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