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Kenya

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

Women

Rape and Domestic Violence: The law criminalizes rape, defilement, and sex tourism; enforcement remained limited, and civil society groups indicated victims did not report as much as 92 percent of sexual offenses to police. The 2015 Protection against Domestic Violence Act criminalizes abuses that include early and forced marriage, FGM/C, forced wife “inheritance,” and sexual violence within marriage. The act’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 the Security Laws Amendment Act, 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. NGOs reported difficulties obtaining evidence and the unwillingness of witnesses to testify in sexual assault cases in areas where citizens employed traditional dispute resolution mechanisms.

A study released in 2014 by the Usalama Reform Forum estimated that victims reported only 40 percent of rape cases to police. A 2014 study by the NGO Peace Initiative Kenya identified 383 cases of rape reported in media between January and May, noting a 15 percent increase from the same period in 2012. The study stated that the Women’s Hospital of Nairobi reported receiving an average of 18 cases of rape and incest daily. The Coalition on Violence against Women estimated 16,500 rapes occurred per year.

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.

Other factors explaining the low reporting and prosecution rates for rape included a cultural inhibition against publicly discussing sex, particularly sexual violence; stigma attached to rape survivors; survivors’ fear of retribution; police reluctance to intervene, especially in cases where the victim accused family members, friends, or acquaintances of committing the rape; and poor training of prosecutors. Reporting also remained low due to traditional attitudes toward sexual violence, and courts dismissed many cases due to lack of evidence.

Domestic violence against women was widespread. Police officers generally refrained from investigating domestic violence, which they considered a private family matter. NGOs, including the Law Society of Kenya and the Federation of Women Lawyers, provided free legal assistance to some victims of domestic violence.

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.

FGM/C was usually performed on victims at an early age. According to the UN Children’s Fund (UNICEF), in February, 21 percent of girls and women between ages 15 and 49 had undergone FGM/C. Of the 42 ethnic groups, only four (the Luo, Luhya, Teso, and Turkana, who together constitute approximately 25 percent of the population) did not traditionally practice FGM/C. Approximately 98 percent of ethnic Somali girls and women ages 15-49 in the country had undergone FGM/C. 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. Some churches and NGOs provided shelter to girls who fled their homes to avoid FGM/C, but community elders frequently interfered with attempts to stop the practice. Various communities and NGOs instituted “no cut” initiation rites for girls as an alternative to FGM/C, but in some communities this effort was unsuccessful. 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 by authorities.

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. In 2014 parliament passed legislation that codified 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. IPOA investigated one reported case of police officer promotions resulting from sexual favors.

Reproductive Rights: 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. Subsidized contraception options, including condoms, birth control pills, and long-acting or permanent methods, were widely available to both men and women throughout the country, although access was more difficult in rural areas. In 2014 the UN Population Fund estimated that 46 percent of girls and women between ages 15 and 49 used a modern method of contraception. Skilled obstetric, prenatal, and postpartum care were available in major hospitals, but many women could not access or afford these services. Skilled health-care personnel attended an estimated 44 percent of births in 2014. Observers estimated 20 percent of maternal deaths to be AIDS related. In 2014 First Lady Margaret Kenyatta launched the Beyond Zero Campaign, a government effort to improve maternal health and reduce maternal mortality. This program continued during the year.

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. Women held only 6 percent of land titles, of which the majority were joint titles, and accessed only 7 percent of formal financial credit awarded in the country. 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.

In 2014 the National Assembly adopted the Marriage Act, which included provisions to strengthen property rights for wives. The act retains a man’s right to enter into multiple marriages and does not require consultation with or the consent of the existing spouse(s). The act contains a provision protecting the entitlements and interest of the first wife in matrimonial property. The bill received presidential assent and went into force during the year. A separate Matrimonial Property Act went into force in 2013 under which ownership of jointly held property depends upon how much each spouse can prove he or she contributed monetarily to that property. Many women’s rights groups and female members of parliament asserted the act was discriminatory and regressive.

Children

Birth Registration: A child derives citizenship from the citizenship of the parents, and either parent may transmit citizenship. Birth registration is compulsory. Parents in rural areas, where tradition considered community elders rather than official entities the legitimate authorities in family matters, often did not register births. 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.

The law requires citizens to obtain identity cards when they turn 18 years of age; it requires identity cards for citizens to obtain public services and to vote. The law requires that at least one parent’s identification document be produced for a child to obtain an identify card. Some sources reported, however, that children born out of wedlock and children born of married mothers who retained their maiden names had difficulty obtaining identity cards, unless they could produce identification of a male relative.

Education: Education is tuition free and compulsory through age 13. According to a 2016 report by international regional education initiative Uwezo Kenya, 90 percent of children ages six to 13 were enrolled in school. Authorities limited secondary enrollment to students who obtained relatively high scores on standardized examinations for students completing primary education. Authorities did not enforce the mandatory attendance law uniformly.

According to a 2014 study by NGO Plan Kenya, 47.6 percent of girls and 52.4 percent of boys enrolled in secondary education.

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. Schoolmasters sometimes expelled pregnant girls or transferred them to other schools.

In 2014 the NGO The Cradle estimated that 41 percent of children between ages 10 and 14 worked rather than attend school.

Child Abuse: Violence against children, particularly in poor and rural communities, was common, and child abuse, including sexual abuse, occurred frequently. A 2010 government survey found that 32 percent of female respondents and 18 percent of male respondents between ages 18 and 24 had experienced sexual violence before age 18. Perpetrators of physical, sexual, and emotional violence were rarely strangers to the child. Romantic partners of students were the most common perpetrators of sexual violence, followed by neighbors, while parents and teachers were the most common perpetrators of physical and emotional violence. According to NGOs, lack of awareness of how to report child abuse and aversion to involvement in a lengthy legal process were major obstacles to doctors, teachers, and other nonfamily figures reporting child abuse. The Protection against Domestic Violence Act enacted in May criminalizes several forms of violence that affect children, including early and forced marriage, FGM/C, incest, and physical, verbal, and sexual abuse.

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 Marriage Act of 2014 introduced a minimum age for marriage of 18 years for both women and men and voided marriages that violated this rule. Media occasionally highlighted the problem of early and forced marriage, which some ethnic groups commonly practiced. UNICEF’s 2016 The State of the World’s Children Report stated that 4 percent of children were married by age 15, and 23 percent by age 18; the Northeast and coastal regions had the highest prevalence. There was a strong correlation between poverty and early and forced marriage. Under the constitution the qadi courts retained jurisdiction over Muslim marriage and family law.

Female Genital Mutilation/Cutting (FGM/C): See information for girls under 18 in women’s section above.

Sexual Exploitation of Children: According to human rights organizations, children were sexually exploited and victims of trafficking. The law criminalizes sexual exploitation of children, including prohibiting procurement of a girl 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.

The prostitution of children under age 18 remained a problem due to poverty, lack of law enforcement, internal displacement, and foreign and domestic tourists seeking sex with underage girls and boys. Political leaders expressed concern that minors were leaving school and being lured into prostitution to address their basic needs. According to the NGO The Cradle, child prostitution was prevalent in Nairobi, particularly in informal settlements, and in Kisumu, Eldoret, Nyeri, and the coastal areas. The same source indicated that criminals trafficked a significant number of children to urban and coastal areas from the north and west to engage in prostitution. UNICEF, the Ministry of Tourism and Wildlife, the World Tourism Organization, and NGOs continued to work with the Kenya Association of Hotelkeepers and Caterers to increase their awareness of child prostitution and sex tourism. The association encouraged hospitality-sector businesses to adopt and implement the code of conduct developed by the NGO End Child Prostitution and Child Pornography and Trafficking of Children for Sexual Purposes. The Tourism Regulatory Authority oversees hotels, rental villas, and cottages to monitor adherence to the code of conduct.

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 that 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 physical or mental disabilities in employment, education, access to health care, or the provision of other state services. The government did not effectively enforce these provisions. A number of laws limit the rights of persons with disabilities. The Marriage Act limits the rights of persons with mental disabilities to get married; the penal code criminalizes “rape of an imbecile”; the Law of Succession limits the rights of persons with disabilities to inheritance; and the Mental Health Act allows guardians to make all decisions for persons “of unsound mind.” 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 for persons with disabilities. According to NGOs, police stations remained largely inaccessible to those with mobility disabilities. According to the State Department of Public Works (the Department), the Department and the Joint Committee on National Cohesion and Equal Opportunities agreed on March 8 that the Department would form a committee to review construction standards for accessibility for persons with disabilities and regulation enforcement.

There was limited societal awareness of persons with disabilities and significant stigma attached to disability. Learning and other disabilities not readily apparent were not widely recognized. 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 on the part of school officials and parents to devoting resources to students with disabilities. A survey published by NGO Twaweza ni Sisi on July 20 stated 73 percent of citizens did not believe children with disabilities in their communities should be enrolled in secondary school. The KNCHR estimated that 67 percent of persons with disabilities had a primary education, 19 percent attained secondary education, and 2 percent reached university level, while 7 percent of persons with disabilities reported that authorities denied them all access to education because of their disability.

According to a 2014 survey by the NGO Handicap International on the rights of persons with disabilities in the country, 85 percent of persons with disabilities experienced verbal abuse related to their disability and 17 percent experienced gender-based violence. Of those who reported abuse, 47 percent neither reported the incident to police or other authorities nor sought medical help or counseling. They cited fear of reprisal or of being misunderstood as their reasons. Of those who reported abuse to some authority, the majority reported the incident to community elders rather than police.

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 Nation newspaper reported on March 3 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. Nevertheless, 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 the needs of 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. The Association for the Physically Disabled of Kenya carried out advocacy campaigns on behalf of persons with disabilities, distributed wheelchairs, and worked with public institutions to promote the rights of persons with disabilities. The KNCHR noted that awareness of the rights of persons with disabilities increased as a result in some counties, but it faulted the government for not ensuring equal protection of the rights of persons with disabilities throughout the country.

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.

National/Racial/Ethnic Minorities

There are 42 ethnic groups in the country; none holds a majority. The 2009 census identified eight major ethnic communities: Kikuyu, 6.6 million persons; Luhya, 5.3 million; Kalenjin, five million; Luo, four million; Kamba, 3.9 million; Kenyan Somali, 2.3 million; Kisii, 2.2 million; and Mijikenda, 1.9 million. 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: long-standing 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. Between February and May, at least five persons were killed and scores injured in a clash to control the government-run Agricultural Development Corporation farm in the Rift Valley, which multiple ethnic communities claimed to own.

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. For example, three persons were killed in January when the Samburu and Ndorobo communities clashed over grazing areas in Leparua on the border of Isiolo and Laikipia Counties; media reported that 60 stolen cows were recovered through joint efforts by the public and police. Intercommunal and resource-based violence also occurred in Baringo, Merua, Marsabit, and Wajir Counties.

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 the National Gay and Lesbian Human Rights Commission (NGLHRC) filed Petition 150 of 2016 challenging the constitutionality of these penal codes. In May a coalition of human rights organizations filed a petition challenging the constitutionality of the same penal code provisions based on violence, the fear of violence, and documented human rights violations against citizens.

LGBTI organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTI individuals. Police frequently harassed, intimidated, or physically abused LGBTI individuals in custody. In September 2015 the NGLHRC legally challenged on behalf of two individuals from Kwale County the constitutionality of court-ordered nonconsensual anal examination, HIV testing, and hepatitis B testing as a means of proving same-sex conduct. On June 16, the Mombasa High Court dismissed their case, ruling that medical examination is a legal means to obtain evidence of crime.

Authorities permitted LGBTI advocacy organizations to register and conduct activities. There were reports, however, that some organizations registered under modified platforms to avoid denial of registration by the government.

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. Human rights and LGBTI rights organizations noted victims were extremely reluctant to report abuse or seek redress due to fear of violence against them or arrest.

In 2015 the High Court ruled in favor of the NGLHRC in a case challenging the government’s refusal to register LGBTI advocacy and welfare organizations. The NGLHRC sought court intervention after unsuccessfully trying since 2012 to register under the Nongovernmental Organizations Coordination Act. The court ruled that refusing to register the organization was an infringement on constitutionally protected freedom of association. The government’s appeal remained pending as of October 25. The Court of Appeal ruled on May 20 that the High Court’s judgment stood in the interim.

HIV and AIDS Social Stigma

In partnership with key stakeholders, the National AIDS Control Council conducted a National HIV and AIDS Stigma and Discrimination Study in 2014 that produced a composite stigma rating for Kenya of 45.16 (High), with regional variations.

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. Because of social stigma, many citizens avoided testing for HIV/AIDS. According to its website, the First Lady’s Beyond Zero Campaign to stop new 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. Many incidents of mob violence in informal settlements went unreported. Many victims were persons suspected of criminal activities, including theft, robbery, killings, cattle rustling, and of having membership in criminal or terrorist groups.

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.

The Senate approved in June a petition to establish a joint parliamentary select committee to investigate occurrences of police brutality and mob violence. The committee’s report was pending as of September.

Mobs also attacked persons suspected of witchcraft or participation in ritual killings. For example, according to media reports, on June 14, a mob attacked and set on fire a woman accused of witchcraft in Mombasa.

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 that some believed would confer magical powers and that could be sold for significant sums. On June 13, persons with albinism marched in Nairobi to mark International Albinism Awareness Day.

The National Council of Persons with Disabilities and the Kenya Albino Child Support Program, in partnership with the government, continued an awareness campaign to combat discrimination. Employment discrimination against persons with albinism also occurred.

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