Section 1. Respect for the Integrity of the Person, Including Freedom from:
There were numerous reports the government or its agents committed arbitrary and unlawful killings, particularly of known or suspected criminals, including terrorists. In September eight nongovernmental organizations (NGO) based in the northern region jointly issued a statement listing extrajudicial killings and enforced disappearances at top of their list of human rights concerns. In September the NGO HAKI Africa provided the ODPP a list of 34 youth whom police allegedly executed over nine months since the beginning of the year. The ODPP committed to pursue investigations and requested additional evidence and assistance from HAKI. The NGO Independent Medico Legal Unit alleged that police in Nairobi summarily executed 58 individuals, mostly in informal settlements, between January to June. In March 2017 video footage surfaced on the internet of an alleged plainclothes police officer shooting two subdued suspects in the Nairobi neighborhood of Eastleigh. According to the newspaper Daily Nation, the Nairobi police commander defended the shooting, calling the victims “gangsters.” The Inspector General’s investigation continued as of year’s end.
In August IPOA reported a summary execution of a suspected carjacker. The police, who had allegedly shot the victim twice, hauled him from a church where he had sought refuge. IPOA’s investigation continued as of the year’s end.
Some groups alleged authorities significantly underestimated the number of extrajudicial killings by security forces due to underreporting of such killings in informal settlements, including those in dense urban areas. The NGO Mathare Social Justice Center estimated police killed at least one young male every week in the Mathare neighborhood of Nairobi. During the year IPOA received 461 complaints regarding deaths resulting from police actions, including 15 fatal shootings involving police and 446 deaths due to other actions by police.
NGOs and the autonomous governmental entity Kenyan National Commission on Human Rights (KNCHR) reported in 2017 that authorities killed between 35 and 100 persons and injured many others in opposition strongholds following the August 2017 elections. A KNCHR report released in November documented 201 cases of sexual assault in nine counties emanating from the post-election violence, primarily during periods of increased civil unrest. The study found that police and other security officers committed 55 percent of the documented sexual assaults (see section 6). The report indicated that KNCHR turned over its findings to IPOA for official inquiry. IPOA’s investigations stemming from election violence continued as of the year’s end.
Media reports and NGOs attributed many of the human rights abuses not related to elections to Kenya Defense Forces counterterrorism operations in the northeast counties of Mandera, Garissa, and Wajir bordering Somalia. In September rights groups including Muslims for Human Rights led protests in Mombasa against extrajudicial killings and abductions by security forces. The groups alleged that on September 6, authorities gunned down three youths, ages 17, 17, and 19, absent proof of guilt. Police responded that the three had been caught preparing to commit a crime.
Impunity remained a serious problem (see section 1.d.).
Al-Shabaab terrorists conducted deadly attacks and guerilla-style raids on isolated communities along the border with Somalia. For example, in September al-Shabaab fighters reportedly stopped a bus in Lamu County, separated the passengers by religion, and then executed two Christian passengers before setting free the other passengers.
Observers and NGOs alleged members of the security forces were culpable of forced disappearances. In June media reported civilian protests in Garissa County over the alleged disappearance of 14 residents. There were accusations of government involvement and use of police officers. On July 26, human rights lobby group HAKI Africa reported that between January and June, the Garissa police abducted or forced the disappearance of 46 civilians.
The 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.).
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
In 2017 President Kenyatta approved the Prevention of Torture Act, which provides a basis to prosecute torture. The law provides a platform 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 pieces of legislation. Additionally, the law provides protections to vulnerable witnesses and law enforcement officials who refuse to obey illegal orders that would lead to torture. The government, however, had not implemented the guidelines required to operationalize the Prevention of Torture Act.
Pretrial detainees accused police of use of torture. In September a shooting suspect filed a formal complaint with IPOA alleging torture by police and continued detention beyond the maximum legal duration. That investigation continued as of year’s end.
Police reportedly used torture and violence during interrogations as well as to punish both pretrial detainees and convicted prisoners. According to human rights NGOs, physical battery, bondage in painful positions, and electric shock were the most common methods of torture used by police. A range of human rights organizations and media reported police committed torture and indiscriminate violence with impunity. For example, there were numerous press and NGO reports of police brutality against protestors and unarmed citizens, including in house-to-house operations in the days following the August 2017 elections (see section 3).
Prison and Detention Center Conditions
Human rights organizations reported that prison, detention center, and police station conditions were harsh due to overcrowding, food and water shortages, and inadequate sanitary conditions and medical care. A Directorate of Health Services in the Prisons Department oversees health and hygiene issues.
Physical Conditions: According to the Kenya Prisons Service (PS), the prison population as of September was 51,130, held in prisons with a designated capacity of 26,837. More than 90 percent of prisoners were men. According to the National Council on the Administration of Justice’s (NCAJ) January report, the country has 105 prisons–87 for men and 18 for women. While the PS noted that seven prisons have been constructed since 2012, serious overcrowding was the norm, with an average prisoner population of nearly 200 percent capacity and some prisons housing up to 400 percent of capacity. Authorities continued a “decongestion” program that entailed releasing petty offenders and encouraging the judiciary to increase use of the Community Service Orders program in its sentencing.
The PS reported 131 deaths as of September, many attributable to sicknesses caused or exacerbated by overcrowding, lack of access to clean water, poor hygiene, and inadequate medical care. According to a study by the NCAJ released in 2017, sanitary facilities were inadequate, and tuberculosis remained a serious problem at eight prisons.
In January 2017 the NCAJ reported that despite the legal requirement to separate male prisoners from women and children, the mixing of genders and ages remained a problem in some prisons. Between January and June 2017, IPOA observed that authorities separated women from men in detention facilities on average 89 percent of the time in the 29 detention facilities its representatives visited. In smaller jails, female prisoners were not always separated from men. There were no separate facilities during pretrial detention, and sexual abuse of female prisoners was a problem. Human rights groups reported that police routinely engaged in non-consensual sex with female prisoners and that many female inmates resorted to prostitution to obtain necessities, such as sanitary items and underwear, which the Prisons Service did not provide.
Authorities generally separated minors from adults except during the initial detention period at police stations, when authorities often held adults and minors of both sexes in a single cell. Minors often mixed with the general prison population during lunch and exercise periods, according to the Coalition for Constitutional Interpretation, a domestic NGO. Prison officials reported that because there were few detention 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. In October 2017 the Daily Nation newspaper reported a witness had accused a police officer of raping a 13-year-old victim while she was held overnight at a police station for alleged theft. IPOA investigated the incident. A criminal prosecution was proceeding in the courts.
The law allows children to stay with their inmate 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. The PS stated in August that it no longer served a penal diet for punishment. Water shortages, a problem both inside and outside of prison, continued. Prisoners generally spent most of their time indoors in inadequately lit and poorly ventilated cellblocks. This was especially true for the more than one-third of inmates awaiting trial, as they were not engaged in any work programs that would allow them to leave their cells regularly.
Administration: Mechanisms for prisoners to report abuse and other concerns improved due to collaboration between the PS and the KNCHR to monitor human rights standards in prison and detention facilities. By law, the Commission on the Administration of Justice serves as ombudsman on government administration of prisons. It is to receive and treat as confidential correspondence from inmates and recommend remedies to address their concerns, including those pertaining to prison living conditions and administration. Government-established special committees, which included paralegals and prison officials, also served to increase prisoners’ access to the judicial system. The Legal Aid Center of Eldoret noted there was no single system providing “primary justice” to prisoners and detainees, who instead relied on a patchwork of services largely provided by NGOs. Many government-designated human rights officers lacked necessary training, and some prisons did not have a human rights officer.
Noncustodial community service programs and the release of some petty offenders alleviated somewhat prison overcrowding. The total prison population did not decrease substantially, however, because of unaffordable bail and bond terms for pretrial detainees, high national crime rates, overuse of custodial sentencing, and a high number of death row and life-imprisoned inmates. Legal rights NGOs and prison officials reported overuse of the charge of “robbery with violence,” which may carry a life sentence, without sufficient evidence to support it. Some petty offenders consequently received disproportionately heavy sentences.
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. According to the Legal Resources Foundation, 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.
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 citizens arbitrarily, accused them of more severe crimes than they had committed, or accused them of a crime to mask underlying police abuses.
ROLE OF THE POLICE AND SECURITY APPARATUS
The National Police Service (NPS) maintains internal security and is subordinate to the Ministry of Interior and Coordination of National Government (Interior).
In September President Kenyatta announced the reorganization of the NPS, which includes the Kenya Police Service (KPS), the Administration Police Service, and the Directorate of Criminal Investigations (DCI). The KPS remains responsible for general policing and contains specialized subunits, such as the paramilitary General Services Unit, which responds to large-scale incidents of insecurity. The Administration Police Service is now comprised of units dedicated to border security, protection of critical infrastructure, and prevention of livestock theft. The DCI is responsible for all criminal investigations and includes specialized investigative units, such as the Antinarcotics Unit, the Antiterrorism Police Unit, and the Forensics Unit.
The National Intelligence Service collects intelligence internally as well as externally and is under the direct authority of the president.
The Kenya Defense Forces 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, as allowed by the constitution. The defense forces are subordinate to the Ministry of Defense. In 2015 the defense forces and police launched a coordinated operation to drive al-Shabaab terrorists out of the Boni Forest in northern Lamu and southern Garissa counties; the operation continued throughout the year.
The National Police Service Commission (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 NPS inspector general and two deputies. The commission’s tenure ended in September; the NPSC chief operating officer was managing the NPSC until a new commission is installed. The NPSC is responsible for recruiting, transferring, vetting, promoting, and disciplining NPS. IPOA investigates serious police misconduct, especially cases of death and grave injury at the hands of police officers.
The ODPP is empowered to direct the NPS inspector general to investigate any information or allegation of criminal conduct and to institute criminal proceedings in police abuse or corruption cases.
Impunity was a major problem. Authorities sometimes attributed the failure to investigate a case of police corruption or unlawful killing to the failure of victims to file official complaints. Victims can file complaints at regional police stations, police headquarters through the Internal Affairs Unit (IAU), and through the IPOA website and hotline. More than half of all allegations of death or bodily harm by the NPS were filed at IPOA in person. Sometimes police turned away victims who sought to file complaints at police stations where alleged police misconduct originated, and instead directed them to other area stations. This created a deterrent effect on reporting complaints against police. NGOs documented threats against police officers who attempted to investigate criminal allegations against other police officers. The National Coroners Service Act, adopted in 2017, lacked enforcement regulations and funding.
Police failed to prevent vigilante violence in numerous instances but in other cases played a protective role (see section 6).
Poor casework, incompetence, and corruption undermined successful prosecutions; the overall conviction rate for criminal prosecutions was between 13 and 16 percent. 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, doubts about its independence were widespread, and the Supreme Court cited its weaknesses as a serious judicial shortcoming. It cooperated closely with IPOA and other investigative bodies.
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. Police officials resisted investigations and jailed some human rights activists for publicly registering complaints against government abuses.
Research by a leading legal advocacy and human rights NGO found 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.
Police accountability mechanisms, including those of IAU and IPOA, increased their capacity to investigate cases of police abuse. The IAU director reports directly to the NPS Inspector General. Fifty-eight officers served in the IAU, mostly investigators with a background 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 900 complaints, the number of which had increased year-to-year as police and the public became more familiar with the IAU. The Ethics and Anticorruption Commission (EACC), an independent agency, investigates cases involving police corruption.
In addition to regional offices in Mombasa, Kisumu, and Garissa, during the year IPOA opened six more offices in Nakuru, Eldoret, Kakamega, Nyeri, Meru, and Lodwar and increased its staff by 100 to 212. Through the end of September, IPOA received 1,853 complaints, bringing the total since its inception in 2012 to 10,966. IPOA defines five categories of complaints. Category One complaints comprise the most serious crimes–such as murders, torture, rape, and serious injury–and result in an automatic investigation. Category Two, serious crimes such as assault without serious injury, are investigated on a case-by-case basis. Categories Three to Five, less serious crimes, are generally not investigated. Approximately one-third of IPOA complaints fall under Categories One and Two. If, after investigation, IPOA determines there is criminal liability in a case, it forwards the case to the ODPP. Through the end of September, IPOA launched 717 investigations, of which five were forwarded to the ODPP. As of October IPOA and ODPP had two cases pending in courts. On January 7, IPOA secured the conviction of police officer Titus Musila for killing Kenneth Kimani Mwangi in 2013. The court sentenced Musila to 15 years in prison. On November 14, a court sentenced two police officers to death for killing their colleague, Joseph Obongo, and two of his relatives in 2014.
The law requires that the NPSC eventually vet all serving police officers. 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 public input alleging abuse or misconduct. The NPSC reported it had vetted more than more than 15,000 officers since 2012. A significant portion of the officers vetted during the year were from the traffic department. The NPSC also vetted a higher number of chief inspectors than in the past, of which the NPSC removed 50 for corruption, human rights abuses, and other reasons. Some legal challenges brought by officers vetted out of the service continued in court.
ARREST PROCEDURES AND TREATMENT OF DETAINEES
The law provides police with broad powers of arrest. Police officers may make arrests without a warrant if they suspect a crime occurred, is happening, or is imminent. Victims’ rights NGOs reported that in some cases authorities required victims to pay bribes and to provide transportation for police to a suspect’s location to execute a legal arrest warrant.
The constitution’s bill of rights provides significant legal protections, including provisions requiring persons to be charged, tried, or released within a certain time and provisions requiring the issuance of a writ of habeas corpus to allow a court to determine the lawfulness of detention. In many cases, however, authorities did not follow the prescribed time limits. According to the attorney general in a response to a questionnaire from the Office of the UN High Commissioner for Human Rights in 2013, “an unexplained violation of a constitutional right will normally result in an acquittal.” While authorities in many cases released the accused if held longer than the prescribed period, some cases did not result in an acquittal, and authorities provided no compensation.
Police used excessive force in some cases when making arrests. IPOA investigated allegations of excessive force that led to serious injury.
The constitution establishes the right of suspects to bail unless there are compelling reasons against release. There is a functioning bail system, and all suspects, including those accused of capital offenses, are eligible for bail. Many suspects remained in jail for months pending trial because of their inability to post bail. Due to overcrowding in prisons, courts rarely denied bail to individuals who could pay it, even when the circumstances warranted denial. For example, NGOs that worked with victims of sexual assault complained that authorities granted bail to suspects even in cases in which there was evidence that they posed a continuing threat to victims.
Although the law provides pretrial detainees with the right to access family members and attorneys, family members of detainees frequently complained that authorities permitted access only upon payment of bribes. When detainees could afford counsel, police generally permitted access to attorneys.
Arbitrary Arrest: Police arbitrarily arrested and detained persons. Victims of arbitrary arrest were generally poor young men. Human rights organizations complained that security forces made widespread arbitrary arrests and detentions during counterterrorism operations and targeted ethnic Somalis and Kenyan Muslims. In March 2017 AP officers allegedly arrested and assaulted Standard newspaper journalist Isaiah Gwengi over his stories on police brutality. The IPOA investigation continued at year’s end.
Pretrial Detention: Lengthy pretrial detention was a serious problem and contributed to prison overcrowding. Some defendants were held in pretrial detention longer than the statutory maximum term of imprisonment for the crime with which they were charged. The government claimed the average time spent in pretrial detention was 14 days, but there were reports many detainees spent two to three years in prison before their trials were completed. Police from the arresting locale are responsible for bringing detainees from prison to court when hearings are scheduled but often failed to do so, forcing detainees to wait for the next hearing of their cases (see section 1.e.).
Detainee’s Ability to Challenge Lawfulness of Detention Before a Court: The law entitles persons arrested or detained to challenge in court the legal basis or arbitrary nature of their detention, but that right was not always protected in practice. In February authorities failed to comply with a court order to produce opposition lawyer Miguna Miguna in court. Authorities instead deported Miguna on February 6, claiming that he had given up his Kenyan citizenship upon obtaining Canadian citizenship. Miguna attempted to re-enter Kenya in March, but was detained at the airport. Authorities ignored two court orders to produce or release Miguna and instead deported the lawyer a second time on March 28.
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. In April the minister of interior claimed the judiciary was “captured” by civil society with the intent to stall and embarrass the government.
Reform of the judiciary continued. In August the director of public prosecution directed anticorruption authorities to investigate the judiciary over allegations of misuse and loss of court funds. On August 28, authorities arrested the deputy chief justice for suspected corruption. She faces charges for abuse of office for personal gain, and undermining public integrity in the judiciary. The case against the deputy chief justice was ongoing as of year’s end. Authorities generally respected court orders, and the outcomes of trials did not appear to be predetermined.
In June parliament accused the judiciary of meddling in the legislative process, citing court orders against parliamentary procedures.
The Judicial Service Commission (JSC)–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. As of October President Kenyatta had not formally installed JSC nominee Judge Mohammed Warsame, whom the JCS nominated in April.
In December 2017 the judiciary issued the State of the Judiciary and the Administration of Justice Report for 2016-17, which cited more than 60,000 cases pending in court for between five and 10 years. The judiciary improved its case clearance rate during the year and substantially reduced case backlog by increasing benches of judges sitting daily.
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.
For example, in August 2016 a High Court deadline expired for parliament to enact legislation to implement the constitutionally mandated two-thirds gender principle (see section 3). In 2017 a second High Court-ordered deadline for implementation expired, despite a promise by the National Assembly majority leader to bring it to a vote. The order remained under parliamentary review at year’s end. In May the High Court issued a ruling quashing the privileges of parliament that had insulated against legal redress on any decisions parliamentarians make. In June parliament slashed the judiciary budget allocation for the 2018-19 financial year in a perceived retaliatory move.
The law provides for “kadhi” courts, which adjudicate Muslim law on marriage, divorce, and inheritance among Muslims. There were no other traditional courts. The national courts used the traditional law of an ethnic group as a guide in personal matters as long as it did not conflict with statutory law.
The law provides for the right to a fair public trial, although individuals may give some testimony in closed session; the independent judiciary generally enforced this right. The law provides for a presumption of innocence, and defendants have the right to attend their trials, confront witnesses, and present witnesses and evidence in their defense. The law also provides defendants the right to receive prompt and detailed information on the charges against them, with free interpretation if necessary, including during trials; to be tried without undue delay; to have access to government-held evidence; and not to be compelled to testify or confess guilt. Authorities generally respected these rights, although they did not always promptly inform persons of the charges against them. During the year the judiciary completed disseminating Active Case Management Guidelines to several courts involved in a management pilot project. The judiciary implemented the pilot project in some high profile and complex cases, but had not done so on a regular basis. In January Chief Justice David Maraga launched the National Committee on Criminal Justice Reforms to coordinate justice sector reform. On September 22, Maraga inaugurated the Criminal Procedure Bench Book as part of ongoing judicial reforms.
Trial delays sometimes resulted because witnesses failed to present themselves, judges cancelled trial dates without notice, witnesses were not protected, or legal counsel failed to appear. Authorities generally respected a defendant’s right to consult with an attorney in a timely manner. Defendants generally had adequate time to prepare a defense if they were capable of doing so. The government and courts generally respected these rights. There was no government-sponsored public defenders service, and courts continued to try the vast majority of defendants without representation because they could not afford legal counsel.
In May, 2,000 inmates at a regional prison declined to appear in court over processing and conclusion of their court cases. The inmates accused the justice system of detaining them without trial. The judiciary resolved the matter after three weeks by rotating additional judges to the court.
The Legal Aid Act enacted in 2016 established the National Legal Aid Service to facilitate access to justice, with the ultimate goal of providing pro-bono services for indigent defendants who cannot afford legal representation. Other pro-bono legal aid was available only in major cities where some human rights organizations, notably the Federation of Women Lawyers, an international NGO, provided it. The Law Society of Kenya (LSK) held the annual legal awareness week in September with the theme “Corruption: a crime against justice, democracy, development and prosperity.” During the week, LSK provided free legal aid at all High Courts nation-wide.
The ODPP significantly increased the number of trained prosecutors during the year. According to the ODPP, as of June 29, there were an estimated 627 state prosecutors, compared with 200 in 2013, as well as 402 support staff. The expansion of the prosecution service reduced delays in court proceedings. The ODPP suffered high staff turnover, largely due to the judiciary offering better pay. To fill the gap, the office increased recruiting efforts and brought in more than 90 new prosecutors during the year.
Discovery laws are not clearly defined, handicapping defense lawyers. Implementation of a High Court ruling requiring provision of written statements to the defense before trial remained inconsistent. Defense lawyers often did not have access to government-held evidence before a trial. There were reports the government sometimes invoked the Official Secrets Act as a basis for withholding evidence.
Defendants may appeal a verdict to a High Court and ultimately to the Court of Appeal and, for some matters, to the Supreme Court.
POLITICAL PRISONERS AND DETAINEES
While generally not an issue, there was one report of a political prisoner or detainee. Authorities detained opposition lawyer Miguna Miguna for several days following the January 30 ceremony swearing in Raila Odinga as “the people’s president.” Authorities failed to comply with a court order to produce Miguna and instead deported him, claiming that he had given up his Kenyan citizenship upon obtaining Canadian citizenship (see section 1.d).
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals may use the civil court system to seek damages for violations of human rights and may appeal decisions to the Supreme Court as well as to the African Court of Justice and Human Rights. In 2016 the judiciary launched a program of Enhanced Service Delivery Initiatives to promote more efficient and affordable justice. The program introduced Performance Management Understandings as a method for measuring the performance of judicial staff, judges, and magistrates by work delivery. In 2017 Supreme Court Chief Justice Maraga launched a strategic blueprint for judicial reform, which included an Implementation and Monitoring Committee. In September the ODPP set up a task force to review the national prosecution policy and other guidelines. The task force was expected to develop guidelines on alternatives to prosecution, formulate ODPP charge sheet formats and information, develop standard guidelines on preparation of case files, and develop rules on the operationalization of a central intake of cases.
According to human rights NGOs, bribes, extortion, and political considerations influenced the outcomes in some civil cases. Court fees for filing and hearing civil cases effectively barred some from access to the courts.
There is no single established system of land tenure in the country: private titles compete with customary land rights and community land, while public land is vulnerable to squatters or to unscrupulous developers. There is no clear legal framework for issuing title deeds or for adjudicating land disputes because of legal disputes between the National Land Commission, vested with powers of land adjudication through the constitution and 2012 implementing legislation, and the Ministry of Lands. Plots of land were sometimes allocated twice. The Community Land Act signed into law in 2016 allows communities to apply for land registrations as a single entity and put in train the adjudication process in which their applications will be considered alongside any competing claims. In June the government launched its first National Land Use Policy, calling for the issuance of titles based on approved physical development plans.
A report by the Truth, Justice, and Reconciliation Commission (TJRC) established in the aftermath of the 2007-08 postelection violence identified land reform, including titling, as a key issue, and issued recommendations, which were largely not implemented. NGOs and media reported progress had been uneven. For example, according to the daily Standard newspaper, in January 2017 a branch of the High Court ruled that more than three million land title deeds issued by the government since 2013 had been irregularly processed and were therefore invalid, but could be corrected. The judgment was based on the parliament’s failure to approve regulations required to implement the Land Registration Act.
There is no established system for restitution or compensation for those declared to be squatters and ordered to vacate land. Both private and communal clashes were common because of land disputes. The government used forced eviction and demolition to restore what it claimed was illegally occupied public land. For example, in July authorities demolished buildings in the Nairobi informal settlement Kibera, including seven schools, and the residences of more than 10,000 persons. Despite promises to complete a resettlement plan and restitution manifest prior to the demolition, authorities failed to do so.
Evictions also continued in the Mau forest in southwest Kenya. In July authorities forcefully evicted approximately 2,000 persons considered squatters without legal right to live on public land. This led to increased intercommunity clashes in the area in August and September.
In May 2017 the African Union Court on Human and Peoples’ Rights found in favor of the indigenous Ogiek community evicted in 2009 from the Mau Forest. The court ruled the government’s actions had violated seven articles of the African Charter on Human and People’s Rights, to which the country is a signatory. The ruling gave the government until November 2017 to implement the required remedies, but at year’s end, the attorney general had taken no action.
The constitution and law prohibit such actions, except “to promote public benefit,” but authorities sometimes infringed on citizens’ privacy rights. The law permits police to enter a home without a search warrant if the time required to obtain a warrant would prejudice an investigation. Although security officers generally obtained search warrants, they occasionally conducted searches without warrants in the course of large-scale security sweeps to apprehend suspected criminals or to seize property believed stolen. For example, in August 2017, according to multiple press and NGO reports, police conducted house-to-house operations in Kisumu County in connection with protests in the wake of the August 2017 election. In one of the homes, police allegedly beat a husband, wife, and their six-month-old daughter (known as “Baby Pendo”). KNCHR confirmed the infant died of her injuries in September 2017. In November 2017 IPOA completed its investigation into the infant’s death and referred the case to the ODPP for potential prosecution. ODPP declined to prosecute due to lack of evidence identifying the culpable officers. IPOA then referred the case to a magistrate for a public inquest, which met several times, most recently on July 11.
Human rights organizations reported police officers raided homes in informal settlements in Nairobi and communities in the coast region in search of suspected terrorists and weapons. The organizations documented numerous cases in which plainclothes police officers searched residences without a warrant and household goods were confiscated when residents were unable to provide receipts of purchase on demand.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Rape and Domestic Violence: The law criminalizes rape, defilement, sexual violence within marriage, and sex tourism, but enforcement remained limited. The law criminalizes abuses that include early and forced marriage, FGM/C, forced wife “inheritance,” and sexual violence within marriage. The law’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 law, insulting the modesty of another person by intruding upon that person’s privacy or stripping them of clothing are criminal offenses punishable by imprisonment for up to 20 years.
The law provides a maximum penalty of life imprisonment for rape, 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, commonly known as maslaha, to address sexual offenses in rural areas, with village elders assessing financial compensation for the victims or their families. They also used such mechanisms occasionally in urban areas. In February however, the interior cabinet secretary announced that the government would not permit local government officials and community leaders to use maslaha to resolve the gang rape of a 15-year-old girl in rural Wajir County, and that the investigation must proceed through official channels.
The National Police Service recorded 2,557 reports of sexual gender based violence (SGBV) between January and June on the National Sexual Gender Based Violence Information System. Authorities investigated 2,393 cases, leading to 454 prosecutions, with six convictions as of June.
The governmental KNCHR’s November report on sexual violence during and after the 2017 election found that sexual and gender-based violations accounted for 25 percent of human rights violations, and 71 percent of the sexual assaults were categorized as rape. Ninety-six percent of the victims were female. The same report found that security officers committed an estimated 55 percent of the documented sexual assaults. More than half the victims lived in informal settlements in urban areas, primarily in Nairobi, and 80 percent were either unable to access or did not seek proper medical care within 72 hours. Only 22 percent of the documented victims reported the assault to police, and police reportedly acted indifferently to some accusations of sexual assault against authorities. KNCHR’s report included a raft of official recommendations to the Presidency, the National Police Service Commission, the Ministries of Interior and Health, IPOA, ODPP, the Judiciary, county governments, and other state bodies.
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.
Authorities cited domestic violence as the leading cause of preventable, non-accidental death for women during the year. Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter.
Female Genital Mutilation/Cutting (FGM/C): The law makes it illegal to practice FGM/C, procure the services of someone who practices FGM/C, or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM/C. Government officials often participated in public awareness programs to prevent the practice. Nevertheless, individuals practiced FGM/C widely, particularly in some rural areas. According to a study by ActionAid Kenya published in October, despite the legal prohibition on FGM/C, myths supporting the practice remained deep-rooted in some local cultures. The study concluded approximately 21 percent of adult women had undergone the procedure some time in their lives, but the practice was heavily concentrated in a minority of communities, including the Maasai (78 percent) and Samburu (86 percent).
Media reported growing numbers of female students refused to participate in FGM/C ceremonies, traditionally performed during the August and December school holidays. 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.
For more information, see Appendix C.
Other Harmful Traditional Practices: Certain communities practiced wife inheritance, in which a man inherits the widow of his brother or other close relative, regardless of her wishes. Such inheritance was more likely in cases of economically disadvantaged women with limited access to education living outside of major cities. Other forced marriages were also common. The law codifies 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.
Coercion in Population Control: There were no reports of coerced abortion or involuntary sterilization.
Discrimination: The constitution provides equal rights for men and women and specifically prohibits discrimination on the grounds of race, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language, or birth. The justice system and 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 that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution. For example, according to a 2018 World Bank report, it was difficult in much of the country for widows to access a deceased husband’s bank account.
According to an October report by CEDAW, despite the laws, much of the country held to the traditions that married women are not entitled to their fathers’ property and that upon remarriage, a woman loses her claim to her deceased husband’s property. In May the High Court dismissed a case by FIDA challenging the constitutionality of the provision of the Matrimonial Property Act stating that parties to a marriage are entitled to marital property proportional to their contribution towards acquiring it. FIDA had argued that the provision indirectly discriminates against women, who often contribute less directly to marital income.
Birth Registration: A child derives citizenship from the citizenship of the parents, and either parent may transmit citizenship. Birth registration is compulsory. An estimated 63 percent of births were officially registered. Lack of official birth certificates resulted in discrimination in delivery of public services. The Department of Civil Registration Services began implementing the Maternal Child Health Registration Strategy requiring nurses administering immunizations to register the births of unregistered children.
For additional information, see Appendix C.
Education: Education is tuition free and compulsory through age 13. Authorities did not enforce the mandatory attendance law uniformly.
While the law provides pregnant girls the right to continue their education until after giving birth, NGOs reported that schools often did not respect this right. School executives sometimes expelled pregnant girls or transferred them to other schools.
Child Abuse: The law criminalizes several forms of violence that affect children, including early and forced marriage, FGM/C, incest, and physical, verbal, and sexual abuse. Violence against children, particularly in poor and rural communities, was common, and child abuse, including sexual abuse, occurred frequently.
The minimum sentence for conviction of defilement is life imprisonment if the victim is younger 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. Although exact numbers were unavailable, media reported several defilement convictions during the year. In September a court sentenced an 82-year-old man to life imprisonment for defiling a minor.
The government banned corporal punishment in schools, but there were reports corporal punishment occurred.
Early and Forced Marriage: The minimum age for marriage is 18 years for women and men. Media occasionally highlighted the problem of early and forced marriage, which some ethnic groups commonly practiced. Under the constitution, the kadhi courts retained jurisdiction over Muslim marriage and family law in cases where all parties profess the Muslim religion and agree to submit to the jurisdiction of the courts. According to media reports, in August, six men in Baringo County killed a 13-year-old girl for refusing to become a 60-year-old man’s fifth wife. For additional information, see Appendix C.
Sexual Exploitation of Children: The law criminalizes sexual exploitation of children, including prohibiting procurement of a child younger than age 18 for unlawful sexual relations. The law also prohibits domestic and international trafficking, or the recruitment, harboring, transportation, transfer, or receipt of children up to the age of 18 for the production of pornography or for pornographic performances. Provisions apply equally to girls and boys. The Sexual Offenses Act has specific sections on child trafficking, child sex tourism, child prostitution, and child pornography. Nevertheless, according to human rights organizations, children were sexually exploited and victims of trafficking.
Child Soldiers: Although there were no reports the government recruited child soldiers, there were reports that the al-Shabaab terrorist group recruited children in areas bordering Somalia.
Displaced Children: Poverty and the spread of HIV/AIDS continued to intensify the problem of child homelessness. Street children faced harassment and physical and sexual abuse from police and others and within the juvenile justice system. The government operated programs to place street children in shelters and assisted NGOs in providing education, skills training, counseling, legal advice, and medical care to street children whom the commercial sex industry abused and exploited.
International Child Abductions: The country is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data.html.
The Jewish community is small, and there were no reports of anti-Semitic acts.
Trafficking in Persons
See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
Persons with Disabilities
The law prohibits discrimination against persons with disabilities, but the government did not effectively enforce these provisions. A number of laws limit the rights of persons with disabilities. For example, the Marriage Act limits the rights of persons with mental disabilities to get married and the Law of Succession limits the rights of persons with disabilities to inheritance. The constitution provides for legal representation of persons with disabilities in legislative and appointive bodies. The law provides that persons with disabilities should have access to public buildings, and some buildings in major cities had wheelchair ramps and modified elevators and restrooms. The government did not enforce the law, however, and new construction often did not include accommodations for persons with disabilities. Government buildings in rural areas generally were not accessible to persons with disabilities. According to NGOs, police stations remained largely inaccessible to persons with mobility disabilities.
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 by school officials and parents to devoting resources to students with disabilities.
Authorities received reports of killings of persons with disabilities as well as torture and abuse, and the government took action in some cases. In June the government reported a rise in defilement and confinement of persons living with albinism. According to an official, a majority of cases went unreported, while others were handled informally at the village level.
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. 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 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.
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. According to a 2017 CEDAW report, persons with disabilities comprised only 2.8 percent of the Senate and National Assembly, less than the 5 percent mandated by the constitution (see section 3).
There were 42 ethnic groups in the country; none holds a majority. The Kikuyu and related groups dominated much of private commerce and industry and often purchased land outside their traditional home areas, which sometimes resulted in fierce resentment from other ethnic groups, especially in the coastal and Rift Valley areas.
Many factors contributed to interethnic conflicts: longstanding 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. According to the Office of the United Nations High Commissioner for Human Rights, between December 2016 and April 2017, in defiance of a court order, Kenya Forest Service guards burned multiple dwellings of the minority Sengwer tribe in order to evict them from Embobut Forest.
There was frequent conflict, including banditry, fights over land, and cattle rustling, among the Somali, Turkana, Gabbra, Borana, Samburu, Rendille, and Pokot ethnic groups in arid northern, eastern, and Rift Valley areas that at times resulted in deaths. Disputes over county borders were also a source of ethnic tensions. In August and September, there were a number of deadly inter-community clashes over government proposals to resume the evictions from the Mau forest in the southern Rift Valley region. As part of a dispute dating back to the colonial period, the government claims many of the communities were illegally living on and damaging forest land in a crucial conservation zone and drainage basin.
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 2016 the National Gay and Lesbian Human Rights Commission filed Petition 150 of 2016 challenging the constitutionality of these penal codes. As of year’s end the two cases remained in progress. On March 22, the Court of Appeals in Mombasa ruled that the use of forced anal examinations by the state to determine participation in homosexual acts is unconstitutional. During the year the Kenya Film and Classification Board banned showings of the Kenyan film Rafiki over its presentation of LGBTI themes. After the film debuted at the Cannes Film Festival in France, a Kenyan court ordered the ban suspended for one week in October so that the film could qualify to be nominated for a U.S. Academy Award.
LGBTI organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTI individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTI individuals in custody.
Authorities permitted LGBTI advocacy organizations to register and conduct activities.
Violence and discrimination against LGBTI individuals was widespread. In June LGBTI activists reported receiving death threats following the first pride event held at Kakuma refugee camp.
In May 2017 the government gazetted a taskforce in order to implement a High Court’s judgment in the 2014 Baby ‘A’ case recognizing the existence of intersex persons. The taskforce was seen as a step to reduce violence and discrimination targeting intersex persons. In July 2017 the taskforce launched a nationwide program to record the number of intersex citizens. That information was not publicly available as of October.
HIV and AIDS Social Stigma
The government, along with international and NGO partners, made progress in creating an enabling environment to combat the social stigma of HIV and AIDS and to address the gap in access to HIV information and services. 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 more than 5,000 counseling and testing centers providing free HIV/AIDS diagnosis. Diagnosis of other sexually transmitted infections was available through hospitals and clinics throughout the country. In 2016, according to its website, the First Lady’s Beyond Zero Campaign to stop HIV infections led to the opening of 46 mobile clinics across the country.
Stigma nonetheless continued to hinder efforts to educate the public about HIV/AIDS and to provide testing and treatment services. In July a court sentenced a woman to death for murdering her boyfriend when she discovered that he had hidden his HIV positive status from her.
Other Societal Violence or Discrimination
Mob violence and vigilante action were common in areas where the populace lacks confidence in the criminal justice system. In September a mob protesting the police killing of a civilian attacked a police station in Kisii County (western region) and killed three persons, including one officer. The social acceptability of mob violence also provided cover for acts of personal vengeance. Police frequently failed to act to stop mob violence.
Land owners formed groups in some parts of the country to protect their interests from rival groups or thieves. In March the National Cohesion and Integration Commission reported more than 100 such organized groups nationwide. Reports indicated that politicians often fund these groups or provide them weapons, particularly around election periods. Mombasa County reported 20 land invasions between March and July in parts of Mombasa and neighboring Kilifi counties.
In 2016 the Senate and the National Assembly established a joint parliamentary select committee to investigate police brutality and mob violence. The committee’s activities ceased, however, in the run up to the 2017 election.
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, which some believed could confer magical powers and which could be sold for significant sums.