to matrimonial property during and upon the termination of a marriage, and it affirms that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution.

The law includes provisions to strengthen property rights for wives, According to an October report by CEDAW, despite the law, much of the country held to the traditions that married women are not entitled to their fathers’ property and that upon remarriage, a woman loses her claim to her deceased husband’s property.

Children

Birth Registration: A child derives citizenship from the citizenship of the parents, and either parent may transmit citizenship. Birth registration is compulsory. An estimated 63 percent of births were officially registered. Lack of official birth certificates resulted in discrimination in delivery of public services. The Department of Civil Registration Services began implementing the Maternal Child Health Registration Strategy requiring nurses administering immunizations to register the births of unregistered children.

For additional information, see Appendix C.

Education: Education is tuition free and compulsory through age 13. Authorities did not enforce the mandatory attendance law uniformly.

While the law provides pregnant girls the right to continue their education until after giving birth, NGOs reported that schools often did not respect this right. School executives sometimes expelled pregnant girls or transferred them to other schools.

Child Abuse: The law criminalizes several forms of violence that affect children, including early and forced marriage, FGM/C, incest, and physical, verbal, and sexual abuse. Violence against children, particularly in poor and rural communities, was common, and child abuse, including sexual abuse, occurred frequently.

The minimum sentence for conviction of defilement is life imprisonment if the victim is less than 11 years old, 20 years in prison if the victim is between ages 11 and 16, and 10 years’ imprisonment if the child is age 16 or 17.

The government banned corporal punishment in schools, but there were reports corporal punishment occurred.

Early and Forced Marriage: The minimum age for marriage is 18 years for women and men. Media occasionally highlighted the problem of early and forced marriage, which some ethnic groups commonly practiced. Under the constitution, the kadhi courts retained jurisdiction over Muslim marriage and family law in cases where all parties profess the Muslim religion and agree to submit to the jurisdiction of the courts. For additional information, see Appendix C.

Sexual Exploitation of Children: The law criminalizes sexual exploitation of children, including prohibiting procurement of a child under age 18 for unlawful sexual relations. The law also prohibits domestic and international trafficking, or the recruitment, harboring, transportation, transfer, or receipt of children up to the age of 18 for the production of pornography or for pornographic performances. Provisions apply equally to girls and boys. The Sexual Offenses Act has specific sections on child trafficking, child sex tourism, child prostitution, and child pornography. Nevertheless, according to human rights organizations, children were sexually exploited and victims of trafficking.

Child Soldiers: Although there were no reports the government recruited child soldiers, there were reports that the al-Shabaab terrorist group recruited children.

Displaced Children: Poverty and the spread of HIV/AIDS continued to intensify the problem of child homelessness. Street children faced harassment and physical and sexual abuse from police and others and within the juvenile justice system. The government operated programs to place street children in shelters and assisted NGOs in providing education, skills training, counseling, legal advice, and medical care to street children whom the commercial sex industry abused and exploited.

International Child Abductions: The country is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.

Anti-Semitism

The Jewish community was very small, and there were no reports of anti-Semitic acts.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

Persons with Disabilities

The law prohibits discrimination against persons with disabilities, but the government did not effectively enforce these provisions. A number of laws limit the rights of persons with disabilities. For example, the Marriage Act limits the rights of persons with mental disabilities to get married and the Law of Succession limits the rights of persons with disabilities to inheritance. The constitution provides legal safeguards for the representation of persons with disabilities in legislative and appointive bodies. The law provides that persons with disabilities should have access to public buildings, and some buildings in major cities had wheelchair ramps and modified elevators and restrooms. The government did not enforce the law, however, and new construction often did not include accommodations for persons with disabilities. Government buildings in rural areas generally were not accessible to persons with disabilities. According to NGOs, police stations remained largely inaccessible to persons with mobility disabilities.

NGOs reported that persons with disabilities had limited opportunities to obtain education and job training at all levels due to lack of accessibility of facilities and resistance by school officials and parents to devoting resources to students with disabilities.

Authorities received reports of killings of persons with disabilities as well as torture and abuse, and the government took action in some cases. For example, the Daily Nation newspaper reported in March 2016 that a woman was arrested and would be prosecuted in Nairobi after 11 disabled children were found in poor living conditions, locked up, and malnourished in her home.

Persons with disabilities faced significant barriers to accessing health care. They had difficulty obtaining HIV testing and contraceptive services due to the perception they should not engage in sexual activity. According to Handicap International, 36 percent of persons with disabilities reported facing difficulties in accessing health services; cost, distance to a health facility, and physical barriers were the main reasons cited.

Few facilities provided interpreters or other accommodations to persons with hearing disabilities. The government assigned each region a sign language interpreter for court proceedings. Authorities often delayed or adjourned cases involving persons who had hearing disabilities due to a lack of standby interpreters, according to an official with the NGO Deaf Outreach Program. According to the KNCHR, 10 secondary schools in the country could accommodate persons with hearing limitations.

The Ministry for Devolution and Planning is the lead ministry for implementation of the law to protect persons with disabilities. The quasi-independent but government-funded parastatal National Council for Persons with Disabilities assisted the ministry. Neither entity received sufficient resources to address effectively problems related to persons with disabilities.

Nominated and elected parliamentarians with disabilities formed the Kenya Disability Parliamentary Caucus in 2013 and issued a strategy statement focusing on improving economic empowerment and physical access for persons with disabilities as well as integrating disability rights into county government policies. According to an October report by CEDAW, persons with disabilities comprised only 2.8 percent of the Senate and National Assembly, less than the 5 percent mandated by the constitution (see section 3).

National/Racial/Ethnic Minorities

There are 42 ethnic groups in the country; none holds a majority. The Kikuyu and related groups dominated much of private commerce and industry and often purchased land outside their traditional home areas, which sometimes resulted in fierce resentment from other ethnic groups, especially in the coastal and Rift Valley areas.

Many factors contributed to interethnic conflicts: longstanding grievances regarding land-tenure policies and competition for scarce agricultural land; the proliferation of illegal guns; cattle rustling; the growth of a modern warrior/bandit culture (distinct from traditional culture); ineffective local political leadership; diminished economic prospects for groups affected by regional droughts; political rivalries; and the struggle of security forces to quell violence. Conflict between landowners and squatters was particularly severe in the Rift Valley and coastal regions, while competition for water and pasture was especially serious in the north and northeast. According to the OHCHR, between December 2016 and April, in defiance of a court order, Kenya Forest Service guards burned multiple dwellings of the minority Sengwer tribe in order to evict them from Embobut Forest.

There was frequent conflict, including banditry, fights over land, and cattle rustling, among the Somali, Turkana, Gabbra, Borana, Samburu, Rendille, and Pokot ethnic groups in arid northern, eastern, and Rift Valley areas that at times resulted in deaths. Disputes over county borders were also a source of ethnic tensions.

Ethnic differences also caused a number of discriminatory employment practices.

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

The constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual activity, and specifies a maximum penalty of 14 years’ imprisonment if convicted. A separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years’ imprisonment if convicted. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward. In April 2016 the National Gay and Lesbian Human Rights Commission (NGLHRC) filed Petition 150 of 2016 challenging the constitutionality of these penal codes. As of November, two cases filed by NGOs in early 2016 to test the constitutionality of these laws remained unresolved.

LGBTI organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTI individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTI individuals in custody.

Authorities permitted LGBTI advocacy organizations to register and conduct activities.

Violence and discrimination against LGBTI individuals was widespread. According to a 2015 HRW and Persons Marginalized and Aggrieved report, LGBTI individuals were especially vulnerable to blackmail and rape by police officers.

On May 26, the government gazetted a taskforce on policy and institutional reforms toward intersex persons in order to implement a High Court’s judgment in the 2014 Baby ‘A’ case recognizing the existence of intersex persons. Separately, in 2015, a High Court ruled in favor of the NGLHRC in a case challenging the government’s refusal to register LGBTI advocacy and welfare organizations. The court ruled that refusing to register the organization was an infringement on the constitutionally protected freedom of association. The Court of Appeal ruled in May 2016 that the High Court’s judgment stood in the interim. The government’s appeal remained pending as of November.

HIV and AIDS Social Stigma

The government, along with international and NGO partners, made progress in creating an enabling environment to combat the social stigma of HIV and AIDS and to address the gap in access to HIV information and services. For example, the government launched treatment guidelines for sex workers and injected drug users in collaboration with key stakeholders. The government and NGOs supported a network of at least 5,488 counseling and testing centers providing free HIV/AIDS diagnosis. Diagnosis of other sexually transmitted infections was available through hospitals and clinics throughout the country. In 2016, according to its website, the First Lady’s Beyond Zero Campaign to stop HIV infections led to the opening of 46 mobile clinics across the country.

Other Societal Violence or Discrimination

Mob violence and vigilante action were common and resulted in numerous deaths. Human rights observers attributed vigilante violence to a lack of public confidence in police and the criminal justice system. The social acceptability of mob violence also provided cover for acts of personal vengeance. Police frequently failed to act to stop mob violence.

In 2016 the Senate and the National Assembly established a joint parliamentary select committee to investigate police brutality and mob violence. That committee continued to meet as of November.

Mobs also attacked persons suspected of witchcraft or participation in ritual killings. For example, according to the Starnewspaper, on June 6 a mob in the coastal city of Kilifi killed three persons accused of using witchcraft to drown a man hours before his wedding ceremony. Police investigated the three murders, but there were no reports of arrests.

Societal discrimination continued against persons with albinism, many of whom left their home villages due to fear of abuse and moved to urban areas where they believed they were safer. Individuals attacked persons with albinism for their body parts, which some believed could confer magical powers and which could be sold for significant sums.

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