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TITLE: KENYA HUMAN RIGHTS PRACTICES, 1993
DATE: JANUARY 31, 1994
AUTHOR: U.S. DEPARTMENT OF STATE
KENYA
Kenya reintroduced multiparty democracy in 1991, but President
Daniel Arap Moi continued to control a governing system in
which power is centered in the office of the President and the
President's party, the former single party, the Kenya African
National Union (KANU). Under the 1963 Constitution the
President has extensive powers over the legislature and the
judiciary. Nevertheless, while KANU holds a majority in the
unicameral National Assembly, it no longer has the two-thirds
majority required to pass constitutional amendments. In 1993
the ruling party applied extensive pressures to entice or
coerce opposition Members of Parliament (M.P.'s) to defect to
KANU.
After 2 years of inaction, the Government finally took some
action to curb the ethnic violence centered in the Rift
Valley. On September 3, the Government announced the
establishment of security zones in the hardest hit areas.
Citing the Preservation of Public Security Act, the Government
outlawed the possession of weapons, movement of livestock at
night, and the publication of any information on the areas of
violence without government consent. The Government prevented
opposition M.P.'s, domestic and international human rights
figures, and journalists from entering the areas. The
Government made little effort to investigate credible
allegations of the involvement of government officials in
instigating the clashes or in shielding fighters from
prosecution.
Kenya has a large internal security apparatus that includes the
police Criminal Investigation Department (CID), the
paramilitary General Services Unit (GSU), and the Directorate
of Security and Intelligence (DSI or Special Branch). The CID
and Special Branch investigate criminal activity and also
monitor persons the State considers subversive. The internal
security apparatus has been used to intimidate and harass
politicians, opponents of the Government, and dissidents,
sometimes employing torture or other mistreatment. The
Government gave security forces special dispensation from
prosecution for actions in the security zones, though human
rights groups received no evidence of abuses in the zones.
Kenya's economy, despite the dominance of public and
state-owned enterprises, includes a well-developed private
sector for trade and light manufacturing as well as an
agricultural sector that provides food for local consumption
and substantial exports of coffee, tea, and other commodities.
The tourism industry leads coffee and tea exports as the top
foreign exchange earner but suffered reduced growth in 1993,
due in part to the worldwide recession. The economy plummeted
in 1993 as excess growth of the money supply fueled inflation,
shortages of goods, and labor unrest. Although it has
decreased over the last several years, the high population
growth rate continued to contribute to a serious and growing
problem of unemployment.
Although the controversial December 1992 general elections
brought about a modest strengthening of democratic
institutions, the KANU-led Government has yet to reconcile
itself to a new era of multiparty politics. The year witnessed
serious setbacks in the Government's commitment to human
rights, ethnic and political tolerance, and the rule of law.
The Government failed adequately to respond to the continuing
ethnic violence which has claimed over one thousand lives, or
to stop many of its officials from inflaming this violence in
other areas through war-like statements. In 1993 the
Government used the security forces to intimidate its political
critics, arresting 36 of the 85 opposition M.P.'s and many
journalists and labor leaders. Security forces also broke up
peaceful demonstrations and political meetings and disabled two
privately owned printing presses. The Government abridged
worker rights in facilitating a "coup" to replace the top union
leadership with party loyalists. Societal discrimination and
domestic violence against women, especially rape and female
genital mutilation, remained serious and widespread problems.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including
Freedom from:
a. Political and Other Extrajudicial Killing
There were no reported instances of specifically targeted
political killings by government forces, but there was one
clear example of an extrajudicial killing. In mid-September
three truckloads of plainclothes security police forced their
way into the compound of Central Organization of Trade Unions
Secretary General Joseph Mugalla in Kakamega. Mugalla was
absent, but the police harassed his wife and beat up his
nephew, who had attempted to question the police. He died the
following day from the beating. As of the end of 1993, the
Government had taken no action to prosecute those responsible.
Substantial evidence exists of the complicity of high-level
government officials instigating and promoting the ethnic
clashes, which have so far claimed over 1,000 lives and
displaced 250,000 people (see Section 1.g.).
While most of the many deaths in prison resulted from disease
and lack of medical care (see Section 1.c.), some may have
resulted from beatings or other use of excessive force by
police or prison guards. On the night of November 2, police
shot Jackson Mutonye Ndegwa in the leg and arrested him
following a raid on Ndeiya Chief's Camp, an arsenal near
Nairobi. Police reported he died of his injuries the next
morning, although he was reportedly interrogated the previous
night.
Mob violence also continued to be a major problem. As of
year's end, 508 people had been murdered in such violence, an
increase from 1992. Most victims were either suspected thieves
or were accused of being sorcerers. While blame for public
executions by civilians cannot directly be ascribed to the
Government, Kenyan security forces have not made suppression of
mob violence a priority--this in spite of the public statements
by President Moi that mob violence must stop. The conduct of
security forces was mixed, as some police officers braved
violence themselves to rescue would-be victims, while in other
incidents there were reports of police turning a blind eye to
such activity.
The trial of Jonah Anguka for the February 1990 murder of
former Foreign Minister Robert Ouko continued in 1993. The
Government produced no more than circumstantial evidence to tie
Anguka to the murder, and human rights advocates continued to
claim that Anguka was a scapegoat for powerful government
officials. As the final arguments in the case were being
prepared, the presiding judge, Justice Fidahussein Abdulla,
died of apparently natural causes. The Chief Justice ruled
that Anguka would have to undergo a second full trial.
b. Disappearance
There were no reports of disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
Torture is proscribed under the Constitution, but credible
allegations of torture, police brutality, and abuse of
prisoners, often to coerce confessions, continued. Police also
used brutal methods to break up unregistered political meetings
and even some registered ones (see Section 2.b.).
The police subjected prisoners arrested for "political"
offenses, including sitting M.P.'s, to particularly brutal and
degrading treatment. The day before the May 20 Bonchari
parliamentary by-election, opposition M.P. Ferdinand Obure went
to the local police station in Kisii town to demand information
about supporters of one of the principal opposition parties,
the Forum for the Restoration of Democracy/Kenya (FORD/K),
arrested the previous day. After an altercation with a police
superintendent, the police arrested and jailed Obure. The M.P.
was brought into court on a stretcher later that day, with
bruises on the back, chest, and legs, consistent with his
testimony that he had been beaten in custody. In court the
prosecutor stated that Obure had been injured when he fell to
the floor while assaulting the officer. The authorities
charged Obure with causing a disruption in a police station and
released him on bond. His case had not come up for trial by
year's end, and it was expected that the charges would be
dropped.
There were other instances of prisoners being brutalized by
police, including credible allegations of torture. For
example, Stephen Kariuki Muigai, arrested along with Koigi wa
Wamwere in November, suffered torture to his knee and ankle
joints and under the toenails. Credible medical evidence of
the torture was provided to police and the courts. At the end
of the year, the Government had taken no action to respond to
the allegations. Also, defense council in the Ndeiya Chief's
Camp case charged that a private physician could confirm that
several of the prisoners had been tortured.
In early January, the authorities prevented the personal
physician for the "Treason Four" (including former M.P. Koigi
Wa Wamwere) from visiting his patients in detention, although
at least one was very ill and allegations of food poisoning had
been reported in local newspapers. The physician initiated
action in the High Court to gain access to the prisoners as
stipulated by Kenyan law. The prisoners were released before
the case was decided.
Conditions in prison are life threatening, due in part to
inadequate resources and in part to the Government's
unwillingness to address deficiencies in the penal system.
Standards of food and health care continue to fall short of the
basic provisions in the Prisons Act, especially for nursing
mothers, who have their infants with them. A lack of quality
food and bedding materials and flooded or unheated cells are
common. Sexual abuse is also common in Kenyan prisons and
rarely punished. Women prisoners are subject to the same harsh
prison conditions as men but are subject to even greater sexual
abuse.
In April an assistant government minister reported in
Parliament that 977 inmates had died in prison in the previous
3 years. (There are approximately 34,000 prisoners in Kenya,
of whom approximately 3,000 are women.) Those deaths were
attributed chiefly to disease; the assistant minister admitted
that Kenyan prisons did not have resident doctors, and only one
prison had a doctor permanently assigned to it.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides that most arrested or detained
persons (other than those detained under the Preservation of
Public Security Act or PPSA) shall be brought before a court
"as soon as is reasonably practicable," which would be within
24 hours of the arrest or from the start of detention.
The Constitution was amended in 1988 to allow the police to
hold persons suspected of capital offenses for 14 days prior to
being brought before a court. Capital offenses include such
crimes as murder and treason. A legislative amendment passed
at the end of the 1993 parliamentary session would exclude
weekends and holidays from this 14-day period, potentially a
significant increase in the time prisoners can be held without
trial. In practice, suspects of all types are often held
incommunicado for 2 to 3 weeks before being brought before a
court. Often, family members bring law suits to compel
authorities to produce "missing" prisoners.
The PPSA allows the State to detain a person indefinitely
without charges or trial upon a determination that it is
necessary for the "preservation of public security." This
includes "prevention and suppression of rebellion, mutiny,
violence, intimidation, disorder and crime, unlawful attempts
and conspiracies to overthrow the Government or the
Constitution," and several other grounds. No persons were
detained under the PPSA in 1993, though a number were arrested
under the Rift Valley "Security Zones" Regulations announced
under the authority of the PPSA (Section 1.g.). Furthermore,
the courts evidenced an increased willingness to grant bail in
political cases.
On April 28, KANU lawmakers defeated a parliamentary motion
which would have suspended detention without trial. In the
debate over the bill, the Attorney General said he appreciated
the need for a comprehensive review of the Constitution but
that the motion was premature. The Vice President promised
that the Law Reform Commission would produce a paper on
constitutional reform by the end of the year. At the end of
July, the Attorney General announced the formation of 11 task
forces to examine the Penal Code and some of the more
controversial sections of the Constitution. At the end of the
year, only two of the commissions had met.
The police continued to arrest and question government critics
without provocation, and often without warrant. For example,
Central Organization of Trade Unions (COTU) Secretary General
Joseph Mugalla gave a Labor Day speech May 1, saying that COTU
would proceed with a national general strike if labor demands
for a 100-percent wage increase and dismissal of Vice President
George Saitoti were not met. The Minister of Labor walked out
without giving his speech, and the ceremonies ended abruptly.
Security police, without any warrant, tried but were thwarted
from picking up Mugalla at a Labor Day luncheon. Later the
same day, they arrested him, his deputy Boniface Munyao, and
Shoe and Leather Workers Secretary General Joseph Bolo,
purportedly for having called a strike. Mugalla was released
May 7, the others earlier, but the charges were still pending
at year's end.
On May 31, police broke up a licensed Forum for the Restoration
of Democracy/Asili (FORD/A) political meeting in Kiambu, after
M.P. Martin Shikuku made comments critical of the Government.
The police arrested FORD/A M.P. Kamau Icharia and Shikuku the
following day, held them overnight, and released them the day
after without charges. The arrest of opposition M.P.'s was a
frequent occurrence after the August recess, so that in
September, more than half of FORD/A's 30 M.P.'s were out on
bond at the same time.
On June 9, police attempted to arrest FORD/A M.P. Njenga Mungai
inside Parliament, in connection with statements he made
earlier on the need for Kikuyus to defend themselves in the
Rift Valley. Under Kenyan law, M.P.'s are protected from
arrest while "going to, attending at, or returning from a
sitting of the Assembly." Assistant Minister of State in
Charge of Internal Security Jackson Kalweo issued a statement
in Parliament expressing regret over the incident and announced
that the Government would investigate fully the police officers
involved. No disciplinary or any other action had been
announced by year's end.
A number of Kenyans were arrested for incitement, sedition, and
other offenses related to their alleged involvement in tribal
clashes. On September 22, former detainee Koigi Wa Wamwere was
arrested along with six others for possession of seditious
literature within one of the announced security zones. Wamwere
was found with copies of a broadsheet called The Wailing Molo,
which accused the Government of responsibility for the ethnic
clashes, and a flyer from the National Democratic and Human
Rights Organization (NDEHURIO), an organization which Wamwere
founded earlier in the year. On September 24, the presiding
judge refused the defendants' appeal to the High Court, holding
that there were no substantive constitutional issues at stake,
and denied bail pending a hearing on October 6.
At the end of the year, while there were no detainees held
under the PPSA, a number of prisoners were held without bail
and denied opportunity within a reasonable time to answer
government charges, including Koigi wa Wamwere and more than a
dozen others held for the attacks on the Bahati and Ndeiya
police arsenals. The Government arrested them on criminal
charges, though it has yet to present any evidence of their
guilt in court. There is reason to believe that some of these
prisoners are being held for their political beliefs,
associations, or expressions.
e. Denial of Fair Public Trial
The legal system, as defined in the Judicature Act of 1967, is
based on the Constitution, laws passed by Parliament, and
common law or court precedent. Customary law is used as a
guide in civil matters affecting persons of the same ethnic
group so long as it does not conflict with statutory law.
Kenya does not have a jury system. The court system consists
of a Court of Appeals, a High Court, and two levels of
magistrates' courts where most criminal and civil cases
originate. In 1989 High Court Justice Norbury Dugdale ruled
that the courts have no power to enforce the "Bill of Rights,"
which is a part of the Constitution. In spite of numerous
legal challenges that the ruling effectively subsumes the
judicial branch of government under the executive, his decision
has not been overruled.
Civilians are tried in civilian courts; verdicts may be
appealed to the Kenyan High Court and ultimately to the Court
of Appeals. Kenyans do not have a right to government-provided
legal counsel except in certain capital cases. Most persons
tried for capital offenses are provided counsel free of charge
if they cannot afford it. For noncapital charges, however,
free legal aid is not generally available outside of Nairobi.
In the absence of legal advice from Kituo Cha Sheria ("the law
center" in Swahili), poor people sometimes plead guilty to a
variety of offenses, including political offenses. Military
personnel are tried by courts-martial, and verdicts may be
appealed. Attorneys for military personnel are appointed on a
case-by-case basis by the Chief Justice. The Chief's Authority
Act gives low-level administration officials, called chiefs,
wide-ranging powers, including the power to arrest and hold
individuals and to restrict a person's movement without trial.
Although the Kenya Law Reform Commission has recommended that
the law be abolished, no progress has been made in this
direction.
The President has extensive powers over the judiciary. He
appoints the Chief Justice and the Attorney General and
appoints High Court judges with the advice of the Judicial
Service Commission. While it has not been tested, he has
authority to dismiss judges, the Attorney General, and certain
other officials upon the recommendation of a special
presidentially appointed tribunal.
The Government's actions often result in the denial of a fair
trial. For example, the arrests and prosecutions of
journalists accused of sedition have been marked by unwarranted
delays and undue harassment of defendants. On May 19, in the
face of domestic criticism and international pressure by human
rights groups, the Government dropped sedition charges against
six editors and employees of Society magazine. Although there
had been no action on the charges for a whole year, the editors
were still forced to travel to Mombasa every month for court
hearings (also see Section 2.a.).
The Government's use of the legal system to prevent its critics
from using the courts to stop government harassment was evident
in the Fotoform case. Fotoform Limited had been the printer of
a number of independent publications. In April the police
forced their way into the Fotoform plant and dismantled and
confiscated the printing press. Fotoform immediately filed an
injunction to compel the Government to return the printing
press parts, since the police had not obtained a warrant before
seizing them and because Fotoform had not yet been charged with
sedition. The Government defended its use of prior restraint
with regard to seditious publications. Three months later
(despite Government assurances that the case would be
expedited), on July 21, the High Court denied Fotoform the
injunction, saying it did not want to prejudice the sedition
cases filed after the seizure against the Fotoform manager and
the editor of Finance magazine. The Government filed the
sedition cases ex post facto to meet the legal requirements of
the seizure but did not receive the Attorney General's
permission to prosecute. On September 24, the Government
withdrew all charges against Fotoform but did not issue an
order to return the press parts. In the meantime, the
Government's various actions had put Fotoform out of business.
The Government has also switched the venue for several
controversial cases in order to ensure a hearing before a
progovernment magistrate or in a progovernment area. In
particular, several of the cases related to the ethnic clashes
and the demolition of kiosks in Nakuru were transferred from
Kikuyu-dominated Nakuru to Kericho or other towns in the
Kalenjin heartland.
Notwithstanding the Government's influence on the judiciary and
its use of the legal system to harass its critics, the courts
have occasionally acted independently of the executive. The
courts rendered several judgments against the Government. For
example, in mid-March an appellate tribunal found that the
Government unjustly detained and tortured plaintiff Wanyiri
Kihoro in 1986. Calling the police action "repugnant," the
court awarded Kihoro damages although it was powerless to
punish the offending officers absent action by the Government.
The court's finding was deemed to be a precedent. A number of
other former detainees have filed suit against the Government
for unlawful detention or are contemplating doing so.
f. Arbitrary Interference with Privacy, Family, Home, or
Correspondence
Searches without warrants are allowed under the Constitution in
certain instances "to promote the public benefit," including in
security cases. Although judicially issued search warrants are
generally obtained, security officials often conduct searches
without warrants to apprehend suspected criminals or to seize
property suspected of having been stolen. The authorities
continue to search homes of suspected dissidents without
warrants, and evidence so obtained has been admitted to support
convictions. Security forces employ a variety of surveillance
techniques, including electronic surveillance and a network of
informers. In particular, police surveillance of political
opponents and some of their visitors is routine. Opposition
leaders and human rights monitors also charge the Government
with staging or promoting physical attacks on those critical of
the Government (see Section 2.b.).
On February 26, a hooded police squad tore apart a pharmacy in
Nairobi's Hilton Hotel and arrested proprietor John Makanga,
for alleged "incitement" due to his activities on behalf of
victims of ethnic clashes. The police had no warrant for his
arrest and never filed charges against him. Human rights
groups criticized the Government for the brutality of the
arrest and the wanton damage inflicted on his place of
business. The Kenyan press described the brutal, unlawful
arrest perpetrated by hooded police officers, in a very public
place, as a politically motivated warning rather than an
exercise of criminal justice.
On May 8, police officers and youths alleged to be KANU thugs
demolished small, fully stocked market stalls in Nakuru town.
Government officials first denied any knowledge of the
operation (which involved uniformed administrative police and a
municipal bulldozer), then refused permission for the
shopowners to rebuild, citing an unexplained "security
threat." Human rights groups charged that the demolitions
targeted ethnic groups thought to be generally supportive of
the opposition. Since that time, market stalls have been
demolished in other major cities, including Nairobi and
Kisumu. In most cases, no warning was given, and the legal
authority to demolish the structures was dubious.
Although Kenyans are, in theory, free to choose their political
affiliation, government employees were routinely told to
support the ruling party or be fired. At a public rally on
February 14, President Moi warned civil servants to be loyal to
KANU or face dismissal, since KANU had won the December general
election.
g. Use of Excessive Force and Violations of Humanitarian
Law in Internal Conflicts
The so-called ethnic clashes in the Rift Valley, which have
largely targeted ethnic groups not supportive of the ruling
party, continued to cause numerous deaths and displacements.
Substantial evidence exists of the complicity of high-ranking
government officials in financing, arming, and then shielding
the attackers from prosecution. Only one clash-related case
has resulted in a conviction, and that was overturned.
According to separate reports by a parliamentary special
committee, the Catholic Bishops of Kenya, the National Council
of Churches of Kenya (NCCK) (a Protestant umbrella group), the
National Elections Monitoring Group (NEMU), the Kenya Human
Rights Commission, the Robert F. Kennedy Memorial Center, and
Africa Watch, the Government bears primary responsibility for
the destruction and loss of lives. Nearly 1,000 people have
died and between 150,000 to 300,000 have been displaced since
the clashes began in 1991.
On September 3, the Government announced the establishment of
security zones in the hardest hit areas around Molo, Londiani,
Elburgon, and Burnt Forest. Citing the Preservation of Public
Security Act, the Government outlawed the possession of
weapons, movement of livestock at night, and the publication of
any information on the areas of violence without government
consent. Opposition M.P.'s and domestic and international
human rights figures were prevented from entering the areas, as
were journalists. Human rights groups complained about the
security forces' monopoly on information, and the draconian
nature of the legislation establishing the zones.
Security personnel were given shoot-to-kill authorization on
the mere suspicion that a crime might be committed.
Unauthorized entry into or movement within the zones was
sufficient to constitute a crime. Security personnel were
empowered to requisition private vehicles, prohibit the
movement of residents, and demand forced labor, as well as
given expanded powers of search and arrest. The regulations
also absolve the Government and security forces of any
responsibility for death and destruction, specifically
prohibiting suits for compensation. At year's end, there were
no reports that this new authority had been grossly abused.
Government critics, press and church sources, and human rights
groups blame the Government for the violence and claim that it
initially sponsored the clashes to prove its oft-repeated
assertion that multiparty politics are incompatible with
Kenya's multiethnic society. The resulting deaths and
destruction have aggravated traditional tribal rivalries, and
the clashes now proceed even without active encouragement from
the Government. The NEMU report on the clashes stated,
"initially, it appeared as if the aim was to curtail the
multiparty crusade. However, it has more recently taken the
form of ethnic cleansing--the removal of all ethnic groups
except the Kalenjin, Maasai, Turkana, and Samburu from the Rift
Valley."
High-level government officials continue to make inflammatory
statements without government response, and Kenya's security
forces seem unable or unwilling to contain the violence.
During the eruption of ethnic fighting in Mombasa on November
28, armed police at the scene did not intervene. The
Government sought to frustrate the hopes of the displaced
wishing to return to their homes; it harassed groups offering
them legal or financial assistance, allowed insecurity to
persist in troubled regions, rejected seemingly legitimate land
claims, and allowed members of progovernment ethnic groups to
take over farms and property left behind. The promotion of a
district commissioner, alleged to be involved in the clashes,
to his current post of Rift Valley provincial commissioner was
a further disquieting sign.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and press and
outlaws discrimination on the grounds of political opinion.
However, there are numerous de jure and de facto restrictions
and inhibitions on the exercise of free speech. Freedom of
speech is often breached by security forces acting without
warrant and often undercut by overly broad judicial
interpretations of antiquated sedition and libel laws. For
example, on January 19, police arrested FORD/K M.P. Paul Muite
under Section 66 of the Penal Code, which prohibits "any false
statement, rumor, or report which is likely to cause fear and
alarm to the public or to disturb the public peace." He had
earlier accused the Government of perpetuating a climate of
insecurity in Northeast Province in order to exercise greater
political control over the Province. In spite of government
harassment, however, opposition political and human rights
groups continue to present their views to the public.
Radio is the medium through which most Kenyans get their news.
The Government controls the single radio station and its
affiliate television station, the Kenya Broadcasting
Corporation (KBC), which produces both televison and radio
news. They typically avoid stories critical of the Government,
give a large share of news time to government or ruling party
functions, and have consistently failed to give equal and
accurate coverage to opposition activities. A second
television station, Kenya Television Network (KTN), adheres to
self-imposed guidelines. Government influence on its editorial
content, both directly and through the chairman of the board,
increased markedly, until March, when KTN stopped broadcasting
its popular local news program under government pressure. In
December KANU, acting on the President's orders, replaced the
legal officers of KTN. KANU Secretary General Joseph Kamotho
claimed that, in spite of frequent denials during the year, the
party was KTN's legal owner.
To protect its radio and television monopoly, the Government
has refused to issue any license for a private radio station,
though there have been a number of expressions of interest. On
September 27, the Government announced a restriction "for
security reasons" on receive-only television dishes "until
licensing procedures can be worked out."
The print media includes three daily newspapers providing
national coverage. The printed press is vibrant and
independent, though under government pressure to self-censor.
The two independent daily newspapers, the Nation and the
Standard, give extensive coverage to political events and often
print editorials critical of government policies. The weekly
newspapers and magazines, many of which take a more strident
tone in their criticism of the Government, also have
substantial audiences, though they have borne the brunt of
government harassment.
During 1993 the Government used the police force and antiquated
colonial sedition laws to arrest editors, dismantle printing
presses, harass vendors, and impound magazines (see also
Section 1.e.). Among the many instances of government
censorship of the press were the following:
--On February 3, the editor of Finance magazine Njehu Gatabaki
was charged with three counts of sedition in connection with an
issue of Finance which described President Moi's large holdings
in British banking institutions. Gatabaki was held several
days in jail, then released on bond. On June 14, he was
rearrested at the High Court (where he had gone to file a
petition for the Government to return his passport (see Section
2.d.), charged with sedition for the sixth time, and jailed for
approximately 48 hours. He was then released on bond and
surety of approximately $4,400. Gatabaki has never had one of
his sedition cases come to trial, and by the end of October all
of the charges pending had been dropped.
-- On May 30, police impounded 6,000 copies of the Presbyterian
Church of East Africa magazine Jitegemea (Kiswahili for
self-reliance). The issue accused the Government of genocide
for fomenting the ethnic clashes in Rift Valley and for
targeting Kikuyu shopowners by demolishing kiosks across the
country. The Government charged editor Jamlick Miano with
sedition, his third arrest for sedition since the July 1992
inauguration of the magazine. On June 26, the Government
withdrew six charges of sedition against Miano originally filed
in July 1992, though the latest charges had not been withdrawn
by the end of 1993. While Miano remained free on bail, the
repeated impoundments of Jitegemea and arrests of Miano have
probably resulted in the paper's demise.
-- On August 2, plainclothes police raided Colourprint, printer
for Finance magazine among others. The police seized negatives
and plates along with 10,000 copies of Finance magazine, the
sixth time in 14 months that Finance was impounded. Earlier on
February 10, police acting without a warrant confiscated plates
and other printing materials from Lengo Press, a Christian
printing house. Earlier that day, Lengo had distributed a copy
of The Watchman, a purportedly religious magazine which is
sharply critical of the Government.
The Government does not specifically restrict the activities or
reporting of Nairobi's extensive international press corps,
though in covering the Rift Valley violence, international
reporters are bound by the same security restrictions as Kenyan
journalists. A number of books remain banned, including a
Kiswahili play based on George Orwell's "Animal Farm" and a
number of works by emigre Kenyan author Ngugi wa Thiong'o.
The public universities have become further politicized since
the return of multiparty politics. Government, KANU, and
university officials attempted to pressure faculty and staff to
support the ruling party. Opposition leaders were successfully
barred from college campuses, professors thought supportive of
the opposition were sidelined, and senior academics who
publicly support KANU were rewarded by an entrenched patronage
system. A network of police informants continued to monitor
both students and professors at the universities, although some
observers claim the number of informers may have declined in
recent years. The Government maintained its refusal to allow
the operation of the Student Organization of Nairobi University
(SONU), although that body is called for in the university
constitution. Likewise, the Government refused registration to
a nationwide union of university professors in late 1993. When
the dons went on strike, the universities fired the leaders and
halted the paychecks of hundreds more in early January.
b. Freedom of Peaceful Assembly and Association
Freedom of assembly, while provided for in the Constitution, is
seriously limited by the Public Order Act, which gives
authorities power to control public gatherings. The Act makes
it illegal to hold an unlicensed meeting of 10 or more persons
without approval from the district commissioner, but it does
not in theory apply to persons meeting for "social, cultural,
charitable, recreational, religious, professional, commercial,
or industrial purposes." In practice, meetings under all those
categories fall under the jurisdiction of the Public Order Act.
The Government continued to restrict the right of peaceful
assembly by refusing to register meetings and by breaking up
both unlicensed and licensed meetings.
In March police prevented human rights advocate Wangari Maathai
from holding a seminar on the ethnic clashes in Nakuru town.
Cordoning off the Catholic cathedral, which was to be the site
of the seminar, armed police with dogs forcibly prevented
anyone from entering the compound. After the initial meeting
was canceled on March 2, Maathai tried and failed twice more to
hold the meeting. The provincial commissioner said that the
proposed meeting was a threat to public security and accused
Maathai of incitement.
On March 23, a group of opposition supporters stood peacefully
outside Parliament demonstrating against the President and KANU
parliamentarians attending the state opening of Parliament.
They were attacked by youths dressed in traditional Maasai
clothing and carrying metal-studded clubs, whips, and
machetes. The ample number of security police present took no
action to halt the violence. Observers reported that the
"Maasai" had military-type haircuts, wore military watches, and
in other ways did not resemble Maasai. After widespread
accusations that the attack was carried out by members of
Kenya's security forces, the Daily Nation reported that
Minister of Education and KANU General Secretary Joseph Kamotho
admitted at a public function that the "Maasai Moran" were
really KANU youthwingers and had been provoked by chants of
"Moi must go" into violence. Though an embarrassed Kamotho
later retracted the statements, the Nation explained that a
senior editor had confirmed the story that same evening with
Kamotho and pledged to stand by it.
The authorities routinely denied opposition parliamentarians
permission to meet their constituents. For example, on August
18, M.P. Kenneth Matiba was conducting a meet-the-people tour
of Murang'a and Embu districts when truckloads of police broke
up a short meeting in Murang'a and prevented him from
addressing any meetings in Embu.
The Societies Act governs freedom of association; it states
that every association must be registered or exempted from
registration by the Registrar of Societies. Nongovernmental
organizations (NGO's) protested requirements that they register
every 5 years as an attempt by the Government to control human
rights and charitable activities. Nevertheless, after heavy
government pressure, most local NGO's had to apply for
registration in 1993. Koigi wa Wamwere's human rights group,
NDEHURIO, was denied registration in 1993.
Since the repeal of Section 2(a) of the Constitution in
November 1991, Kenyans have in theory been free to join the
political party of their choice, and 10 parties have been
registered. Nine registered parties participated in the
December 1992 elections: KANU, FORD/Kenya, FORD/Asili, the
Democratic Party, the Social Democratic Party, the Kenya
National Democratic Party, the Kenya National Congress, the
Labor Party Democracy, the Kenya Social Congress, and the Party
of Independent Candidates of Kenya. The Government refused to
register at least three, including the Islamic Party of Kenya
(IPK), the Democratic Movement, and the Socialist Alliance of
Peasants and the Proletariats of Kenya. At least 14 other
parties applied but did not receive a response from the
Government. These included at least 2 environmental parties,
which were refused registration by the Attorney General as
threats "to the security of the State."
IPK followers on Kenya's coast continued to protest their
exclusion, and the party designated a chairman and other
officers to press their case. Though the Societies Act nowhere
prohibits religion-based political parties, the Attorney
General maintained his position that registering sectarian
parties would contradict the spirit of the law, which
proscribes organizations "incompatible with peace, welfare, or
good order in Kenya."
On July 2, uniformed police surrounded the headquarters of the
Central Organization of Trade Unions (COTU) to prevent a
meeting of the COTU governing council, which had been scheduled
in May and announced publicly. The authorities cited
"security" reasons for their actions, but the purpose was to
install new progovernment labor leadership (see Section 6.a.).
University faculty went on strike at the end of 1993 to protest
the lack of action, after 18 months, on their request to
register the University Academic Staff Union (UASU). The
university management responded in early 1994 by firing more
than 24 professors and withholding the salaries of more than
200 others.
c. Freedom of Religion
Kenya has no state religion. Freedom of worship is
acknowledged in the Constitution and generally allowed, but
churches new to Kenya must obtain government approval to be
registered. Many Kenyan Muslims charge that the Government's
antipathy towards the IPK is proof of an anti-Muslim bias,
though Government officials deny this.
On July 17, President Moi held a KANU political rally in
Kapsabet. As is often the case, local authorities instructed
students to attend. At the nearby Kapsabet girls' high school,
the school's headmistress interrupted a group of Seventh Day
Adventist students, who were conducting a religious service,
and ordered them to attend the rally. When a number refused
(the Government claims there were 12, though area parents
claimed 84 students), the school authorities expelled them from
school. After an outcry by the press and the National Teachers
Union, the local district commissioner instructed the
headmistress to readmit the students and stop interfering with
their religious freedom. By the end of July, the students had
been readmitted to school but were assigned manual labor as
punishment.
d. Freedom of Movement Within the Country, Foreign
Travel, Emigration, and Repatriation
By law citizens may travel freely within the country. However,
ethnic clashes and the establishment of security zones
resticted the ability of many Kenyans to travel, particularly
to those parts of the Rift Valley most affected by the violence.
The Government does not generally prohibit emigration of its
citizens but in 1993, as in past years, prevented travel abroad
by some of its critics. The Government does not regard
provision of passports to its citizens as a right and reserves
the authority to issue or deny passports at its discretion.
In June the Government denied Finance magazine editor Njehu
Gatabaki permission to depart Kenya in order to attend the
World Conference on Human Rights in Vienna. Gatabaki had been
appointed by the newly formed Association for a Free and
Independent Press to deliver a speech on press freedom in Kenya
at the Conference. In court, the Attorney General's office
argued that Gatabaki's passport could not be released due to
pending sedition charges against him and since Gatabaki had not
applied 14 days in advance. The chief magistrate accepted that
argument, and Gatabaki was prevented from attending the Vienna
Conference.
The Government also prevented a former "sedition" detainee,
Augustine Kathangu, who is suing the Government for unlawful
confinement, from traveling outside the country. Mr. Kathangu
continued to petition the principal immigration officer to
return his passport seized in 1991 or to issue a new one.
In October security officers boarded a loaded commercial
airliner, seized the passport of KTN Director Jared Kangwana,
and prevented him from departing on a business trip. Kangwana
maintains that the act was part of a government intimidation
campaign to force him to relinquish control of KTN to the
ruling party. Since the Government took no action to institute
criminal proceedings against Kangwana and ultimately succeeded
in forcing Kangwana to cede the company to KANU, his
allegations appear credible.
The Government has been quick to use its deportation powers
against selected foreign citizens it viewed as overly
critical. In February it deported Anders Breidlid, a Norwegian
citizen, immediately after he landed at Kenyatta airport in
Nairobi, apparently in retaliation for his work on behalf of
Kenyan political prisoners. In May the Government deported
Father Oliver Ryan, an Irish priest living in the Rift Valley,
in response to comments he made blaming government officials
for condoning tribal conflict in the Rift Valley. Father Ryan
was the third expatriate priest to be deported for such
comments since the ethnic clashes began.
In 1991 Kenya was inundated by Somali, Ethiopian, and Sudanese
refugees, fleeing chaos and conflict in their home countries.
Kenya has accepted most asylum seekers, though sometimes entry
is delayed, resulting in hardship and denial of assistance.
None of these refugees has been granted legal status other than
that of asylum seeker. In 1990 there were 14,000 refugees; at
the end of 1993 there were about 375,000 refugees residing in
camps, and the Government estimated that 100,000 refugees were
living outside the camps in cities and rural areas. The United
Nations High Commissioner for Refugees (UNHCR) puts the latter
figure at about 20,000. Somalis account for about 75 percent
of the total.
In July 1,300 refugees being assisted by an Islamic aid
organization in Mandera were forcibly expelled, ostensibly for
what the Government believed was fundamentalist activity.
UNHCR maintained the refugees were not politically active and
protested their refoulement.
Africa Watch reported that hundreds of Somali women in the
camps in the northeast were victims of rape or violent attack
by armed bandits and, to a lesser extent, by Kenyan police
officers. The report blamed the Government for failing to
recognize the seriousness and urgency of the problem. The
UNHCR launched a project at the end of 1993 to assist these
women and to improve security in the camps.
Refugees outside the camps are extremely vulnerable to arrest,
and those who purchase false identification documents and visas
put themselves even further at risk. There is increasing
violence in the northeast, where most of the camps are situated
and cross-border incursions by armed Somalis occur.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
The right and ability of Kenyan citizens to change their
government through free and fair elections has yet to be
demonstrated. The general elections on December 29, l992, for
the Presidency, Members of Parliament, and local government
officials, and the preceding campaign period, were marked by
violence, intimidation, fraud, and other irregularities. The
President, backed by the former single party, KANU, continues
to dominate the political system.
However, as a result of the 1992 legislative elections, six
opposition parties won seats in the National Assembly and their
M.P.'s were able, in Parliamentary debates, to point out
instances of government mismanagement and malfeasance. KANU
holds 114 seats in the 200-seat Assembly; the six opposition
parties hold the remainder.
Nonetheless, the power of the Assembly is limited. The
President under the Constitution has the power to open and
dissolve Parliament, and the law prohibits the discussion in
Parliament of all matters before the courts. This law and its
interpretation by the Speaker of the Assembly severely limit
the scope of parliamentary debate on most controversial
political issues. The Speaker and his deputy consistently
ruled in favor of KANU on parliamentary procedure. Speaker Ole
Kaparo also ruled that the conduct of the President is not a
subject appropriate for debate in Parliament, cutting off
opposition allegations of high-level government corruption and
malfeasance.
KANU used a variety of pressure tactics to entice opposition
M.P.'s to defect to KANU and by year's end, four had done so,
and its attempts to attract opposition officials had much
greater success among lower level national or branch
officials. Opposition figures charged that the defections were
the result of a KANU campaign of bribery and blackmail.
By law, the defection of a sitting M.P. requires a by-election
in that constituency. On May 20, by-elections were held in
Migori and Bonchari constituencies. They were observed by the
U.S. International Republican Institute and a number of Kenyan
groups, including the National Elections Monitoring Unit. In
an election which the observer groups said was relatively fair,
though with instances of bribery and intimidation by government
officials, an opposition candidate won in Migori. In Bonchari,
the defecting M.P. won on a KANU ticket in an election that
observers said was marred by wide-scale intimidation,
vote-buying, and polling irregularities.
The Government and KANU harassed opposition parties in two
other by-elections on October 12, in Hamisi and Makuyu
constituencies. For example, the authorities arrested the
FORD/A candidate in Makuyu on September 11, for possession of
seditious documents. Although no charges had been filed, the
district commissioner canceled all FORD/A political meetings,
and police barred the candidate from attending even church
services in the area. Shortly before the election (which he
won), the Ford/A candidate was allowed to hold several public
rallies. The Attorney General had not given his permission to
prosecute the case by the end of 1993, and Ford/A did not
expect formal charges to be brought against their now-sitting
parliamentarians.
There are no legal restrictions on the participation of women
in politics, and there have been some limited improvements in
the exercise of women's political rights. Nonetheless, their
role is restricted by traditional attitudes, and the December
election resulted in the election of only 6 women M.P.'s--which
was still the highest number ever elected. No women were
appointed to the new Cabinet, although one woman serves as an
Assistant Minister. In intraparty elections, the Democratic
Party elected a woman to the number-three party position, and
25 percent of the party's national office holders are women.
Section 4 Governmental Attitude Regarding International and
Nongovernmental Investigation of Alleged Violations
of Human Rights
Kenya has a vibrant, vocal, and thriving human rights
community. A number of domestic human rights organizations
exist and often issue statements critical of government
officials and policies. The Kenya Human Rights Commission
produces a regular series of often critical reports on human
rights in Kenya and reacts to specific abuses, without
government harassment. The Institute for Democracy, formerly
the National Elections Monitoring Unit (NEMU), continues to
monitor parliamentary by-elections with generally good
cooperation from the Elections Commission. Legal organizations
such as the Kenya chapters of the International Commission of
Jurists and the Kenya Law Society continue to cover human
rights issues as a major priority. A large pool of Kenyan
human rights lawyers conduct pro bono representation of
defendants and serve as an accurate if informal source of human
rights information.
President Moi and his officials do not accept the international
community's right to comment on Kenya's internal affairs. They
routinely criticize international human rights groups and
diplomats resident in Nairobi for "meddling." On August 5,
President Moi accused diplomats resident in Nairobi of
supporting opposition parties and "subversive activities" by
the media. Also in August, the Government criticized visitors
Kerry Kennedy Cuomo from the U.S.-based Robert F. Kennedy
Center for Human Rights and Lord David Ennals from Britain's
House of Lords for their comments on Kenya's human rights scene.
Section 5 Discrimination Based on Race, Sex, Religion,
Disability, Language, or Social Status
Kenya is an ethnically diverse country; the Constitution and
laws prohibit discrimination on the bases of race, sex,
religion, language, or social status. Nonetheless, both legal
and societal discrimination persists against women and some
ethnic minorities and religious groups.
Women
Women's rights are protected by the Constitution and the
Government continues verbally to support full equality for
women. Nevertheless, women continue to be discriminated
against in many legal matters, including inheritance and
divorce. The role of women in business, legal, and political
life is further limited by cultural prejudices. According to
Kenyan human rights monitors, many other problems stem from a
lack of awareness of the judicial system and legal rights.
Both the Kenya chapter of the International Commission of
Jurists and the Kenya chapter of the Federation of Women
Lawyers conduct outreach paralegal programs to inform women,
especially in rural or poor urban areas, of their rights.
Although women are increasingly active in the modern
economy--they constitute about 60 percent of the industrial and
agricultural work force, the number of women in professional
roles is still limited. Female unemployment is double that of
men, women sometimes receive lower rates of pay than men
performing the same job, and disparities in fringe benefits
occur, e.g., some businesses give housing allowances to men but
not to married women.
Societal discrimination is most apparent in rural areas, where
women account for 75 percent of the agricultural work force.
Rural families are more reluctant to invest in educating girls
than in educating boys, especially at the higher levels. The
number of girls and boys in school are roughly equal at the
primary and secondary levels, but men outnumber women almost
two to one in higher education. According to 1990 estimates,
only 58 percent of women over 15 can read and write, while 80
percent of the men are literate.
Polygyny is not legal for people married under the Christian
Marriage Act, but it is permitted for those who marry under
African customary law. Kenya's law of succession, which
governs inheritance rights, provides for equal treatment of
male and female children, though in practice most inheritance
issues do not come before the courts. Women are often excluded
from extralegal inheritance settlements, have appointed
"guardians," or are given smaller shares than male claimants.
Domestic violence against women is a serious and widespread
problem. Wife beating is common, and rape is widespread. The
press reported major incidents of domestic violence, especially
rape. On January 14, a gang of armed men broke into a school
in Siaya and raped 15 girls. The Government and women's groups
condemn such violence, and the law carries penalties up to life
imprisonment for rape, but the traditional culture permits a
man to discipline his wife by physical means and is ambivalent
about the seriousness of rape. The police rarely intervene in
domestic disputes, and the judicial system has not been an
effective means of redress for domestic violence. Most accused
are acquitted because courts will not convict without medical
evidence and witnesses.
Cultural attitudes toward women were exemplified by the threat
of KANU M.P. Paul Chepkok who in February warned
environmentalist and human rights advocate Wangari Maathai that
he would circumcise her according to Kalenjin (his tribe)
tradition if she ever set foot in Rift Valley Province again.
Maathai's alleged offense, according to Chepkok, was "tribal
incitement" for her efforts to raise money to resettle
displaced clash victims. No disciplinary action was taken
against Chepkok, and no KANU leader condemned his threat. In
rural areas, and often in urban areas as well, many women who
are victims of rape, domestic violence, and incest are
reluctant to provide information about the crime to police
authorities or women's organizations. Cultural prohibitions
against going outside clan or ethnic groups with such charges
is a major cause of what is probably a significant
underreporting of the number of such attacks. Fear of
retaliation is another. While antirape organizations and the
press now bring a greater number of cases to light, the rate of
prosecution remains very low.
Children
In late 1993, the Attorney General announced the formation of a
task force to draft laws related to children's rights, decrying
the absence of protective legislation. The commission is
expected to announce its findings and the Attorney General is
expected to table a draft bill in Parliament in the first half
of 1994. Education is the single biggest expenditure in the
government budget.
Female genital mutilation (circumcision) remains widespread,
especially among Kenya's nomadic peoples, despite the
Government's stated opposition. It is usually performed at an
early age and has been condemned by international health
experts as damaging to both physical and mental health.
Neither the Government nor women's groups have reliable
information about the extent of the problem, but, according to
an independent expert, the percentage of females who have
undergone this procedure may be as high as 50 percent. In
practice, the Government leaves opposition to such practices to
women's groups, and prosecutions are not made. In September,
after press reports of a forced genital mutilation of a
middle-aged woman in Meru, a government minister denounced the
act, but no further action was taken.
National/Racial/Ethnic Minorities
Kenya is an immigrant country. All of its major ethnic groups
arrived within the last thousand years, conquering or
assimilating those who were there before. The history of
postindependence has been marked by ethnic competition and some
conflict, but nowhere near the dimensions of the clashes which
began in 1991 following alarmist statements made by government
figures. The Kikuyu are the largest ethnic community,
comprising approximately 21 percent of the population. The
Luhya, Luo, Kamba, and Kalenjin are the next largest
communities, each making up over 10 percent of the population.
High level government officials continued to voice strong
anti-Kikuyu sentiments, aggravating tribal animosities and
sparking anti-Kikuyu violence. For example, KANU M.P. Shariff
Nassir warned Kikuyus against extending their business
activities to Mombasa.
Though the Government often accuses opposition political groups
of preaching "tribalism," government officials are the most
vigorous proponents of ethnically based attacks. Minister
Ntimama made a point of explaining to reporters the difference
between indigenous and native Kenyans--"indigenous" tribes
being those like his own Maasai who had a right to live in the
Rift Valley, and "native" peoples, including the Kikuyu, Luhya,
Kisii, and Luo, who could only live in such areas by the
sufferance of the indigenous tribes. A number of KANU Rift
Valley politicians continued verbal attacks on immigrants to
those areas, variously demanding obedience to KANU or the Rift
Valley's indigenous peoples.
The Government has singled out ethnic Somalis as the only
ethnic group in Kenya required to carry an additional form of
identification stating that they are Kenyan citizens. Ethnic
Somalis must still produce upon demand their Kenyan
identification card and a second identification card verifying
"screening." Both cards are also required in order to apply
for a passport.
People with Disabilities
Government policy does not discriminate against people with
disabilities in employment, education, or other state
services. There is no mandated provision of accessibility for
the disabled, however. In late 1993, the Attorney General
appointed a task force to investigate claims of discrimination
and to propose new legislation protecting the rights of the
disabled. The commission is expected to complete its work
early in 1994.
Section 6 Worker Rights
a. The Right of Association
Except for central government civil servants and academic
staff, all workers are free to join unions of their own
choosing. As few as seven workers may establish a union,
provided that objectives of the union do not contravene Kenyan
law and another union is not already representative of the
employees in question. The Government may deregister a union,
but the Registrar of Trade Unions must give the union 60 days
to challenge the deregistration notice; an appeal of the
Registrar's final decision may be brought before the High Court.
The Kenya Civil Servants Union was deregistered in 1980 by
President Moi. The Central Organization of Trade Unions (COTU)
has sought since 1989 to reverse this decision. The ban was
lifted theoretically in 1991, but no action ensued while a
government committee reviewed options. In August a number of
Members of Parliament said the union must be reinstated by
October, and on September 13, 16 officials announced formation
of their union and demanded registration by the Government. No
further action ensued on the civil servants union.
There are at least 33 unions in Kenya representing
approximately 350,0000 workers, or about 20 percent of the
country's industrialized work force. Except for the 150,000
teachers who belong to the Kenya National Union of Teachers
(KNUT) and four other smaller unions, which the Government has
registered, all other unions are affiliated with one central
body, the COTU.
The Government created COTU in 1965 as the successor to both
the Kenya Federation of Labor and the Kenya African Workers
Congress. This amalgamation was effected allegedly to
eliminate instability and rivalries within the nation's trade
union movement.
The 1965 decree establishing COTU gives the President power to
remove from office the central body's three senior leaders, and
Rule 5 of the COTU constitution accords nonvoting membership on
COTU's managing body, the executive board, to a representative
of the Labor Ministry as well as of KANU. Until the COTU
"coup" of July 2 (see below), however, all secretaries general
of unions within COTU, including those who staged the coup,
maintained that the COTU-KANU connection was obsolete in the
multiparty era.
Early in 1993, COTU Secretary General Joseph Mugalla, a strong
supporter of KANU and President Moi, responded to a challenge
by some union secretaries general and many shop stewards to
address the deterioration in socioeconomic conditions, as the
value of the Kenyan shilling had plummeted by some 50 percent.
He called for an across-the-board 100 percent wage increase and
dismissal of Kenyan Vice President George Saitoti. The call
culminated in a walkout by Minister of Labor Masinde during
Labor Day ceremonies, the arrest of Mugalla and senior
associates on Labor Day, and a 2-day national strike, which was
observed in key sectors nationwide, even after the Minister
declared it illegal (see also Section 1.d.).
On July 2, security police blocked off a meeting of the COTU
governing council at COTU headquarters. Delegates from all
over Kenya returned instead to their hotel in the industrial
suburb of Ruiru for a briefing and then returned home. A
splinter group consisting of a small group of voting members,
however, met at KANU headquarters in Nairobi, with the Minister
of Labor and other senior ministry officials present, and
claimed to elect new COTU leaders, although the next elections
were scheduled for 1995. The group was led by KANU stalwarts
Johnson Ogendo (textiles) and Ali Mohamed (postal workers).
Mohamed later justified the action in a letter to the
International Confederation of Free Trade Unions (ICFTU),
claiming that the Government could not have interfered in COTU
because there was no distinction between the two.
Without waiting the normal 7-day period to verify the
elections, and disregarding a legal challenge by the legitimate
COTU leadership, the registrar immediately registered the new
group. On August 2, a judge lifted a temporary injunction
against the new group on grounds that the registrar is an
officer of the Government and that his action could not be
challenged through an injunction. On December 27, the High
Court ruled that the new group had hijacked a COTU governing
body meeting to hold elections and ordered the registrar to
delete the new entries from the register. This had the effect
of reinstating the old leadership, but the Government claimed
instead that all COTU offices were now vacant. An appeal of
the High Court ruling by the new group was to be heard in
January 1994.
No international group recognized the new COTU leadership. The
ICFTU ordered its affiliates to break off contact, and all
international bodies ceased giving aid to COTU, canceling
conferences and seminars scheduled to take place in Kenya.
Mugalla, a member of the International Labor Organization (ILO)
governing body, attended its meeting in Geneva in September and
remained the internationally recognized Secretary General of
COTU. Government harassment of Mugalla and his family as well
as those who did not support the July 2 labor "coup" continued
(see also Section 1.f.).
The Trade Disputes Act permits workers to strike provided that
21 days have elapsed following the submission to the Minister
of Labor of a written report detailing the nature of the
dispute. During this 21-day period, the Minister may either
mediate the dispute himself, nominate a person to investigate
and propose a solution, or refer the matter to the Industrial
Court, a body of 5 judges appointed by the President, for
binding arbitration. Once a dispute is referred to mediation,
fact finding, or arbitration, any subsequent strike is
illegal. In 1993 Minister Masinde declared illegal several
strikes, including a threatened teachers' strike, even when the
required 21-day notice had been given, on grounds that all
other means of resolving the dispute had not yet been
exhausted. Kenyan labor legislation is silent on the issue of
national strikes.
The military, police, prison guards, and members of the
National Youth Service are precluded by law from striking.
Other civil servants, like their private sector counterparts,
may strike following the 21-day notice period (28 days if it is
an essential service, e.g., water, health, education, air
traffic control). However, the Labor Minister may at any time
preempt a strike involving civil servants by referring the
dispute to the Industrial Court for resolution. The 2-day
national strike of May was the most important strike action of
the year. The Islamic Party of Kenya also held a 1-day strike
in Mombasa in September, but for political, not socioeconomic,
reasons. A strike by 200,000 teachers set for July 15 was
narrowly averted when KNUT Secretary General Adongo allowed the
issue to go to court, but many teachers stayed home, angry at
the KNUT for having acquiesced to the Government.
Internationally, COTU is affiliated to both the continentwide
Organization of African Trade Union Unity and the ICFTU. Its
affiliates are free to establish linkages to international
trade secretariats of their choosing.
b. The Right to Organize and Bargain Collectively
While not having the force of law, the 1962 Industrial
Relations Charter, executed by the Government, COTU, and the
Federation of Kenya Employers, gives workers the right to
engage in legitimate trade union organizational activities.
Both the Trade Disputes Act and the Charter authorize
collective bargaining between unions and employers. Wages and
conditions of employment are established in the context of
negotiations between unions and management. The Government has
promulgated wage policy guidelines limiting wage increases to
75 percent of the annual rate of inflation. In 1993 COTU
called for the removal of wage guidelines. Collective
bargaining agreements must be registered with the Industrial
Court for the purpose of guaranteeing adherence to these
guidelines. In 1993, 1,875 agreements were registered with the
Court, of which 250 were newly signed in 1993. Some 1 million
workers (union and nonunion) were covered by these accords.
The Trade Disputes Act makes it illegal for employers to
intimidate workers. Employees wrongfully dismissed for union
activities are generally awarded damages in the form of lost
wages by the Industrial Court; reinstatement is not a common
remedy, but in 1993, after the national strike of May 3-4, most
workers won reinstatement. More often, aggrieved workers have
found alternative employment in the lengthy period prior to the
hearing of their cases.
The ILO's Committee of Experts (COE) observed in its 1993
report that the Government, in accordance with Article 10 of
Convention 143, should promote equality of opportunity and
treatment for migrant workers, including trade union rights.
Legislation authorizing the creation of export processing zones
(EPZ's) was passed in November 1990. The EPZ Authority has
taken a gradualist approach to their development and has
decided that local labor laws will apply generally in the
zones, including the right to organize and bargain
collectively. In practice, the EPZ Authority grants many
exemptions. For example, the Government is waiving aspects of
the law that prevent women from working at night because women
prevail in a number of industries in the zones.
c. Prohibition of Forced or Compulsory Labor
The Constitution proscribes slavery, servitude, and forced
labor. Under the Chiefs' Authority Act, a local authority can
require people to perform community services in an emergency,
but there were no known instances of this practice in 1993.
People so employed must be paid the prevailing wage for such
employment. The COE has found these and other provisions of
Kenyan law to contravene ILO Conventions 29 and 105 concerning
forced labor.
d. Minimum Age for Employment of Children
The Employment Act of 1976 proscribes the employment in any
industrial undertaking of children under the age of 16. This
enactment applies neither to agricultural sector, where about
70 percent of the labor force is employed, nor to children
serving as apprentices under the terms of the Industrial
Training Act. Ministry of Labor officers nominally enforce the
minimum age statute. Children often work as domestics in
private homes, in the informal sector, and in family businesses
and farms. Given the high levels of adult unemployment and
underemployment, the employment of children in the formal wage
sector in violation of the Employment Act is not a significant
problem. Education is not compulsory in Kenya.
e. Acceptable Conditions of Work
The legal minimum wage for blue collar workers in the wage
sector varies by location, age and skills, with 12 separate
scales. After a May increase, the lowest minimum monthly wages
were $12.25 (833 shillings) in rural areas and $21.70 (1,476
shillings) in urban areas. Violations of the minimum wage
guidelines are not a recurring problem in the modern wage
sector. Despite nominal wage increases, inflation on the order
of 25 or 30 percent and a decline in the value of the shilling
helped erode workers' living standards during 1993. Most
workers continued to lead a marginal existence and had to rely
on second jobs, subsistence farming, or the extended family.
The Regulation of Wages and Conditions of Employment Act limits
the normal workweek to 52 hours. Nighttime employees, however,
can be employed for up to 60 hours a week. As is the case with
respect to minimum age limitations, the Act specificially
excludes agricultural workers from its purview. An employee in
the nonagricultural sector is entitled to 1 day of rest in a
week. There are also provisions for 1 month of annual leave
and sick leave. Kenyan law provides that the total hours
worked (i.e., regular time plus overtime) in any 2-week period
for night workers may not exceed 144 hours; the limit is 120
hours for other workers. The Ministry of Labor is tasked with
enforcing these regulations, and reports of violations are few.
The Factories Act of 1951 sets forth detailed health and safety
standards; the Act was amended in 1990 to encompass the
agriculture, service, and government sectors. The 65 health
and safety inspectors attached to the Ministry of Labor's
Directorate of Occupational Health and Safety Services have the
authority to inspect factories and worksites if they have
reason to believe that a violation of the Act has occurred, or
upon receipt of a complaint from a worker. As a result of the
1990 amendments, the Directorate's inspectors may now issue
notices enjoining employers from practices or activities that
involve a risk of serious personal injuries. Previously, only
magistrates were vested with this authority.
Such notices can be appealed to the Factories Appeals Court, a
body of four members, one of whom must be a High Court judge.
Factory inspections increased from 3,000 in 1992 to 16,132 in
1993, due to an ILO-funded project. This altered the previous
practice of responding only to worker complaints. "Whistle
blowers" are not protected by the Factories Act. Kenya's
workmen's compensation regulations do not yet comply with
provisions of ILO Convention 17.
[end of document]
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