Section 6. Discrimination and Societal Abuses
Rape and Domestic Violence: The law criminalizes rape of all persons, defilement (statutory rape), domestic violence, and sex tourism, but enforcement remained limited. The law’s definition of domestic violence includes sexual violence within marriage, early and forced marriage, FGM/C, forced wife “inheritance,” 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. The law does not explicitly criminalize spousal rape. 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 when the survivor is older than 18, although sentences were at the discretion of the judge and usually no longer than the minimum of 10 years (see section 6, Children). Citizens frequently used traditional dispute-resolution mechanisms, including maslaha in Muslim communities, to address sexual offenses in rural areas, with village elders assessing financial compensation for the survivors or their families. They also used such mechanisms occasionally in urban areas.
The judiciary recorded 17,272 cases of gender-based violence filed in court between July 2019 and June 2020. The NGO Federation of Women Lawyers-Kenya reported arrests and prosecutions of sexual violence cases remained low, even in cases in which survivors identified perpetrators, due to limited police resources to conduct investigations, insufficient evidence collection and handling mechanisms, and lengthy court proceedings, which made it difficult and expensive for survivors to pursue cases.
Although police no longer required physicians to examine survivors, physicians still had to complete official forms reporting rape. Rural areas generally had no police physician, and in Nairobi there were only three. NGOs reported police stations often but inconsistently accepted the examination report of clinical physicians who initially treated rape survivors. In October the National Police Service launched its “Policare” program, which sought to establish one-stop shops in every county to address and prevent gender-based violence. Police also launched an updated Integrated Response to Gender-Based Violence document, which standardized procedures and standards of care in these cases.
Authorities cited domestic violence as the leading cause of preventable, nonaccidental death for women. Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter.
NGOs expressed concerns regarding a rise in incidents of sexual assault, rape, domestic violence, and forced evictions during the COVID-19 pandemic. In September Human Rights Watch released a report on the rise of gender-based violence during the COVID-19 pandemic. The report blamed the government for failing to protect and providing inadequate assistance to survivors.
A national helpline established by the Department of Gender Affairs received a total of 5,009 cases in 2020, an increase of 36 percent compared with the prior year. Survivors of sexual violence were unable to report crimes or seek medical treatment during curfew hours. The government established rescue centers for gender-based violence in West Pokot, Bungoma, Vihiga, Meru, and Mirgori Counties.
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. In September the court dismissed a petition filed in 2017 to strike down the law banning FGM/C. The court ruled revoking the anti-FGM/C law would expose women to this harmful practice without sufficient legal protection. Government officials often participated in public-awareness programs to prevent the practice. Nevertheless, individuals practiced FGM/C widely, particularly in some rural areas. According to UNICEF, despite the legal prohibition of FGM/C and progress made by the government in eliminating the practice, myths supporting the practice remained deep rooted in some local cultures. UNICEF estimated 21 percent of adult women ages 15 to 49 had undergone the procedure some time in their lives, but the practice was heavily concentrated in a few communities, including the Maasai (78 percent), Samburu (86 percent), and Somali (94 percent).
As part of the government’s initiative to end FGM/C by 2022, the Ministry of Public Service, Gender, Senior Citizens Affairs, and Special Programs continued work with county officials and nonstate actors to improve enforcement of the FGM/C law. This included education and advocacy efforts as well as prosecutions of those violating the law. NGOs and government officials reported a significant increase of FGM/C cases during the COVID-19 pandemic, noting school closures left girls more at risk. Many FGM/C rescue centers were closed partially or even totally due to the pandemic. 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 FGM/C increasingly occurred in secret to avoid prosecution. County officials in areas with a high prevalence of FGM/C noted many cases targeted infants, with one recent government study finding an estimated 61 percent of girls younger than five in one county had undergone the procedure.
Other Harmful Traditional Practices: Certain communities practiced wife inheritance, in which a man inherits the widow of his brother or other close relative, regardless of her wishes. The practice was more likely in cases of poor women with limited access to education and living outside of major cities.
Sexual Harassment: The law prohibits sexual harassment and prescribes prison time of at least three years or a fine of at least $880 or both for anyone found guilty of committing such crimes. Sexual harassment was often not reported, and survivors rarely filed charges.
Reproductive Rights: There were no reports of coerced abortion or involuntary sterilization on the part of government authorities. Nonetheless, families of girls with disabilities sometimes colluded with medical professionals to sterilize them as a means of protecting them from sexual violence, according to a disability rights activist. See the Female Genital Mutilation/Cutting (FGM/C) subsection for additional information.
The constitution recognizes the right of couples and individuals to decide the number, spacing, and timing of their children and to have the information and means to do so free from discrimination, coercion, and violence. Exercising this right, however, remained difficult due to the prohibitive costs of contraception for some persons, the limited information and services that were available, and cultural and religious norms in some areas that discouraged the use of modern contraceptives and gave men decision-making authority over women. Subsidized contraception options, including condoms, birth control pills, and long acting or permanent methods, were widely available to both men and women, although access was more difficult in rural areas.
A 2019 study by the Guttmacher Institute found that more than half of sexually active adolescent women between the ages of 15 and 19 who did not want to become pregnant had an unmet need for modern contraception and that almost two-thirds of pregnancies among this age group were unintended. The adolescent birth rate was 96 per 1,000 girls between the ages of 15 and 19, according to the UN Population Fund (UNFPA). Access to sexual and reproductive health information by adolescents remained a problem due to lack of comprehensive sexuality education in schools, low coverage of youth-friendly services, and a lack of adequate stocks of contraceptives in public hospitals.
According to UNFPA, 56 percent of women between the ages of 15 and 49 made their own decisions regarding health care, contraception, and sex with their husbands or partners. NGOs reported that it was more difficult for marginalized groups, including LGBTQI+ persons, women with disabilities, displaced persons, and persons with HIV, to access reproductive health information and services.
Skilled obstetric, prenatal, and postpartum care was available in major hospitals, but many women could not access or afford these services. Skilled health-care personnel attended an estimated 62 percent of births, according to the 2014 Kenya Demographic Health Survey. The government provided access to sexual and reproductive health services for survivors of sexual violence.
Maternity services were free of charge in all public health institutions in the country. The government’s Linda Mama program, a free health insurance plan that covers the pregnancy period and up to three months postdelivery, targeted women in rural and low-income areas and continued to operate during the year. NGOs reported that government measures to stem the spread of the COVID-19 pandemic, including a nationwide curfew and movement restrictions, led to an increase in maternal morbidity, a decrease in births attended by skilled health-care personnel, and a decrease in women receiving prenatal and postpartum care during the year.
Maternal deaths accounted for 51 percent of all deaths of women between the ages of 15 and 49, and the maternal mortality rate was 342 per 100,000 live births, according to the World Health Organization. Unsafe abortion, pregnancy, and birth complications limited access to health services, and harmful cultural practices were cited as among the main causes of maternal death and morbidity. UNFPA reported that maternal mortality in Mandera County was 3,795 deaths per 100,000 live births – the highest in the country – partially due to harmful cultural rites such as FGM/C and limited access to health services. In 2019 the High Court ruled that the director of medical services and the Ministry of Health had violated the rights of the country’s women by arbitrarily withdrawing standards and guidelines on reducing morbidity and mortality from unsafe abortions.
The law provides pregnant girls the right to continue their education until and after giving birth, but NGOs reported schools often did not always respect this right (see section 6, Children). Human rights organizations reported teenage pregnancy often led girls to drop out of school without a safety net or plan for continued education after birth.
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. Nevertheless, the justice system widely applied customary laws that 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 parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. In September a judge presiding over a matrimonial property dispute ruled being a housewife should be considered a full-time job. The judge ruled it was unfair for courts to rule that housewives do not contribute to household financial wellbeing. According to civil society groups, women continued to face institutional and legal barriers that hindered their access to justice and a fair share of matrimonial property upon the dissolution of marriage. Additionally, the components of the law that stipulate how to apply for succession were little known, and thus many inheritances continued to pass from fathers to sons only.
Although the constitution declares the state shall not discriminate against any person based on race, societal discrimination against persons of different racial and ethnic groups was common. Enforcement of laws prohibiting discrimination was inadequate, according to human rights groups. The 2019 census recognized 45 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. Competition for water and pasture was especially serious in the north and northeast.
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 regarding county borders were also a source of ethnic tensions.
Media reported at least 18 persons died in July during tribal clashes regarding resources in Marsabit County along the border with Ethiopia. The government deployed security forces to stop the fighting, which had plagued the region for many years.
In September media reported at least eight persons died, and dozens of homes were burned in Laikipia County, as armed herders invaded privately run nature conservancies in search of water and grazing land for their livestock. In October the government deployed an interagency team to quell the violence after fighting broke out again.
Ethnic differences also caused several discriminatory employment practices (see section 7.d.).
Birth Registration: A child derives citizenship from the citizenship of the parents, and either parent may transmit citizenship. Birth on the country’s territory does not convey citizenship. Birth registration is compulsory. An estimated 82 percent of births were officially registered in 2020, according to the Interior Ministry’s Civil Registration Services. Authorities attributed the increase in registered births to a rise in the number of women delivering in health centers. Lack of official birth certificates resulted in discrimination in delivery of public services. The Department of Civil Registration Services implements the Maternal Child Health Registration Strategy, which requires nurses administering immunizations to register the births of unregistered children.
Education: By law education is tuition free and compulsory until age 18, although public schools may impose fees for boarding, uniforms, and other expenses. The law also allows schools to charge tuition and other fees on children who are noncitizens of the country. Authorities did not enforce the mandatory attendance law uniformly. The government closed all schools in March 2020 due to the onset of the COVID-19 pandemic but fully reopened all grades and schools in January 2021. Media reported widely on the negative impact of long-term school closures on students. In April a study found that 53 percent of students exhibited a decline in math proficiency. Civil society organizations highlighted a rise in teen pregnancy and drug use during the pandemic.
While the law provides pregnant girls the right to continue their education until and after giving birth, NGOs reported schools did not always respect this right (see section 6, Women). School executives sometimes expelled pregnant girls or transferred them to other schools. In recent years media outlets reported a significant number of girls failed to take their final secondary school examinations due to pregnancy. Final examinations were not held during the year due to the pandemic.
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. A recent Ministry of Labour report found nearly half of female children and more than half of male children experienced childhood violence. The study found emotional violence was also common.
According to IPOA, most police facilities did not have designated child protection units, and police usually requested the Department of Children Services to take custody of child survivors. Although all the police facilities that IPOA inspected during the year had at least one officer designated to handle children’s cases, only some of the officers had received training on handling these cases, and the police stations did not have sufficient resources to process the large number of cases involving child survivors. IPOA found the shortage of designated child protective units made it difficult for officers to record statements from child survivors due to the lack of privacy. According to IPOA, police also reported difficulties investigating cases such as child rape, since some communities defended the perpetrators and preferred to settle cases through traditional mechanisms.
The minimum sentence for conviction of statutory rape is life imprisonment if the survivor is younger than age 11; 20 years in prison if the survivor is between ages 11 and 15; and 10 years’ imprisonment if the survivor is 16 or 17. Although exact numbers were unavailable, during the year media reported several statutory rape convictions.
The government banned corporal punishment in schools, but there were reports corporal punishment occurred.
Although there were no reports the government recruited child soldiers, there were reports the al-Shabaab terrorist group recruited children in areas bordering Somalia.
Child, Early, and Forced Marriage: The minimum age for marriage is 18 years for women and men. According to UNICEF, 25 percent of girls are married by 18. Media occasionally highlighted the problem of early and forced marriage common among some ethnic groups. Under the constitution the qadi courts retain 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. NGOs reported an increase in child, early, and forced marriages during the COVID-19 pandemic, noting school closures left girls more vulnerable to the practice.
Sexual Exploitation of Children: The law criminalizes sexual exploitation of children, including prohibiting procurement of a child younger than 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 age 18 to produce pornography or for pornographic performances. Provisions apply equally to girls and boys. The law has provisions regarding child trafficking, child sex tourism, child sexual exploitation, and child pornography. The minimum age for consensual sex is 18. Nevertheless, according to human rights organizations, children were sexually exploited and victims of trafficking.
The DCI continued to expand its Anti-Human Trafficking and Child Protection Unit, which is responsible for investigating cases of child sexual exploitation and abuse, providing guidance to police officers across the country on cases involving children, and liaising with the Ministry of Labour and Social Protection’s Department of Children Services to identify and protect abused children.
NGOs, international organizations, and local officials expressed concerns with reports of rising number of pregnancies among teenage girls, resulting in part from increased sexual abuse and exploitation during the COVID-19 pandemic.
Displaced Children: Poverty and the spread of HIV and 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 (see section 1.c.). 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. According to UNHCR, 52 percent of refugees were younger than age 18 (see section 2.d.).
Children continued to face protection risks in urban areas, particularly unaccompanied and separated children. Alternative care arrangements, such as foster care placement, were in place for a limited number of children. Additionally, government child protection services and the children’s department often stepped in to provide protection to children at risk, particularly unaccompanied children.
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 https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data/reported-cases.html.
The Jewish community is small, and there were no reports of anti-Semitic acts.
See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.
Persons with disabilities cannot access education, health services, public buildings, and transportation on an equal basis with others. The law prohibits discrimination against persons with disabilities, but the government did not effectively enforce these provisions. Several laws limit the rights of persons with disabilities. For example, the Marriage Act limits the rights of persons with mental disabilities to marry, and the Law of Succession limits the rights of persons with disabilities to inheritance. The constitution provides for legal representation of persons with disabilities in legislative and appointive bodies.
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.
The constitution states every person has the right to education, yet NGOs reported persons with disabilities had limited opportunities to obtain education and job training at any level due to lack of accessibility of facilities and resistance by school officials and parents to devoting resources to students with disabilities. Obtaining employment was also difficult.
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 the NGO Humanity & Inclusion, 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.
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 specific 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 and other physical disabilities. Most common forms of public transportation, all of which are privately operated, were difficult for persons with physical disabilities to use due accessibility challenges and crowding.
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 NGO reports.
According to a report by a coalition of disability advocate groups, persons with disabilities often did not receive the procedural or other accommodations they needed to participate equally in criminal justice processes as victims of crime.
Authorities received reports of killings of persons with disabilities as well as torture and abuse, and the government acted in some cases.
Persons with albinism have historically been targets of discrimination and human rights abuses. Human rights groups successfully lobbied to include a question on albinism in the 2019 national census, the first time that persons with albinism were counted. An NGO reported some persons with albinism experienced increased discrimination during the year due to unfounded fears they were more likely to carry the COVID-19 virus.
NGOs reported the COVID-19 pandemic disproportionally impacted persons with disabilities. One survey found 92 percent of respondents said their daily lives had been affected by the pandemic, pinpointing factors such as limited transport; restricted movement; a lack of available necessities; lack of contact with others at school, church, and social functions; reduced income; and job or income loss. Of respondents, 39 percent reported experiencing discrimination due to their disability, including exclusion from vital services.
According to a 2017 NGO report to the Committee on the Elimination of all Forms of Discrimination against Women, persons with disabilities made up only 2.8 percent of the Senate and National Assembly, less than the 5 percent mandated by the constitution (see section 3, Elections and Political Participation).
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. The government and NGOs expanded their staffing support at county levels for counseling and testing centers to ensure provision of free HIV and AIDS diagnosis. The government continued inclusion of diverse populations in provision of HIV services through 47 mobile clinics and medical camp safaris across the country. The government also supported programs to ensure nondiscrimination and undertook a community-led stigma index study.
Stigma nonetheless continued to hinder efforts to educate the public about HIV and AIDS and to provide testing and treatment services. The government continued to support the HIV and AIDS Tribunal to handle all legal matters related to stigma and discrimination. The tribunal, however, lacked sufficient funding to carry out its mandate across all 47 counties and thus still functioned only out of Nairobi.
Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation and Gender Identity
The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual conduct and specifies a maximum penalty of 14 years’ imprisonment if convicted, and seven years for “attempting” said conduct. The law also criminalizes acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward.
In 2016 LGBTQI+ activists filed two petitions challenging the constitutionality of these penal codes. In 2019 the High Court issued a unanimous ruling upholding the laws criminalizing homosexuality, citing insufficient evidence they violate LGBTQI+ rights and claiming repealing the law would contradict the constitution that stipulates marriage is between a man and woman. The LGBTQI+ community filed an appeal against this ruling and received favorable decisions on a handful of procedural matters but was awaiting a substantive hearing at year’s end. After filing this case, the LGBTQI+ community experienced increased ostracism and harassment, according to activist groups.
LGBTQI+ organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTQI+ individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTQI+ individuals in custody. They also reported police threatened homosexual men with forced anal examinations while in custody, which were outlawed in 2018.
Authorities permitted LGBTQI+ advocacy organizations to register and conduct activities.
The constitution does not explicitly protect LGBTQI+ persons from discrimination based on sexual orientation or gender identity. Violence and discrimination against LGBTQI+ individuals were widespread. LGBTQI+ rights organizations reported an increase in conversion therapy and practices. It attributed this increase to the fact many LGBTQI+ persons had returned to hostile home and community environments after losing their jobs because of the economic downturn caused by the COVID-19 pandemic. Some LGBTQI+ groups also reported an increase in abuses cases against LGBTQI+ persons during the pandemic. They attributed this rise to increased scrutiny of LGBTQI+ persons’ lifestyles because of COVID-19-related lockdown and curfew orders. In May human rights defender and HAPA Kenya paralegal Joash Mosoti was allegedly tortured and killed at his home in Mombasa.
In September the Kenya Film Classification Board banned the film I am Samuel for attempting to “promote same-sex marriage agenda as an acceptable way of life.” The board claimed the film violated Article 165 of the penal code, which outlaws homosexuality, as well as provisions of the Films and Stage Plays Act.
Although the country grants refugee status to persons whose persecution is due to sexual orientation or gender expression, some LGBTQI+ refugees continued to face stigma and discrimination. They were often compelled to hide their sexual orientation or gender identity to protect themselves, especially among Somali refugee communities in Dadaab. National organizations working with LGBTQI+ persons offered support to refugees who were LGBTQI+, including access to safety networks and specialized health facilities.
There were approximately 1,000 LGBTQI+ refugees in the country, including approximately 300 in Kakuma, where there were reports of violence and intimidation against LGBTQI+ refugees during the year. An arson attack by unknown perpetrators in March led to the death of one LGBTQI+ refugee in April. UNHCR and NGO partners provided medical and other assistance for LGBTQI+ refugees when necessary, but legal accountability for perpetrators was lacking. In March UNHCR released a statement outlining efforts in collaboration with police and the Refugee Affairs Secretariat to enhance security for LGBTQI+ refugees, including the relocation of some particularly vulnerable individuals.
Mob violence and vigilante action were common in areas where the populace lacked confidence in the criminal justice system. The social acceptability of mob violence also provided cover for acts of personal vengeance. During the year HAKI reported civilian mobs killed 10 persons in the six coastal counties. Through the end of August, HAKI reported civilian mobs killed six persons in the Nairobi metropolitan area. Police frequently failed to act to stop mob violence. In August four men, who had stopped on the side of a road to repair their motorcycles, were killed by a mob in Kitengela. The mob mistakenly identified the four men as cattle thieves.
Landowners formed groups in some parts of the country to protect their interests from rival groups or thieves. Reports indicated politicians often funded these groups or provided them with weapons, particularly around election periods.