Section 1. Respect for the Integrity of the Person
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law includes provisions to apply articles of the constitution, including freedom from torture and cruel, inhuman, or degrading treatment or punishment; respect and protection of human dignity; and freedom and security of the person. The law brings all state agencies and officials under one rather than multiple legislative mandates. Additionally, the law provides protections to vulnerable witnesses and officials who refuse to obey illegal orders that would lead to torture. The law also provides a basis to prosecute torture but was rarely used. The government had not instituted the regulations required to implement fully the law’s provisions.
NGOs continued to receive reports of torture and other inhuman or degrading treatment by government forces. As of December 21, the Independent Medico-Legal Unit documented 109 cases of torture and other inhuman treatment allegedly perpetrated by police during the year.
Police and prison officials reportedly used torture and violence during interrogations as well as to punish pretrial detainees and convicted prisoners. According to human rights NGOs, physical battery, bondage in painful positions, and electric shock were the most common methods used by police. A range of human rights organizations and media reported police committed indiscriminate violence with impunity.
Police used excessive force in some cases when making arrests. For example, there were numerous press and NGO reports of police brutality against protesters and unarmed citizens (see sections 2 and 5), particularly related to the enforcement of COVID-19 public health measures.
The Social Justice Centres Working Group reported police violence was especially prevalent in informal settlements. The most prevalent form of violence was beatings to disperse traders and other persons in markets after curfew. Monitors also documented incidents involving use of live ammunition, tear gas, sexual violence, and property damage.
In July 2020 four police officers assaulted Nairobi Member of County Assembly Patricia Mutheu at Nairobi’s City Hall. Video of the incident received significant coverage in traditional and social media. IPOA investigated the incident and forwarded recommendations to the Office of the Director of Public Prosecution (ODPP), which by year’s end had not announced whether it would charge the officers involved.
Impunity remained a serious problem. Authorities investigated and prosecuted several police officers for committing killings, which resulted in one new murder conviction during the year. Four additional police officers were convicted of manslaughter and sexual assault. In February the Gatundu Law Courts sentenced Constable Paul Kipkoech Rotich to 40 years in prison for sexual offenses against a minor. In February the Busia Law Courts sentenced Constable James Kinyua to 10 years’ imprisonment for raping a high school student. In June the Garissa High Court convicted Officers Dennis Langat and Kennedy Okuli of manslaughter in the death of a woman whose son was accused of possessing and selling marijuana. As of November, Langat and Okuli were awaiting sentencing. In July the Naivasha High Court sentenced Constable Evans Maliachi to 20 years in prison for the 2016 murder of a fisherman in Naivasha.
Since its inception in 2012, IPOA has investigated 887 deaths allegedly caused by police. These investigations have led to nine murder convictions. Additionally, IPOA conducted investigations that led to four additional convictions for crimes such as attempted murder and rape, for a total of 13 police officer convictions since 2012.
Human rights groups also noted the government failed to provide compensation and redress to families of victims. In September 2020 several human rights groups filed a suit against the government on behalf of victims of police brutality, including Yassin Moyo, to seek compensation for deaths and injuries resulting from police abuses during the enforcement of COVID-19 measures. The petition, which remained pending in court, also called on the government to implement laws intended to address human rights violations and protect victims.
Victims of police abuse may file complaints at regional police stations, police headquarters through the Internal Affairs Unit and its hotline, and through the IPOA website and hotline (see section 5). IPOA investigated allegations of excessive force that led to serious injuries, but few led to prosecutions. Police officials at times resisted investigations and detained some human rights activists who publicly registered complaints against government abuses. Authorities sometimes attributed the failure to investigate a case of police corruption or violence, including unlawful killings, to the failure of victims to file official complaints. Human rights activists reported that at times police officers in charge of taking complaints at the local level were the same ones who committed abuses. Sometimes police turned away victims who sought to file complaints at police stations where alleged police misconduct originated, directing them instead to other area stations. This created a deterrent effect on reporting complaints against police. Human rights NGOs reported police used disciplinary transfers of officers to hide their identities and frustrate investigations into their alleged crimes. Many media and civil society investigations into police abuse ended after authorities transferred officers, and police failed to provide any information about their identities or whereabouts.
The National Police Service continued efforts launched in August 2020 to digitize records held at police stations on incidents and complaints. Government officials stated one of the aims of the program was to reduce opportunities for police to alter or delete records and increase accountability.
Prison and Detention Center Conditions
Human rights organizations reported prison, detention center, and police station conditions were harsh due to overcrowding, food and water shortages, and inadequate sanitary conditions and medical care.
Physical Conditions: In February the National Council on the Administration of Justice (NCAJ) reported the average daily prisoner population for 2019-20 was 41,500, of which more than 15,000 were pretrial detainees. The NCAJ reported authorities had released approximately 14,000 prisoners since the beginning of the COVID-19 pandemic to reduce overcrowding. Authorities also continued a prison decongestion program that entailed releasing petty offenders and encouraging the judiciary to increase use of a community service program in its sentencing. Although several new prisons were constructed since 2012, the average prisoner population remained nearly 200 percent of capacity, including a large population of pretrial detainees; some prisons held up to 400 percent of capacity. Six new women’s prisons were added since 2018 to ease congestion in facilities for women.
During the year the judiciary took steps to address overcrowding by developing alternatives to pretrial detention and promoting sentence reduction, including through the expanded use of plea bargaining.
Authorities generally separated minors from adults except during the initial detention period at police stations, when authorities often held male and female adults and minors in a single cell. Several counties lacked adequate facilities to hold minors and women apart from men in courts and police stations. According to IPOA, 73 percent of police facilities had separate cells for women, 18 percent had separate cells for female juveniles, and 41 percent had separate cells for male juveniles. IPOA reported some police facilities used offices and corridors as holding places for minors and that some facilities had converted cells into storage and office space due to space constraints. According to the prison commissioner, the Prisons Service included four correction facilities for minors. Prison officials reported that, because there were few correction facilities for minors, authorities often had to transport them long distances to serve their sentences, spending nights at police stations under varying conditions along the way.
The law allows children to stay with their mothers in certain circumstances until age four or until arrangements for their care outside the facilities are concluded, whichever is earlier.
Prisoners generally received three meals a day, but portions were inadequate. Access to water improved slightly overall, although provision of drinking water declined at some facilities. Prisoners generally spent most of their time indoors in inadequately lit and poorly ventilated cellblocks.
In September the Ministry of Interior began mass COVID-19 vaccination of the prison population and staff to facilitate resumption of family visitations and in-person trials for pretrial detainees. The prison commissioner reported, however, the prison system continued to face serious health and welfare problems due to communicable diseases such as tuberculosis. NGOs reported that women inmates sometimes performed unpaid labor, including cooking, laundry, and cleaning.
Administration: The Kenya National Commission on Human Rights reported improved access to prisons and detention facilities to monitor human rights standards. The Commission on the Administration of Justice serves as ombudsman over government administration of prisons. It receives confidential correspondence from inmates and recommends remedies to address their concerns, including those pertaining to prison living conditions and administration. Many government-designated human rights officers lacked necessary training, and some prisons did not have a human rights officer.
Prison officials sometimes denied prisoners and detainees the right to contact relatives or lawyers. Family members who wanted to visit prisoners commonly reported bureaucratic obstacles that generally required a bribe to resolve. NGOs reported prisoners had reasonable access to legal counsel and other official visitors, although there was insufficient space in many prisons and jails to meet with visitors in private and conduct confidential conversations.
Independent Monitoring: The government permitted prison visits by independent nongovernmental observers and foreign diplomats.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for official corruption. There were numerous reports of government corruption during the year. Officials frequently engaged in allegedly corrupt practices with impunity. Despite public progress in fighting corruption, the government continued to face hurdles in implementing relevant laws effectively. The slow processing of corruption cases was exacerbated by COVID-19 containment measures, with courts lacking sufficient technological capacity to hear cases remotely.
Corruption: The director of public prosecutions continued prosecutions of high-level cases involving six sitting county governors and dozens of national government and parastatal officials with ties to the ruling party and to the political opposition. A landmark ruling in 2019 bars county governors from accessing their offices until their corruption cases are concluded. Two governors were indicted and impeached by their county assemblies while their cases continued in the courts. The Ethics and Anti-Corruption Commission (EACC) also investigated high-level procurement irregularities at the Kenya Medical Supplies Agency, a state agency with the sole mandate of procuring medications and equipment for government health centers. The investigations involved procurement of personal protective equipment at inflated costs and probed the alleged disappearance of personal protective equipment and other equipment donated to the country. These investigations and prosecutions continued at year’s end. In September the Anti-Corruption Court convicted two high-profile defendants, a former cabinet secretary and a former director of the Kenya Medical Research Institute.
The public continued to perceive corruption as a severe problem at all levels of government. Transparency International’s 2019 Global Corruption Barometer – Africa found 45 percent of respondents had paid a bribe, compared with 37 percent in the previous 2015 survey. Police and authorities issuing identification documents were cited the most for taking bribes. Corruption had increased according to 67 percent of respondents, and 71 percent believed the government was doing a poor job of combating corruption, unchanged from the results of Transparency’s 2015 Corruption Barometer.
In 2019 President Kenyatta appointed a new chief executive officer of the EACC, who introduced a new approach to tackling corruption that prioritized high-impact cases, systems reviews, assets recovery, and public communication. Officials from agencies tasked with fighting corruption, including the EACC, the ODPP, and judiciary, were also subjects of corruption allegations.
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. Disagreements between the ODPP and Directorate of Criminal Investigations (DCI) regarding which office can initiate investigations and deliver files to court resulted in the delayed prosecution of the Kenya Ports Authority managing director on corruption allegations. In June 2020 the Kenyan Constitutional Court declared the DCI did not have power or authority to institute criminal proceedings before a court of law without consent from the ODPP. Following that ruling, the ODPP issued decision to charge guidelines to assist prosecutors in charging decisions.
The government took additional steps during the year to combat corruption, including increasing the number of investigations and prosecutions. The government made limited progress on other commitments, including adoption of international anticorruption standards and digitization of government records and processes. Because courts had significant case backlogs and relied heavily on trials (rather than settlements), cases could take years to resolve.
Police corruption remained a significant problem. Human rights NGOs reported police often stopped and arrested citizens to extort bribes. Police sometimes jailed citizens on trumped-up charges or beat those who could not pay the bribes. During police vetting conducted by the National Police Service Commission (NPSC) in recent years, many police officers were found to have 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 some officers also transferred money to superior officers.
The judiciary and the 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 this progress, no senior police official was convicted or jailed for corruption-related offenses during the year.
Section 5. Governmental Posture Towards International and Nongovernmental Investigation of Alleged Abuses of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating, and publishing their findings on human rights cases, although some groups reported experiencing government harassment. Officials were sometimes cooperative and responsive to the queries of these groups, but the government did not implement recommendations by human rights groups if such recommendations were contrary to its policies. There were reports officials intimidated NGOs and threatened to disrupt their activities (see section 2.b.). Less-established NGOs, particularly in rural areas, reported harassment and threats by county officials as well as security forces. Human rights activists claimed security forces conducted surveillance of their activities, and some reported threats and intimidation.
There were also reports that officials and police officers threatened activists who sought justice for police killings and other serious abuses. The intimidation included threats of arrest, warnings not to post information about police brutality, home and office raids, and confiscation of laptops and other equipment.
In July the government began the process of reviewing host country agreements for 115 international governmental organizations and nongovernmental organizations. Civil society activists expressed concern this process could be used to target organizations carrying out activities unaligned with government policy.
The Civil Society Reference Group condemned the July 15 killing of environmentalist Joannah Stutchbury at her home in Kiambu. According to the group’s statement, Stutchbury was killed because of her efforts to prevent individuals from excising parts of the Kiambu forest and wetlands. The group described her killing as evidence of a hostile and shrinking environment for human rights defenders. The Senate launched an inquiry into her killing, and a law enforcement investigation continued at year’s end.
In September the High Court ruled that four police officers and one civilian must stand trial for the 2016 triple homicide of International Justice Mission lawyer and investigator Willie Kimani, client Josphat Mwenda, and their driver Joseph Muiruri. The trial was underway at year’s end.
The Kenya National Commission on Human Rights reported security agencies continued to deny it full access to case-specific information and facilities to conduct investigations of human rights abuses as the constitution permits. The commission, however, noted improved access to detention facilities during the year.
Government Human Rights Bodies: The Kenya National Commission on Human Rights is an independent institution created by the constitution and established in 2011. Its mandate is to promote and protect human rights in the country. The body’s commissioners completed their terms in March 2020. In August the president officially announced the vacancies, and in September the government appointed a selection panel to interview and recommend nominees for formal appointment. The president nominated a new chairperson and four commissioners on December 29, but at year’s end they were awaiting parliamentary approval. The commission continued to function under the management of the CEO. Citing budget restrictions, the government again reduced the commission’s operating budget. The commission stated the budget was not sufficient to cover its expenses and fulfill its mandate. Its programmatic budget was entirely unfunded by the government, forcing the commission to secure funding from development partners.
The NPSC and IPOA, both government bodies, report to the National Assembly. The NPSC consists of six civilian commissioners, including two retired police officers, as well as the National Police Service inspector general and two deputies. The NPSC is responsible for recruiting, transferring, vetting, promoting, and disciplining National Police Service members.
The ODPP is empowered to direct the National Police Service inspector general to investigate any information or allegation of criminal conduct and to institute criminal proceedings in police abuse or corruption cases.
Police accountability mechanisms, including those of the Internal Affairs Unit (IAU) and IPOA, maintained their capacity to investigate cases of police abuse. The IAU director reports directly to the National Police Service inspector general. The IAU did not hire any new officers or support staff during the year. It maintained 127 officers and 14 civilian support staff. Most investigators previously served in the Kenya Police Service and the Administration Police Service. The IAU conducts investigations into police misconduct, including criminal offenses not covered by IPOA. Between January and September, the IAU received approximately 715 complaints, down from 1,400 during the prior year. The EACC, an independent agency, investigates cases involving police corruption. IPOA also helps to train police officers on preventing abuses and other human rights issues but reported it did not conduct any human rights training during the year.
Between July 2020 and June 30, IPOA received 2,881 complaints, bringing the total since its inception in 2012 to 139,490 complaints. IPOA defines five categories of complaints. Category one complaints comprise the most serious crimes, such as murder, torture, rape, and serious injury, and result in an automatic investigation. In category two, serious crimes, such as assault without serious injury, are investigated on a case-by-case basis. Categories three to five, for less serious crimes, are generally not investigated, although during the year IPOA and the IAU entered regular dialogue about referring cases deemed less serious offenses for disciplinary action. If, after investigation, IPOA determines there is criminal liability in a case, it forwards the case to the ODPP. IPOA hired two new staff members between July 2020 and October and was in the process of replacing its CEO, who retired in August. IPOA’s budget for the financial year starting July 1 was reduced by approximately 1.6 percent due to economic challenges caused by the COVID-19 pandemic, and IPOA anticipated further budget reductions.
Although the law requires the NPSC to vet all serving police officers, it had not vetted any officers since the new commission took office in January 2019. Vetting required an assessment of each officer’s fitness to serve based on a review of documentation, including financial records, certificates of good conduct, and a questionnaire, as well as public input alleging abuse or misconduct. The NPSC reported it had vetted more than 15,000 officers since 2012.
Section 6. Discrimination and Societal Abuses
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.