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TITLE: KENYA HUMAN RIGHTS PRACTICES, 1994
AUTHOR: U.S. DEPARTMENT OF STATE
DATE: FEBRUARY 1995
KENYA
After 9 years as a single-party state led by the Kenya Africa
National Union (KANU), a 1991 constitutional amendment restored
multiparty democracy. However, President Daniel Arap Moi and
his KANU party continued to dominate the political process. In
addition to his role as President, Moi also heads the military,
university, civil service, and provincial, district, and local
governance systems. KANU controls a majority of the National
Assembly's 200 seats.
The large internal security apparatus includes the police
Criminal Investigation Department (CID), the paramilitary
General Services Unit (GSU), and the Directorate of Security
and Intelligence (DSI). The CID and DSI investigate criminal
activity and also monitor persons the State considers
subversive. The internal security apparatus committed abuses
against suspected criminals (including street children) and
continued to harass opposition politicians and critics of the
Government. City council security officers, known as
"Askaris," also committed abuses against licensed vendors.
The economy includes a well-developed private sector in trade
and light manufacturing as well as a strong agricultural sector
that provides food for local consumption and substantial
exports of coffee, tea, and other commodities. Tourism
remained the top foreign exchange earner. The 1993 economic
reform program has slowed inflation and expanded trade, while
price controls have been eliminated, and the official exchange
rate has aligned with the free market rate. Future challenges
to the country's continued improvement are privatization of
state-owned enterprises and civil service reform. Although the
population growth rate declined from 3.7 percent to 2.9 percent
between 1989 and 1993, unemployment remains high at about 22
percent.
The Government took some steps to improve its human rights
practices in 1994. Nevertheless, serious human rights problems
persisted. In June the Attorney General withdrew most charges
against opposition leaders facing trials. However, the
Government continued to intimidate and harass those opposed to
government/KANU policies and regularly interfered with many
civil liberties--notably freedoms of speech, press, assembly,
and association--in attempts to silence critics. Security
forces continued to arrest and detain temporarily opposition
parliamentarians and journalists, harassed voters in several
by-elections, broke up lawful public gatherings, and flouted
international labor covenants by quashing attempts by doctors
and university professors to form unions. During the year, the
Police Commissioner acknowledged problems of police brutality
and domestic violence, both of which remained serious problems.
Ethnic violence in the Rift Valley decreased considerably over
the past year, following the Government's establishment of
security zones. Nevertheless, questions remain about the
Government's and KANU's roles in fomenting the violence. After
initially cooperating with international relief organizations
to resettle displaced victims of the ethnic violence, late in
the year the Government forcibly relocated approximately 2,000
Maela camp residents, calling into question the Government's
commitment to work cooperatively to resettle the displaced.
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 reports of political killings by government
security forces. However, in a case with political undertones,
approximately 45 unidentified assailants raided the home of
opposition parliamentarian Peter Anyang Nyong'o on March 4 and
murdered Nyong'o's uncle. Nyong'o issued a press statement
implicating the Government in the raid and was subsequently
temporarily detained by police. At year's end, five suspects
arrested in connection with the attack were in custody awaiting
a trial date. Six persons were killed in postelection
violence, although there is no evidence that either the
Government or the opposition parties were responsible (see
Section 3).
Substantial evidence dating from 1991 indicates that high-level
government officials were complicit in instigating and
promoting the ethnic clashes, which had as of year's end
claimed over 1,000 lives and displaced 250,000 people (see
Section 1.g.).
On July 29, the High Court acquitted Jonah Anguka, the former
Rift Valley provincial commissioner, who had been accused of
killing Foreign Minister Robert Ouko in 1990. Although
presidential confidant Nicholas Biwott had been named as a
principal suspect, the Attorney General claimed that there was
insufficient evidence to try him. (The other principal
suspect, Hezekiah Oyugi, died of natural causes in 1992.) The
Attorney General also ruled out attempts by opposition
politicians to investigate the murder privately, asserting that
only he was constitutionally empowered to initiate such
proceedings.
Kenyan police used excessive lethal force on several occasions
in attempts to apprehend criminal suspects. In a widely
publicized case in August, a police reservist reportedly shot
and killed a homeless child for attempting to steal a car
mirror. After several protests and calls for an inquiry into
the incident, the authorities charged the reservist with murder
but had not brought him to trial by year's end. Police
reservists have also been implicated in the deaths of five
other street children. While most prison deaths stemmed from
disease and lack of medical care, there was at least one death
as a result of police brutality. Charles Ireri Njeru, arrested
March 29 in Karaba on suspicion of theft, died the following
day in police custody. The postmortem report indicated that he
had died from multiple injuries caused by a blunt object. The
authorities arrested two Karaba constables, charged them with
Njeru's murder, and issued a warrant of arrest for a third
constable who remained at large.
In late December, the Government had still not made an
accounting for the death of Jackson Mutonye Ndegwa, who was
arrested November 2, 1993, after an alleged raid on the Ndeiya
chief's camp, an arsenal near Nairobi. The police reported he
died the following morning of injuries sustained during the
arrest, although there were credible reports that the police
had interrogated him the previous night. At year's end, the
investigation was ongoing.
The Government still has not taken any steps to punish those
responsible for the September 1993 beating death of the nephew
of Central Organization of Trade Unions' Secretary General
Joseph Mugalla.
Mob violence remained a serious problem in 1994, although there
are no statistics available on the number of deaths. The
Government condemned the practice but has taken no action to
address the problem, as it treats such incidents as individual
cases of murder.
b. Disappearance
The only alleged disappearance concerned an Islamic Party of
Kenya (IPK) activist, Mohammed Wekesa, who was arrested in
August with two other persons in connection with disturbances
in Mombasa. Although Wekesa was supposedly released, he has
not been seen since his arrest.
c. Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment
Despite constitutional provisions and the Police Commissioner's
June announcement that torture was prohibited and would not be
tolerated, there continued to be credible reports that the
police and security forces resorted to torture and brutality.
Security forces also used severe methods to break up both
licensed and unlicensed public assemblies.
In particular, police targeted for abuse those connected with
Koigi Wa Wamwere, the former parliamentarian on trial for his
alleged raid on the Bahati police station in Nakuru in November
1993. In July Nakuru police arrested Wamwere's cousin,
Geoffrey Kuria Kariuki, on theft charges and beat him
unconscious with rifle butts, batons, and kicks. Relatives who
glimpsed Kariuki during his subsequent 10-day incommunicado
confinement reported that he had swollen lips, a swollen left
eye, and a deep wound on the right side of his forehead.
Police arrested two other associates of Wamwere, Michael Kungu
and John Kinyanjui, on the same night as Kariuki and likewise
battered them. According to the Kenya Human Rights Commission,
Kungu urinated blood for 2 days as a result of his beating. At
year's end, no action had been taken to punish the officers
responsible for the beatings.
The Government had also taken no disciplinary measures against
policemen responsible for the abuse of those arrested in
connection with Koigi Wa Wamwere's alleged police station
raid. (Eleven of the original 15 suspects have been cleared of
all charges.) The injuries sustained by the suspects included
open and infected wounds, swelling and bruising at the knee and
ankle joints, and bleeding from under the toenails. On
November 20, 1993, police arrested the physician who examined
the suspects, searched his office, and detained him for 3
days. In response to diplomatic inquiries, the Government
expressed dissatisfaction with the police officers' explanation
of the matter and promised an investigation, but by late
December had provided no information about the results, if any.
Similar diplomatic inquiries were made in the case of six
suspects whom police tortured following an alleged raid on the
Ndeiya chief's camp in September 1993. One of the "Ndeiya
Six," David Njenga Ngugi, reportedly had his genitals pricked
with a pin and a toenail removed with pliers. On June 10,
Nairobi senior principal magistrate Onesmus Githingi acquitted
the six suspects and directed the Commissioner of Police,
Shadrack Kiruki, to take action against the police officers who
tortured them. However, at year's end no officers had been
disciplined. Moreover, in what appears to have been a punitive
measure, magistrate Githingi was transferred in September from
Nairobi to a small rural court in Kituyi.
Police continued to disperse public assemblies brutally.
According to the Kenyan Human Rights Commission, while breaking
up a University of Nairobi gathering on February 2, police
forced one student to jump from a window by throwing a gas
canister into his room. In February police injured several
students while attempting to disband student meetings in
support of the professors' strike. The authorities took no
action to punish offending police officers.
There were also reliable reports of police violence against
women. When the League of Women Voters attempted to hold a
seminar on June 18 in Kirinyaga, approximately 100 armed police
chased participants from the venue by beating them with clubs.
In January about 200 women accused police of harassment and
rape when officers conducted a house-to-house search for
bandits in Wajir. In a gender violence workshop hosted by the
Federation of Women Lawyers (FIDA) in September, Police
Commissioner Kiruki pledged to work with women's groups like
FIDA and to implement guidelines for the treatment of women by
police. However, at year's end, the police had not yet taken
any specific action to implement any such guidelines.
Conditions in prisons are life-threatening, due in part to lack
of resources and in part to the Government's unwillingness to
address deficiencies in the penal system. Both male and female
prisoners are subjected to sexual abuse, severe overcrowding, a
poor diet, inadequate health care, substandard bedding
materials, and flooded or unheated cells. There were several
hundred deaths in prison in 1994, most of which stemmed from
disease. Kenyan prisons do not have resident doctors, and only
one prison had a doctor permanently assigned to it. Kenya's 78
prisons hold approximately 51,000 prisoners, 12,000 of whom are
awaiting trial. Rape is a serious problem for both men and the
more than 3,000 women in prison.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides that most persons arrested or
detained 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. However, this statute
does not apply to those detained under the Preservation of
Public Security Act (PPSA).
The Constitution was amended in 1988 to allow the police to
hold persons suspected of capital offenses for 14 days before
charging them in court. Capital offenses include such crimes
as murder and treason. A 1993 amendment to the Penal Code
excludes weekends and holidays from this 14-day period,
potentially a significant increase in the time prisoners can be
held without charge. In practice, suspects are sometimes held
incommunicado for 2 to 3 weeks before being brought before a
court. Persons arrested and charged are usually allowed access
to their family and attorney promptly. However, only family
members and attorneys may visit detainees at the discretion of
the State. For those who have been charged, it is often
possible to be released on bail with a bond or guarantees of
return. In cases where the defendant fails to appear in court,
the judiciary may issue a warrant for his arrest.
A relic of the colonial period, the Chief's Authority Act
empowers local officials, called "chiefs," to arrest
individuals and to restrict a person's movement without trial.
(The Chief's Act was not formally invoked in 1994 to detain
anyone, but chiefs occasionally cite the Act to take suspected
criminals to the police. Under the Act, chiefs are technically
not supposed to detain anyone for more than 12 hours.)
The PPSA, on the other hand, 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 1994.
In July 1993, the Attorney General created 11 task forces to
review various sections of the Constitution. In July 1994, the
Task Force on the Reform of Penal Laws and Procedures formally
proposed that statutes relating to criminal investigation,
arrest, detention, questioning, charge, and bail be
reexamined. The Task Force is expected to submit its final
report by December 1995.
Although the Government held no political detainees at year's
end, the police continued to detain arbitrarily politicians,
human rights advocates, journalists, and others who were
critical of the Government. In most instances, the police held
the detainees for several hours and then released them without
formally charging them.
In August police detained the Vice Chairman of the FORD-Kenya
(FORD-K) opposition party, James Orengo, for 7 hours at the
Kisumu police station after he made public statements
implicating Nicholas Biwott in the 1990 murder of Foreign
Minister Ouko. In June police also detained opposition
parliamentarians Martha Karua and Allan Njeru and Presbyterian
Bishop David Gitari for 2 hours after disrupting the FIDA
seminar they were attending in Kirinyaga (see Section 1.c.).
In September police held Kenyan Human Rights Commission
executive director Maina Kiai, opposition parliamentarian John
Wanyange, and 10 others for 6 hours without charge at the
Naivasha police station for attempting to demonstrate against
the denial of national identification cards to young Rift
Valley Kikuyus.
Government security forces continued to arrest and harass
opposition Members of Parliament (M.P.'s), most often charging
them with some variation of subversion or holding an unlicensed
meeting. The authorities arrested and formally charged a total
of 15 opposition M.P.'s in 1994, as opposed to 36 in 1993.
Police arrested FORD-K M.P.'s Mukhisa Kituyi and Musikari Kombo
in April after they brought relief supplies to a Rift Valley
displaced persons camp. The Government characterized the trip
as an unlicensed meeting in which they "uttered words
calculated to incite the public against the President." In
April police arrested opposition M.P. Joseph Mulusya while he
was socializing with friends and charged him with participating
in an unlawful meeting. In June the Attorney General rescinded
charges of sedition and subversion against 13 of the arrested
M.P.'s. However, in doing so he warned M.P.'s against
slandering the President in their public remarks. Two M.P.'s,
Stephen Ndichu and Kamuiru Gitau, still had cases outstanding
at year's end.
The police also arrested more than 400 residents of Nakuru
during periodic arbitrary sweeps. On February 18, police
arrested more than 200 young men and women at a bus park in the
city. They faced charges of walking in a suspicious manner,
hawking, shouting to attract passengers, entering into a
volatile area, and having no national identity cards. Then in
May, Nakuru police arrested approximately 200 street salesmen
in the city center. A police source later said that theft had
been increasing and that the arrests were intended to rid the
town of suspects.
The Government does not use exile as a means of political
control, but in December the Government effectively expatriated
Sheik Khalid Balala, a former leader of the Islamic Party of
Kenya (IPK), when Kenyan Embassy officials in Bonn rejected
Balala's application for a passport extension. In 1994 the
Government also deported a number of foreigners for
questionable reasons. In June it deported Dr. Dorothee Von
Brentano, the Friedrich Naumann Foundation development agency
representative, after she authorized funding for a political
opposition party. In July the Government deported Australian
training editor John Lawrence after he edited a compilation of
critical social commentary that ran in the Nation newspaper.
e. Denial of Fair Public Trial
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. Judges hear all cases; there is no jury
system. Customary law is used as a guide in civil matters
affecting persons of the same ethnic group as long as it does
not conflict with statutory law. In 1989 High Court Justice
Norbury Dugdale ruled that the courts have no power to enforce
the "Bill of Rights," which is part of the Constitution. In
spite of legal challenges that the ruling effectively subsumes
the judiciary under the executive branch, his decision has not
been overruled.
Civilians are tried in civilian courts, and trials are public,
although some testimony may be held in secret. There is a
presumption of innocence, and defendants have the right to
attend their trial, to confront witnesses, and to present
witnesses and evidence.
Defendants do not have a right to government-provided legal
counsel, except in capital cases. For noncapital charges free
legal aid is usually not available outside of Nairobi. (Poor
people who do not have an attorney are usually found guilty for
lack of an articulate defense.) Although defendants generally
have access to an attorney in advance of trial, defense lawyers
do not always have access to government-held evidence, since
the Government can plead the state security secrets clause as a
basis for withholding evidence. 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.
Civilians generally have a right to appeal a verdict to the
Kenyan High Court and ultimately to the Court of Appeal.
However, these rights were effectively denied in a case
involving Bedan Mbugua and David Makali, the editor and
reporter of The People newspaper, and attorney G.B.M. Kariuki
(see Section 2.a.). In May the three were arraigned on
contempt charges after the two journalists published a story
quoting Kariuki's criticism of a decision delivered by the
Court of Appeal. Under Kenyan law, a person must be tried by
the same court in which he is in contempt. While Kariuki
agreed to pay a substantial fine, Mbugua and Makali refused and
were consequently given prison sentences of several months.
The judiciary is not independent. The President has extensive
powers over appointments. He appoints the Chief Justice, the
Attorney General, Court of Appeal judges, and, with the advice
of the Judicial Service Commission, High Court judges. He also
has authority to dismiss judges and the Attorney General upon
the recommendation of a special presidentially appointed
tribunal. In 1994 the Office of the President declined to
renew the contracts of three High Court judges who had
previously made rulings against the Government.
In September the government-aligned Judicial Service Commission
transferred senior principal magistrate Onesmus Githingi out of
Nairobi following his acquittal of the suspects in the "Ndeiya
Six" case. Githingi had ruled that the police used torture to
coerce the confessions of the suspects, who were accused of
raiding the Ndeiya chief's camp outside Nairobi in September
1993.
The political trial of Koigi Wa Wamwere began in Nakuru on
April 12 and was continuing at year's end. A former M.P. from
Nakuru, Wamwere has spent the better part of the past 9 years
in police detention. He has been targeted by the Government
because of his popularity among Rift Valley Kikuyus, who are
considered political rivals of President Moi's Kalenjin tribe.
The state prosecutor in the trial finished presenting his case
in September without producing credible evidence tying Wamwere
to the alleged attack on the Bahati police station in November
1993. In November defense attorneys began to present evidence
that Wamwere was in Nairobi on the night of the alleged raid
and that police tampered with evidence supposedly confiscated
from the crime scene. Leading human rights groups have named
Koigi Wa Wamwere and his codefendants in the "Bahati Police
Station" case as probable political prisoners. The trial
continues amid news that Wamwere was diagnosed in December with
bleeding ulcers, which may be connected to the harsh conditions
of his confinement. (The trial of Geoffrey Kuria Kariuki and
two other associates of Wamwere had not commenced by year's
end.)
There was one instance in which a case was moved to a
magistrate who consistently ruled in favor of the Government.
In late December, the authorities arrested several members of a
Kikuyu religious organization in Laikipia District for tribal
oathing and later charged them in the Nakuru District Court.
Contrary to previous years, there were no instances in which
the Government prevented its critics from filing cases to
obtain legal redress from harassment.
f. Arbitrary Interference with Privacy, Family, Home, or
Correspondence
The Constitution permits searches without warrants in certain
instances "to promote the public benefit," such as in security
cases. Although security officials generally obtain judicially
issued search warrants, at times they conduct searches without
warrants to apprehend suspected criminals or to seize property
believed to be stolen. The courts have admitted evidence
obtained without search warrants to support convictions.
Security forces employ various means of surveillance, including
electronic surveillance and a network of informers. Police
routinely monitored the activities of political opponents and
their associates. In a June letter to the Director of State
Intelligence, FORD-K M.P. Paul Muite complained that several
specific vehicles with civilian license plates constantly
shadowed his movements and that of his family. Muite, who is
also the lead defense attorney in the Wamwere case, reported
that the cars even followed him from Nairobi to the Nakuru
courtroom and back again--a 4-hour trip.
The Government monitored and intercepted correspondence as
well. In August the U.S.-based Robert F. Kennedy Memorial
Center for Human Rights mailed two packages to the Kenya Human
Rights Commission. The local Nairobi post office refused to
release the packages, claiming that the reports were
"political" and "hitting at the Government." In April police
detained and interrogated an 18-year-old student for several
hours after police intercepted a letter she had sent to
opposition M.P. Paul Muite.
City council security officers, or "Askaris," continued to
destroy the kiosks of licensed and unlicensed vendors in
several Kenyan cities. On February 9 and 15, Nairobi Askaris
demolished and burned a stretch of vendors' booths at the
Machakos country bus terminal, destroying several thousand
dollars' worth of property. On February 16, Askaris beat and
arrested the chairman of the Vendors' Association when he
visited the Machakos bus terminal. Askaris also arrested and
confiscated goods from vendors at the Kisumu town center in
February.
Although Kenyans are theoretically free to choose their
political affiliation, government employees continued to be
warned to support the ruling party or be fired. In May the
Government dismissed a permanent secretary in the Ministry of
Labor after he reportedly made contact with an opposition party
member.
g. Use of Excessive Force and Violations of Humanitarian
Law in Internal Conflicts
Ethnic clashes that began in 1991 have killed over 1,000
civilians and displaced 250,000 persons. Violent clashes
involving several ethnic groups continued throughout the year,
albeit less frequently than in 1993. International attention
has focused on the Kikuyus whom the Maasai forcibly evicted
from Enoosupukia in Narok district of the Rift Valley and were
living in displaced persons camps in Maela. Victims of the
violence are largely from ethnic groups opposed to the ruling
party, particularly the Kikuyu, who comprise 21 percent of the
population. For example, in the first half of the year, there
were violent attacks by Maasai directed at Kikuyus in which
villagers were murdered, houses burned, and property
confiscated. At year's end, tensions remained high in Molo and
sites of other clashes because government efforts to promote
reconciliation had not been fully successful.
Serious questions remain about the Government's complicity in
instigating the violence, and on several occasions in 1994 KANU
and Government officials made statements targeting particular
ethnic groups that led to renewed violence. Clashes occurred
in March in Burnt Forest between Kalenjins and Kikuyus, in June
in Mombasa between coastal groups and Luos, and in Turkana
between non-Turkana and Turkana. All of these followed
inciteful statements made by government or KANU officials. The
Government took no action to disavow or punish those officials
or others who incited violence. Reports by several
organizations, including a special parliamentary committee, the
Catholic Bishops of Kenya, the National Council of Churches of
Kenya (NCCK), the National Elections Monitoring Group, the
Kenya Human Rights Commission, the Robert F. Kennedy Memorial
Center, and Human Rights Watch/Africa placed primary blame for
the violence on the Government. Critics charge that the
Government initially supported tribal clashes to strengthen its
hold on power and to prove its assertion that multiparty
politics will not work in Kenya.
In 1993 the Government announced measures to control the ethnic
violence by establishing "security zones" in areas hardest hit
around Molo, Londiani, Elgburgon, and Burnt Forest. These
measures were successful in curtailing the violence.
Regulations introduced in the security zones severely restrict
entry and movement and grant security forces search and seizure
rights within the zones. However, they also authorize security
forces to shoot to kill in cases in which there was suspicion
that a crime had occurred, such as illegal entry into the
security zones. The regulations also absolve government forces
from responsibility for death and destruction in the zones by
specifically prohibiting suits for compensation. Despite these
restrictions, there were sporadic reports of violent clashes
within the security zones.
Citing the provisions of the security zone regulations, the
Government sought to prevent opposition M.P.'s, domestic and
international human rights advocates, and most journalists from
entering the zones, and arrested many who did so. In early
1994, the Government reluctantly allowed NGO's working under
the U.N. Development Program (UNDP) displaced persons program
and a few others, including diplomatic officials, some access
to the security zones. Later in the year, the local
administration also allowed media representatives to accompany
important visitors and diplomats to the zones. The UNDP Rogge
report, published in September, noted that the Government had
made an effort to reduce tensions and to resettle those
displaced. The report estimated that 30 percent of those
displaced had been resettled to their villages, that 50 percent
were in various stages of return, and that another 20 percent
remained in camps.
In October President Moi instructed the Rift Valley Provincial
Commissioner to resettle displaced persons resident in camps in
Maela. However, local administrators proved unable or
unwilling to carry out these presidential instructions as
intended. They actually resettled over 200 families (out of
3,000), who, once relocated to unproductive farm land, were not
given resettlement assistance. On December 24, the Government
dismantled the Maela camps and razed the shelters without prior
notice and without the cooperation of UNDP. It forcibly
resettled hundreds of refugees to areas outside Maela who were
left to fend for themselves. The Government had restricted
UNDP and NGO's from entering Maela and participating in the
resettlement process. At year's end, the status of the
displaced remained uncertain.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of expression and the
press and outlaws discrimination on the grounds of political
opinion. Nonetheless, there are restrictions on the exercise
of free speech. Freedom of speech is often breached by
security forces and undercut by broad interpretations of
antiquated sedition and libel laws. In his May 31 pledge to
reconsider subversion and incitement cases, the Attorney
General cautioned that words or actions critical of the
President or that could alarm the public or disturb the peace
were illegal. The Government has used these provisos as a
basis for denying opposition parties the right to free speech.
Similarly, it arrested several opposition leaders on the charge
that their critical commentary about the Government was
inciteful. Despite these forms of government obstruction, the
political opposition and human rights groups continued 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 Kenyan Broadcasting
Corporation, which produces both television 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 neglect to give anything approaching equal
coverage to opposition activities. The ruling party owns a
second television station, the Kenya Television Network, and a
government supporter owns a new cable television station. The
Information Minister announced in late December that the
Government would not license any new radio and television
stations in the near future, even if the Attorney General's
Task Force on the Press, which is expected to submit its final
report by mid-1995, recommended radio liberalization.
The print media include three daily newspapers that provide
extensive coverage of national politics. Two dailies, the
Nation and the Standard, cover political issues and print
articles critical of government policies, though at least one
former editor has charged that the papers are under pressure to
self-censor. The third daily newspaper, the Kenya Times, more
often reflects the views of the ruling party. Weekly
newspapers and magazines, many of which take a more strident
tone in their criticism of the Government, also have
substantial audiences.
The printed press remained vibrant and independent, and
government harassment of the press decreased noticeably after
midyear. However, in attempts to silence its critics, the
Government arrested 18 journalists in 1994 and fined or
incarcerated them for violating antiquated libel and sedition
laws. In the year's most notable case, the Court of Appeal in
June found Bedan Mbugua, the editor in chief of the weekly
newspaper, the People; David Makali, a People reporter; the
publishing company; and human rights attorney G.B.M. Kariuki
guilty of contempt of court. The contempt charges arose from
an article in The People that quoted Kariuki's criticism of the
same Court of Appeal's decision in a case involving the
Universities Academic Staff Union (see Section 6.a.). The
Court fined Kariuki approximately $10,000, fined Bedan and
Mbugua each roughly twice that amount, and required them to
publish apologies. When Mbugua and Makali refused to
apologize, the Commissioner of Prisons elected to send them to
a maximum security prison for 5 and 4 months, respectively.
The authorities released Mbugua after serving 3 months and 20
days, and freed Makali after 3 months.
The Government continued its ban on a number of books,
including a Kiswahili play based on George Orwell's "Animal
Farm" and a number of works by emigre Kenyan author Ngugi Wa
Thiong'o. On January 13, a truckload of armed policemen raided
Colorprint Limited, a Nairobi publisher, and impounded 15,000
copies of "Kenya: Return to Reason," a book by the chairman of
the FORD-Asili (FORD-A) opposition party, Kenneth Matiba. The
following day, the Government announced that the book was a
"prohibited publication." In November the authorities arrested
a Nairobi businessman on a sedition charge for possessing a
booklet entitled "Patriotic Voices." At year's end, the
Attorney General had not given his consent to begin prosecution.
In August the Government withdrew sedition charges against four
journalists from the Standard newspaper. It had accused the
four of publishing a seditious story in March about ethnic
clashes in the Rift Valley security zone of Molo--a story that
was later proven untrue.
In 1994 the Government streamlined procedures for accrediting
representatives of the international media, who by and large
operated unfettered in Kenya.
In previous years, the Government pressured university students
and faculty to support the ruling party, but since the
professors' strike closed down institutions of higher learning
for the better part of the year, the degree of academic freedom
was difficult to gauge. The authorities fired 26 professors
because of their participation in the walkout, and in March the
Court of Appeal upheld the firings, effectively denying the
professors tenure. Police posted on university campuses
monitored student and faculty activities. On several
occasions, police peaceably dispersed gatherings of professors
on university grounds but used force to disrupt student
assemblies (see Section 1.d.).
b. Freedom of Peaceful Assembly and Association
Freedom of assembly is provided for in the Constitution, but is
seriously limited by the Public Order Act, which gives the
authorities power to control public gatherings. The Act
prohibits unlicensed meetings of 10 or more persons without
approval from the district commissioner. In theory the law
does not apply to persons meeting for "social, cultural,
charitable, recreational, religious, professional, commercial,
or industrial purposes." In practice, meetings under almost
all categories fall under the jurisdiction of the Public Order
Act.
Throughout 1994, but particularly in the early part of the
year, the Government restricted the right of peaceful assembly
by refusing to register meetings. Between January and May, it
refused the FORD-K opposition party permits for public rallies
six times and also disallowed gatherings planned by
nonpolitical organizations. In March the district commissioner
refused the NCCK a permit for a seminar regarding start-up
business loans for community development projects.
The Government also frequently broke up both licensed and
unlicensed meetings. On March 27, administrative police fired
into the air and used tear gas to disperse people gathered for
a free eye clinic, just as opposition M.P. George Nyanja began
to address the crowd. The parliamentarian had obtained a
permit for the gathering, but an officer on the scene announced
that the provincial administration had withdrawn the permit,
rendering the assembly unlawful.
Armed police dispersed 400 people attending a seminar hosted by
the FORD-A party at the Limuru conference and training center
on April 23. Police entered the conference center's dining
hall while the participants were at breakfast and ordered them
to leave the premises immediately. When arguments ensued
between the police and the FORD-A leaders, the police used tear
gas to scatter the crowd.
The authorities were no less forceful in preventing opposition
leaders from publicly meeting their constituents. On April 4,
antiriot police stopped seven FORD-K parliamentarians from
addressing a large crowd in Homa Bay, forcing them to leave the
town at gunpoint. When James Orengo, the party's first vice
chairman, then attempted to walk back through the town, he was
blocked by police and forced into his car. Later in the day,
police again dispersed crowds in the Rangwe and Ndhiwa
townships before the seven parliamentarians had an opportunity
to address them.
In late May, several government officials, including the
Minister for Education and the Rift Valley Provincial
Commissioner, announced that the Government would be more
forthcoming on permits for public assemblies. The Government
accordingly licensed a united opposition public meeting held in
Nairobi in early June. Individual opposition parties also
conducted campaign rallies prior to the June 27 parliamentary
by-elections without government interference.
The Societies Act governs freedom of association; it states
that every association must be registered or exempted from
registration by the Registrar of Societies. Ten political
parties are currently registered under this statute: KANU,
FORD-K, FORD-A, the Democratic Party, the Social Democratic
Party, the Kenya National Democratic Alliance, the Kenya
National Congress, Labor Party Democracy, the Kenya Social
Congress, and the Party of Independent Candidates of Kenya.
The Government has refused to register the Islamic Party of
Kenya (IPK), even though the Societies Act nowhere prohibits
religion-based parties. The Attorney General has argued that
registering sectarian parties would contradict the spirit of
the Act, which proscribes organizations "incompatible with
peace, welfare, or good order in Kenya." A secretive
organization known as the Mau Mau Posterity Party, which claims
responsibility for anti-Asian propaganda in Kenya's urban
centers, has not attempted registration.
c. Freedom of Religion
Kenya has no state religion, and the Constitution acknowledges
freedom of worship. The Government generally does not infringe
upon religious activities, except to require registration by
new churches.
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
restricted 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 and, in contrast to previous years, did not prevent
travel abroad by its critics in 1994. 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.
There are 240,000 refugees, mostly from Somalia and Sudan
living in camps and 100,000 living outside the camps in cities
and rural areas. Somalis account for about 80 percent of the
total refugee population. Kenya has accepted most asylum
seekers, though sometimes entry is delayed. None of these
refugees has been granted legal permanent residence status.
Following a series of formal warnings, in July the Government
gave the United Nations High Commissioner for Refugees (UNHCR)
3 days' notice to close a large refugee camp near a tourist
area in Mombasa. Although the Government did not follow
through with its demand, official pressure to close the camp
remained strong at year's end. The UNHCR accepted in principle
the Government's right to close the camp.
According to Africa Watch and the UNHCR, there continued to be
credible reports by UNHCR and other relief agencies of rapes of
Somali refugee women in the North Eastern province. Unlike
1993, when most of the rapes took place inside the confines of
the camps, those reported in 1994 took place outside the
camps. They have been directed mostly at young girls herding
goats or collecting firewood. Most of the rape incidents are
believed to be committed by other refugees or bandits operating
outside the camps. The incidence of rape decreased
dramatically in 1994, from an average of 27 down to 9 per
month, after the UNHCR increased assistance to the women and
improved security in the camps. The Government, initially
stung by allegations of government security involvement and of
not taking the issue seriously, arrested two individuals in the
camp identified by the victims.
Refugees living outside the camps are vulnerable to arrest, and
those who purchase false identification documents and visas put
themselves even further at risk. In August the police raided
Somali communities in an effort to ferret out "illegal
aliens." There were credible reports that Somali refugees, as
well as ethnically Somali Kenyans, were targets for extortion
and that some were arrested following these sweeps.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Kenyan citizens have the legal right to change their government
through free and fair elections, but their ability to do so has
yet to be demonstrated fully. The presidential and
parliamentary elections of 1992 were marked by violence,
intimidation, fraud, and other irregularities, but opposition
candidates nevertheless won 63 percent of the vote. Diplomatic
observers viewed the 10 by-elections held in 1994 as generally
free and fair, despite minor irregularities.
However, the Government continued to harass and intimidate the
political opposition. The President exercises sweeping powers
over the local political structure as well as the National
Assembly, and the KANU party he heads controlled 118 out of the
200 National Assembly seats. The President appoints both the
powerful provincial and district commissioners, as well as a
multitude of district and village officials. At the district
and village level, these political appointees are responsible
for security as well as the disbursement of federal development
funds.
At the national level, the Constitution authorizes the
President to dissolve the legislature and prohibits Assembly
debate on issues under consideration by the courts. This law,
in conjunction with the Speaker of the Assembly's ruling that
the subject of the President's conduct is inappropriate for
parliamentary debate, has severely limited the scope of
deliberation on many controversial political issues. M.P.'s
are entitled to introduce legislation, but in practice it is
the Attorney General who does so. As the head of KANU, the
President also influences the legislative agenda. He also
bolstered KANU's majority by acting on his constitutional
authority to appoint 12 M.P.'s.
Three opposition parties--the DP, FORD-K, and FORD-A--hold the
majority of the opposition's 82 seats. KANU used a variety of
pressure tactics to entice opposition M.P.'s to defect to KANU,
and by year's end six opposition M.P.'s had done so. As a
result, there were 10 by-elections, including 2 forced by the
death of two M.P.'s. During the seven by-elections held in
June, there were credible reports that government and KANU
officials bribed voters, purchased voter cards, and forcibly
removed an election observer from a polling station. There
were also violent incidents at public rallies prior to the June
elections involving both opposition and KANU supporters.
Street skirmishes between supporters of contending parties also
broke out on the day of two by-elections in October. A U.S.
Embassy observer witnessed an assault in front of a polling
station on a FORD-A candidate, who was later hospitalized. The
assailant, who struck the candidate to the ground with repeated
blows as armed police looked on, came to the polling station in
a convoy of vehicles escorting the KANU Secretary General.
Following the announcement of the October election results, in
which two opposition candidates won parliamentary seats, fights
erupted again resulting in the deaths of at least six people.
Another round of by-elections were to be held in January 1995,
following the High Court's decision in November to nullify
opposition victories in two 1992 parliamentary elections. The
Court overturned the results of one election because the
opposition winner had allegedly administered tribal oaths to
supporters, although the decision was based on contradictory
testimony given by witch doctors.
Merus, Kalenjins, Kisiis, Luhyas, Kambas, Taitas, Luos,
Giriamas, Maasai, Kikuyus, Pokot, and Embus are represented in
the President's Cabinet. However, the President is widely
reputed to rely on an inner circle of advisers drawn mostly
from his Kalenjin tribe.
Although there are no legal restrictions on the participation
of women or minorities in politics, the role of women in the
political process nonetheless remains circumscribed by
traditional attitudes. In 1994 there were six female M.P.'s,
no female cabinet ministers, and one female assistant
minister. Within the political opposition, women figure most
significantly in the Democratic Party, where 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 several well-organized and vocal human rights
organizations. Two groups, the Kenya Human Rights Commission
(KHRC) and Release Political Prisoners (RPP), are particularly
active and publish regular reports that are often critical of
the Government's human rights record. The Institute for
Education in Democracy continues to monitor parliamentary
by-elections with generally good cooperation from the Electoral
Commission. Legal organizations, such as the Public Law
Institute, the Kenya Law Society, the International Commission
of Jurists, and the International Federation of Women Lawyers,
also cover human rights issues, and a large pool of Kenyan
attorneys handle pro bono cases for defendants and serve as an
informal source of human rights information.
President Moi continued to criticize the activities of both
domestic and international human rights NGO's, and the
Government targeted several of them for harassment in 1994.
After the KHRC sent a letter to President Clinton urging
revocation of Kenya's trade privileges because of the
Government's refusal to register the University Professors'
Union, President Moi branded the letter as "treasonous."
Authorities also intercepted KHRC mail (see Section 1.f.) and
detained persons participating in KHRC demonstrations. In
September Nakuru police arrested 12 RPP members attending the
trial of Koigi Wa Wamwere and held them incommunicado for
several days. When another RPP member visited police
headquarters to inquire about his colleagues, he too was put in
incommunicado detention. The entire group was eventually
released without charge.
In contrast, human rights organizations have been successful in
efforts to cooperate with government officials on issues like
domestic violence. In September a government-sponsored human
rights monitoring group hosted a representative from the
Kennedy Center for Human Rights, and the Kenyan Embassy in the
United States issued visas to representatives of several
U.S.-based human rights organizations interested in traveling
to Kenya.
Section 5 Discrimination Based on Race, Sex, Religion,
Disability, Language, or Social Status
The Constitution prohibits discrimination on the basis of a
person's "race, tribe, place of origin or residence or other
local connection, political opinions, color, creed."
Women
The Constitution does not specifically address discrimination
based on gender, and women continue to face both legal and de
facto discrimination on several fronts. For example, women
cannot legally work at night, which disadvantages female
employees in hotels, homes, and industries in the export
processing zones. According to Kenyan pension law, a widow
loses her work pension upon remarriage, whereas a man does
not. When men and women perform comparable jobs, men often
receive a higher job classification and therefore better pay.
Not only do women have difficulty moving into nontraditional,
professional fields, but they also are promoted more slowly
than men and bear the brunt of retrenchments.
Kenya's Law of Succession, which governs inheritance rights,
provides for equal consideration of male and female children.
In practice, most inheritance issues do not come before the
courts. Women are often excluded from extralegal inheritance
settlements or are given smaller shares than male claimants.
In a widely publicized trial that focused national attention on
female inheritance rights, the mother of a recently deceased
Olympic boxing hero lost her bid to inherit her son's
professional earnings.
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 boys and girls in school are roughly equal at the
primary and secondary levels, but men outnumber women almost
two to one in higher education, and literate men significantly
outnumber literate women.
Violence against women is a serious and widespread problem.
Police statistics released in 1994 showed that in 1992 there
were 454 cases of rape, 136 cases of attempted rape, 343 cases
of indecent assault, 407 cases of defilement (e.g., child
molestation), and 14 cases of incest. These statistics are
probably underreported, however, since social mores deter women
from going outside their clan or ethnic groups to report sexual
abuse. The Government has condemned violence against women,
and the law carries penalties up to life imprisonment for
rape. Still, the rate of prosecution remains low because of
cultural inhibitions against discussing sex, the fear of
retribution, the disinclination of police to intervene in
domestic disputes, and the unavailability of doctors who might
otherwise provide the necessary evidence for conviction.
Furthermore, traditional culture permits a man to discipline
his wife by physical means and is ambivalent about the
seriousness of rape. Organizations concerned with women's
rights charge that the Government is often apathetic and
flippant about women's issues. The Attorney General remarked
in April that a woman could not claim rape against her husband
under current laws.
Children
Economic displacement, a high population growth rate, and the
ethnic clashes have resulted in a large number of homeless
street children. Media reports place the number of such
children nationwide in the tens of thousands, and the
Government estimates that their number is growing at an annual
rate of 10 percent. According to the Attorney General's Task
Force, these children are typically involved in theft, drug
running, assault, trespassing, defilement, and property damage,
and there have been credible reports that the police have
treated these children inhumanely (see Section 1.a.).
The May report of the Task Force on Children recommended both
programmatic and legal measures to safeguard the rights of
children. A variety of proposed legal remedies are
incorporated in a new law prospectively called the Children's
Act. However, the Attorney General had not presented the draft
bill in Parliament by year's end.
Despite the Government's stated opposition, female genital
mutilation (FGM) remains widespread, particularly among Kenya's
nomadic peoples. 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 practice, but according to rough estimates the percentage
of females who have undergone this procedure may be as high as
50 percent. The Task Force on Children has recommended
outlawing this practice, as it endangers the "the survival,
safety, and development" of the child.
National/Racial/Ethnic Minorities
According to the 1989 government census, whose figures were
released in May, the Kikuyu are the largest ethnic community,
comprising 20.8 percent of the population. The Luhya, Luo,
Kamba, and Kalenjin (an amalgamation of 9 small tribes) are the
next largest, each making up over 11 percent of the population.
The Government continued to discriminate against Rift Valley
Kikuyus. According to the Kenya Human Rights Commission,
provincial authorities have denied national identification
cards to a substantial number of Kikuyu youths, even though
they and most of their parents have been born and raised in the
Rift Valley. Without identification cards these youths cannot
marry, attend universities, obtain employment, or register to
vote. In addition, the Minister for Local Government, William
Ole Ntimama, reiterated this year that Kikuyus displaced from
Enosupukia by the ethnic clashes would not be allowed to
return. In various newspaper interviews, Ntimama characterized
the land titles held by displaced Kikuyus as illegally acquired
documents.
Asians, or Kenyans of sub-continent descent, have also been
targets of official and societal prejudice. The secretary
general of the FORD-A opposition party, Martin Shikuku,
announced at a public rally in August that he would kick Asians
out of the country if he were chosen president. Anti-Asian
leaflets, supposedly authored by a group called the Mau Mau
Posterity (see Section 2.b.), also circulated in Kenya's urban
centers. The leaflets reflect a general sense of resentment
among Kenyan Africans toward the Asian community, which is more
affluent and reluctant to assimilate African culture. An
Indian police reservist's alleged involvement in the shooting
death of an African street child in August inflamed these
preexisting racial tensions.
The Government singled out ethnic Somalis as the only ethnic
group in Kenya required to carry an additional form of
identification proving that they are Kenyan citizens. Ethnic
Somalis, who are overwhelmingly Muslim, 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. In August the
police made sweeps through two known Somali communities in
Nairobi, ostensibly in search of illegal aliens. They arrested
many Somali Kenyans during these sweeps. The presence of large
numbers of Somali refugees in Kenya has exacerbated the
problems faced by Kenyan Somalis.
People with Disabilities
Government policies do not discriminate against people with
disabilities in employment, education, or other state
services. There is no mandated provision of accessibility for
the disabled to public buildings or transportation.
Section 6 Worker Rights
a. The Right of Association
Save for central government civil servants, including medical
personnel, and university academic staff, all workers are free
to join unions of their own choosing. The law provides that as
few as seven workers may establish a union, provided that
objectives of the union do not contravene Kenyan law and that
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.
President Moi deregistered the Kenya Civil Servants Union in
1980; since 1989 the Central Organization of Trade Unions
(COTU) has sought to reverse this decision. In September 1993,
16 officials announced formation of their union and demanded
registration by the Government. In April the head of the Civil
Service Commission announced with great fanfare the recognition
of the Civil Servants Union, but President Moi subsequently
rescinded the approval (see below).
There are at least 33 unions in Kenya representing
approximately 350,000 workers, less than 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), 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.
The 1965 decree establishing COTU gives the President power to
remove from office the central body's three senior leaders and
grants nonvoting membership on the Executive Board to a
representative of the Ministry of Labor as well as of KANU.
Most secretaries general within COTU, including those who
staged an abortive "coup" on July 2, 1993, putting into power
leaders more acceptable to the Government, agreed that any
COTU-KANU connection was obsolete in the multiparty era.
A High Court decision November 10, 1993, nullified the July 2
"election," but the coup plotters refused to vacate COTU
headquarters. On January 31, however, a three-member panel of
the Appellate Court confirmed the November 10 decision and
threatened to jail the Registrar of Trade Unions on contempt of
court charges should he maintain his refusal to recognize the
old COTU leadership. He complied with the order. Two further
government-sponsored but unsuccessful attempts to unseat the
COTU leadership took place in March, and the elected leadership
remained in office throughout 1994.
The Trade Disputes Act permits workers to strike provided that
21 days have elapsed following the submission of a written
report to the Minister of Labor. 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). During this 21-day
period, the Minister may either mediate the dispute, nominate
an arbitrator, or refer the matter to the Industrial Court, a
body of five judges appointed by the President, for binding
arbitration. Once a dispute is referred to either mediation,
fact finding, or arbitration, any subsequent strike is
illegal. However, Section 28 of the Act gives the Minister of
Labor broad discretionary power, based on the Minister's
opinion, to determine the legality of any strike. The Minister
in 1994 used this power to declare several strikes illegal,
although the required notice had been given. If workers
attribute dismissals to strike or union activities, they have
recourse to the Industrial Court.
There were several strikes in 1994, including one by the
Universities Academic Staff Union (UASU) and one by the Kenya
Union of Medical Practitioners and Dentists (KUMPD). The UASU
strike was the longest in Kenyan history. Both groups,
representing government university and hospital staff, struck
after the Government had refused to register their unions. The
Government arrested and dismissed the UASU leadership, and the
authorities did not reinstate over 20 professors after
suspending their strike September 28. KUMPO leaders were
expelled from their government-provided housing. After
suspending their strike September 27, fully qualified doctors--
but not necessarily interns--went back to work and received new
housing. Although the UASU lost another court case in October,
both unions continued to press for recognition.
Internationally, COTU is affiliated with both the Organization
of African Trade Union Unity and the International
Confederation of Free Trade Unions. Many of its affiliates are
linked to international trade secretariats of their choice.
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. In 1994 the
Government relaxed wage policy guidelines to permit wage
increases of up to 100 percent and renegotiation of collective
agreements. Collective bargaining agreements must be
registered with the Industrial Court in order to guarantee
adherence to these guidelines. In 1994 about 250 agreements
were newly signed and registered with the Court. 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. More often, aggrieved workers have found alternative
employment in the lengthy period prior to the hearing of their
cases.
Legislation authorizing the creation of export processing zones
(EPZ's) was passed in November, 1990. The EPZ Authority
decided that local labor laws, including the right to organize
and bargain collectively, would apply in the EPZ's. However,
in practice, it grants many exemptions. For example, the
Government waived aspects of the law that prevent women from
working at night because women prevail in a number of
industries in the zones (see Section 6.e.). Workers and some
government officials criticized working conditions in the EPZ's
in 1994.
c. Prohibition of Forced or Compulsory Labor
The Constitution proscribes slavery, servitude, and forced
labor. However, under the Chiefs' Authority Act, local
officials may require people to perform community services in
an emergency. This practice did not occur in 1994. The
International Labor Organization (ILO) Committee of Experts has
found these and other provisions of Kenyan law to contravene
ILO Conventions 29 and 105 concerning forced labor but noted
the Government's efforts to review the Chiefs' Authority Act.
d. Minimum Age for Employment of Children
The Employment Act of 1976 makes the employment in industry of
children under the age of 16 illegal. This Act applies neither
to the 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 (including those of
relatives), in the informal sector, and in family businesses
and farms (see Section 5). Given the high levels of adult
unemployment and underemployment, the employment of children in
the formal industrial wage sector in violation of the
Employment Act is not a significant problem.
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 modest May wage increase and considerable
appreciation of the Kenya shilling (ksh) against the dollar,
the lowest minimum wages were $37.80 (ksh 1,700) in urban areas
and $21.22 (ksh 955) in rural areas. Workers in some
enterprises claimed that employers force them to work extra
hours with no overtime pay. Prices for some basic commodities
declined in mid-1994, but because of rampant inflation the
minimum wage was still insufficient to support a family. Most
workers relied on second jobs, subsistence farming, or the
extended family for additional support.
The Regulation of Wages and Conditions of Employment Act limits
the normal workweek to 52 hours, although some categories of
workers have a shorter workweek. Nighttime employees, however,
may be employed for up to 60 hours a week. As is the case with
respect to minimum age limitations, the Act specifically
excludes agricultural workers from its purview. An employee in
the nonagricultural sector is entitled to 1 rest day 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 Minister of
Labor is responsible for enforcement of health and safety
provisions of the Factories Act. 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 work sites. As a result of the 1990
amendments, the Directorate's inspectors may now issue notices
enjoining employers from practices or activities which involve
a risk of serious personal injuries. Previously, only
magistrates were vested with this authority. Such notices may
be appealed to the Factories Appeals Court, a body of four
members, one of whom must be a High Court judge. In 1994 the
Directorate's factory inspections maintained their level, which
had increased dramatically in 1993. Work-related accidents and
illnesses declined slightly.
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