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Germany

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 no reports that the government or its agents committed arbitrary or unlawful killings. In the event of a killing by security forces, police begin an internal investigation under the leadership of the state prosecutor.

The trial against two right-wing extremist suspects for the June 2019 killing of local Hesse politician Walter Luebcke began June 16. The crime was widely viewed as a politically motivated killing of a known prorefugee state official. The main defendant, Stephan Ernst, was also accused of the 2016 homicide of an Iraqi asylum seeker, and prosecutors believed he committed both acts out of ethnonationalist and racist motivations. On August 5, Ernst confessed in court to having shot Luebcke but blamed codefendant Markus Hartmann for incitement. The Hesse state parliament launched a committee to investigate the failure of Hesse’s domestic security service to identify Stephan Ernst as a danger to society. Frankfurt prosecutors are investigating 72 persons for having threatened Luebcke on the internet following his 2015 prorefugee remarks. Trials against three of these defendants–for defamation and endorsement of murder, public incitement of criminal acts, and incitement of bodily harm–ended with small fines in August.

b. Disappearance

There were no reports of disappearances by or on behalf of government authorities.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The constitution and the law prohibit such practices, but there were a few reports that government officials employed them. According to some human rights groups, authorities did not effectively investigate allegations of mistreatment by police and failed to establish an independent mechanism to investigate such allegations. The 2019 interim report of a continuing study by researchers at the University of Bochum estimated police used excessive force in 12,000 cases annually, of which authorities investigated approximately 2,000. Investigations were discontinued in 90 percent of the cases, and officers were formally charged in approximately 2 percent of the cases. Less than 1 percent of the cases resulted in conviction of the accused officer.

In July, two police officers in Thuringia were sentenced to two years and three months’ incarceration for the sexual abuse of a woman while the officers were on duty in September 2019. After checking a Polish couple’s identity papers and determining they were fake, the officers drove the woman to her apartment, where they sexually abused her. Due to a lack of evidence, the court reduced the charge from rape to sexual abuse while exploiting an official position, because the woman could not be located to testify at trial. Both the prosecution and defense appealed the sentence, with the prosecution hoping the woman could be found so that rape charges could be reintroduced and the defense arguing that without new evidence, no additional charges should be brought. The appeals process was still in progress as of July.

In July 2019 Cologne police shot an unarmed man, 19-year-old Alexander Dellis, when he fled arrest. Dellis filed a complaint against police regarding the proportionality of the response, and the public prosecutor was investigating.

Impunity was not a significant problem in the security forces.

Prison and Detention Center Conditions

There were no significant reports regarding prison or detention center conditions that raised human rights concerns.

Physical Conditions: There were no major concerns in prisons and detention centers regarding physical conditions or inmate abuse.

Administration: Authorities conducted proper investigations of credible allegations of mistreatment.

Independent Monitoring: The government permitted monitoring by independent nongovernmental observers.

d. Arbitrary Arrest or Detention

The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.

Between 2017 and 2019, several state parliaments expanded police powers. The new state laws enable police to take preventive action against an “impending danger.” Critics argued that this provision expands police’s surveillance power, which had been reserved for the country’s intelligence services. As of September cases against new laws in Bavaria and Baden-Wuerttemberg were pending at the Federal Constitutional Court, as was a separate case at the Saxony Constitutional Court regarding that state’s law.

While several states required police to wear identity badges, the nongovernmental organization (NGO) Amnesty International Germany criticized the lack of a nationwide requirement to do so.

In February a 29-year-old man was acquitted a third time of charges of resisting police officers, causing bodily harm, and insulting an officer in Cologne. The Cologne District Court judge in the man’s April 2019 second trial dismissed the charges as unfounded and apologized to the defendant. Nonetheless, the public prosecutor filed a second appeal. The officers were themselves placed under investigation in 2019, and those investigations continued in November.

Arrest Procedures and Treatment of Detainees

Authorities must have a warrant issued by a judicial authority to arrest an individual. Police may also arrest individuals they apprehend in the act of committing a crime, or if they have strong reason to suspect the individual intends to commit a crime. The constitution requires authorities to bring a suspect before a judicial officer before the end of the day following the arrest. The judge must inform the suspect of the reasons for his or her detention and provide the suspect with an opportunity to object. The court must then either issue an arrest warrant stating the grounds for continued detention or order the individual’s release. Authorities generally respected these rights.

Although bail exists, judges usually released individuals awaiting trial without requiring bail. Bail is only required in cases where a court determines the suspect poses a flight risk. In such cases authorities may deny bail and hold detainees for the duration of the investigation and subsequent trial, subject to judicial review.

Detainees have the right to consult with an attorney of their choice; the government provides an attorney at public expense if detainees demonstrate financial need. The law entitles a detainee to request access to a lawyer at any time, including prior to any police questioning. Authorities must inform suspects of their right to consult an attorney before questioning begins.

Pretrial Detention: In June the NGO World Prison Brief reported 20.6 percent of prisoners were in pretrial detention. In 2019 the Ministry of Justice reported that the median stay in pretrial detention was between four and six months. The courts credit time spent in pretrial custody toward any eventual sentence. If a court acquits an incarcerated defendant, the government must compensate the defendant for financial losses as well as for “moral prejudice” due to his or her incarceration.

e. Denial of Fair Public Trial

The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.

Trial Procedures

The constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.

Defendants enjoy a presumption of innocence and have the right to be informed promptly and in detail of the charges against them. The trial shall be fair, public, and held without undue delay. The law requires defendants be present at their trials. Defendants have the right to consult with an attorney of their choice, and the government provides an attorney at public expense if defendants demonstrate financial need, as stated above. Defendants and their attorneys have the right to adequate time and facilities to prepare a defense. The government provides an interpreter to any defendant who cannot understand or speak German and does so free of charge if the defendant demonstrates financial need or is acquitted. Defendants have access to all court-held evidence relevant to their cases. Defendants may question the prosecution’s witnesses and may introduce their own witnesses and evidence in support of their case. Defendants may not be compelled to testify or confess guilt. Defendants have the right to appeal.

The law does not allow courts to punish a person twice for the same crime. A court may, however, order an offender convicted of rape, homicide, or manslaughter to spend additional time in “subsequent preventive detention” after completing a sentence. The court can only order preventive detention if it determines that the offender suffers from a mental disorder or represents a continuing serious danger to the public. The law permits the imposition of such detention for an indefinite period, subject to periodic review.

Because the law does not regard such detention as punishment, authorities are legally required to keep those in preventive detention in separate buildings or in special prison sections with better conditions than those of the general prisons. Authorities must also provide detainees with a range of social and psychological therapy programs. According to the Federal Statistics Office, 551 offenders were held under preventive detention at the end of March 2019.

Political Prisoners and Detainees

There were no reports of political prisoners or detainees.

Civil Judicial Procedures and Remedies

Citizens may file complaints about abuses of their human rights with petition committees and commissioners for citizens’ affairs. Citizens usually referred to these points of contact as “ombudsmen.” Additionally, an independent and impartial judiciary in civil matters provides court access for lawsuits seeking damages for, or cessation of, a human rights abuse. Persons who exhaust domestic legal remedies may appeal cases involving alleged government violations of the European Convention on Human Rights to the European Court of Human Rights.

Property Restitution

The government has laws and mechanisms in place, and NGOs and advocacy groups reported it made significant progress on resolution of Holocaust-era claims, including for foreign citizens. Since the end of World War II through 2019, according to the Federal Ministry of Finance, the government paid approximately 77.8 billion euros ($93.4 billion) in Holocaust restitution and compensation. The country has also supported numerous public and private international reparation and social welfare initiatives to benefit Holocaust survivors and their families.

After World War II, the government adopted legislation to resolve compensation claims stemming from Nazi atrocities and Holocaust-era property confiscation. In 1952 the government designated the Conference on Jewish Material Claims against Germany (also known as the Jewish Claims Conference or JCC) as its principal partner in handling restitution and compensation claims made by Jewish victims of Nazi persecution.

Before German reunification in 1990, in accordance with the Federal Restitution Law, West German authorities provided property restitution and compensation payments for properties and businesses that were confiscated or transferred during the Holocaust era. The JCC assumed ownership of and auctioned off heirless properties, using the proceeds to fund the organization’s efforts to support Holocaust survivors and fund Holocaust education. For confiscated Jewish property located in what was formerly East Germany, the JCC filed additional claims under the 1990 Property Law, enacted after reunification. Since 1990 authorities have approved and granted restitution in 4,500 cases and provided compensation in approximately 12,000 cases. There were approximately 5,000 cases involving fixed assets pending processing at the Federal Office for Central Services and Unsettled Property Issues, including land, real estate, and company shares.

Regular negotiations between the JCC and the country’s federal government have expanded existing programs and introduced additional ones. In the September negotiations, the government agreed to increase the total funding level for 2021 by 30.5 million euro ($36.6 million) for home-care services for frail and aging Holocaust survivors. This brought the total global allocation to 554.5 million euro ($665.4 million). In addition, survivors who received previous one-time payments under a hardship fund are scheduled to receive additional payments of $1,400 in 2020 and 2021.

In 2015 the federal government established the German Lost Art Foundation (DZK) to promote provenance research. The DZK maintains an online “Lost Art” database. The database documents objects suspected or proven to be confiscated by the Nazis. In January the DZK launched an additional research database, presenting the results of research projects funded by the foundation and linked with other databases to support provenance research by documenting historical information. The DZK also created a help desk as a contact and information point for victims and their heirs to assist in conducting research by finding the right institutions and contacts.

In January, Minister of State for Culture Monika Gruetters presented three pieces of Nazi-looted art to the rightful heirs from France. Two of the paintings were from the Gurlitt Collection of approximately 1,500 pieces of looted art.

The Department of State’s Justice for Uncompensated Survivors Today (JUST) Act report to Congress, released on July 29, can be found on the Department’s website: https://www.state.gov/reports/just-act-report-to-congress/.

f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

The constitution prohibits such actions, but there were assertions the government failed in some cases to respect these prohibitions.

The federal and state offices for the protection of the constitution (OPCs) continued to monitor political groups deemed to be potentially undermining the constitution, including left-wing extremist groups inside the Left party and right-wing extremist groups inside the Alternative for Germany (AfD), both of which have seats in the Bundestag, as well as the right-wing extremist National Democratic Party. Monitoring requires the approval of state or federal interior ministries and is subject to review by state or federal parliamentary intelligence committees.

On March 12, the Federal Office for the Protection of the Constitution (FOPC) announced it would formally surveil “the Wing,” a loose network consisting of far-right AfD party members. The FOPC took this step because the Wing aimed “at the exclusion, disparagement, and extensive deprivation of rights” of minorities and violated “the guarantee of human dignity as well as the principles of democracy and the rule of law.” At the end of April, in reaction to this announcement, the board members of “the Wing” dissolved their network.

On March 12, the state-level OPC in Thuringia announced it would monitor the AfD in Thuringia due to the party’s “general contempt” of migrants, its attempts to limit religious freedom through its concept of “de-Islamization,” and its maintenance of “personal links to extremist groups.”

On June 15, the Brandenburg OPC followed suit, announcing it would begin monitoring the state chapter of the AfD. State Interior Minister Stuebgen stated the Brandenburg AfD had grown increasingly radical since its founding and was “clearly directed against our free democratic basic order.”

In July the OPC in Saxony announced it would delete all of the information it had collected on members of the AfD who were members of state, federal, and European parliaments, because the constitutional prerequisite for data collection had not been met. The OPC could only collect elected officials’ information where the OPC had evidence the targeted officials were pursuing anticonstitutional goals. The Saxony OPC retracted the announcement a week later, stating that it was verifying whether this legal criterion had, in fact, been met. As of August the verification process was still in progress.

All OPC activities may be contested in court, including the Federal Constitutional Court. Following a 2014 Constitutional Court ruling, the government stated the FOPC would no longer monitor Bundestag members.

In 2018 approximately 30 politicians, journalists, and media figures (mostly women or minorities) reported having received threatening letters, often signed “NSU 2.0.” In at least two cases, the letters contained nonpublic information accessed from computers at Hesse police stations. One of the recipients was a lawyer who had defended victims’ families in the 2013-18 trials related to the right-wing terrorist organization National Socialist Underground. Investigators found that a police officer in Frankfurt had conducted an unauthorized search for her address; the officer also took part in a group chat with four other Frankfurt officers in which they shared right-wing extremist images and messages. The Hesse State Office for Criminal Investigation eventually identified 70 suspects within Hesse’s police force, of whom six were dismissed from office, while others have since been exonerated. Thirty individual investigations continued as of September, but the investigation has been unsuccessful in finding those responsible for sending the letters.

In 2018 Hamburg Data Protection Officer Johannes Caspar ordered Hamburg police to cease collecting facial recognition templates from cameras in public areas. Caspar stated the police database containing these templates was illegal because it continually collected images of innocent citizens. In May, Caspar confirmed that police had deleted the database. During the year Caspar also began legal action against Clearview, a New York-based firm, after a Hamburg man complained the company had violated his privacy when it obtained his image through data crawling.

In May the Gelsenkirchen administrative court ruled the Dortmund police may not use video cameras to monitor a street inhabited by suspected neo-Nazis. Four residents who are members of the Dortmund neo-Nazi scene sued to stop the recording.

Section 2. Respect for Civil Liberties, Including:

Academic Freedom and Cultural Events

There were government restrictions on academic freedom and cultural events supporting extreme right-wing neo-Nazism.

Section 3. Freedom to Participate in the Political Process

The constitution provides 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: The Organization for Security and Cooperation in Europe and 45 parliamentarians from 25 countries observed the country’s federal elections in September 2017 and considered them well run, free, and fair.

Political Parties and Political Participation: Political parties generally operated without restriction or outside interference unless authorities deemed them a threat to the federal constitution. When federal authorities perceive such a threat, they may petition the Federal Constitutional Court to ban the party.

Under the law each political party receives federal public funding commensurate with the party’s election results in state, national, and European elections. Under the constitution, however, extremist parties who seek to undermine the constitution are not eligible for public funding. In July 2019 the Bundesrat, Bundestag, and federal government filed a joint claim with the Federal Constitutional Court to exclude the right-wing extremist National Democratic Party (NPD) from receiving state party financing, arguing that the NPD seeks to undermine the democratic order in the country. The case was pending as of September.

In December 2019 the NRW State Constitutional Court declared the abolition of the run-off election rule in local elections unconstitutional. A run-off vote is generally held two weeks after the election if no candidate for the office of lord mayor, mayor, or district administrator achieves an absolute majority of votes. The opposition in the state parliament had filed suit against the abolition, arguing it would result in the election of local officials who had received as little as 25 percent of the vote.

Participation of Women and Members of Minority Groups: No laws limit the participation of women and members of minority groups in the political process, and they did participate. The head of the government, Federal Chancellor Angela Merkel, is a woman; within the Federal Cabinet, six of 16 ministers are women, including the ministers of defense and justice. In the parliament approximately 30 percent of the members are women.

Section 4. Corruption and Lack of Transparency in Government

The law provides criminal penalties for corruption by officials, and the government generally implemented the law effectively. There were isolated reports of government corruption during the year.

Financial Disclosure: Members of state and federal parliaments are subject to financial disclosure laws that require them to publish their earnings from outside employment. Sanctions for noncompliance range from an administrative fine to as much as half of a parliamentarian’s annual salary. Appointed officials are subject to the public disclosure rules for civil servants, who must disclose outside activities and earnings. If the remuneration exceeds certain limits, which vary by grade, the employee must transfer the excess to the employing agency. Under the federal disciplinary law, sanctions for noncomplying officials include financial penalties, reprimand, or dismissal.

In September 2018, Bundestag member Philipp Amthor of the Christian Democratic Union (CDU) lobbied on behalf of a U.S. firm, securing meetings between company representatives and Federal Minister of Economics Peter Altmaier (CDU), without disclosing he had received stock options and a seat on the company’s board of directors. Following the June disclosure of his actions, Amthor ended his cooperation with the company and returned the stock options. The Berlin public prosecutor’s office announced in July it would not initiate an official investigation for bribery. Free Democratic Party, Green Party, and Left Party Bundestag members accused the governing CDU/Social Democratic Party of Germany (SPD) coalition of delaying the introduction of a lobbying register, which they stated would prevent such potential conflicts of interest by increasing transparency in politics.

Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights

A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views.

Government Human Rights Bodies: A number of government bodies worked independently and effectively to protect human rights. The Bundestag has a Committee for Human Rights and Humanitarian Aid and one for Petitions. The Petitions Committee fields complaints from the public, including human rights concerns. The German Institute for Human Rights has responsibility for monitoring the country’s implementation of its international human rights commitments, including treaties and conventions. The Federal Anti-Discrimination Agency (FADA) is a semi-independent body that studies discrimination and assists victims of discrimination. The Office of the Federal Commissioner for Persons with Disabilities has specific responsibility for protecting the rights of persons with disabilities. The Justice Ministry’s commissioner for human rights oversees implementation of court rulings related to human rights protections.

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

Women

Rape and Domestic Violence: The law criminalizes rape, including spousal rape, of men and women, and provides penalties of up to 15 years in prison. Without a court order, officials may temporarily deny access to their household to those accused of abuse, or they may impose a restraining order. In severe cases of rape and domestic violence, authorities can prosecute individuals for assault or rape and require them to pay damages. Penalties depend on the nature of the case. The government enforced the laws effectively.

In 2018 an off-duty police officer in Berlin raped a 24-year-old woman. The Berlin public prosecutor’s office emphasized that the officer was off-duty and his status had no bearing on the alleged crime. In February the officer was sentenced to six and a half years in prison.

In February a Cologne judge dismissed sexual assault proceedings against a defendant who allegedly grabbed a woman under her skirt in November 2019. The judge argued the alleged assault was minor and took place at the start of the carnival season. A local advocacy group against sexual violence criticized the decision in a public letter and protested in front of the court.

In June Rhineland-Palatinate became the first state to open a contact point for victims of sex-based discrimination and sexual harassment within the state government administration. The contact point is operated by the NGO Pro Familia.

The federal government, the states, and NGOs supported numerous projects to prevent and respond to cases of gender-based violence, including providing victims with greater access to medical care and legal assistance. Approximately 340 women’s shelters offering a total of 6,700 beds operated throughout the country. The NGO Central Information Agency of Autonomous Women’s Homes (ZIF) reported accessibility problems, especially in bigger cities, because women who found refuge in a shelter tended to stay there longer due to a lack of available and affordable housing. ZIF also stated refugee women are particularly vulnerable, since they are required to maintain residence in a single district for three years and many live in districts in which there are no women’s shelters. Multiple NGOs expressed concern the COVID-19 lockdown constrained opportunities for women to escape violent domestic situations. ZIF called for additional government funding to place women and children in hotels if quarantine rendered its shelters inaccessible.

Female Genital Mutilation/Cutting (FGM/C): FGM/C of women and girls is a criminal offense punishable by one to 15 years in prison, even if performed abroad. Authorities can revoke the passports of individuals who they suspect are traveling abroad to subject a girl or woman to FGM/C; however, authorities have not taken this step since the law took effect in 2017. FGM/C affected segments of the immigrant population, in particular those from Eritrea, Iraq, Somalia, Indonesia, Nigeria, and Egypt, and their children born in the country. A working group under the leadership of the Federal Ministry for Family Affairs, Senior Citizens, Women, and Youth worked with other federal government bodies and all 16 states to combat FGM/C. According to a June study by the Federal Ministry for Women and Families, the number of mutilated women and girls has risen from approximately 50,000 in 2017 to approximately 68,000. The ministry estimated approximately 2,800 to 14,900 girls in the country are also at risk of FGM/C. The ministry noted the growing number of cases is likely attributable to increased immigration from countries where FGM is practiced.

Other Harmful Traditional Practices: The law criminalizes “honor killings” as murder and provides penalties that include life in prison. The government enforced the law effectively and financed programs aimed at ending “honor killings.”

In April a trial in Essen against 13 members of an extended Syrian family who attempted an “honor killing” ended with prison terms for eight defendants of up to eight and a half years and three suspended sentences. The defendants beat and stabbed a man in 2018 for having an affair with a married family member.

Sexual Harassment: Sexual harassment of women was a recognized problem and prohibited by law. Penalties include fines and prison sentences of as many as five years. Various disciplinary measures against harassment in the workplace are available, including dismissal of the perpetrator. The law requires employers to protect employees from sexual harassment. The law considers an employer’s failure to take measures to protect employees from sexual harassment to be a breach of contract, and an affected employee has the right to paid leave until the employer rectifies the problem. Unions, churches, government agencies, and NGOs operated a variety of support programs for women who experienced sexual harassment and sponsored seminars and training to prevent it.

Reproductive Rights: Couples and individuals had the right to decide the number, spacing, and timing of their children; manage their reproductive health; and have access to the information and means to do so, free from discrimination, coercion, or violence. There are no legal, social, or cultural barriers, nor government policies that adversely affect access to contraception nor to attendance of skilled health personnel during pregnancy and childbirth. The government provided access to sexual and reproductive health services for sexual violence survivors.

Coercion in Population Control: There were no reports of coerced abortion or involuntary sterilization on the part of government authorities.

Discrimination: Men and women enjoy the same legal status and rights under the constitution, including under family, labor, religious, personal status, property, nationality, and inheritance laws. The government generally enforced the law effectively.

Children

Birth Registration: In most cases individuals derive citizenship from their parents. The law allows individuals to obtain citizenship if they were born in the country and if one parent has been a resident for at least eight years or has had a permanent residence permit for at least three years. Parents or guardians are responsible for registering newborn children. Once government officials receive birth registration applications, they generally process them expeditiously. Parents who fail to register their child’s birth may be subject to a fine.

Child Abuse: There are laws against child abuse. Violence or cruelty towards minors, as well as malicious neglect, are punishable by five months to 10 years in prison. Incidents of child abuse were reported. The Federal Ministry for Family, Seniors, Women, and Youth sponsored a number of programs throughout the year on the prevention of child abuse. The ministry sought to create networks among parents, youth services, schools, pediatricians, and courts and to support existing programs at the state and local level. Other programs provided therapy and support for adult and youth victims of sexual abuse.

Child, Early, and Forced Marriage: The legal minimum age for marriage is 18 years.

Legislation passed in 2017 nullifies existing marriages conducted in other countries in which at least one spouse was younger than age 16 at the time of the wedding, even if they were of legal age in the country where the marriage was performed. Individuals ages 16 or 17 can petition a judge on a case-by-case basis to recognize their foreign marriage if they face a specific hardship from not having their marriage legally recognized. Complete central statistics are unavailable on such cases. Child and forced marriage primarily affected girls of foreign nationality.

Sexual Exploitation of Children: The law prohibits commercial sexual exploitation, sale, offering, or procuring children for prostitution and practices related to child pornography, and authorities enforced the law. The minimum age for consensual sex is 14 years unless the older partner is older than 18 and is “exploiting a coercive situation” or offering compensation, and the younger partner is younger than 16. It is also illegal for a person who is 21 or older to have sex with a child younger than 16 if the older person “exploits the victim’s lack of capacity for sexual self-determination.”

Crime statistics indicate approximately 43 children became victims of sexual violence daily in 2019. The number of child pornography cases processed by police rose by 65 percent in 2019, to approximately 12,260.

In June police uncovered a child abuse ring in Muenster, NRW. The main suspect was a 27-year-old man suspected of sexually abusing the 10-year-old son of his partner; he also produced pornography of the abuse and sold it online, and offered his foster son to others. As of September there were 11 suspects in custody.

In October 2019 a 43-year-old man was arrested in Bergisch-Gladbach, NRW, for severe child abuse. The case evolved into a large-scale investigation involving 400 police detectives and a network of at least 30,000 suspects. As of August authorities had identified 87 suspects. In the first case to go to trial, a 27-year-old man was sentenced to 10 years in prison for his role in the network. On September 11, the regional court sentenced a man from Krefeld for 13.5 years’ and a man from Viersen to 14.5 years’ imprisonment. The two 39-year-old men were convicted of serious child sexual abuse and of possession and distribution of child pornographic material. Investigations continued.

In January the Bundestag passed a law enabling undercover investigators to use artificially created videos of child sexual abuse to gain entry to internet forums. The government’s Independent Commissioner for Child Sex Abuse Issues offered a sexual abuse help online portal and an anonymous telephone helpline free of charge.

In April, NRW police established a unit in the Ministry of Interior specializing in child sexual abuse investigations. Statewide, police staff in this area quadrupled to approximately 400 police officers.

In July 2019 a parliamentary committee opened an investigation into possible failures and misconduct of the NRW state government in a case of multiple sexual abuse of children at a campground in Luegde. As of November the investigation continued, with sessions scheduled until December 18.

Displaced Children: According to the NGO Federal Association for Unaccompanied Minor Refugees (BumF), 2,689 unaccompanied minors applied for asylum in the country in 2019, approximately half of whom came from three countries: Afghanistan, Guinea, and Syria. BAMF granted some form of asylum to unaccompanied minors in just 56.2 percent of cases, a sharp drop from 94.5 percent in 2016. BumF observed that some unaccompanied minors might have become victims of human trafficking. For more information see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

According to estimates by the NGO Off Road Kids, as many as 2,500 children between the ages of 12 and 18 become at least temporarily homeless every year. Off Road Kids reported most runaways stayed with friends and were not living on the streets. These minors were generally school dropouts who did not receive assistance from the youth welfare office or their parents, and instead used digital networks to find temporary housing with friends and online acquaintances.

International Child Abductions: The country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data/reported-cases.html.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

Persons with Disabilities

The law prohibits discrimination against persons with disabilities. The law makes no specific mention of the rights of persons with sensory or intellectual disabilities, but their rights are considered included under the other headings. NGOs disagreed whether the government effectively enforced these provisions.

Persons with disabilities faced particular difficulties in finding housing.

State officials decide whether children with disabilities may attend mainstream or segregated schools. The law obliges all children to attend school, so those with disabilities do so at the same rate as children without disabilities. In some instances parents or teachers in mainstream schools protested against the inclusion of students with disabilities, primarily because they perceived the schools had insufficient resources and capabilities to address their needs.

In June disability rights NGOs criticized governmental discrimination during the COVID-19 pandemic. The government classified persons with disabilities as a “risk group,” for which stricter protective regulations applied. This included, for example, a prohibition on group travel by persons with disabilities and a requirement for assisted living residents to quarantine for two weeks if they left their facility. NGOs criticized the government’s giving higher priority to more restrictive rules for persons with disabilities over their rights to freedom and self-determination.

Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation and Gender Identity

The law prohibits discrimination based on sexual orientation and gender identity. Lesbian, gay, bisexual, transgender, and intersex (LGBTI) activists criticized the requirement that transgender persons be diagnosed as “mentally ill” in order to obtain legal gender recognition.

In October police arrested a 20-year-old Syrian refugee and known Islamist for attacking a homosexual couple in Dresden with a knife, fatally injuring one of them. The state Ministry of the Interior and Federal Prosecutor’s Office in Saxony rejected a homophobic motive, focusing instead on the crime’s radical Islamist background. LGBTI advocacy groups decried this as “unacceptable” and “disturbing.”

In November multiple individuals attacked a 20-year-old LGBTI individual in Frankfurt a week after he spoke in a YouTube video about queer topics and hostility toward the LGBTI community. Police made several arrests, but the initial police report did not mention a homophobic motive. Police confirmed several days later they would investigate whether the individual’s sexual orientation played a role in the attack.

On May 7, the Bundestag passed a bill making it an offense punishable by up to a year in prison to offer, advertise, or arrange treatments to convert homosexual or transgender minors by means of “conversion therapy.” Penalties are also possible if persons of legal age have been coerced to undergo such “therapy.”

In August a Kassel district court found Kassel University biology professor Ulrich Kutschera guilty of defamation and fined him. In a 2017 interview, Kutschera had alleged that sexual abuse of children was likelier to occur among same-sex parents and called same-sex couples “asexual erotic duos without reproduction potential.” Following the interview, 17 individuals filed charges against Kutschera. The prosecution had also pressed charges for incitement, but the judge acquitted the defendant on that count.

In July a Mecklenburg-Western Pomerania court sentenced a 32-year-old right-wing extremist to a five-month probation for hurling a bottle at the chair of the Neubrandenburg LGBTI group “queerNB” in December 2019.

In September a study by the German Institute for Economic Research and the University of Bielefeld found 30 percent of homosexuals and 40 percent of transgender persons faced discrimination in the workplace. Sexual harassment and workplace bullying were also commonplace, which led one-third of homosexuals to hide their sexuality from their colleagues.

HIV and AIDS Social Stigma

The NGO German AIDS Foundation reported that societal discrimination against persons with HIV/AIDS ranged from isolation and negative comments from acquaintances, family, and friends to bullying at work. A domestic AIDS service NGO continued to criticize authorities in Bavaria for continuing mandatory HIV testing of asylum seekers.

Other Societal Violence or Discrimination

The Federal Ministry of the Interior announced September 1 it had appointed a panel of 12 experts to develop strategies to identify, combat, and prevent hostility towards Muslims. The panel included experts from academia and civil society and was tasked with presenting a final report in two years.

In March the Fatih Mosque in Bremen received an envelope containing a powder-like substance alongside a letter with right-wing extremist content. The powder turned out to be harmless. As of September, Bremen police had not identified any suspects, nor had they made any progress on solving separate attacks on the mosque in 2017 and 2018.

On two separate occasions in July, unknown suspects left severed pig heads in front of the Islamic Cultural Center in Greifswald, Mecklenburg-Western Pomerania. Police were investigating as of September.

A 34-year-old Iraqi of Yezidi origin confessed in September 2019 to desecrating 50 copies of the Quran by throwing them into toilets, as well as to a similar incident in Schleswig-Holstein where he resides.

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The constitution, federal legislation, and government regulations provide for the right of employees to form and join independent unions, bargain collectively, and conduct legal strikes. Wildcat strikes are not allowed. The law prohibits antiunion discrimination and offers legal remedies to claim damages, including the reinstatement of unlawfully dismissed workers.

Some laws and regulations limit these labor rights. While civil servants are free to form or join unions, their wages and working conditions are determined by legislation, not by collective bargaining. All civil servants (including some teachers, postal workers, railroad employees, and police) and members of the armed forces are prohibited from striking.

Employers are generally free to decide whether to be a party to a collective bargaining agreement. Even if they decide not to be a party, companies must apply the provisions of a collective agreement if the Federal Ministry of Labor and Social Affairs declares a collective bargaining agreement generally binding for the whole sector. Employers not legally bound by collective bargaining agreements often used them to determine part or all of their employees’ employment conditions. Employers may contest in court a strike’s proportionality and a trade union’s right to take strike actions. The law does not establish clear criteria on strikes, and courts often rely on case law and precedent.

The government enforced applicable laws effectively. Actions and measures by employers to limit or violate freedom of association and the right to collective bargaining are considered unlawful and lead to fines. Penalties and remediation efforts were commensurate with those of equivalent laws denying civil rights.

Laws regulate cooperation between management and work councils (companies’ elected employee representation), including the right of the workers to be involved in management decisions that could affect them. Work councils are independent from labor unions but often have close ties to the sector’s labor movement. The penalty for employers who interfere in work councils’ elections and operations is up to one year in prison or a fine. Findings from 2019 showed that a significant number of employers interfered with the election of work council members or tried to deter employees from organizing new work councils. This practice has been criticized by labor unions for a long time; they call for stronger legislation that shields employees seeking to exercise their rights under the law.

b. Prohibition of Forced or Compulsory Labor

The constitution and federal law prohibit all forms of forced or compulsory labor. Penalties for forced labor range from six months to 10 years in prison and were generally commensurate with those of other serious crimes.

The government effectively enforced the law when they found violations, but NGOs questioned the adequacy of resources to investigate and prosecute the crime. Some traffickers received light or suspended sentences that weakened deterrence and undercut efforts to hold traffickers accountable, but the language was generally consistent with the country’s sentencing practices. In March media outlets released findings from a detailed investigation regarding migrant workers in the country who were lured under false pretenses and forced to work in squalid conditions with barely any pay. One media outlet reported that workers “described a sophisticated operation which kept tight control over their livelihoods. The men picked them up when they arrived, ran their accommodations, set rules for their workdays, and … decided when and how they would be paid.” Further, the workers “described deductions for everything from up-front ‘bureaucratic costs’ to monthly rent to gasoline for the car they were driven to work in, even the special safety boots they had to wear.”

There were reports of forced labor involving adults, mainly in the construction and food service industries. There were also reported cases in domestic households and industrial plants. In 2019 police completed 14 labor-trafficking investigations that identified 43 victims, nearly a third (13) of whom were from Ukraine.

In August 2019, 800 federal police officers conducted raids in the states of Thuringia and Saxony-Anhalt on the suspicion of human trafficking and labor exploitation of workers from Eastern Europe. As of September the general prosecutor in Erfurt was still investigating two Ukrainian nationals, one German recruiter, and one employee of a local authority.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits the worst forms of child labor and provides for a minimum age of employment, including limitations on working hours and occupational safety and health restrictions for children. The law prohibits the employment of children younger than 15 with a few exceptions: Children who are 13 or 14 may perform work on a family-run farm for up to three hours per day or perform services such as delivering magazines and leaflets, babysitting, and dog walking for up to two hours per day, if authorized by their custodial parent. Children younger than 15 may not work during school hours, before 8 a.m., after 6 p.m., or on Saturdays, Sundays, or public holidays. The type of work must not pose any risk to the security, health, or development of the child and must not prevent the child from obtaining schooling and training. Children are not allowed to work with hazardous materials, carry or handle items weighing more than 22 pounds, perform work requiring an unsuitable posture, or engage in work that exposes them to the risk of an accident. Children between the ages of three and 14 may take part in cultural performances, but there are strict limits on the kind of activity, number of hours, and time of day.

The government effectively enforced the applicable laws, and penalties were commensurate with those of other serious crimes. Isolated cases of child labor occurred in small, family-owned businesses, such as cafes, restaurants, family farms, and grocery stores. Inspections by the regional inspection agencies and the resources and remediation available to them were adequate to ensure broad compliance.

d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination in all areas of occupation and employment, from recruitment, self-employment, and promotion to career advancement. Although origin and citizenship are not explicitly listed as grounds of discrimination in the law, victims of such discrimination have other means to assert legal claims. The law obliges employers to protect employees from discrimination at work.

The government effectively enforced these laws and regulations during the year. Employees who believe they are victims of discrimination have a right to file an official complaint and to have the complaint heard. If an employer fails to protect the employee effectively, employees may remove themselves from places and situations of discrimination without losing employment or pay. In cases of violations of the law, victims of discrimination are entitled to injunctions, removal, and material or nonmaterial damages set by court decision. Penalties were commensurate with those of other civil rights violations.

FADA highlighted that applicants of foreign descent and with foreign names faced discrimination even when they had similar or better qualifications than others. Workers filed 1,176 complaints with FADA alleging workplace discrimination because of their ethnic background; the majority of complaints concerned the private sector, where barriers for persons with disabilities also persisted.

The law provides for equal pay for equal work. In March the Federal Statistical Office found the gross hourly wages of women in 2019 were on average 20 percent lower than those of men. It blamed pay differences in the sectors and occupations in which women and men were employed, as well as unequal requirements for leadership experience and other qualifications as the principal reasons for the pay gap. Women were underrepresented in highly paid managerial positions and overrepresented in some lower-wage occupations. FADA reported women were also at a disadvantage regarding promotions, often due to career interruptions for child rearing.

The law imposes a gender quota of 30 percent for supervisory boards of certain publicly traded corporations. It also requires approximately 3,500 companies to set and publish self-determined targets for increasing the share of women in leading positions (executive boards and management) and to report on their performance. Consequently, the share of women on the supervisory boards of those companies bound by the law increased from approximately 20 percent in 2015 to nearly 35 percent in 2019. The representation of women on management boards in the top 200 companies stood at 14 percent.

There were reports of employment discrimination against persons with disabilities. The unemployment rate among persons with disabilities decreased to 11.2 percent in 2018, remaining considerably higher than that of the general population (on average 5.2 percent for 2018). Employers with 20 or more employees must hire persons with significant disabilities to fill at least 5 percent of all positions; companies with 20 to 40 employees must fill one position with a person with disabilities, and companies with 40 to 60 employees must fill two positions. Each year companies file a mandatory form with the employment office verifying whether they meet the quota for employing persons with disabilities. Companies that fail to meet these quotas pay a monthly fine for each required position not filled by a person with disabilities. In 2018 nearly 100,000 employers did not employ enough persons with disabilities and paid fines.

The law provides for equal treatment of foreign workers, although foreign workers faced some wage discrimination. For example, employers, particularly in the construction sector, sometimes paid lower wages to seasonal workers from Eastern Europe.

e. Acceptable Conditions of Work

The nationwide statutory minimum wage is below the internationally defined “at-risk-of poverty threshold” of two-thirds of the national median wage. The minimum wage does not apply to persons younger than 18, long-term unemployed persons during their first six months in a new job, or apprentices undergoing vocational training, regardless of age. A number of sectors set their own higher minimum wages through collective bargaining.

The government effectively enforced the laws and monitored compliance with the statutory and sector-wide minimum wages and hours of work through the Customs Office’s Financial Control Illicit Work Unit, which conducted checks on nearly 55,000 companies in 2019. Employees may sue companies if employers fail to comply with the Minimum Wage Act, and courts may sentence employers who violate the provisions to pay a substantial fine. Penalties for wage and hour violations were commensurate with those of similar crimes.

Federal regulations set the standard workday at eight hours, with a maximum of 10 hours, and limit the average workweek to 48 hours. For the 54 percent of employees who are directly covered by collective bargaining agreements, the average agreed working week under existing agreements is 37.7 hours. The law requires a break after no more than six hours of work, stipulates regular breaks totaling at least 30 minutes, and sets a minimum of 24 days of paid annual leave in addition to official holidays. Provisions for overtime, holiday, and weekend pay varied, depending upon the applicable collective bargaining agreement. Such agreements or individual contracts prohibited excessive compulsory overtime and protected workers against arbitrary employer requests.

Extensive laws and regulations govern occupational safety and health. A comprehensive system of worker insurance carriers enforced safety requirements in the workplace. Penalties for occupational safety and health violations were commensurate to those for other similar crimes.

The Federal Ministry of Labor and Social Affairs and its state-level counterparts monitored and enforced occupational safety and health standards through a network of government bodies, including the Federal Agency for Occupational Safety and Health. At the local level, professional and trade associations self-governing public corporations with delegates representing both employers and unions as well as works councils oversaw worker safety. The number of inspectors was sufficient to ensure compliance. Inspectors had the authority to make unannounced inspections and initiate sanctions.

The number of work accidents continued to decline among full-time employees, but workplace fatalities increased to 497 in 2019, up from 420 in 2018. Most accidents occurred in the construction, transportation, postal logistics, wood, and metalworking industries.

Kenya

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).

b. Disappearance

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.

Prison and Detention Center Conditions

Human rights organizations reported prison, detention center, and police station conditions were harsh due to overcrowding, food and water shortages, and inadequate sanitary conditions and medical care.

Physical Conditions: According to the Prisons Service, as of May there were approximately 48,000 persons held in prisons with a designated capacity of 26,837. Authorities continued a decongestion program that entailed releasing petty offenders and encouraging the judiciary to increase use of a community service program in its sentencing. In response to the COVID-19 pandemic, the Prisons Service released approximately 5,000 low risk inmates in April to reduce prison crowding. Although several new prisons were constructed since 2012, the average prisoner population remained nearly 200 percent of capacity, including a large population of pretrial detainees; some prisons held up to 400 percent of capacity. Six new women’s prisons were added since 2018 to ease congestion in female facilities.

During the year the judiciary took steps to address overcrowding by developing alternatives to pretrial detention and promoting sentence reduction, including through the expanded use of plea bargaining.

In September the prison commissioner reported the prison system continued to face serious health and welfare challenges due to communicable diseases such as tuberculosis, even after the threat from the COVID-19 pandemic had decreased. A 2019 report by the Vance Center and the Faraja Foundation found that women inmates performed unpaid labor, including cooking, laundry, and cleaning.

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. Several counties lacked adequate facilities to hold minors and women apart in courts and police stations. Of the 1,526 police facilities IPOA inspected since 2012, 80 percent had separate cells for women, 13 percent had separate cells for female juveniles, and 23 percent had separate cells for male juveniles. IPOA reported some police facilities used offices and corridors as holding places for minors. According to the prison commissioner, the Prisons Service included four correction facilities for minors. Prison officials reported that, because there were few correction facilities for minors, authorities often had to transport them long distances to serve their sentences, spending nights at police stations under varying conditions along the way.

The law allows children to stay with their 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. 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. IPOA inspected 201 Prisons Service facilities between July 2019 and June and reported some improvements in sanitary conditions, availability of medical care, and availability of adequate food and water.

Administration: Mechanisms for prisoners to report abuse and other concerns continued due to collaboration between the Prisons Service and the Kenya National Commission on Human Rights to monitor human rights standards in prisons and detention facilities. The Commission on the Administration of Justice serves as ombudsman over government administration of prisons. It receives confidential correspondence from inmates and recommends remedies to address their concerns, including those pertaining to prison living conditions and administration. Many government-designated human rights officers lacked necessary training, and some prisons did not have a human rights officer.

Noncustodial community service programs and the release of some petty offenders alleviated prison overcrowding to a degree, as did the release of roughly 5,000 low risk inmates early in the year. Prison officials sometimes denied prisoners and detainees the right to contact relatives or lawyers. Family members who wanted to visit prisoners commonly reported bureaucratic obstacles that generally required a bribe to resolve. NGOs reported prisoners had reasonable access to legal counsel and other official visitors, although there was insufficient space in many prisons and jails to meet with visitors in private and conduct confidential conversations.

Independent Monitoring: The government permitted prison visits by independent nongovernmental observers.

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.

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 arrested persons to be arraigned, charged, informed of the reason for continuing their detention, or released within 24 hours of their arrest as well as 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. While authorities in many cases released detainees held longer than the prescribed period, some cases did not result in an acquittal, and authorities provided no compensation for time served in pretrial detention.

The constitution establishes the right of suspects to bail unless there are compelling reasons militating 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 authorities granted bail to suspects even in cases in which there was evidence 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 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, particularly those living in informal settlements. Human rights organizations complained security forces made widespread arbitrary arrests and detentions during counterterrorism operations. These arrests in particular reportedly targeted Muslim citizens, including ethnic Somalis.

The Social Justice Centres Working Group reported arrests increased sharply in informal settlements during the pandemic for noncompliance with the curfew or failure to wear masks. Individuals were asked to pay cash bail or a bribe to be released. In April the National Council for the Administration of Justice (NCAJ) directed that, during the COVID-19 period, petty offenders should not be held at police stations for more than 24 hours, and should be released either on cash bail or on free police bond. The NCAJ also directed police to establish centralized records of persons arrested by police stations.

In June the High Court awarded a man 100,000 shillings ($1,000) after he was wrongly arrested by the Anti-Counterfeit Agency and held at the central police station for 22 hours for allegedly being in possession of counterfeit goods.

Pretrial Detention: Lengthy pretrial detention was a serious problem and contributed significantly to prison overcrowding. In 2019 approximately 44 percent of total inmates were pretrial detainees. Authorities held some defendants 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 were 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.).

In March the NCAJ announced downscaling of court activities due to the COVID-19 pandemic that significantly delayed the resolution of cases. Virtual court sessions were held to review bail conditions, but very few trials were conducted virtually. Although the judiciary resumed many court activities in June, the number of cases listed for trial remained significantly low.

Detainees 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.

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.

Trial Procedures

The law provides for the right to a fair public trial, although vulnerable 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; to be represented by an attorney of their choice or to have one appointed at the state’s expense if substantial injustice would otherwise result; and not to be compelled to testify or confess guilt, and if convicted, to appeal to or apply for review by a higher court. Authorities generally respected these rights, although they did not always promptly inform persons of the charges against them. In 2018 Chief Justice David Maraga launched the National Committee on Criminal Justice Reforms to coordinate justice sector reform. As part of these reforms, the NCAJ continued efforts to disseminate Active Case Management Guidelines to court users committees.

The NCAJ and the Office of the Director of Public Prosecution (ODPP) continued efforts to disseminate speedy case resolution techniques to reduce case backlog and ease prison congestion. In July the ODPP published decision to charge, plea bargaining, and diversion guidelines and continued to educate prosecutors, judges, court user committees, civil society members, and others on the role of speedy resolution mechanisms in enhancing efficiency. The ODPP conducted a two-month virtual training course for prosecutors in September and October on the new guidelines and planned to expand this training to investigators and others.

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. 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.

By government order the judiciary suspended all but urgent operations during the COVID-19 pandemic. In March the judiciary commenced virtual court sessions. NGOs, including the Legal Resources Foundation, provided computers and internet connectivity to enable remandees to connect with courts virtually. Most litigants, however, did not have the ability to participate in the virtual court sessions, and many cases could not proceed to trial because witnesses lacked the ability to connect with the courts virtually.

The National Legal Aid Service facilitates access to justice, with the 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 in Kenya, an NGO, provided services. The Prisons Service collaborated with various paralegal organizations such as Kituo Cha Sheria, Legal Resources Foundation Trust, and Africa Prisons Project to establish justice centers within prisons to facilitate delivery of legal aid. Pretrial detainees also received instructions on how to self-represent in court. Government-established special committees, which included paralegals and prison officials, also served to increase prisoners’ access to the judicial system. NGOs noted no single system provides “primary justice” to prisoners and detainees, who instead relied on a patchwork of services largely provided by NGOs.

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 the High Court and ultimately to the Court of Appeal and, for some matters, to the Supreme Court.

Political Prisoners and Detainees

There were no reports of political prisoners or detainees.

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.

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 many from access to the courts. NGOs reported the government was slow to comply with court orders requiring compensation for victims of torture and other police abuses in some cases. In September media outlets reported the government owed more than 809 billion shillings ($8.09 billion) in unpaid court awards, including to the family of the late politician Kenneth Matiba. Matiba was awarded close to one billion shillings ($10 million) in compensation for unlawful detention and torture in the 1990s. Groups also reported victims relied on civil society organizations for rehabilitative services.

Property Restitution

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 regain what it claimed was illegally occupied public land. In May the government declared a moratorium on forced evictions during the COVID-19 pandemic, but reports of evictions continued.

In 2017 the African Union Court on Human and Peoples’ Rights ruled in favor of the indigenous Ogiek community evicted in 2009 from the Mau Forest. The court ruled government actions had violated seven articles of the African Charter on Human and Peoples’ Rights, to which the country is a signatory. The government-appointed task force established to implement the decision provided its final report to the cabinet secretary of the Ministry of the Environment and Forestry early in the year, although as of year’s end it had not been publicly released. In May the Ogiek community and a local NGO issued a report to mark the third anniversary of the court ruling and criticized the government’s failure to implement the recommendations.

Since 2018 Kenyan authorities evicted more than 50,000 persons, mostly non-Ogiek settlers, from Mau Forest lands, according to a July report by Human Rights Watch. The report alleged security forces used excessive force during the 2019 evictions, which led to at least two deaths. The reported noted at least 6,000 of recent evictees were living in harsh conditions in makeshift camps. In June and July, government security forces again conducted forced evictions of Ogiek communities but suspended evictions following a court order. In September the government established a new task force to review the Mau Forest boundary, issue title deeds, and settle Ogiek communities in line with the African Union Court ruling.

In May a court dismissed petitions filed in 2013 and 2018 by the Sengwer community protesting evictions from Embobut Forest in Elgeyo Marakwet County. In July authorities reportedly burned down 28 homes belonging to the community.

In May the government conducted forced evictions in two informal settlement areas in Nairobi. On May 4, authorities evicted an estimated 8,000 persons from Kariobangi and destroyed their homes despite a court order to halt the evictions. A person who claimed to be a police officer threatened to “disappear” human rights activist Ruth Mumbi if she did not stop advocating for the evictees. On May 15, more than 1,500 persons were evicted from Ruai during curfew hours. Two UN special rapporteurs called on the government to halt all evictions during the pandemic and safeguard evictees’ rights.

f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

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 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”). The Kenya National Commission on Human Rights confirmed the infant died of her injuries. In February 2019 the magistrate found five senior police officers culpable in the death of the infant and forwarded the inquest results to the ODPP to press charges. She also ordered the DPP to investigate 31 other police officers who may have been involved in the infant’s death. IPOA, in coordination with ODPP, launched a new investigation on the case during the year to collect additional evidence.

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. Rights groups reported police in numerous locations broke into homes and businesses and extorted money from residents while enforcing measures to control the pandemic.

The government continued efforts to roll out the National Integrated Identity Management System through the Statute Law (Miscellaneous Amendments) Act No. 18 of 2018. This act requires citizens to register their personal details, including biometrics, in order to receive a unique identifier number required to access public services. In January the High Court ruled the government could only continue implementation of the program after it put in place “an appropriate and comprehensive regulatory framework,” including on data protection and security. The government issued new data protection rules and regulations in October, but some civil society groups alleged the rules did not fully satisfy the court conditions. The Nubian Rights Council and other human rights organizations expressed concerns the program could exclude minority groups from accessing government services. President Kenyatta presented the first 12 identifier cards, widely known as Huduma Namba cards, in a public ceremony in October. In November the government stated nationwide issuance of cards would begin on December 1 and existing national identity cards would be phased out by the end of 2021. In November the president appointed the country’s first data commissioner to oversee the implementation of the data protection law enacted in late 2019 and the accompanying regulations.

Section 2. Respect for Civil Liberties, Including:

Academic Freedom and Cultural Events

There were no government restrictions on academic freedom or cultural events.

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

Women

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.

Children

Birth Registration: A child derives citizenship from the citizenship of the parents, and either parent may transmit citizenship. Birth on the country’s territory does not convey citizenship. Birth registration is compulsory. An estimated 76 percent of births were officially registered in 2019, according to the Kenya Bureau of National Statistics. Lack of official birth certificates resulted in discrimination in delivery of public services. The Department of Civil Registration Services implements the Maternal Child Health Registration Strategy, which requires nurses administering immunizations to register the births of unregistered children. In September the government announced plans to issue children a special minor’s identification document once they reach the age of six. The plan calls for the government to assign children a unique number at birth, which the government will use to issue the card after the child submits biometric data at age six. The same number is then to be used to apply for a national identity card at the age of 18.

Education: By law education is tuition free and compulsory until age 18, although public schools may impose fees for boarding, uniforms, and other expenses. Authorities did not enforce the mandatory attendance law uniformly. The government closed all schools in March due to the onset of the COVID-19 pandemic. In October the government partially opened schools, but only three grades resumed classes, with the remaining grades scheduled to resume in January 2021.

In January and February, the Teachers Service Commission authorized transfers of more than 1,000 nonlocal teachers from the northeastern counties of Garissa, Mandera, and Wajir due to heightened insecurity, including attacks by suspected al-Shabaab militants targeting nonlocal teachers. The subsequent shortage of teachers threatened the closure of nearly 200 schools, according to a Kenya National Commission on Human Rights report, before the government closed all schools in March. Media reported efforts to hire teachers to fill the vacancies were underway as of year’s end.

While the law provides pregnant girls the right to continue their education until and after giving birth, NGOs reported schools often did not respect this right. School executives sometimes expelled pregnant girls or transferred them to other schools. In recent years media outlets reported a significant number of girls failed to take their final secondary school examinations due to pregnancy. Final examinations were not held during the year due to the pandemic.

Child Abuse: The law criminalizes several forms of violence that affect children, including early and forced marriage, FGM/C, incest, and physical, verbal, and sexual abuse. Violence against children, particularly in poor and rural communities, was common, and child abuse, including sexual abuse, occurred frequently. In June the Ministry of Labour and Social Protection found nearly half of female children and more than half of male children experienced childhood violence. The study found emotional violence was also common.

In July the president called for an investigation into the rising number of cases of child abuse due to COVID-19 restrictions and immediate prosecutions; 160 cases of sexual and gender-based violence, mainly defilement and neglect, were reported to a government helpline in the first week of May alone. The Teachers Service Commission recommended the removal of 30 teachers due to defilement cases and other sexual offenses.

According to IPOA, most police facilities did not have designated child protection units, and police usually requested the Department of Children Services to take custody of child victims. Although all the police facilities that IPOA inspected during the year had at least one officer designated to handle children cases, only some of the officers had received training on handling these cases, and the police stations did not have sufficient resources to process the large number of cases involving child victims. IPOA found the shortage of designated child protective units made it difficult for officers to record statements from child victims due to the lack of privacy. According to IPOA, police also reported challenges investigating cases such as child rape, since some communities defended the perpetrators and preferred to settle cases through traditional mechanisms.

The minimum sentence for conviction of statutory rape is life imprisonment if the victim is younger than age 11, 20 years in prison if the victim is between ages 11 and 15, and 10 years’ imprisonment if the child is age 16 or 17. Although exact numbers were unavailable, during the year media reported several statutory rape convictions.

The government banned corporal punishment in schools, but there were reports corporal punishment occurred.

Although there were no reports the government recruited child soldiers, there were reports the al-Shabaab terrorist group recruited children in areas bordering Somalia.

Child, Early, and Forced Marriage: The minimum age for marriage is 18 years for women and men. According to UNICEF, 25 percent of girls are married by 18. Media occasionally highlighted the problem of early and forced marriage common among some ethnic groups. Under the constitution the qadi courts retained jurisdiction over Muslim marriage and family law in cases where all parties profess the Muslim religion and agree to submit to the jurisdiction of the courts. NGOs reported an increase in child, early, and forced marriages during the COVID-19 pandemic, noting school closures left girls more vulnerable to the practice. In July authorities rescued a 12-year-old girl from two marriages in one month alone. The girl was initially identified to marry a 51-year-old man and then a 35-year-old man.

Sexual Exploitation of Children: The law criminalizes sexual exploitation of children, including prohibiting procurement of a child younger than age 18 for unlawful sexual relations. The law also prohibits domestic and international trafficking, or the recruitment, harboring, transportation, transfer, or receipt of children up to the age of 18 for the production of pornography or for pornographic performances. Provisions apply equally to girls and boys. The law has provisions regarding child trafficking, child sex tourism, child prostitution, and child pornography. The minimum age for consensual sex is 18. Nevertheless, according to human rights organizations, children were sexually exploited and victims of trafficking.

The Directorate of Criminal Investigations continued to expand its Anti-Human Trafficking and Child Protection Unit, which is responsible for investigating cases of child sexual exploitation and abuse, providing guidance to police officers across the country on cases involving children, and liaising with the Ministry of Labour and Social Protection’s Department of Children Services to identify and rescue abused children.

NGOs, international organizations, and local officials expressed concerns with reports of rising number of pregnancies among teenage girls, resulting in part from increased sexual abuse and exploitation during the COVID-19 pandemic. The International Rescue Committee reported that at Dadaab refugee camp, reported teenage pregnancies increased 28 percent during the April to June period, compared with the same period in 2019.

Displaced Children: Poverty and the spread of HIV/AIDS continued to intensify the problem of child homelessness. Street children faced harassment and physical and sexual abuse from police and others and within the juvenile justice system. The government operated programs to place street children in shelters and assisted NGOs in providing education, skills training, counseling, legal advice, and medical care to street children whom the commercial sex industry abused and exploited.

Children continued to face protection risks in urban areas, particularly unaccompanied and separated children. Alternative care arrangements, such as foster care placement, were in place for a limited number of children. In addition government child protection services and the children’s department often stepped in to provide protection to children at risk, particularly unaccompanied children.

In November a year-long BBC undercover investigation found babies and young children were being stolen, primarily from homeless or low-income women in urban areas of Nairobi, then sold for substantial profits. Illegal clinic workers or criminal groups abducted or purchased some of the children, while other cases reportedly involved staff at government-run hospitals. In late November the National Police Service announced police arrested three medical officers at a public hospital in Nairobi related to the case, and the Ministry of Labour and Social Protection stated it had formed a special team to address the matter.

Institutionalized Children: A special report published by the Standard newspaper in September 2019 alleged minors in children’s homes under the care of the Child Welfare Society of Kenya (CWSK) suffered poor living conditions, mistreatment, and lack of proper medical care and education. A local news outlet broadcast an investigative report in October 2019 alleging that CWSK, against the advice of licensed medical practitioners, took children with significant disabilities to unlicensed facilities for experimental treatments. In January the High Court ruled in favor of the CWSK CEO, reinstated her to her position, and lifted an earlier freeze on the society’s bank accounts. The court required the CWSK board of directors to forward any gifts or donations to the board of trustees, and the board of trustees nominated two representatives to oversee the daily operations of CWSK.

International Child Abductions: The country is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data/reported-cases.html.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking in-persons-report/.

Persons with Disabilities

The law prohibits discrimination against persons with disabilities, but the government did not effectively enforce these provisions. Several laws limit the rights of persons with disabilities. For example, the Marriage Act limits the rights of persons with mental disabilities to marry, and the Law of Succession limits the rights of persons with disabilities to inheritance. The constitution provides for legal representation of persons with disabilities in legislative and appointive bodies. The law provides that persons with disabilities should have access to public buildings, and some buildings in major cities had wheelchair ramps and modified elevators and restrooms. The government did not enforce the law, however, and new construction often did not include specific accommodations for persons with disabilities. Government buildings in rural areas generally were not accessible to persons with disabilities. According to NGOs, police stations remained largely inaccessible to persons with mobility and other physical disabilities.

NGOs reported the COVID-19 pandemic disproportionally impacted persons with disabilities. One survey found 92 percent of respondents said their daily lives had been affected by the pandemic, pinpointing factors such as limited transport; restricted movement; a lack of available necessities; lack of contact with others at school, church, and social functions; reduced income; and job or income loss. Of respondents, 39 percent reported experiencing discrimination due to their disability, including exclusion from vital services.

The constitution states every person has the right to education, yet NGOs reported persons with disabilities had limited opportunities to obtain education and job training at any level due to lack of accessibility of facilities and resistance by school officials and parents to devoting resources to students with disabilities. Obtaining employment was also difficult. Data from the Public Service Commission indicated that, of 251 institutions evaluated on inclusion of persons with disabilities in fiscal years that spanned 2017 and 2018, only 10 institutions complied with the 5 percent requirement for employment of persons with disabilities.

Authorities received reports of killings of persons with disabilities as well as torture and abuse, and the government acted in some cases.

Persons with albinism have historically been targets of discrimination and human rights abuses. In 2019 human rights groups successfully lobbied to include a question on albinism in the August national census, the first time persons with albinism were counted. An NGO reported some persons with albinism experienced increased discrimination during the year due to unfounded fears they were more likely to carry the COVID-19 virus.

Persons with disabilities faced significant barriers to accessing health care. They had difficulty obtaining HIV testing and contraceptive services due to the perception they should not engage in sexual activity. According to the NGO Humanity & Inclusion, 36 percent of persons with disabilities reported facing difficulties in accessing health services; cost, distance to a health facility, and physical barriers were the main reasons cited.

Few facilities provided interpreters or other accommodations to persons with hearing disabilities. The government assigned each region a sign language interpreter for court proceedings. Authorities often delayed or adjourned cases involving persons who had hearing disabilities due to a lack of standby interpreters, according to NGO reports.

According to a report by a coalition of disability advocate groups, persons with disabilities often did not receive the procedural or other accommodations they needed to participate equally in criminal justice processes as victims of crime.

The Ministry for Devolution and Planning is the lead ministry for implementation of the law to protect persons with disabilities. The quasi-independent but government-funded parastatal National Council for Persons with Disabilities assisted the ministry. Neither entity received sufficient resources to address effectively problems related to persons with disabilities.

According to a 2017 NGO report to the Committee on the Elimination of all Forms of Discrimination against Women, persons with disabilities made up only 2.8 percent of the Senate and National Assembly, less than the 5 percent mandated by the constitution (see section 3).

Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation and Gender Identity

The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years’ imprisonment if convicted, and seven years for “attempting” said activity. The law also criminalizes acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward. In August police arrested two men in Kakamega County for engaging in homosexual acts.

In 2016 LGBTI activists filed two petitions challenging the constitutionality of these penal codes. In May 2019 the High Court issued a ruling upholding the laws criminalizing homosexuality, citing insufficient evidence they violate LGBTI rights and claiming repealing the law would contradict the 2010 constitution that stipulates marriage is between a man and woman. The LGBTI community filed an appeal against this ruling. Leading up to the hearing of this case, and in its wake, the LGBTI community experienced increased ostracism and harassment.

LGBTI organizations reported police more frequently used public-order laws (for example, disturbing the peace) than same-sex legislation to arrest LGBTI individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTI individuals in custody.

Authorities permitted LGBTI advocacy organizations to register and conduct activities.

The 2010 constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. Violence and discrimination against LGBTI individuals were widespread. In October an LGBTI rights organization reported an increase in conversion therapy and practices. It attributed this increase to the fact many LGBTI persons had returned to hostile community environments after losing their jobs during the pandemic. Some LGBTI groups also reported an increase in abuses cases against LGBTI persons during the pandemic.

In 2019 a government-appointed task force found only 10 percent of the intersex population completed tertiary education, only 5 percent recognized themselves as intersex due to lack of awareness, and the majority lacked birth certificates, which caused numerous problems, including inability to obtain a national identity card.

While the country grants refugee status to persons whose persecution is due to the individual’s sexual orientation, some LGBTI refugees continued to face stigma and discrimination. They were often compelled to hide their sexual orientation or gender identity to protect themselves. National organizations working with LGBTI persons offered support to refugees who were LGBTI, including access to safety networks and specialized health facilities. In July, UNHCR released a statement calling for dialogue between refugee communities in Kakuma refugee camp following conflicting reports of violence, including reports by a small group of LGBTI refugees that they were the victims of harassment and violence. Police and local authorities increased security measures in response.

HIV and AIDS Social Stigma

The government, along with international and NGO partners, made progress in creating an enabling environment to combat the social stigma of HIV and AIDS and to address the gap in access to HIV information and services. The government and NGOs expanded their staffing support at county levels for counseling and testing centers to ensure provision of free HIV/AIDS diagnosis. In addition to the launch of the second Beyond Zero Campaign to stop HIV infections, the government expanded inclusion of diverse populations in provision of HIV services through 47 mobile clinics and medical camp safaris across the country. The government was also supporting programs to ensure nondiscrimination and undertaking a community-led stigma index study.

Stigma nonetheless continued to hinder efforts to educate the public about HIV/AIDS and to provide testing and treatment services. The government continued to support the HIV Tribunal to handle all legal matters related to stigma and discrimination. The tribunal, however, lacked sufficient funding to carry out its mandate across all 47 counties and thus still functioned only out of Nairobi.

Other Societal Violence or Discrimination

Mob violence and vigilante action were common in areas where the populace lacked confidence in the criminal justice system. In 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.

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers, including those in export processing zones, to form and join unions of their choice and to bargain collectively. For the union to be recognized as a bargaining agent, it must represent a simple majority of the employees in a firm eligible to join the union. This provision extends to public- and private-sector employees. Members of the armed forces, prisons service, and police are not allowed to form or join trade unions.

The law permits the government to deny workers the right to strike under certain conditions. For example, the government prohibits members of the military, police, prison guards, and the National Youth Service from striking. Civil servants are permitted to strike following a seven-day notice period. A bureau of the Ministry of Labour and Social Protection typically referred disputes to mediation, fact finding, or binding arbitration at the Employment and Labour Relations Court, a body of up to 12 judges that has exclusive jurisdiction to handle employment and labor matters and that operates in urban areas, including Nairobi, Mombasa, Nyeri, Nakuru, Kisumu, and Kericho. The Employment and Labour Relations Court also has subregistries in Meru, Bungoma, Eldoret, Malindi, Machakos, and Garissa.

By law workers who provide essential services, interpreted as “a service the interruption of which would probably endanger the life of a person or health of the population,” may not strike. Any trade dispute in a service listed as essential or declared an essential service may be adjudicated by the Employment and Labour Relations Court.

Strikes must concern terms of employment, and sympathy strikes are prohibited.

The law permits workers in collective bargaining disputes to strike if they have exhausted formal conciliation procedures and have given seven days’ notice to the government and the employer. Conciliation is not compulsory in individual employment matters. Security forces may not bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, to negotiate wages and conditions matching the government’s minimum wage guidelines and advocate for better working conditions and representation in the Employment and Labour Relations Court. The bill of rights in the constitution allows trade unions to undertake their activities without government interference, and the government generally respected this right.

The law prohibits antiunion discrimination and provides for reinstatement of workers dismissed for union activity. The Labour Relations Court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. Labor laws apply to all groups of workers. Penalties for labor law violations were not commensurate with those for similar offenses.

The government enforced the decisions of the Labour Relations Court inconsistently. Many employers did not comply with reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases employers successfully appealed the Labour Relations Court’s decisions to a branch of the High Court. The enforcement mechanisms of the Labour Relations Court remained weak, and its case backlog raised concerns regarding the long delays and lack of efficacy of the court.

The Labour Relations Court received many cases arising from the implementation of new labor laws. The parties filed most cases directly without referral to the Ministry of Labour and Social Protection for conciliation. The court had a significant backlog.

The chief justice designated all county courts presided over by senior resident magistrates and higher-ranking judges as special courts to hear employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers cited the ability of workers to submit labor-related cases throughout the country as a positive step. The 2016 employment and labor relations (procedure) rules provide parties access to file pleadings directly in electronic form, pretrial procedures, and alternative dispute resolution. The rules also set a 30-day time limit for the court to submit a report on disagreements over collective bargaining agreements filed.

The government generally respected freedom of association and the right to bargain collectively, although enforcement was inconsistent. The government expressed its support for union rights mandated in the constitution.

Airport workers at Nairobi’s Jomo Kenyatta International Airport went on strike in March to protest potential restructuring of the airport. Six striking workers were injured during clashes with police, and 10 members of the Kenya Aviation Workers Union, including its secretary general, were arrested. After negotiation, the union agreed to end the strike in exchange for release of the arrested union officials and an agreement not to fire striking workers.

Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers and others who operated in private settings were vulnerable to exclusion from legal protections, although domestic workers’ unions exist to protect their interests.

The government maintained labor attaches in Qatar, Saudi Arabia, and the United Arab Emirates to regulate and coordinate contracts of migrant workers from the country and promote overseas job opportunities. The National Employment Authority manages a website that provides information to prospective migrant workers on the procedures of becoming a migrant worker in the Gulf. The Ministry of East African Community and Regional Development also helped domestic workers understand the terms and conditions of their work agreements. The government operationalized a 2017 bilateral agreement with Saudi Arabia in January after revetting recruitment agencies in Riyadh. The government has additional bilateral agreements with Qatar and United Arab Emirates. The ministry has a directorate to regulate the conduct of labor agents for local migrant workers, including requiring the posting of a performance-guarantee bond for each worker.

The misuse of internships and other forms of transitional employment threatened the survival of trade unions, with employers often not hiring employees after an internship ends. State agencies increasingly outsourced jobs to the private sector, and in the private sector, casual workers were employed on short-term contracts.

This shift contributed to declining numbers in trade unions. NGOs and trade unionists reported replacement of permanent positions by casual or contract labor, especially in the export-processing zones, the Port of Mombasa, and in the agricultural and manufacturing sectors. In some cases employers staffed permanent jobs with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in these positions for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, employers replaced them with new trainees at the end of three years.

The health sector experienced strikes precipitated by challenges related to the COVID-19 pandemic. Health workers, through their associations, issued strike notices citing failure by the government to meet their workplace demands, including adequate personal protective equipment while attending to COVID-19 patients. Counties like Nairobi and Trans Nzoia witnessed strikes by health workers. The health sector also witnessed industrial strikes by county government health professionals to protest delayed salary payments. The strikes occurred intermittently in various counties, since under the 2010 constitution, each county manages its own health system as part of the devolution of resources and services from the national government. According to the Council of Governors, all 47 counties faced delayed salaries for July due to government delay in disbursement of funds. The strikes affected delivery of services in counties such as Vihiga, Kisumu, and Nairobi, but negotiations averted some threatened strikes.

b. Prohibition of Forced or Compulsory Labor

The law prohibits most forms of forced or compulsory labor, including by children. The law allowed, in some situations, up to 60 days of compulsory labor per year for the preservation of natural resources. The country made moderate advances to prevent or eliminate forced labor.

The government did not effectively enforce the law, and forced labor occurred, including forced child labor (see section 7.c.). Certain legal provisions, including the penal code and the Public Order Act, impose compulsory prison labor, including for political offenses. Resources, inspections, and remediation were not adequate to prevent forced labor, and penalties were not commensurate with those for comparable offenses. Forms of forced labor included debt bondage, trafficking of workers, and compulsion of persons, even family members, to work as domestic servants. Domestic workers from Uganda, herders from Ethiopia, and others from Somalia, South Sudan, and Burundi were subjected to forced labor in the country; however, this trend was reportedly decreasing.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The government prohibits most, but not all, of the worst forms of child labor. The minimum age for work (other than apprenticeships) is 17, and the minimum age for hazardous work is 18. The ministry published a list of specific jobs considered hazardous that constitute the worst forms of child labor. This list includes but is not limited to scavenging, carrying stones and rocks, metalwork, working with machinery, mining, and stone crushing. The law explicitly prohibits forced labor, trafficking, and other practices similar to slavery; child soldiering (see section 6); prostitution; the use, procuring, or offering of a child for the production of pornography or for pornographic performances; and the use by an adult for illegal activities (such as drug trafficking) of any child up to age 18. The law applies equally to girls and boys. The International Labor Organization identified gaps in the law with regards to children working as cadets at sea.

The law allows children ages 13 to 16 to engage in industrial undertakings when participating in apprenticeships. Industrial undertakings are defined under law to include work in mines, quarries, factories, construction, demolition, and transportation, which are legally categorized as hazardous work.

The law provides for penalties for any person who employs, engages, or uses a child in an industrial undertaking in violation of the law. Penalties were not commensurate with those for comparable offenses. Employment of children in the formal industrial wage sector in violation of the Employment Act was rare. The law does not prohibit child labor for children employed outside the scope of a contractual agreement. Child labor in the informal sector was widespread, but the government did not effectively monitor or control it.

The Ministry of Labour and Social Protection enforces child labor laws, but enforcement remained inconsistent. Supplementary programs, such as the International Labor Organization-initiated Community Child Labor monitoring program, helped provide additional resources to combat child labor. These programs identified children who were working illegally, removed them from hazardous work conditions, and referred them to appropriate service providers.

The government also worked closely with the Central Organization of Trade Unions and the Federation of Kenyan Employers to eliminate child labor.

In support of child protection, the Ministry of Labour and Social Protection operated a national online database system. The Child Protection Information Management System collects, aggregates, and reports on child protection data that informs policy decisions and budgeting for orphans and vulnerable children. The web-based system allows for an aggregate format of data to be made available to all the child protection stakeholders. The government had six child protection centers, which remove child laborers from the workplace, rehabilitate them, and provide counseling and life-skills training.

The government continued to implement the National Safety Net Program for Results, a project that seeks to establish an effective national safety net program for poor and vulnerable households, and the Decent Work Country Program, a project designed to advance economic opportunities. Under these programs, the government pays households sheltering orphans or other vulnerable children to deter the children from dropping out of school and engaging in forced labor. For example, there were some cases reported in the western part of the country of girls dropping out of secondary school and engaging in sex work to afford basic supplies.

Many children worked on family plots or in family units on tea, coffee, sugar, sisal, tobacco, and rice plantations, as well as in the production of khat. Children worked in mining, including in artisanal gold mines, small quarries, and sand mines. Children also worked in the fishing industry. In urban areas businesses employed children in hawking, scavenging, carrying loads, fetching and selling water, selling food, and forced begging. Children often worked long hours as domestic servants in private homes for little or no pay, and there were reports of physical and sexual abuse of child domestic servants. Parents sometimes initiated forced or compulsory child labor, such as in agricultural labor and domestic service, but also including commercial sexual exploitation.

Most of the trafficking of children within the country appeared related to domestic labor, with migrant children trafficked from rural to urban areas.

Also, see the Department of Labor’s Findings on the Worst Forms of Child Labor at https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings , and the Department of Labor’s List of Goods Produced by Child Labor or Forced Labor at https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods .

d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination based on race, sex, ethnicity, religion, and several other criteria, but it does not explicitly prohibit discrimination based on sexual orientation or gender identity. Several regulatory statutes explicitly prohibit discrimination against persons with disabilities; provide a legal framework for a requirement for the public and private sectors to reserve 5 percent of employment opportunities for persons with disabilities; provide tax relief and incentives for such persons and their organizations; and reserve 30 percent of public-procurement tenders for women, youth, and persons with disabilities.

The government did not effectively enforce the law. Penalties for discrimination were not commensurate with those for comparable offenses. Gender-based discrimination in employment and occupation occurred, although the law mandates nondiscrimination based on gender in hiring. The average monthly income of women was approximately two-thirds that of men. Women had difficulty working in nontraditional fields, received slower promotions, and were more likely to be dismissed. According to a World Bank report, both men and women experienced sexual harassment in job recruitment, but it was more frequently experienced by women. Women who tried to establish their own informal businesses were subjected to discrimination and harassment.

Many county governors appointed and employed disproportionate numbers of the dominant tribe in their county, bypassing minority groups. These problems were aggravated by the devolution of fiscal and administrative responsibility to county governments. Observers also noted patterns of preferential hiring during police recruitment exercises (see section 1.d.).

In both private business and in the public sector, members of nearly all ethnic groups commonly discriminated in favor of other members of the same group. A report detailing the ethnic composition of 417 senior civil service staff tabled at the Senate in September indicated that four tribes dominated high-level management positions in civil service. The dominant ethnic community had 29 percent of the 417 positions, while the second had 10 percent.

The law provides protection for persons with disabilities against employment discrimination, although many employers discriminated against persons with disabilities during hiring processes (see section 6, Persons with Disabilities). Due to societal discrimination, there were very limited employment opportunities for persons with albinism. There are no legal employment protections for LGBTI persons, who remained vulnerable to discrimination in the workplace. Discrimination against migrant workers also occurred.

e. Acceptable Conditions of Work

Regulation of wages is part of the Labor Institutions Act, and the government established basic minimum wages by occupation and location, setting minimum standards for monthly, daily, and hourly work in each category. The minimum wage for all occupations exceeded the World Bank poverty rate.

The law limits the normal workweek to 52 hours (60 hours for night workers); some categories of workers had lower limits. It specifically excludes agricultural workers from such limitations. It entitles an employee in the nonagricultural sector to one rest day per week and 21 days of combined annual and sick leave. The law also requires total hours worked (regular time plus overtime) in any two-week period not exceed 120 hours (144 hours for night workers) and provides premium pay for overtime.

The government did not effectively enforce the law. Penalties were not commensurate with those for comparable offenses. Authorities reported workweek and overtime violations. Workers in some enterprises, particularly in the export processing zones and those in road construction, claimed employers forced them to work extra hours without overtime pay to meet production targets. Hotel industry workers were usually paid the minimum statutory wage, but employees worked long hours without compensation. Additionally, employers often did not provide nighttime transport, leaving workers vulnerable to assault, robbery, and sexual harassment.

The law details environmental, health, and safety standards. The Ministry of Labour and Social Protection’s Directorate of Occupational Health and Safety Services has the authority to inspect factories and work sites but employed an insufficient number of labor inspectors to conduct regular inspections. Fines generally were insufficient to deter violations.

The directorate’s health and safety inspectors can issue notices against employers for practices or activities that involve a risk of serious personal injury. Employers may appeal such notices to the Factories Appeals Court, a body of four members, one of whom must be a High Court judge. The law stipulates factories employing 20 or more persons have an internal health and safety committee with representation from workers. According to the government, many of the largest factories had health and safety committees.

The law provides for labor inspections to prevent labor disputes, accidents, and conflicts and to protect workers from occupational hazards and disease by ensuring compliance with labor laws. The government paid low salaries to labor inspectors and did not provide vehicles, fuel, or other resources, making it very difficult for labor inspectors to do their work effectively and leaving them vulnerable to bribes and other forms of corruption. The State Department for Labor faced a large number of retiring labor inspectors during the year, and there was no hiring of new inspectors.

The law provides social protections for workers employed in the formal and informal sectors. Informal workers organized into associations, cooperatives, and, in some cases, unions. All local employers, including those in the informal sector, are required to contribute to the National Hospital Insurance Fund and the National Social Security Fund; these provide health insurance and pensions respectively.

Workers, including foreigners and immigrants, have the legal right to remove themselves from situations that endanger health or safety without jeopardy to their employment. The Ministry of Labour and Social Protection did not effectively enforce these regulations, and workers were reluctant to remove themselves from working conditions that endangered their health or safety due to the risk of losing their jobs. The Kenya Federation of Employers provided training and auditing of workplaces for health and safety practices.

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