Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Rape and Domestic Violence: The law criminalizes rape, 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. Under the 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 when the victim is older than 18, although sentences were at the discretion of the judge and usually no longer than the minimum of 10 years (see also section 6, Children). In August the Milimani High Court sentenced two rugby players to 15 years’ imprisonment for the gang rape of a singer, noting “a deterrent sentence is necessary.”
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 victims or their families. They also used such mechanisms occasionally in urban areas. In February 2018, however, the cabinet secretary for the Ministry of Interior announced the government would not permit local government officials and community leaders to use maslaha to resolve the gang rape of a 15-year-old girl in rural Wajir County and that the investigation must proceed through official channels. This case continued to proceed through the official court system.
The judiciary recorded 3,832 cases of sexual and gender-based violence filed in court between October 2018 and September. Authorities reported 947 convictions during the year.
The governmental KNCHR’s November report on sexual violence during and after the 2017 election found sexual and gender-based violations accounted for 25 percent of human rights violations, and 71 percent of the sexual assaults were categorized as rape. Of the victims, 96 percent were women. The same report found security officers committed an estimated 55 percent of the documented sexual assaults. The KNCHR’s report included numerous official recommendations to the Presidency, the NPSC, the Ministries of Interior and Health, IPOA, the ODPP, the judiciary, county governments, and other state bodies. According to the NGO Grace Agenda, there were 201 cases of election-related sexual violence in 2017 across nine counties that had not been investigated or prosecuted. Most election-related sexual violence cases from the 2007-2008 postelection unrest were also still not investigated.
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 three. NGOs reported police stations often but inconsistently accepted the examination report of clinical physicians who initially treated rape victims. In January police launched the National Police Service Standard Operating Procedures on addressing gender-based violence. These procedures aim to standardize the varying quality of care that victims receive and provide a guide to police officers who do not have the relevant training.
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 reported rising numbers of women and girls killed due to gender-based violence. According to data from the NGO Counting Dead Women Kenya, at least 60 women were killed between January and June. In May political leaders, including the cabinet secretary for the ministry of interior, attended a femicide vigil and committed to address the causes of domestic violence and improve the justice system’s response.
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. 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 a study by ActionAid Kenya published in October 2018, despite the legal prohibition of FGM/C, myths supporting the practice remained deep-rooted in some local cultures. The study concluded approximately 21 percent of adult women had undergone the procedure some time in their lives, but the practice was heavily concentrated in a few communities, including the Maasai (78 percent) and Samburu (86 percent).
In December, as part of the government’s initiative to end FGM/C by 2022, the Ministry of Public Service Youth and Gender began consultative meetings with county commissioners and chiefs from the 22 counties with the highest rates of FGM/C to improve enforcement of the FGM/C law. Following these meetings Kajiado County became the first county in the country to launch an anti-FGM/C Policy focused on educating the community on the dangers and illegality of FGM/C.
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.
In December 2018 a 14-year-old girl bled to death as a result of FGM/C in Meru County. After a local human rights activist brought the case to national attention, the girl’s aunt surrendered to Igembe North authorities and was taken to court in March but was released for lack of evidence. There were no witnesses, and the local chief was not cooperative. The human rights activist who brought the case to national attention subsequently faced death threats and was unable to return to Meru for a part of the year.
For more information, see Appendix C.
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. Such inheritance was more likely in cases of economically disadvantaged women with limited access to education living outside of major cities. Early and other forced marriages were also common.
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 or involuntary sterilization.
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 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. According to a June report by FIDA-K, Isiolo Gender Watch, and Shining Hope for Communities, however, the law has not been amended to comply with these constitutional provisions and perpetuates discrimination. Additionally, the components of the law that do stipulate how to apply for succession were little known and thus many inheritances continued to pass from fathers to sons only.
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 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 implements the Maternal Child Health Registration Strategy that requires nurses administering immunizations to register the births of unregistered children.
In March the High Court ruled on a case that had been filed by FIDA-K, declaring unconstitutional, null and void, Section 2 (b) of the Children Act that gave men room to accept or decline responsibility for children they sired outside marriage. The court ruled that fathers who sire children out of wedlock must have equal parental responsibility as mothers.
For additional information, see Appendix C.
Education: By law education is tuition free and compulsory through age 14. The government began implementing free secondary education for all citizens. 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 schools often did not respect this right. School executives sometimes expelled pregnant girls or transferred them to other schools. Media outlets reported a significant number of girls failed to sit for their final secondary school examinations due to pregnancy.
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. In November, HAKI Africa reported a case of a six-year-old who was the victim of statutory rape (defilement) committed by one of her teachers in school. According to the parents of the victim, other teachers tried to cover up for their colleague. The perpetrator was arrested the following day and remained in prison after failing to pay his bail. This was the fourth case of statutory rape reported to HAKI Africa in a month. In December media reported two cases of statutory rape by police officers, one in Kisumu County and the other in Mombasa County. In both cases media reported police officers attempted to cover up the crimes committed by their colleagues.
The minimum sentence for conviction of statutory rape is life imprisonment if the victim is younger than 11 years, 20 years in prison if the victim is between ages 11 and 15, and 10 years’ imprisonment if the child is age 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.
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 that some ethnic groups commonly practiced. Under the constitution the qadi 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. In January, following a tip from a neighborhood watch initiative, police and NGO workers rescued a 12-year-old girl in Kajiado who had been forced to marry a 35-year-old man. Police arrested and charged the victim’s mother and the mother’s partner with submitting a child to a sexual act, child marriage, and child rape. For additional information, see Appendix C.
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 the age of 18 for the production of pornography or for pornographic performances. Provisions apply equally to girls and boys. The law has provisions regarding child trafficking, child sex tourism, child prostitution, 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 Directorate of Criminal Investigations continued to expand its Anti-Human Trafficking and Child Protection Unit (AHTCPU), 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 rescue abused children. During the year the AHTCPU opened a new office in Mombasa and increased the number of officers assigned to the unit. In March the AHTCPU also opened a cybercenter in Nairobi to increase its capacity to investigate cases involving online child exploitation.
Child Soldiers: Although there were no reports the government recruited child soldiers, there were reports that the al-Shabaab terrorist group recruited children in areas bordering Somalia.
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.
Children continued to face protection risks in urban areas, particularly unaccompanied and separated children. Alternative care arrangements, such as foster care placement, are in place for a limited number of children. In addition government child protection services and the county’s children’s department often step in to provide protection to children at risk, particularly unaccompanied children.
Institutionalized Children: A special report published by the Standard in September alleged minors in children’s homes under the care of the Child Welfare Society of Kenya (CWSK) have suffered poor living conditions, mistreatment, and lack of proper medical care and education. A local news outlet aired an investigative report in October alleging that CWSK, against the advice of licensed medical practitioners, had taken children with more significant disabilities to unlicensed facilities for experimental treatments. The ODPP reportedly opened an investigation into the allegations. On September 12, the cabinet directed the Ministry of Labour and Social Protection to streamline the operations of the CWSK.
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.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.
Persons with Disabilities
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 get married 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 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.
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. Data from the Public Service Commission indicated that, of 251 institutions evaluated on inclusion of persons with disabilities in fiscal year 2017/2018, only 10 institutions complied with the 5 percent requirement for employment of persons 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. In May women with disabilities protested against increased violence after a woman with physical disabilities was sexually assaulted and killed, a woman with a mental disability was sexually assaulted, and a deaf girl was raped. The murder case in Machakos was pursued, with three persons arrested, two of whom were still in jail while the third was released on bail. The case went to trial and hearings continued at year’s end.
Persons with albinism (PWA) have historically been targets of discrimination and human rights abuses. During the year human rights groups successfully lobbied to include a question on albinism in the August national census, the first time PWA were counted. In November 2018 the Albinism Society of Kenya (ASK) organized the first Mr. and Miss Albinism East Africa beauty pageant to raise awareness of the condition and combat misconceptions. According to ASK, the treatment of PWA improved during the year; they were more broadly accepted in society and cases of statutory rape and confinement declined.
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.
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 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.
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.
According to a 2017 CEDAW report, 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).
There were 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. 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 over county borders were also a source of ethnic tensions.
In July the Institute for Security Studies stated almost 40 persons were killed, schools closed, and livelihoods disrupted during ethnic violence in Marsabit County along the border with Ethiopia over the preceding months. The report alleged the conflict was driven by ethnic territorial expansion, including illegal settlements, and a bid by local politicians to increase voting numbers ahead of the 2022 elections. Since then local politicians have been arrested for political incitement, and meetings have taken place between local leaders and interfaith groups. A cross-border peace initiative met in July and decided to set up a community-based peace committee. In June the cabinet secretary for the Ministry of Interior issued a directive that “cross-border meetings between stakeholders from Kenya and Ethiopia in the Marsabit area be attended at the highest level by the national government administration.” Violence continued, however, and five children were reported among the 13 killed in violence in November.
Ethnic differences also caused a number of discriminatory employment practices (see section 7.d.).
Acts of Violence, Discrimination, 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 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 October police arrested three men for violating the penal code provisions. The men denied the charge and were released on bail.
In 2016 LGBTI activists filed two petitions challenging the constitutionality of these penal codes. On May 24, the High Court issued a ruling upholding the laws criminalizing homosexuality, citing insufficient evidence they violate LGBTI rights and claiming repealing the law would contradict the 2010 constitution that stipulates marriage is between a man and woman. The LGBTI community filed appeals against this ruling. Leading up to the hearing of this case, and in its wake, the LGBTI community experienced increased ostracism and harassment.
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.
The 2010 constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. Violence and discrimination against LGBTI individuals was widespread. For example, in April secondary school authorities in Mathira Constituency reportedly abused 32 girls for allegedly being lesbians and prohibited them from taking their end-term exams. In June the government ordered a group of 76 LGBTI refugees to leave their temporary quarters in Nairobi and return to the Kakuma camp, where they had been subject to homophobic attacks and death threats.
LGBTI refugees continued to face stigma and discrimination. They were often compelled to hide their sexual orientation or gender identity to protect themselves. National organizations working with LGBTI persons offered support to refugees who were LGBTI, including access to safety networks and specialized health facilities.
In 2017 the government formed a taskforce to implement a High Court’s judgment in the 2014 Baby ‘A’ case that recognized the existence of intersex persons. The taskforce submitted its final report to the attorney general in March. The report estimated the number of intersex persons in the country at 779,414. The taskforce found only 10 percent of the intersex population completed tertiary education, only 5 percent recognized themselves as intersex due to lack of awareness, and the majority lacked birth certificates, which caused numerous problems, including inability to obtain a national identity card. The census included intersex as a gender and reported 1,524 intersex persons. The disparity between these numbers is likely due to the report’s finding that many Kenyans did not recognize themselves as intersex due to lack of awareness and thus did not mark themselves as intersex during the census. The report concluded with a number of recommendations to realize the rights of members of the intersex community.
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. The government and NGOs expanded their staffing support at county levels for counseling and testing centers to ensure provision of free HIV/AIDS diagnosis. In 2016 the first lady’s Beyond Zero Campaign to stop HIV infections led to the opening of 47 mobile clinics across the country.
Stigma nonetheless continued to hinder efforts to educate the public about HIV/AIDS and to provide testing and treatment services. The government continued to support the HIV 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.
Other Societal Violence or Discrimination
Mob violence and vigilante action were common in areas where the populace lacked confidence in the criminal justice system. In September police officers in Kericho County rescued a fellow officer who was in danger of being lynched by a mob that suspected the officer of being a burglar. The social acceptability of mob violence also provided cover for acts of personal vengeance. Police frequently failed to act to stop mob violence. In May the Police Reforms Working Group-Kenya, a group of 19 human rights organizations, issued a statement condemning the killings of a local chief and the head of the police station in Tharaka-Nithi by local residents. The residents allegedly killed the chief in retaliation for the killing of a local resident in connection with a prolonged land dispute. The police officer was subsequently killed while pursuing the suspects.
Landowners formed groups in some parts of the country to protect their interests from rival groups or thieves. In March 2018 the National Cohesion and Integration Commission reported more than 100 such organized groups nationwide. Reports indicated politicians often funded these groups or provided them with weapons, particularly around election periods.