Section 4: Governmental Attitude
Regarding International and Nongovernmental Investigation of Alleged Violations
of Human Rights
The number of human rights organizations is growing. These include the KHRC, the Kenya Antirape Organization, the Legal Advice Center, the Catholic Justice and Peace Commission, the Protestant National Council of Churches of Kenya, the Center for Governance and Development, and the Release Political Prisoners pressure group. An array of legal organizations, including the International Commission of Jurists-Kenya, the International Federation of Women Lawyers (FIDA)-Kenya, the Law Society of Kenya, and the Public Law Institute, also are concerned with human rights.
NGO's and some opposition parties maintain comprehensive files on human rights abuses. A number of attorneys represent the poor and human rights defendants without compensation, although they can meet only a small percentage of the need, and are concentrated largely in urban areas.
The KHRC produces a "Quarterly Repression Report" that catalogs the human rights situation in the country, as well as a number of special reports on pressing human rights issues. During the year, it published reports on police brutality, prison conditions, and security force behavior in the remote Garissa area. The Institute for Education in Democracy (IED) and other NGO's monitor elections in cooperation with the Electoral Commission. The IED, along with the Catholic Church and other organizations, closely monitored every step in the 1997 electoral process, a task they are continuing in subsequent by-elections.
Prior to the late 1997 reforms, government relations with human rights groups, domestic and international, were poor. The Government regularly criticized human rights organizations and other NGO's and occasionally disrupted their meetings and workshops. During the year, government disruptions of human rights organizations were rare, reflecting the improved security force behavior following the reforms. Nevertheless, the Government deregistered five Muslim NGO's in September for alleged terrorist connections (see Section 2.b.).
While the Government often has criticized domestic and international human rights NGO's in the past, it also has made some effort to reach out and engage them. It allowed human rights organizations to witness some autopsies of persons who died in police custody. In 1997 it issued a formal response to Amnesty International's May Memorandum of Concern over the human rights situation. During the year, the Attorney General's Office responded in detail to foreign embassies' human rights inquiries.
The 10-member Government Standing Committee on Human Rights established in 1996 is empowered to "investigate alleged violations of constitutional freedoms," including abuse of power by public officials. It is tasked with drafting recommendations on human rights problems and providing these to the government agencies under whose purview the problems fall. Since its establishment, the Committee has maintained a low profile and kept its distance from most contentious human rights problems. It issued its first public report in December. This was a general overview of human rights laws and definitions that made only a cursory reference to torture and other forms of official human rights abuses, and provided only very general recommendations. The Committee's investigation into the August 1997 violence along the coast, which was published in the same report, was more comprehensive.
In October the Parliament passed a resolution to create an Ombudsman's office that would be charged with addressing complaints about inefficiency, corruption, nepotism, and abuse of power by public servants.
Section 5: Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits discrimination on the basis of a person's "race, tribe, place of origin or residence or other local connection, political opinions, color, or creed." However, the authorities did not effectively enforce all these provisions.
Violence against women is a serious and widespread problem. According to the Government, 903 cases of rape were reported to the police during the year. However, the available statistics probably underreport the number of incidents since social mores deter women from going outside their families or ethnic groups to report sexual abuse.
The law carries penalties of up to life imprisonment for rape. However, the rate of prosecution remains low because of cultural inhibitions against publicly discussing sex, the fear of retribution, the disinclination of police to intervene in domestic disputes, and the unavailability of doctors who might otherwise provide the necessary evidence for conviction. Furthermore, wife beating is prevalent and largely condoned by much of Kenyan society. Traditional culture permits a man to discipline his wife by physical means and is ambivalent about the seriousness of spousal rape. There is no law specifically prohibiting spousal rape. Throughout the year, the media reported a steady stream of cases of violence against women, including widespread spousal abuse. The resulting publicity and public criticism often forced the police to take punitive action against the perpetrators of violence. There were continued incidents of rape of refugee Somali women at the Dadaab camps, where women were assaulted outside camp perimeters in the course of gathering firewood (see Section 2.d.).
Women experience a wide range of discriminatory practices, limiting their political and economic rights and relegating them to second class citizenship. The Constitution extends equal protection of rights and freedoms to men and women, but long lacked a specific prohibition of discrimination on grounds of gender. This was corrected by the late 1997 reforms, which amended the Constitution to include discrimination on the grounds of gender as one of the constitutionally prohibited forms of discrimination. However, constitutional provisions on citizenship, continue to discriminate against women by allowing men, but not women, to bequeath citizenship to their children automatically. While the Government has ratified international conventions on women's rights, it has not passed domestic enabling legislation. The Task Force on Laws Relating to Women, established by the Attorney General in 1993, has yet to make its report.
Levels of education and literacy are widely different for men and women. The number of boys and girls in school is roughly equal at the primary level, and then becomes increasingly disproportionate until men outnumber women almost 2 to 1 in higher education. Literate men significantly outnumber literate women. Seventy percent of illiterate persons in the country are female.
Women continue to face both legal and actual discrimination in other areas. For example, a woman legally is required to obtain the consent of her husband or father before obtaining a national identity card or a passport. In practice, a woman also must have her husband's or father's approval to secure a bank loan. Women legally can work in industrial activities at night only in the export processing zones (EPZ's), although this restriction generally is not enforced. According to pension law, a widow loses her work pension upon remarriage, whereas a man does not.
The Law of Succession, which governs inheritance rights, provides for equal consideration of male and female children. In practice, most inheritance problems do not come before the courts. Women often are excluded from inheritance settlements, particularly if married, or given smaller shares than male claimants. Moreover, a widow cannot be the sole administrator of her husband's estate unless she has her children's consent.
Women have long dominated agricultural work in terms of numbers of laborers, and they have become more active in urban small businesses. Nonetheless, the average monthly income of women is about 37 percent lower than that of men, and women hold only about 5 percent of land titles. Not only do women have difficulty moving into nontraditional fields, they also are promoted more slowly than men and bear the brunt of layoffs. 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 nation's best known women's rights and welfare organization, Maendeleo Ya Wanawake ("Development of Women" in Kiswahili) was established as a nonpolitical NGO during the colonial era, but now operates under the close supervision of the Government. A growing number of women's organizations are active in the field of women's rights, including the FIDA, the National Council of Women of Kenya, the National Commission on the Status of Women, the Education Center for Women in Democracy, and the League of Kenyan Women Voters.
The system of free education in the early years of Kenya's independence has given way to a "cost-sharing" education system in which students pay both tuition and other costs. These are a heavy burden on most families. While there is schooling for all up to grade 12, there is a very high dropout rate in part because of the heavy educational expenses. There are an estimated 4 million children between 6 and 14 years of age who are out of school. Moreover, legally mandated universal schooling does not occur in practice because of a shortage of schools. The health care system for school children, which once provided periodic medical checkups and free milk, is now defunct.
Female genital mutilation (FGM), which is widely condemned by international health experts as damaging to both physical and psychological health, is practiced by certain ethnic groups and remains widespread, particularly in rural areas. The press reported the deaths of several girls from the practice of FGM. Health officials estimate that as many as 50 percent of females nationwide have suffered FGM. According to Maendeleo Ya Wanawake, the percentage is as high as 80 to 90 percent in some districts of Eastern, Nyanza, and Rift Valley provinces. FGM usually is performed at an early age. President Moi has issued two presidential decrees banning FGM, and the Government prohibits government-controlled hospitals and clinics from practicing it; however, no law bans FGM.
Economic displacement and population growth continued to fuel the problem of homeless street children. The Child Welfare Society of Kenya estimated that the number of Nairobi's street children has increased from 33,000 in 1990 to 50,000 during the year, while the Government estimates that their numbers grow at 10 percent per year. These children often are involved in theft, drug trafficking, assault, trespass, and property damage. According to a 1997 Human Rights Watch report, these street children face harassment as well as physical and sexual abuse from the police and within the juvenile justice system simply because they are poor and homeless. They are held in extremely harsh conditions in crowded police station cells, often without toilets or bedding, with little food, and inadequate supplies. They often are incarcerated with adults and frequently beaten by police.
The problem of child rape and molestation is growing rapidly. There are frequent press reports of rape of young girls, with rapists often middle-aged or older. Legally, a man does not "rape" a girl under age 14 if he has sexual intercourse with her against her will; he commits the lesser offense of "defilement." The penalty for the felony of rape can be life imprisonment, while the penalty for defilement is up to 5 years' imprisonment. Men convicted of rape normally receive prison sentences of between 5 and 20 years, plus several strokes of the cane.
The press reported the deaths of two boys from circumcision rites. Traditional circumcision rites are performed on boys in many tribes throughout the country.
Child prostitution is a major problem in Nairobi and Mombasa, often connected with the tourist trade. There have been numerous press reports regarding the rapid increase in child prostitution.
People With Disabilities
Government policies do not discriminate against the disabled with regard to employment, education, or state services. However, disabled persons frequently are denied licenses to drive. There are no mandated provisions of accessibility for the disabled to public buildings or transportation.
According to the 1989 government census, the Kikuyu are the largest ethnic community, constituting 21 percent of the almost 29 million population. Luhya, Luo, Kamba, and Kalenjin (an amalgamation of 9 small tribes) follow, each with more than 11 percent of the population.
There was a major outbreak of ethnic violence in the Rift Valley province in January, which resulted in more than 100 deaths and displaced thousands of persons (see Section 1.a.).
In past years, opposition politicians and local human rights groups reported that the Government discriminated against Rift Valley Kikuyus; however, there were no such reports during the year.
In the summer, political leaders, including some accused of instigating or perpetuating ethnic violence in their areas, took the initiative to launch peace and reconciliation talks between many of these warring communities. Initiatives in Isiolo,
Kisii-Trans Mara, and Njoro-Laikipia appear to have reduced ethnic tensions and helped prevent recurrence of violence in those areas. However, similar efforts to deal with long-running ethnic violence in the Pokot-Marakwet areas were not successful.
There is widespread resentment by African Kenyans toward Asians living in the country. The Asian community comprises between 0.5 and 1 percent of the total population and consists of second and third generation Asians with full citizenship and a smaller body of recent immigrants. Many African Kenyans resent persons of Asian descent for their affluence, and for their reluctance to assimilate African culture and to employ blacks in management positions. They also see Asians as taking jobs and commercial opportunities away. The involvement of some Asians in corrupt activities with government officials further fuels popular resentment. Politicians, both opposition and ruling party, from time to time appeal to majority prejudices by attacking Asian Kenyans, accusing them of exploiting and usurping the natural inheritance of African Kenyans. In September opposition leader Kenneth Matiba accused Asians of stealing the nation's wealth and promised to expel some Asians if he came to power. President Moi has led the response in rejecting racist diatribes; however, at times even he has resorted to racial attacks and slurs.
The Government has singled out the overwhelmingly-Muslim ethnic Somalis as the only group whose members are required to carry an additional form of identification to prove that they are citizens. They must produce upon demand their Kenyan identification card and a second identification card verifying screening. Both cards also are required in order to apply for a passport. The continued presence of Somali refugees has exacerbated the problems faced by Kenyan Somalis.
Section 6: Worker Rights
a. The Right of Association
Except for central government civil servants, including medical personnel and university academic staff, all workers are in theory free to join unions of their choice. In practice, workers employed in export processing zone firms, and those working in many restaurants and small firms face dismissal if they join unions. Since 1982 when the Kenya Civil Servants Union was deregistered for political reasons, civil servants also have been denied union membership. The law provides that as few as seven workers may establish a union, so long as the objectives of the union do not contravene the law, and that another union is not representing the employees in question already.
Unions must apply to and be granted registration by the Government. The Government also 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.
There are at least 33 unions representing approximately 350,000 workers, less than 20 percent of the country's industrial work force. Except for the 260,000-member Kenya National Union of Teachers, all unions are affiliated with the one approved central organ--the Central Organization of Trade Unions (COTU). The COTU leadership generally does not pursue worker's rights vigorously. As a result, most union activity takes place at the shop steward level and not at the industrial level where most labor-related decisions are made, thereby placing the average worker at a disadvantage in disputes with management.
The Government created COTU in 1965 as the successor to the Kenya Federation of Labor and the Kenya African Workers' Congress. The 1965 decree establishing COTU gives the President the power to remove COTU'S three senior leaders from office and grants nonvoting membership on the executive board to representatives of the Ministry of Labor and of KANU. A 1993 High Court decision nullified an attempt to install leaders more acceptable to the Government, but the plotters refused to vacate COTU headquarters. However, following a 1994 appellate court order the Registrar of Trade Unions agreed to recognize the old COTU leadership. Although the board is composed of the leadership of affiliated unions, it is common for political parties, especially KANU, to provide funding and other support for the election of senior union officials. For the past few years, trade union leaders from affiliated unions have sought to bring about democratic reforms in the election of union leaders, independence from the Government, and establishment of links with any political party that supports worker rights. The reelection of COTU leadership in 1996 indicated that there would be no major changes in the near future. During the period prior to the 1997 national elections, some trade union leaders began pushing THE COTU to take part in the election reform dialogue. The COTU leadership took a progovernment position.
The Trade Disputes Act permits workers to strike, provided that 21 days have elapsed following the submission of a written letter to the Minister of Labor. Members of the military services, police, prison guards, and members of the National Youth Service are precluded by law from striking. Other civil servants, like their private sector counterparts, can strike following the 21-day notice period (28 days if it is an essential service, such as water, health, education, or air traffic control). During this 21-day period, the Minister may either mediate the dispute, nominate an arbitrator, or refer the matter to the Industrial Court, a body of five judges appointed by the President, for binding arbitration. Once a dispute is referred to either mediation, fact-finding, or arbitration, any subsequent strike is illegal. Moreover, the act gives the Minister of Labor broad discretionary power to determine the legality of any strike.
The Minister used this power to declare strikes by bank workers and teachers illegal, although the required notice had been given. Nurses across the country went on strike in November 1997 and continued their action until early in the year. The strike ended after the Government dismissed all the striking nurses and required them to reapply for their jobs. Most did, and the bulk of those who reapplied eventually regained their jobs. In late 1997, the Kenya National Union of Teachers (KNUT) had called a nationwide strike, which the Government quickly settled with pay increases of over 200 percent spread over 5 years, rather than risk antagonizing the well-organized and influential teachers before the election. However, early in the year, with the country facing mounting economic crisis, the Government called for renegotiation of the agreement. When the Government failed to implement the second phase of the promised pay hikes in July, the KNUT launched a national strike on October 5, which the Government declared illegal. Security forces dispersed meetings of striking teachers, arrested many teachers and KNUT officials, and closed KNUT offices. The strike ended after 15 days when the Government refused to renegotiate. In another major strike action in early August, the 12,000-member Kenya Bank Workers Union struck over new taxes imposed on low-interest employee loans. The banks dismissed striking workers and gave them an ultimatum to reapply for their positions. Most did reapply, but the banks used this as an opportunity to downsize; approximately 800 workers were not rehired after the failed strike.
The Government's response to wildcat strikes is usually severe. On occasion, the Government has sent in police to forcibly break up wildcat strikes and arrest participants. Several unions, including municipal workers, held brief strikes for back or increased wages. Workers' rights groups continue to raise the general problem of the Government's harshness towards labor with the International Labor Organization's (ILO) Committee on Freedom of Association.
Internationally, COTU is affiliated with both the Organization of African Trade Union Unity and the International Confederation of Free Trade Unions. Many of its affiliates are linked to international trade secretariats.
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 negotiations between unions and management. In 1994 the Government relaxed wage policy guidelines to permit wage increases of up to 100 percent and renegotiation of collective agreements. Collective bargaining agreements must be registered with the Industrial Court in order to ensure adherence to these guidelines.
The Trade Disputes Act makes it illegal for employers to intimidate workers. Employees wrongfully dismissed for union activities generally are awarded damages in the form of lost wages by the Industrial Court; reinstatement is not a common remedy. More often, aggrieved workers have found alternative employment in the lengthy period prior to the hearing of their cases.
Legislation authorizing the creation of export processing zones (EPZ's) was passed in 1990. The EPZ authority decided that local labor laws, including the right to organize and bargain collectively would apply in the EPZ's, although it grants many exemptions in practice. For example, the Government waived aspects of the law that prevent women from working in industrial activities at night. Labor and some government officials continued to criticize health and safety conditions in the EPZ's.
c. Prohibition of Forced or Compulsory Labor
The Constitution proscribes slavery, servitude, and forced labor, including forced and bonded labor by children. However, under the Chiefs' Authority Act, a local authority can require persons to perform community services in an emergency, although this did not occur during the year. The ILO Committee of Experts has found that these and other provisions of the law contravene ILO Conventions 29 and 105 concerning forced labor. There are some cases, mostly in rural areas, of children being loaned as workers to pay off debts.
d. Status of Child Labor Practices and Minimum Age for Employment
The Employment Act of 1976 makes the employment in industry of children under the age of 16 illegal. The act applies neither to the agricultural sector, where about 70 percent of the labor force is employed, nor to children serving as apprentices under the terms of the Industrial Training Act. Ministry of Labor officers nominally enforce the minimum age statute, and the Government is making efforts to eliminate child labor, working closely with COTU and the ILO's International Program for the Elimination of Child Labor. The problem has received considerable media attention during the year.
Children often work as domestic servants in private homes. Although forced or bonded labor is prohibited by law there were some instances in which it occurred (see Section 6.c.). There are many instances of children working in the informal sector, mostly in family businesses. In commercial agriculture, children usually assist parents, who are small shareholders, rather than work as employees in their own right. However, deteriorating economic conditions have given rise to more child labor in the informal sector, which is difficult to monitor and control, and is a significant problem. Significant percentages of workers on coffee, sugar, and rice plantations are children. In addition, there has been an increasing number of underage girls employed in the sex industry. In view of the high levels of adult unemployment and underemployment, the employment of children in the formal industrial wage sector in violation of the Employment Act is less common but not unknown.
e. Acceptable Conditions of Work
The legal minimum wage for blue-collar workers in the wage sector has 12 separate scales, varying by location, age, and skill level. The lowest minimum wages were $47 (2,697 shillings) per month in urban areas and $25 (1,439 shillings) in rural areas. These rates are exclusive of a 15 percent housing allowance. The minimum wage is insufficient to provide a decent standard of living for a worker and family. The annual 2 percent wage increase had a limited impact on worker income. Most workers relied on second jobs, subsistence farming, informal sector opportunities, or the extended family for additional support.
The Regulation of Wages and Conditions of Employment Act limits the normal workweek to 52 hours, although nighttime employees may be employed for up to 60 hours per week. Some categories of workers have a shorter workweek. As is the case with respect to minimum wage limitations, the act specifically excludes agricultural workers from its purview. An employee in the nonagricultural sector is entitled to 1 rest day per week. There are also provisions for 21 days of annual leave and sick leave. The law also 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. Workers in some enterprises claimed that employers forced them to work extra hours without overtime pay. The Ministry of Labor is tasked with enforcing these regulations, and there are few reports of violations.
The Factories Act of 1951 sets forth detailed health and safety standards; it was amended in 1990 to include agricultural and other workers. The 65 health and safety inspectors attached to the Ministry of Labor's Directorate of Occupational Health and Safety Services have the authority to inspect factories and work sites. As a result of the 1990 amendments, the Directorate's inspectors may now issue notices enjoining employers from practices or activities 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. The number of factory inspections increased significantly in 1993 and subsequently has continued at a high level. A new section stipulates that factories that employ at least 20 persons have a health and safety committee with representation from workers. However, according to the Government, at year's end only one-quarter of the very largest factories had instituted health and safety committees. The vast majority of factories have yet to comply with the new provision. Workers are not forced by law to remain in hazardous conditions; however, many would be reluctant to remove themselves because of the high unemployment problem.
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