Politics of Kenya
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Template:Politics of Kenya The unicameral National Assembly consists of 210 members elected to a term of up to five years from single-member constituencies, plus 12 members nominated by political parties on a proportional representation basis. The president appoints the vice president and cabinet members from among those elected to the National Assembly. The attorney general and the speaker are exofficio members of the Assembly.
The judiciary is headed by a High Court, consisting of a chief justice and High Court judges and judges of Kenya's Court of Appeal (no associate judges), all appointed by the president.
Local administration is divided among 69 rural districts, each headed by a presidentially appointed commissioner. The districts are joined to form seven rural provines. The Nairobi area has special status and is not included in any district or province. The government supervises administration of districts and provinces.
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Summary Political conditions
Since independence, Kenya has maintained remarkable stability despite changes in its political system and crises in neighboring countries. Particularly since the re-emergence of multiparty democracy, Kenyans have enjoyed an increased degree of freedom.
A parliamentary reform initiative in 1997 revised some oppressive laws that had been used to limit freedom of speech and assembly. This improved public freedoms and contributed to generally multiparty national elections in December 1997 which was marred by violence and saw the incumbent President Daniel arap Moi win by 30% of the votes.
In December 2002, Kenya held democratic and open elections and elected Mwai Kibaki as their new president under the NARC coalition. The elections, which were judged free and fair by local and international observers, marked an important turning point in Kenya's democratic evolution. President Kibaki has focused his efforts on generating economic growth, combating corruption, and improving education. Kenya is also in the process of rewriting its constitution.
Following disagreements between the partners in the current government coalition, constitutional reform has proceeded slower than anticipated. The right leaning NAK faction (allied to president Kibaki) favours a centralized Presidential system, while the left leaning LDP faction - led by Raila Odinga - a parliamentary system with Prime Minister.
Internal wrangling within the governing coalition has also negatively affected other crucial areas of governance, such as the fight against corruption and a planned large-scale privatization of government-owned enterprises.
Political facts
Country name:
conventional long form: Republic of Kenya
conventional short form: Kenya
former: British East Africa
Data code: KE
Government type: republic
Capital: Nairobi
Administrative divisions: 7 provinces and 1 area*: Central, Coast, Eastern, Nairobi Area*, North Eastern, Nyanza, Rift Valley, Western
Independence: December 12, 1963 (from UK)
National holiday: Independence Day, 12 December (1963)
Constitution: 12 December 1963, amended as a republic 1964; reissued with amendments 1979, 1983, 1986, 1988, 1991, 1992, 1997 and 2001
Legal system: based on English common law, tribal law, and Islamic law; judicial review in High Court; accepts compulsory ICJ jurisdiction, with reservations; constitutional amendment of 1982 making Kenya a de jure one-party state repealed in 1991
Suffrage: 18 years of age; universal
Executive branch:
chief of state: President Mwai Kibaki (since 30 December 2002) and Vice President Moody Awori (since 25 September 2003); note - the president is both the chief of state and head of government
head of government: President Mwai Kibaki (since 30 December 2002) and Vice President Moody Awori (since 25 September 2003); note - the president is both the chief of state and head of government
cabinet: Cabinet appointed by the president
elections: president elected by popular vote for a five-year term; in addition to receiving the largest number of votes in absolute terms, the presidential candidate must also win 25% or more of the vote in at least five of Kenya's seven provinces and one area to avoid a runoff; election last held 27 December 2002 (next to be held NA December 2007); vice president appointed by the president
election results: President Mwai Kibaki elected; percent of vote - Mwai Kibaki 63%, Uhuru Kenyatta 30%
Judicial branch:
Court of Appeal, chief justice is appointed by the president; High Court
Political parties and leaders:
Forum for the Restoration of Democracy-People or FORD-People (Kimaniwa Nyoike, chairman); Kenya African National Union or KANU (Uhuru Kenyatta); National Rainbow Coalition or NARC (Mwai Kibaki) - the governing party
Political pressure groups and leaders:
human rights groups; labor unions; Muslim organizations; National Convention Executive Council or NCEC, a proreform coalition of political parties and nongovernment organizations (Kivutha Kibwana); Protestant National Council of Churches of Kenya or NCCK (Mutava Musyimi); Roman Catholic and other Christian churches; Supreme Council of Kenyan Muslims or SUPKEM (Shaykh Abdul Gafur al-Busaidy, chairman)
International organization participation:
ACP, AfDB, C, EADB, ECA, FAO, G-15, G-77, IAEA, IBRD, ICAO, ICCt (signatory), ICFTU, ICRM, IDA, IFAD, IFC, IFRCS, IGAD, ILO, IMF, IMO, Interpol, IOC, IOM, ISO, ITU, MINURSO, MONUC, NAM, OAU, OPCW, UN, UNAMSIL, UNCTAD, UNESCO, UNIDO, UNIKOM, UNMEE, UNMIBH, UNMIK, UNMISET, UNMOP, UNU, UPU, WCO, WHO, WIPO, WMO, WToO, WTrO
Flag description:
three equal horizontal bands of black (top), red, and green; the red band is edged in white; a large warrior's shield covering crossed spears is superimposed at the center. Colour significance - Black->Our colour, Red->The Blood Shed to gain independence, Green->The richness of our soil, plant life, White-> purity
Constitution
Kenya was a one-party state from independence in 1969 to December 1991, when the Constitution was amended to legalise a multi-party political system. Political parties, organisations and associations are required to register under the Societies Act or be exempted from registering by the Registrar of Societies.
The central legislative authority is the unicameral National Assembly in which there are 210 directly elected Representatives, 12 members appointed by the President, from nominees of political parties in proportion to party strength, and two ex-officio members, the Attorney General and the Speaker. The maximum term of the National Assembly is five years from its first meeting (except in wartime). Executive power is vested in the President, the Vice-President and the Cabinet. The President appoints both the Vice-President and the Cabinet. Election of the President for a five-year term is by direct popular vote. Rules for nominated MPs was an important Inter-Party Parliamentary Group (IPPG) reform.
Constitutional Review
Provision was made for Constitutional Review Commission, National and District Fora for consultation. The Constitution of Kenya Review Commission Act 1998 was enacted in December 1998. This provided for the establishment of a 25-member Commission within 30 days. Under the terms of the act the Commission was to derive its members from political parties, 13 members, religious organisations, 3, the Women's Political Caucus, 5, and the civil society, 4.
The Constitution of Kenya Review Commission (KCRC), made up of Government appointees and civil society representatives, originally planned to produce a draft constitution in September 2002. The Commission requested and won an extension until January 2003 to complete its work despite internal bickering and attempts by the government to delay and disband it. The Commission had conducted civic research countrywide to gather views on a new constitution. KANU attempted to link the Commission's extension with an extension of the life of Parliament but after a public outcry, President Moi asked Parliament to end its term in February 2003, as required by law.
The Commission issued its draft constitution in September 2002. It outlined radical recommendations to reduce the power of the executive by creating the posts of prime minister and two deputy prime ministers, adding a second parliamentary chamber, and providing for presidential impeachment. It also recommended a complete judicial overhaul and replacing appointed local authorities with locally elected officials. However, in October 2002, just as the delegates to a national constitutional conference were preparing to debate the draft, President Moi dissolved Parliament and so effectively halting the constitutional review because the conference, by law, had to include members of Parliament.
President Moi then moved to disband the constitutional review team and had the conference venue sealed off by armed police. Bolstered by a mounting campaign by lawyers and civil society representatives against President Moi's heavy-handed tactics, the review Commission refused to disband, although it was forced to adjourn the national constitutional conference until a new Parliament was in place.
In January 2003, at a press conference to discuss the Commission's status, Justice and Constitutional Affairs minister Kiraitu Murungi announced that the KCRC would not be disbanded. He said that the Commission was set up as an Act and there was no provision to disband it and Section 33 of the Review Act allows the Commission to disband only after a new constitution is published and enacted.
In February 2003, the KCRC ordered all its 72 district co-ordinators to close their offices by the end of the month. The Commission's secretary, Mr Patrick Lumumba ordered officials to lay off staff and wind up operations, including documentation centres. [32g] However, on 19 March 2003 Parliament moved to restart the constitutional review process with the announcement of a new timetable on 25 March 2003 when the Parliamentary Select Committee will meet with the entire Commission.
Citizenship and Nationality
- The Constitution of Kenya states that every person born in Kenya after 11 December 1963 shall become a citizen of Kenya if at the date of his birth one of his parents is a citizen of Kenya. A person born outside Kenya after 11 December 1963 shall become a citizen of Kenya at the date of his birth if at that date his father is a citizen of Kenya. A woman married to a citizen of Kenya shall be entitled, upon application be registered as a citizen of Kenya.
- A person can be eligible for naturalisation as Kenyan citizen if that person is twenty-one years old or has been resident in Kenya for the period of twelve months immediately preceding his application.
- A citizen can be deprived of his citizenship if he has shown himself by act or speech to be disloyal or disaffected towards Kenya. Someone can also be deprived of citizenship if, during any war in which Kenya is involved, he trades or communicates with an enemy or been engaged in or associated with any business that was to his knowledge done in such a way as to assist the enemy. [19]
- A person shall also be deprived of his citizenship if within 5 years, beginning with the date of registration or naturalisation, a sentence of imprisonment of or exceeding 12 months has been imposed on that citizen. [19]
Political System
The Republic of Kenya is dominated by strong presidency. The country is divided into seven provinces run by provincial commissioners appointed by the President. Executive power in Kenya is in the hands of the President, assisted by a President-nominated vice President and cabinet. In theory, the President is elected for a 5-year term by direct popular vote. In 1979, 1983 and 1988, only one candidate stood, Daniel arap Moi, and there was no vote. However, multiparty elections took place in 1992 and 1997. The office of the president is responsible for defence, the police, immigration and the provincial administration.
Political Organisations
Democratic Party (DP) - Formed 1991. Predominantly Kikuyu. President was Mwai Kibaki until they formed a new alliance (NARC) with other parties to fight the December 2002 general elections.
Forum for the Restoration of Democracy - Asili (FORD-Asili) - Formed 1992. Predominantly Kikuyu - Chairman - Kenneth Matiba, Sec-General - Martin J. Shikoku. Prior to the elections in 1997, FORD-Asili split further into two parties, FORD-Asili led by Matiba was renamed Saba-Saba Asili, but Matiba was unable to register the party under this name. A second faction FORD-People was led by Kimani Wa Nyoike
FORD-People - Joined forces with the National Labour Party and became known as Kenya People's Coalition.
Forum for the Restoration of Democracy-Kenya (FORD-Kenya) - Formed 1992 - Predominantly Luo support. FORD-Kenya joined forces with other opposition parties in 2002 and the resulting coalition became known as National Rainbow Alliance.
GEMA (Gikuyu [Kikuyu], Embu, Meru Association) - a tribal organisation dedicated to keeping political power in Kikuyu hands.
Islamic Party of Kenya (IPK) - Formed 1992. Islamic Fundamentalists Spiritual leader - Sheikh Khalid Balala. Chairman - Omar Mwinyi; Sec-Gen. Abdulrahman Wandati. The previously exiled Sheikh Balala was allowed to return home to Kenya in July 1997. IPK is still a banned organisation.
Kenya African National Union (KANU) - Formed 1960. President was Daniel Arap Moi but now is Uhuru Kenyatta.
Kenya National Congress (KNC) - Formed 1992
Kenya National Democratic Alliance Party (KENDA) - Formed 1991. Chairman - Mukaru Ng'ang'a.
Kenya Social Congress (KSC) - Formed 1992 Chairman - George Moseti Anyona; Sec-Gen. Onesmus Mbali
Labour Party Democracy - Chairman - Mohammed Ibrahim Noor.
Liberal Party: Chair: Wangari Maathi
National Convention Executive Council (NCEC) - Group of NGOs, church leaders and politicians, campaigning for constitutional reform. Co-Convenor - Prof. Kivutha Kibwana
National Development Party (NDP) - Formed 1994. Former Leader - Raila Odinga , Chairman - Stephen Omondi Oludhe. NDP is now defunct.
National Party of Kenya: Formed 2001; chair, Charity Kaluki Ngilu. Secretary General Fidelis Mweke
Party for Independent Candidates of Kenya (PICK) - Leader Harun Mwau
Patriotic Pastoralist Alliance of Kenya: Formed 1997; represents the interests of northern Kenya pastoralist communities; Leaders Khalif Abdullah, Ibrahim Woche, Jackson Laisagor
People's Alliance for Change in Kenya (PACK) - Launched on 19 November 1999 with the aim of writing diverse ethnic groups. Secretary General: - Olang Sana.
People's Power Movement - Launched 9 June 1999. Interim Chairman Audi Ogada. Interim Organising Secretary: - Daniel Cheruiyot.
People's Union of Justice and New Order - Kisumu; Islamic support. Leader - Wilson Owili
Rural National Democratic Party - Formed 1992; supports farmers interests. Chairman - Sebastian Munene
Saba Saba Asili - Split from Ford-Asili just prior to the 1997 elections - Led by Kenneth Matiba. Still not officially registered.
Safina Party (`Noah's Ark') - Formed Nairobi 1995; aims to combat corruption and human rights abuses and to introduce proportional representation. Chairman - Mutari Kigano. Formally registered by the authorities 26 November 1997. Safina announced its support for NARC in the December 2002 elections.
Social Democratic Party (SCP) - Formed 1992. Leader - Charity Ngilu
United Democratic Movement (UDM) - Fronted by two KANU MP's, Cyrus Jirongo and Kipruto Arap Kirwa. UDM have launched a court case against the registrar's decision not to register the party in July 1999. President Moi had ordered the registrar to register the party earlier in 1999.
United Agri Party of Kenya: Formed 2001; chair, George Kinyua; Secretary General, Simon Mitobio
United Muslims of Africa (UMA) - Formed 1993. Leader - Emmanuel Maitha.
United National Democratic Alliance (UNDA) - Formed 1994; an informal coalition of main opposition parties (excl. FORD-Asili) formed to present an agreed list of candidates at elections.
United Party (UP) - registered January 1999
United Patriotic Party (UPP) - Formed 1995.
Youth Associated with the Restoration of Democracy (YARD) - Chairman - Eliud Ambani Mulama.
February Eighteen Resistance Army: believed to operate from Uganda; Leader Brig. John Odongo (also known as Stephen Amoke)
Other Organisations
Green Belt Movement - An environmental pressure group formed by Wangari Maathai which has had clashes with politicians grabing land.
Release Political Prisoners (RPP) - Pressure group campaigning for the release of political detainees.
Kenya Human Rights Commission - Independent human rights organisation. KHRC produces a quarterly Repression Report cataloguing the human rights situation as well as a steady stream of special reports. It also organises activities to publicise special causes. Muungano wa Mageuzi (Movement for Change) - Led by Ugenya MP, James Orengo. The leaders of this organisation are not only made up of various political parties, but, they are also from various ethnic groups. Kenya Movement for Democracy and Justice (KMDJ) - A London-based pressure group which has links with leading opposition figures.
Presidential and Parliamentary elections: December 2002
The last election in Kenya was on 29 and 30 December 1997, when Kenya African National Union (KANU) was re-elected. KANU led a coalition Government, which included two ministers from the second largest opposition party, the National Development Party (NDP). [2b] The election held on 27 December 2002, was crucial because it marked the transition of power from President Moi and he was also constitutionally barred from standing. [55d]
Under the current Constitution President Moi, who is one of Africa's longest serving presidents, was constitutionally barred from standing and the poll marked the end of his 24-year rule as leader. [57i] The Kenyan Government was required by law to hold the election by the end of 2002. In June 2002, the United States and Britain said they had urged Kenya to shelve plans by KANU to delay the election until December 2003. This came in the wake of sharp criticism by Kenya's opposition parties who saw the proposed delay as a ploy to prolong President Moi's rule. The Kenyan Government said that it wanted to give the Commission more time to finish its work so that the election would be conducted under the new Constitution.
In June 2002, President Moi announced that he would retire after the election and would soon name his successor. A rift emerged following the announcement by President Moi, at a KANU meeting in July, that Uhuru Kenyatta, Minister for Local Government would be the party's presidential candidate. The candidacy was supported by a number of MPs from the President's Rift Valley province, but 32 members opposed it. Uhuru Kenyatta is the son of Jomo Kenyatta who was the founding President of Kenya. However, Raila Odinga, Katana Ngala and Musalia Mudavadi said that they would fight Uhuru Kenyatta for the KANU nomination ahead of the polls.
The percentage of minority ethnic groups who made up President Moi's Government did not correspond to their percentage of the population. Although the President's Cabinet included persons from many ethnic groups, approximately one-third of ministers were Kalenjin or Luhya. President Moi is Kalenjin, Uhuru Kenyatta is Kikuyu, Mr Odinga is Luo, Mr Mudavadi is Luhya and Mr Ngala is Giriama. President Moi had relied on an inner circle of advisors, who were drawn largely from his Kalenjin ethnic group.
The decision about who was to replace President Moi as head of KANU took a turn when a new alliance within KANU pushed for a democratic vote to choose the party's next presidential candidate. The new alliance was launched by KANU's vice-president George Saitoti, secretary general Raila Odinga and former party boss Joseph Kamotho. The new alliance was called the KANU Rainbow Alliance. George Saitoti and Joseph Kamotho were demoted from their powerful party posts when KANU and Mr Odinga's NDP merged in March 2002.
In September 2002, Musalia Mudavadi withdrew from the succession race having decided to support Mr Moi's choice of Uhuru Kenyatta. He called on the other members of the Rainbow Alliance to follow President Moi's advice and support Mr Kenyatta's bid for the presidential nomination. His decision was immediately denounced by his Cabinet colleague Raila Odinga as "a vile act of betrayal". According to the Daily Nation newspaper dated 5 September 2002 a series of secret meetings preceded Mr Mudavadi's decision to withdraw from the Rainbow Alliance.
In October 2002, Raila Odinga resigned, saying that he had lost confidence in President Moi, because of a dispute over the ruling party's nominee for the presidential election. Odinga was one of four ministers to resign. The other ministers who resigned were the Education Minister Moody Awork, the Planning Minister Adhu Awiti and Minister of State in the Office of the President William Ole Ntimama.
Also in October 2002, several senior officials from KANU defected to the opposition to set up the Liberal Democratic Party. On 22 October they joined with the mainstream opposition to form the National Rainbow Coalition (NARC). The political battle began on 22 October 2002 when the opposition (NARC) fielded Mwai Kibaki to challenge Uhuru Kenyatta in the presidential election. President Moi dissolved Parliament on 25 October 2002 in preparation for the elections. The Electoral Commission announced that the elections would be held on 27 December 2002.
On 12 November 2002, Joseph Nyagah resigned both from the Kenyan Cabinet and KANU. Nyagah cast aspersions on Uhuru Kenyatta's candidacy saying that the Local Government Minister was unpopular. Earlier, in March 2002, Nyagah had declared his interest in the post of one of the four vice-chairmen, but the party delegates chose Kalonzo instead. When Saitoti was sacked Nyagah's name was floated as a possible candidate for the second post but it went to Mudavadi.
Campaigning began on 18 November 2002 with the two main presidential candidates, Uhuru Kenyatta and Mwai Kibaki, holding separate public rallies at different locations in Nairobi. On 19 November 2002, three more candidates, Simeon Nyachae (Ford-People Coalition), James Orengo (Social Democratic Party) and Waweru Ng'ethe (Chama Cha Umma), were cleared to stand in the presidential election - bringing the final number of candidates to five.
The process of political parties in Kenya to nominate parliamentary candidates for the 27 December 2002 elections had a troubled start. On 20 November 2002, isolated incidents of violence and logistical problems forced the nominees to extend their deadline but by 22 November 2002 the violence got out of hand. Clashes occurred in Mombasa and Nairobi among other areas.
On 21 November 2002, nine people were seriously injured following the violence, which marred the nominations for the Rainbow alliance in Malava constituency in Kakamega District. One of the injured was attacked - by supporters of Dr Philip Kutima of the Liberal Democratic Party - when he was campaigning for the outgoing Ford Kenya MP, Mr Soita Shitanda. Other incidents occurred during the nomination.
Political violence continued in many parts of the country ahead of the December 2002 presidential election. On 28 November 2002, the Kenyan Authorities said that they were preparing to deal firmly with the upsurge of political violence. Several people, reportedly had already been killed and scores more injured. Much of the violence was reported in western Kenya, Rift Valley province and parts of Nairobi. A number of people were charged in law courts with committing the acts of violence.
In December 2002, members of the diplomatic corps fielded over 330 people to act as election observers. The British Embassy promised to field 22 teams of election observers during the elections. The United States of America promised to part field 75 mission volunteer officers from both Kenya and America. The United Nations deployed some 177 locals from all over Kenya to monitor the elections, under the aegis of the United Nations Development Programme (UNDP).
A week before the election NARC Summit leader, Mr Raila Odinga, claimed that KANU was planning to use the army to rig the General Election. He warned KANU against attempts to rig the elections and reiterated a previous threat to mobilise Kenyans to storm State House and swear in NARC's Mwai Kibaki as the country's president.
A press release published on 23 December 2002, by Amnesty International reported widespread tension and intimidation as well as violent incidents involving supporters of all the main parties. The report went on to say "violence is not concentrated on any one party, with attacks being suffered by candidates and supporters on all sides. An assortment of weapons had been used in the attacks, including sticks, stones, a sword and in an instance in Mount Elgon, a pistol and two automatic assault rifles. Arson attacks resulted in the loss of life and property."
27 December 2002 and results
On 27 December 2002, Kenyans went to the polls to elect a new President. They also voted in 210 new members of Parliament. The world's attention was firmly fixed on Kenya to see how the ballot would be handled and how the transfer of power would be effected.
Commonwealth election observers declared that the poll was "free, fair, peaceful and transparent" and the conduct of election received praise from the international community. According to the US-based Carter Centre, one of the election observation missions to Kenya, election violence on voting day was minimal, and the process of counting ballots and tabulating results was transparent.
The election handed a landslide victory for Mwai Kibaki's NARC in both the presidential and parliamentary elections. NARC won 123 of the 210 seats in Parliament, while KANU took 56, and FORD-P took 13 seats. The results of the presidential election are as follows:
| Candidate | Party | Votes | % of vote |
| Mwai Kibaki | National Rainbow Coalition (NARC) | 3,403,972 | 62.59% |
| Uhuru Kenyatta | Kenya African National Union (KANU) | 1,629,828 | 29.97% |
| Simeon Nyachae | Forum for the Restoration of Democracy - People (FORD-P) | 372,071 | 6.84% |
| James Orengo | Social Democratic Party (SDP) | 23,022 | 0.43% |
| David Ng'ethe | Chama cha Umma | 9,409 | 0.17% |
| Total | 5,438,302 | 100% |
Mwai Kibaki was sworn in as President on 30 December 2002 in front of Chief Justice Bernard Chunga at a ceremony attended by thousands of people in a park in Nairobi. In his inaugural speech he promised sweeping reforms, free primary education, better healthcare, a stronger economy as well as ending corruption. He said that there were enormous challenges ahead and he called on all Kenyans to help rebuild their nation.
The Kibaki Government
After holding talks with the IMF Director for Africa, in January 2003, President Kibaki said that the frosty relations between the country and the Fund were history since the focus had changed to engagement. The IMF first withheld funding to Kenya in the early 1990s citing lack of transparency and accountability in the running of the government. The Current Government was asked to ensure the passing of the Economic Crimes Bill, the Code of Ethics for civil servants, Anti-Corruption Bill and the Central Bank of Kenya Amendment Bill.
In January 2003 there were renewed attempts to crack down on corruption with publication of three Bills to set up an anti-graft commission. The new commission will investigate and prosecute cases of corruption in both the public and the private sectors. It will take over from the defunct Kenya Anti-Corruption Authority (KACA) which was declared illegal when challenged in the High Court in 2001. The Constitution of Kenya (Amendment) Bill will pave the way for setting up the new authority.
In March 2003, Members of Parliament approved plans to pay themselves large salary increases. There was widespread disapproval, with an opinion poll suggesting 85% of the public thought the pay awards were unjustified at this time. However the MPs defended their action insisting that the rise would strengthen the house and make members more effective in the performance of their tasks. The pay rise is due to come into effect when the National Assembly Remuneration Act is amended.
Judiciary
The Constitution provided for an independent judiciary; however, in practice the judiciary is often corrupt and subject to strong executive branch influence. The President has extensive powers over appointments, including those of the Attorney General, the Chief Justice and Appeal and High Court Judges. The President can also dismiss judges and the Attorney General upon the recommendation of a special tribunal appointed by the president. Although judges have life tenure (except for the very few foreign judges who are hired by contract) the President has extensive authority over transfers.
In previous years, judges who ruled against the Government were sometimes punished with transfer or non-renewal of their contracts. However, during 2002 there was no retaliatory action against judges. Judges occasionally demonstrated independence. The Kenya Court system consists of a Court of Appeal, a High Court, and two levels of Magistrates' Courts, where most criminal and civil cases originate. The Chief Justice is a member of both the High Court and the Court of Appeals; this undercuts the principle of judicial review.
In 2002 the judiciary faced many accusations of corruption. In 1998 the Chief Justice appointed a special judiciary commission chaired by Justice Richard Kwach to report on the problems of the judiciary. The Kwach Commission cited ?corruption, incompetence, neglect of duty, theft, drunkenness, lateness, sexual harassment and racketeering? as common problems of the judiciary. The Commission recommended that the Constitution be amended to allow for the removal of incompetent judges, introducing a code of ethics, improving the independence of the judiciary, overhauling the Judicial Services Commission (the administration branch of the judiciary) and shifting pro-secutorial responsibilities from the police to the judiciary. However, no changes had been implemented under the previous Government.
In February 2003, President Kibaki promised that the Judiciary will be fundamentally reformed to ensure the integrity and independence is once again guaranteed.
The country has Islamic courts that resolve disputes, adjudicate inheritance questions and marital issues, and handle other civil matters where all parties are Muslim and accept the court's jurisdiction. The Constitution provides for these courts. These courts have functioned in Kenya for numerous years. There are no customary or traditional courts in the country. However, the national courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law. This is done most often in cases that involve marriage, death and inheritance issues and in which there is an original contract founded in customary law. Citizens may choose between national and customary law when they enter into marriage or other contracts; however, thereafter the courts determine which kind of law governs the enforcement of the contract.
Military personnel are tried by military court-martial and verdicts may be appealed through military court channels. The Chief Justice appoints attorneys for military personnel on a case-by-case basis.
In December 2000, Kenya launched a family Court specifically to deal with among other issues, wills, adoption and custody for children, divorce and burial disputes. The launch of the family Court Division of the nation's High Court was performed by the then Chief Justice, Bernard Chunga. This brings to three the number of judicial Divisions under the Government's ongoing reform programme. The other Divisions deal with commercial and criminal law. Lawyer Gibson Kamau Kuria said the launch was evidence of the judiciary's commitment to reforms. The Chief Justice explained that the section would not deal with aspects of juvenile law, which he said are purely criminal.
In January 2003, pressure was mounted on Mr Bernard Chunga to resign by The Civil Society Forum (a body consisting of 17 NGOs). He was asked to resign in the public interest because he has "limited academic qualifications and questionable commitment to human rights". The Forum concluded that Chunga was the wrong person for the Chief Justice's job. Later in February 2003, Chunga resigned.
In January 2003 Judge Samuel Oguk became the first judge to be tried in a court of law over allegations of his involvement in the Goldenberg scandal. He pleaded not guilty to fraud charges and was released on bail pending the hearing of the case. He resigned from his post in March 2003.
Treason
The previous Government arrested people on treason charges. In one such case, following an opposition rally in April 2001 which police had attempted to cancel for "security concerns," police arrested two DP MPs, Maina Kamanda and David Manyara. Kamanda was charged with treason for allegedly threatening the life of President Moi during a speech at the meeting. The Government-controlled Kenya Broadcasting Corporation (KBC) broadcast a video that showed Kamanda saying that President Moi should be shot if he did not leave office after his term ended. However, a Kenya Television Network (KTN) news video of the same event indicated that the tape shown on KBC had excluded three words. Kamanda actually had said that Kamanda himself should be shot if he (Kamanda) were to agree to another term for Moi. Kamanda later was released and the treason charge dropped. He was, nevertheless, charged with the lesser offence of "incitement".
In treason and murder cases, the deputy registrar of the High Court can appoint three assessors to sit with the High Court judge. The assessors are taken from all walks of life and receive a sitting allowance for the case. Although the assessors render a verdict, their judgement is not binding. Lawyers can object to the appointments of specific assessors.
Legal Rights and Detention
Defendants do not have the right to government-provided legal counsel, except in capital cases. For lesser charges, free legal aid is not usually available outside of Nairobi or other major cities. As a result, poor persons may be convicted for a lack of an articulate defence. Although defendants have access to an attorney in advance of trial, defence lawyers do not always have access to government-held evidence, as the Government can plead the State Security Secrets Clause as a basis for withholding evidence. Court fees for filing and hearing cases are high for ordinary citizens; the daily rate of at least 2,000 Shillings (about US$25) is beyond the reach of most Kenyans. Lengthy pre-trial detention is a problem.
The death penalty
Kenya still retains the death penalty. During 2001, death sentences continued to be imposed. [m] The death penalty is mandatory for murder, treason, violent robbery/attempted, and for administration of an unlawful oath to commit a capital offence. According to the law, the death penalty may not be imposed on anyone under 18 at the time of the offence, a pregnant woman or an insane person. Under section 27 of the Constitution, which provides for the Prerogative of Mercy, the President has the right to pardon or commute the sentence of any person convicted of any offence.
In 2001, at least 26 people were sentenced to death. However, no one was executed. In June 2001, President Moi called for the death penalty to be introduced for those who knowingly and deliberately infected others with HIV/AIDS.
In February 2003, the new Kenyan Government released 28 prisoners on death row and commuted the death sentence to 195 others to life in prison. Minister for Home Affairs and National heritage, Moody Awori said that most of those released had been on death row for a very long time and some for more than 20 years. The current Minister for Justice, Kiraitu Murungi, who had previously been the shadow Attorney General, often spoke very strongly against the death penalty, describing it as barbaric.
Internal Security
The Kenyan security forces comprises of the armed forces, a large internal security apparatus that includes the police Criminal Investigation Department (CID), the National Security Intelligence Service (NSIS) Service, the National Police, and the Administration Police. In addition, the paramilitary General Services Unit (GSU) details members on a rotating basis to staff the 700-person Presidential Escort. The CID investigates criminal activity and the NSIS collects intelligence and monitors persons whom the state considers subversive. In 1999, parliament passed and implemented laws that removed arrest authority from the NSIS and separated the organisation from the CID.
The Special Branch, formed in the colonial era, deals with matters of intelligence and state security, but has since had its role enhanced to deal with presidential security. The CID primarily investigates non-political crimes but have a mandate to investigate political crimes as well, which are monopolised by the Special Branch. The Police Reserve assists regular police officers in their duties. They are not required to be full time, and most are recruited from the civil service. They are only employed during emergency periods such as riots, demonstrations and national events. Special Police Officers are similar to the Police Reserve and are appointed to deal with specific missions.
The Administrative Police are supposed to be distinguishable from the regular police and are involved in land and housing evictions, demonstrations, riot control and border patrols. Some officers serve in government institutions as gate keepers or reception watchers and at district level they guard administration figures. The General Service Unit is the paramilitary wing of the police force. They are mobilised whenever the Government feels a situation is volatile.
There are several other units and branches within the police force such as the Stock Theft Unit and the Anti-Poaching Unit as well as the Prosecutions Branch, the Traffic branch, the Dog Section and the Mounted Branch. The Home Guards are a colonial legacy and are used only in areas that have a nomadic community. City Commission 'Askaris' are employed in Nairobi as council security guards and they enforce the city commission's by-laws.
In 2000 94 MPs released a report entitled "The Politicisation and Misuse of the Kenya Police and the Administration Police Force," which criticised the police for misuse of force and human rights abuses. The Standing Committee for Human Rights (SCHR) wrote in its 2000 report that the "majority of (human rights) cases have involved torture and brutality meted out to individuals mainly by law enforcement agencies and others whose primary duty would be to protect and defend those very rights." In June 2000, President Moi ordered police to stop using live ammunition when quelling riots; however, the pronouncement had little effect on police behaviour.
January 1999 saw the creation of the National Security Intelligence Service under the stewardship of retired Brigadier Wilson Boinett. The new service replaced the Directorate of Security Intelligence which was associated with brutality, torture and outright abuse of human rights. Its remit is confined to gathering intelligence and informing the government of any threats to security. Torture would not be condoned in the service and any officer accused of malpractice would be punished. In 1999 in an effort to improve the accountability of investigative services, Parliament passes and implemented laws that removed arrest authority from the NSIS and separated the organisation from the CID.
The Kenyan authorities made it clear that mechanisms exist, under the present law, to lodge complaints against members of the police. It is also possible to bring a private civil case against the police, but it is too costly for ordinary citizens. Cases against individual members of the police have succeeded. [2a] There are various human rights bodies and lawyers active in Kenya who are willing to support an individual complaint against the police, but Amnesty International report that the current complaints procedure is fraught with difficulties and fails to protect the victims of violations.
In a report in January 2003, by the NGO Transparency International the Kenyan Police retained their position in 2002, for the second year running as the most corrupt officials in the country. Research carried out by the NGO showed that on average each ordinary Kenyan had been forced to bribe the police 4.5 times per month, paying them an average of 1,270 Kenyan shillings (over US$16) over the month.
In February 2003, Kenyan women's rights groups expressed outrage at recent incidents in which policemen have been accused of rape, and urged the authorities to take appropriate action to instil discipline within the force in order to stamp out such crimes. Cases involved the rape of a 14 year-old girl, a 4 year-old child and a 22 year-old woman. The policeman accused of raping the 14 year-old girl was arrested but the other two are yet to be. The rapes have brought the already damaged image of the police force into sharp focus, especially in the context of the new Government, which immediately pledged to uphold human rights.
The Criminal Law Amendment Bill 2003, published by the Government on 25 February 2003, is meant to speed up the hearing of cases and will also prevent the police from forcing confessions out of criminal suspects. In addition the police will be allowed to prosecute cases on corruption and incest among others. The Bill also recommends the abolition of corporal punishment - caning - as a court sentence. It also says that anyone found guilty of sexual offences against children could be sentenced to life imprisonment.
The Constitution states that ?no one shall be subjected to torture or degrading punishment or other treatment?; however, human rights organisations and the press highlighted scores of cases of indiscriminate beating of groups of persons by the police, during 2002. There were numerous allegations of police use of excessive force and torture. The KHRC believe police brutality is widespread and estimated that there were hundreds of cases during 2002.
Prisons and Prison conditions
Officially, men, women and children are kept in separate cells and there were no reports of men and women being placed in the same cells. Young teenagers are frequently kept in cells with adults in overcrowded prisons and detention centres. Youth detention centres are understaffed and inmates have minimal social or exercise time. Some young inmates remain for years in the centres, as their cases await resolution. On most accounts prisoners receive three meals per day. On 4 July 2001, The Nation newspaper reported on its investigation of prison conditions nationwide. The article highlighted the difficulties family members have when visiting prisoners, including numerous bureaucratic and physical obstacles, each requiring a bribe.
Prison conditions are extremely harsh and often life threatening, with severe overcrowding, inadequate water, poor diet, substandard bedding and deficiencies in health care. Police and prison guards subject prisoners to torture and inhuman treatment. Rape of both male and female inmates, primarily by fellow inmates is a serious problem, as is the increasing incidence of HIV/AIDS. Prisons do not have resident doctors, only one prison has a doctor permanently assigned. There is little access to health and medical care.
Despite pledges by senior prison officials to make prisons more accessible, local and international organisations continued to be refused access to prisoners. The majority of deaths in custody were caused by infectious diseases, resulting from severe overcrowding, unsanitary conditions and inadequate medical care, compounded by shortages of food, clean water, clothing and blankets.
Kenya's much awaited prison reforms began in January 2003 with the release of 29 death row inmates. The move was part of the promise made by the NARC Government to carry out penal reforms aimed at turning prisons into rehabilitation centres, rather than places of punishment. Human rights organisations have welcomed the Government's move to reform the prisons where conditions are described as inhuman.
According to a report dated 4 February 2003, Kenya's prisons are still congested despite the implementation of a new policy aimed at reducing the number of prisoners serving jail terms throughout the country. The new policy known as the Community Service Orders Programme, was launched in December 1999, and up to 120,000 offenders had served their sentences under the programme, which allowed for them to carry out community service while living within their own communities.
Military Service
Kenya has no conscription and has never had since achieving independence in 1963. Recruitment into the armed forces is on a voluntary basis. The minimum recruitment age is not known. Under the Moi administration, the armed forces and the security forces were totally dominated by the then ruling KANU Party. There is no legal provision for conscientious objection.
Medical Services
Medical treatment in Kenya is generally very good with many countries having their African Embassies there as well as various United Nations agencies and International companies. The KANU Government had promised to establish 250 voluntary testing and counselling centres in both urban and rural areas for HIV/AIDS. At the end of 2001, Kenyatta National Hospital started manufacturing its own drugs and other medical equipment at the Sterile Preparation Unit. The Director of the hospital said the facility would enable the hospital to save more than Ksh 1.2 million every month, which will eventually mean a reduction of treatment cost at the institution.
In his speech formally opening the Ninth Parliament, President Kibaki promised that his Government was committed to setting up a National Insurance scheme all Kenyans could afford.
People with Disabilities
Government policies do not discriminate against persons with disabilities in employment, education, or in the provision of other state services; however, persons with disabilities frequently are denied drivers' licenses. There are no mandated provisions of accessibility for persons with disabilities to public buildings or transportation. KTN broadcasts some news programs in sign language. A bill to address problems faced by persons with disabilities was pending before Parliament at the end of 2001. The bill aims to outlaw discrimination against persons with disabilities and to assist them through provisions such as mandatory education for children with disabilities.
Educational System
The system of free education, in place during the early years of Kenya's independence, has given way to a "cost-sharing" system in which students pay both tuition fees and other costs. These are a heavy burden to most families. Although the law mandates that schooling is available for all up to grade 12 and that it be compulsory, there is a very high drop out rate due to the high cost of educational expenses. However, in September 2001 the Moi Government announced that it was designing a programme to make primary education free.
In January 2003, newly appointed Education Minister Professor George Saitoti disbursed Sh519 million for the implementation of free primary education among 18,000 primary schools throughout the country. Professor Saitoti said that each public primary school will receive Ksh28,871 as an initial emergency grant. Free and compulsory primary education for Kenyan children was one of Kibaki's key election promises.
On 15 January 2003, the free primary education programme received a Sh193 million boost from a UNICEF. UNICEF is to give $2.5 million for learning and teaching material for the lower classes in eight districts and Nairobi. Some 450,000 pupils in Standards One to Three are expected to benefit from the grant.
In February 2002, a school in Kibera (one of Africa's largest slums) was hailed as a shining example of how children from poor communities can successfully access free primary school education. Ayany primary school is considered a model school in Kenya, where learning has been made affordable with the help of the UN Children's Fund (UNICEF). This new learning approach was adopted to cope with the challenge of implementing the free primary education policy, which the Kenyan Government put in place in January 2003.
See also
External Links
- Photojournalist's Account (http://www.ryanspencerreed.com/) - Images of Kenya's last presidential election