Kenya is a republic with three branches of government: an executive branch, led by a directly elected president; a bicameral parliament consisting of the Senate and National Assembly; and a judiciary. In the 2017 general elections, the second under the 2010 constitution, citizens cast ballots for president, deputy president, and parliamentarians, as well as county governors and legislators. International and domestic observers judged the elections generally credible, although some civil society groups and the opposition alleged there were irregularities. The Independent Electoral and Boundaries Commission declared Jubilee Coalition Party candidate Uhuru Kenyatta had won re-election as president over opposition candidate Raila Odinga. The Supreme Court subsequently annulled the results for president and deputy president, citing irregularities, and the court ordered a new vote for president and deputy president that the opposition boycotted. The Independent Electoral and Boundaries Commission declared President Kenyatta winner of the new vote, and the Supreme Court upheld the results.
The National Police Service maintains internal security and reports to the Ministry of Interior and Coordination of National Government. The National Intelligence Service collects intelligence internally as well as externally and reports directly to the president. The Kenya Defense Forces report to the Ministry of Defense and are responsible for external security but have some domestic security responsibilities, including border security and supporting civilian organizations in the maintenance of order, including post disaster response. Civilian authorities at times did not maintain effective control over the security forces. Members of the security forces committed numerous abuses.
Significant human rights issues included: unlawful or arbitrary killings, including extrajudicial killings by the government or on behalf of the government and by the terrorist group al-Shabaab; forced disappearances by the government or on behalf of the government and by al-Shabaab; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest and detention by the government; arbitrary interference with privacy; serious interference with the freedom of peaceful assembly and freedom of expression; serious acts of corruption; lack of investigation and accountability for violence against women and girls; and the existence and use of laws criminalizing consensual same-sex sexual conduct between adults.
The governmental Independent Policing Oversight Authority, established to provide civilian oversight of police, investigated numerous cases of misconduct. Impunity at all levels of government continued to be a serious problem. The government took limited and uneven steps to address cases of alleged unlawful killings by security force members, although the Independent Policing Oversight Authority continued to refer cases of police misconduct to the Office of the Director of Public Prosecutions for prosecution. Impunity in cases of alleged corruption was also common.
Al-Shabaab staged deadly attacks on isolated communities along the border with Somalia, targeting both security forces and civilians. In January militants carried out five attacks, killing more than a dozen persons, including three teachers and four children. The government continued to prioritize investigations and prosecutions of terrorist activities. Human rights groups alleged security forces committed abuses, including extrajudicial killings, while conducting counterterror operations.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were numerous reports the government or its agents committed arbitrary and unlawful killings, particularly of known or suspected criminals, including terrorists. Between July 2019 and June 30, the Independent Policing Oversight Authority (IPOA) received 161 complaints regarding deaths resulting from police actions or inactions, compared with 119 in the prior year. The Missing Voices website, founded by a group of nongovernmental organizations (NGOs) to track police killings and disappearances, as of November documented 127 cases of killings and suspected enforced disappearances during the year.
Some groups alleged authorities significantly underestimated the number of extrajudicial killings by security forces, including due to underreporting of such killings in informal settlements, particularly in dense urban areas. Media reports and NGOs attributed many human rights abuses to counterterrorism operations in Nairobi and the northeast counties of Mandera, Garissa, and Wajir bordering Somalia, as well as along the coast. Human rights groups reported these abuses targeted Muslims, especially ethnic Somalis. In a report released in January, NGO HAKI Africa and its partners alleged suspected security force members killed 43 persons, including many ethnic Somalis, in the coastal region in 2019. HAKI reported extremists and criminal groups killed 11 individuals and civilian mobs killed five persons during the same period in the six coastal counties.
On March 27, the government began enforcing a nationwide dusk-to-dawn curfew and other measures to curb the spread of COVID-19. Media and human rights groups reported police used excessive and arbitrary force to enforce these measures, which led to deaths and injuries. As of September 22, IPOA stated it received 93 complaints of police misconduct while enforcing the curfew, involving 20 deaths and 73 injuries from shootings, assaults, and inhuman treatment. In October, NGO Independent Medico-Legal Unit reported it documented 26 killings by police during the pandemic. As of June the Social Justice Centres Working Group recorded 18 deaths in informal settlements from shootings, beatings, and other violence related to enforcement of COVID-19 measures. For example, on March 31, police reportedly shot 13-year-old Yassin Moyo while he was standing on the balcony of his family’s home in Mathare, an informal settlement in Nairobi. Police officer Duncan Ndiema Ndie was charged with murder, and the case remained pending at the end of the year. On April 1, President Uhuru Kenyatta publicly apologized for police violence related to the curfew; nonetheless, reports of abuses continued.
Impunity remained a serious problem. Authorities investigated and prosecuted a number of police officers for committing killings, but there were no convictions during the year. Since its inception in 2012, IPOA investigations had led to six convictions of police officers for killings. As of November, IPOA reported it had 62 pending court cases involving police killings, with 12 cases involving police killings awaiting registration in court and 35 cases awaiting legal review by the Office of the Director of Public Prosecutions.
Human rights groups also noted the government failed to provide compensation and redress to families of victims. In September several human rights groups filed a class 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 also called on the government to implement laws intended to address human rights violations and protect victims.
Al-Shabaab terrorists continued to conduct deadly attacks in areas close to the border with Somalia, targeting both security forces and civilians. In the first two weeks of January, militants carried out five attacks killing more than a dozen persons, including three teachers and four children. In April suspected al-Shabaab militants killed six police reservists during an exchange of gunfire. In October a Nairobi court convicted two men for supporting the 2013 al-Shabaab attack on Westgate Mall in Nairobi, which killed 67 persons. The court sentenced the two men to 33 years and 18 years in prison, respectively, with reductions for pretrial detention bringing the terms to 26 years and 11 years, respectively.
Police failed to prevent vigilante violence in numerous instances but in other cases played a protective role (see section 6).
Observers and NGOs alleged members of the security forces and extremist groups were culpable of forced disappearances. Human rights groups noted many unlawful killings first materialized as enforced disappearances. The Social Justice Centres Working Group reported that in early April, two men and two women disappeared from the Nairobi informal settlement of Kiamaiko. Their bodies were later found in a mortuary bearing signs of torture. Later in April an activist from Kiamaiko Social Justice Centre and two companions disappeared. Their car was later found abandoned, but authorities found no trace of the men. In January, HAKI Africa released a report alleging security forces conducted 11 enforced disappearances in the coastal region in 2019.
In August, NGOs commemorated the International Day of Victims of Enforced Disappearances and called on the government to enact a comprehensive law on enforced disappearances and investigate disappearances allegedly committed by security force members.
Media also reported on families on the coast and in northeastern counties searching for relatives who disappeared following arrest and of authorities holding individuals incommunicado for interrogation for several weeks or longer (see section 1.d.).
Al-Shabaab and other extremist groups reportedly continued to abduct civilians in areas bordering Somalia. In September suspected extremists abducted three bus passengers in Mandera County. In May al-Shabaab militants freed an Italian aid worker kidnapped in 2018.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law includes provisions to apply articles of the 2010 constitution, including: Article 25 on freedom from torture and cruel, inhuman, or degrading treatment or punishment; Article 28 on respect and protection of human dignity; and Article 29 on 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; however, the government had not instituted the regulations required to implement fully the provisions.
NGOs continued to receive reports of torture and other inhuman or degrading treatment by government forces. As of October 1, the Independent Medico-Legal Unit documented 43 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. Human Rights Watch reported that on March 27, police in Mombasa assaulted and used tear gas against crowds, including persons waiting for a passenger ferry, more than two hours before the start of curfew. Video clips on television and social media showed police kicking and beating individuals, including using batons, and forcing many to lie down on the ground in close quarters. Authorities introduced enhanced crowd control measures and extended ferry service hours following the incidents. On March 30, the government also issued a directive instructing employers to release employees by certain times to allow them to return home prior to curfew. The cabinet secretary for the Ministry of Interior stated authorities identified 14 police officers for disciplinary actions for misconduct during the pandemic. Amnesty International and other groups criticized the government for not releasing details of these actions.
The Social Justice Centres Working Group reported police violence was especially prevalent in informal settlements. From April 15 to May 6, monitors recorded 2,589 incidents of police violence across 182 communities. 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, 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 reported it dispatched its rapid response team to the scene, and the investigation was pending at year’s end.
IPOA investigations led to two new convictions of police officers during the year, for a total of eight convictions since IPOA’s inception in 2012. In January the Milimani Law Courts sentenced Chief Inspector Zuhura Khan to a fine or three months in prison for neglecting to ensure a female detainee, a sexual assault victim, received appropriate medical care. In March the High Court convicted police officer Corporal Edward Wanyonyi Makokha to 20 years in prison for the attempted murder of a student in Garissa County in 2014.
Victims of police abuse may file complaints at regional police stations, police headquarters through the Internal Affairs Unit (IAU), IAU hotline, and through the IPOA website and hotline. 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.
In July the National Police Service, in cooperation with donors, launched the first online training course for police officers. The mandatory course, which aimed to address public order and enforcement challenges posed by the COVID-19 pandemic, included modules on the use of force and human rights-based approaches to crowd control. In August the National Police Service began 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.
d. Arbitrary Arrest or Detention
The law prohibits arrest or detention without a court order unless there are reasonable grounds for believing a suspect has committed or is about to commit a criminal offense. Police, however, arrested and detained persons arbitrarily, accused them of a crime to mask underlying police abuses, or accused them of more severe crimes than they had committed. For example, legal rights NGOs and prison officials reported overuse of the charge of “robbery with violence” that may carry a life sentence, even when violence or threats of violence were insignificant. Some petty offenders consequently received disproportionately heavy sentences.
Poor casework, incompetence, and corruption undermined successful prosecutions. Police also frequently failed to enter detainees into custody records, making it difficult to locate them. Dispute resolution at police stations resolved a significant number of crimes, but authorities did not report or record them, according to human rights organizations.
Witness harassment and fear of retaliation severely inhibited the investigation and prosecution of major crimes. The Witness Protection Agency was underfunded, and doubts about its independence were widespread. Nevertheless, the Witness Protection Agency continued to work closely with IPOA and other investigative bodies to provide security for witnesses and victims.
NGOs reported an increase of arbitrary arrests and detention of activists, journalists, and bloggers during the year. In October the Defenders Coalition said it had provided support, including legal representation and bail, to 127 activists who had been arrested or detained since March. Most activists were released within short periods, usually less than 24 hours, and in most cases prosecutors either declined to press charges or courts dismissed the cases. In September, NGO Article 19 stated at least 20 journalists, including online communicators, had been arrested or threatened with prosecution since March while reporting on the government’s efforts to respond to the COVID-19 pandemic.
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary, although the government did not always respect judicial impartiality. The government sometimes undermined the independence of the judiciary and at times did not respect court orders, but the outcomes of trials did not appear to be predetermined.
In 2018 the director of public prosecutions directed anticorruption authorities to investigate the judiciary over allegations of misuse and loss of court funds. Authorities arrested Deputy Chief Justice Philomena Mwilu in 2018 for suspected corruption, but the criminal case was dismissed in May 2019. The director of public prosecutions appealed the decision and filed a petition before the Judicial Service Commission in June 2019 to remove Mwilu from office. In August the High Court ordered the commission to suspend proceedings against Mwilu pending the determination of a petition she had filed at the High Court seeking recusal of two commissioners due to alleged bias.
The Judicial Service Commission–a constitutionally mandated oversight body intended to insulate the judiciary from political pressure–provides the president with a list of nominees for judicial appointment. The president selects one of the nominees for parliamentary approval. The president appoints the chief justice and appellate and High Court judges through this process. The commission publicly reviews judicial appointees. Lawyers and civil society groups criticized the president for failing to approve nominations for 41 judges submitted in June 2019.
In January the judiciary issued the State of the Judiciary and the Administration of Justice Report for 2018-19, which noted that while the civil case backlog had declined significantly from the prior year, the criminal case backlog continued to grow. As a result, the overall case backlog grew by 3 percent compared with the prior year, to nearly 570,000 cases. Nearly 40,000 cases were pending for more than five years; however, that was a significant decline from the previous year.
The constitution gives the judiciary authority to review appointments and decisions made by other branches of government. Parliament generally adhered to judicial decisions, with some exceptions. In September the chief justice advised the president to dissolve parliament for its failure to adhere to four prior court orders directing the legislature to implement constitutional provisions mandating that no more than two-thirds of elected and appointed positions be persons of the same gender. A court temporarily suspended the chief justice’s advice pending a hearing by a judicial panel.
The law provides for qadi courts that adjudicate Muslim law on marriage, divorce, and inheritance among Muslims. There are no other traditional courts. The national courts use the traditional law of an ethnic group as a guide in personal matters, if it does not conflict with statutory law. In August the chief justice launched the Alternative Justice Systems Baseline Policy to allow for resolution of cases by traditional tribunals, while providing the formal justice system a framework to monitor implementation.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Expression, Including for the Press
The law provides for freedom of expression, including for the press, but the government sometimes restricted this right. Government failure to investigate or prosecute attacks on human rights defenders and peaceful protesters led to de facto restrictions on freedom of assembly and association.
Freedom of Speech: In 2017 a branch of the High Court declared unconstitutional Section 132 of the penal code that criminalized “undermining the authority of a public officer,” ruling the provision violated the fundamental right of freedom of expression. Other provisions of the constitution and the law prohibiting hate speech and incitement to violence remained in force. The Judicial Service Commission, however, reported many cases were withdrawn due to failure of witnesses to appear in court or to facilitate mediation. Cases that did proceed often failed to meet evidentiary requirements. Authorities arrested several members of parliament on incitement or hate speech charges. In September authorities arrested two parliamentarians for hate speech and incitement following remarks made against the president and his family. The court ordered their release after they posted bail, and the cases remained pending at the end of the year.
Freedom of Press and Media, Including Online Media: The government occasionally interpreted laws to restrict press freedom, and officials occasionally accused international media of publishing stories and engaging in activities that could incite violence. Two laws give the government oversight of media by creating a complaints tribunal with expansive authority, including the power to revoke journalists’ credentials and levy debilitating fines. The government was media’s largest source of advertising revenue and regularly used this as a lever to influence media owners. Most news media continued to cover a wide variety of political and social issues, and most newspapers published opinion pieces criticizing the government.
Sixteen other laws restrict media operations and place restrictions on freedom of the press. The government has not issued regulations required to implement fully the 2016 Access to Information Act, which promotes government transparency, and civil society organizations reported government departments failed in some instances to disclose information.
Violence and Harassment: Journalists alleged security forces or supporters of politicians at the national and county levels sometimes harassed and physically intimidated them. The government at times failed to investigate allegations of harassment, threats, and physical attacks on members of media. NGO Article 19 Eastern Africa reported there were at least 48 attacks against Kenyan journalists and restrictions to their work concerning the pandemic between March 12 and August 31, including physical assault, arrest, telephone or verbal threats, online harassment, and lack of access to public information.
In January media reported that police assaulted Nation Media Group journalist Laban Odhiambo Walloga in Mombasa while he was covering protests against a government directive that all cargo from the port of Mombasa be transported via the Standard Gauge Railway.
In March widely disseminated photographs showed a police officer beating NTV journalist Peter Wainana in Mombasa as he reported on excessive use of force by police enforcing the first day of a national curfew during the COVID-19 pandemic. Coast Regional Commander Rashid Yakub publicly apologized for the incident and advised the journalist to record a statement at the central police station in Mombasa. Media reported that as of March disciplinary action was pending.
Censorship or Content Restrictions: The mainstream media were generally independent, but there were reports by journalists government officials pressured them to avoid certain topics and stories and intimidated them if officials judged they had already published or broadcast stories too critical of the government. There were also reports journalists avoided covering issues or writing stories they believed their editors would reject due to direct or indirect government pressure. Journalists practiced self-censorship to avoid conflict with the government on sensitive subjects, such as the first family or assets owned by the Kenyatta family.
In April the High Court upheld the 2018 ban imposed by the Kenya Film Classification Board on the film Rafiki, which portrays a romance between two women. The court held the ban on distributing or exhibiting the film in the country was constitutional and a valid limitation of freedom of expression.
Libel/Slander Laws: In 2017 a branch of the High Court declared unconstitutional a portion of the law that defined the offense of criminal defamation. Libel and slander remain civil offenses.
In September the High Court ordered the Nation Media Group to remove from online platforms an August 16 television news report, “COVID-19 Millionaires,” pending the hearing of a libel case brought by Megascope Ltd. for being accused of involvement in alleged corruption at the Kenya Medical Supplies Authority.
The cabinet secretary for the Ministry of Interior threatened to sue blogger Robert Alai and three others on March 27 for libel stemming from a March 13 article stating the cabinet secretary owned a concrete company that caused death and injury to residents of Bobasi in Kisii County.
b. Freedoms of Peaceful Assembly and Association
Although the constitution and law provide for freedom of assembly, the government sometimes restricted this right.
Section 3. Freedom to Participate in the Political Process
The constitution and law provide citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
Elections and Political Participation
Recent Elections: In August 2017 citizens voted in the second general election under the 2010 constitution, electing executive leadership and parliamentarians, county governors, and members of county assemblies. International and domestic observers, such as the Kenya Elections Observation Group, African Union Observer Mission, and Carter Center, judged the elections generally credible, although some civil society groups raised concerns regarding irregularities. In the presidential election, Jubilee Party candidate Uhuru Kenyatta won with a margin significantly above that of runner-up candidate Raila Odinga of the National Super Alliance. The National Super Alliance challenged the results in a petition to the Supreme Court. In September 2017 the court ruled in the National Super Alliance’s favor, annulling the presidential elections and citing the Independent Electoral and Boundaries Commission (IEBC) for irregularities in voter registration and technical problems with vote tallying and transmission. The court ordered a new election for president and deputy president, which was held on October 26, 2017.
On October 10, 2017, Odinga announced his withdrawal from the new election, asserting the IEBC had not taken sufficient steps to ensure a free and fair election. The October 26 vote was marred by low voter turnout in some areas and protests in some opposition strongholds. Human Rights Watch documented more than 100 persons badly injured and at least 33 killed by police using excessive force in response to protests following the August election, and the Independent Medico-Legal Unit reported another 13 deaths before, during, and after the October vote.
On October 30, 2017, the IEBC declared Kenyatta the winner of the new election. On November 20, 2017, the Supreme Court rejected petitions challenging the October 26 elections and upheld Kenyatta’s victory. Odinga refused to accept Kenyatta’s re-election and repeated his call for people’s assemblies across the country to discuss constitutional revisions to restructure the government and the elections process. On January 30, 2018, elements of the opposition publicly swore Odinga in as “the People’s President,” and the government shut down major public media houses for several days to prevent them from covering the event.
Kenyatta and Odinga publicly reconciled in March 2018 and pledged to work together towards national unity. In May 2018 the president established the Building Bridges to Unity Advisory Taskforce as part of this pledge. The task force issued an October report with proposed constitutional, legislative, and policy reforms to address nine areas: lack of a national ethos, responsibilities and rights of citizenship; ethnic antagonism and competition; divisive elections; inclusivity; shared prosperity; corruption; devolution; and safety and security. Some politicians, civil society, and religious groups questioned whether the proposed reforms, including significant changes to the country’s political structure, would increase inclusivity, prevent electoral violence, and address the country’s ethnic divisions.
In April the IEBC postponed five planned by-elections, one for a vacant parliament position and four for county positions, due to the COVID-19 pandemic. The IEBC scheduled six by-elections for December 15, the five that had been postponed and one for a county position that had subsequently become vacant, after developing COVID-19 health protocols.
Political Parties and Political Participation: To reduce voter fraud, the government used a biometric voter registration system, first employed in 2013. Possession of a national identity card or passport was a prerequisite for voter registration. According to media reports, political parties were concerned regarding hundreds of thousands of national identity cards produced but never collected from National Registration Bureau offices around the country, fearing their supporters would not be able to vote. Ethnic Somalis and Muslims in the coast region and ethnic Nubians in Nairobi complained of discriminatory treatment in the issuance of registration cards, noting authorities sometimes asked them to produce documentation proving their parents were citizens.
The country’s five largest ethnic groups–the Kikuyu, Kalenjin, Luhya, Luo, and Kamba–continued to hold most political positions. Civil society groups raised concerns regarding the underrepresentation of minority ethnic groups, including indigenous communities. For example, one study conducted in Nakuru County found that among the Ogiek community, only two persons were members of the county assembly and one person was a nominated senator.
Participation of Women and Members of Minority Groups: No laws limit participation of women or members of minority groups in the political process, and they did participate. Voting rates and measures of other types of participation in the political process by women and members of minority groups remained lower than those of nonminority men.
The constitution provides for parliamentary representation by women, youth, persons with disabilities, ethnic minorities, and marginalized communities. The constitution specifically states no gender should encumber more than two-thirds of elective and appointed offices. Parliament had not enacted legislation to implement this provision, despite four court orders to do so (see section 1.e.). As of year’s end, men made up nearly the entirety of the leadership of the National Assembly and the Senate, with the exception of a woman deputy speaker of the Senate. President Kenyatta appointed one additional woman to the cabinet in January, for a total of seven women in the cabinet.
Women leaders and advocacy groups continued to cite inadequate political support from their parties, particularly in the primaries; a lack of financial resources; gender-based violence; gender stereotyping; and patriarchal structures across society as significant barriers to women’s participation in political processes.
The overall success rate of female candidates who ran for positions in the 2017 national elections was 16 percent, with 23 women elected and 52 women nominated to the 349-member National Assembly, and three women elected and 18 women nominated to the 67-member Senate. Women were elected to three of the 47 governorships, although there were only two female governors during the year. Compared with 2013, the number of women elected to office increased by 18.6 percent. The constitution provides for the representation in government of ethnic minorities, but civil society groups noted minorities remained underrepresented in local and national government. The constitution also calls for persons with disabilities to hold a minimum of 5 percent of seats in the Senate and National Assembly but persons with disabilities composed only 2.8 percent of Senate and National Assembly members.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for official corruption. Despite public progress in fighting corruption during the year, the government did not implement relevant laws effectively. Officials frequently engaged in allegedly corrupt practices with impunity.
Corruption: During the year the Ethics and Anti-Corruption Commission (EACC) initiated investigations and prosecutions of high-level cases involving six 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. One governor was indicted and impeached by the county assembly while his case continued in the courts. The EACC was also investigating 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.
The public continued to perceive corruption as a severe problem at all levels of government. A 2019 survey by Transparency International 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 poll.
In January 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. In the commissioner’s first year in office, the EACC secured 44 convictions, one of the highest tallies in its 17 years of existence, and recovered assets of more than three billion shillings ($30 million), exceeding what had been recovered over the previous five years combined. At the end of 2019, the EACC reported 407 criminal corruption cases and 778 civil cases pending in court. 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. During the year the ODPP established a multiagency team tasked with collaboration on investigations and prosecution of high-profile organized crimes like corruption. Operational conflict, however, between the ODPP and Directorate of Criminal Investigations with regards to 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.
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, 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.
Financial Disclosure: The law requires all public officers to declare their income, assets, and liabilities to their “responsible commission” (for example, the Parliamentary Service Commission in the case of members of parliament) every two years. Public officers must also include the income, assets, and liabilities of their spouses and dependent children younger than 18. Failure to submit the declaration as required by law or providing false or misleading information is punishable by a substantial fine or imprisonment for a term not exceeding one year or both. Information contained in these declarations was not readily available to the public, and the relevant commission must approve requests to obtain and publish this information. Any person who publishes or otherwise makes public information contained in public officer declarations without such permission may be subject to imprisonment for up to five years, a fine, or both. Authorities also required police officers undergoing vetting to file financial disclosure reports for themselves and their immediate family members. These reports were publicly available.
The law requires public officers to register potential conflicts of interest with the relevant commissions. The law identifies the interests public officials must register, including directorships in public or private companies, remunerated employment, securities holdings, and contracts for supply of goods or services, among others. The law requires candidates seeking appointment to nonelected public offices to declare their wealth, political affiliations, and relationships with other senior public officers. This requirement is in addition to background screening on education, tax compliance, leadership, and integrity. Many officials met these requirements and reported potential conflicts of interest. Authorities did not strictly enforce ethics rules relating to the receipt of gifts and hospitality by public officials.
There were no reported challenges to any declarations of wealth–which normally are not made public–filed by public officials. The requirement for asset and conflict of interest declarations was suspended by a 2018 Public Service Commission memo. The memo was issued after the commission’s engagement with government stakeholders indicated a need for clarity on completing the assets registry. The Public Service Commission’s suspension of the requirement led to inconsistency in the application of the directive, with some institutions requiring declarations while others did not.
Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights
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 during the year. 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 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.
According to HAKI, its deputy executive director, Salma Hemed, was beaten by police during a February protest as she was advocating for an investigation into the death of a 17-year-old pregnant girl while in police custody. Although the police case against her was suspended in August, police arrested her on October 28 after she filed a lawsuit against the Bamba Police Station in Kilifi County. Despite a letter from the Kilifi county prosecutor stating she should be released, police ignored the letter, detained Salma Hemed overnight, and brought her before the Kilifi Magistrate Court the following day. The court subsequently ordered her release.
The 2016 triple homicide case of International Justice Mission lawyer and investigator Willie Kimani, client Josphat Mwenda, and their driver Joseph Muiruri remained pending at year’s end. In November the court for the third time denied bail for the five suspects, including four police officers who faced murder charges.
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.
Government Human Rights Bodies: The Kenya National Commission on Human Rights is an independent institution created by the 2010 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. In November the commission reported the government had not yet provided information on the commencement of recruitment for replacements. The positions remained vacant as of year’s end, although 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.
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 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 hired 47 new officers, bringing the total number to 127. 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 1,400 complaints, the number of which had increased year-to-year as police and the public became more familiar with the IAU. The IAU opened four regional offices during the 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 2019 and June 30, IPOA received 2,991 complaints, bringing the total since its inception in 2012 to 136,609. 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 into 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 25 new officers between July 2019 and November. IPOA’s budget for the financial year starting July 1 was reduced by approximately 3 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, 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. 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). 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.
The judiciary recorded 10,510 cases of sexual and gender-based violence filed in court between July 2018 and June 2019. The NGO Federation of Women Lawyers in Kenya reported arrests and prosecutions of sexual violence cases remained low, even in cases in which victims 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 victims to pursue cases.
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 2019 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 expressed concerns regarding rising incidents of sexual assault, rape, and domestic violence during the COVID-19 pandemic. In April the chief justice cited a spike in cases involving sexual offenses, noting some perpetrators were family members or close friends of the victims. A national helpline supported by the Department of Gender Affairs reported cases rose from 86 in February to more than 1,100 in June. Cases decreased in July, but the total number of calls was four times higher than during the same period in the previous year. Survivors of sexual violence were unable to report crimes or seek medical treatment during curfew hours.
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 UNICEF published in March, 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. The study concluded approximately 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, Youth, and Gender Affairs 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 vulnerable. 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 economically disadvantaged women with limited access to education living outside of major cities.
Sexual Harassment: The law prohibits sexual harassment. Sexual harassment was often not reported, and victims rarely filed charges.
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. Exercising this right, however, remained challenging 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.
The country’s 2010 constitution states, “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” The penal code criminalizes the provision of abortions (14 years’ imprisonment), attempts to obtain or self-administer an abortion (seven years’ imprisonment), and supplying drugs or instruments used in an abortion (three years’ imprisonment).
According to the UN Population Division, 77 percent of women between the ages of 15 and 49 had their needs for family planning satisfied with modern methods. 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 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 the 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 LGBTI persons, women with disabilities, displaced persons, and persons with HIV–to access reproductive health information and services. 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. In 2018 the Center for Reproductive Rights sued the government for prohibiting the NGO Marie Stopes Kenya from providing reproductive health information to women and girls following allegations the NGO was promoting abortion. The case remained pending at year’s end.
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. In December a court ruled in favor of four survivors of sexual violence and found the government responsible for failing to investigate and prosecute crimes of sexual and gender-based violence during the 2007-2008 postelection violence. The ruling marked the first time that survivors of conflict-related sexual violence received compensation.
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. The 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 like 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 court directed the government to reinstate the guidelines and reaffirmed the right of survivors of sexual violence to obtain abortions. The Ministry of Health had not reinstated the guidelines as of year’s end.
Coercion in Population Control: There were no reports of coerced abortion or involuntary sterilization on the part of government authorities.
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 Human Rights Watch, 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.
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 June demonstrators stormed Lessos Police Station in Nandi County after a police officer fatally shot a man who intervened when the officer demanded a bribe from a person not wearing a facemask. Protesters set fire to the police commander’s house, and police killed another two persons during the violence. IPOA reported it was finalizing its investigation and stated the officers involved were under internal disciplinary actions. The social acceptability of mob violence also provided cover for acts of personal vengeance. Police frequently failed to act to stop mob violence.
In October, two persons died and several were injured in Muranga County following street battles between youth factions allied to different political actors. Media outlets reported politicians instigated the violence by mobilizing and paying youth from outside areas. The governmental National Cohesion and Integration Commission condemned the violence, warning political tensions could lead to further violent conflicts ahead of the 2022 national elections.
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.