Kenya

Freedom of Association

On 26 May 2017, the African Court of Human and Peoples’ Rights in Arusha ruled in favour of the Ogiek community of Kenya following an eight-year legal battle. The Court found that the Kenyan government violated seven separate articles of the African Charter in a land rights case that dates back to colonial times. The Ogiek, 35,000 of whom are the victims in the landmark case, live in the Mau Forest Complex in the Rift Valley of Kenya and have been routinely subjected to arbitrary forced evictions from their ancestral land without consultation or compensation for decades. This is the first time the African Court, in operation since 2006, has ruled on an indigenous peoples’ rights case.^[3]

A rise in threats and acts of intimidation against opposition and ruling party supporters in Navaisha, Nakuru county, was reported ahead of the elections, with authorities accused of being unwilling to investigate the threats.^[4]

On 14 August 2017, the NGO Coordination Board within the Kenyan government revoked the Kenya Human Rights Commission’s (KHRC) official registration on the grounds of alleged tax evasion, the operation of four illegal bank accounts, and the employment of foreigners without valid work visas. KHRC has refuted the allegations stating that the organisation was allegedly deregistered to prevent it from issuing a legal petition challenging the 8 August election results. Similar allegations were previously levelled against the KHRC, and these issues were adjudicated before the high Court of Kenya in 2015 (KHRC vs. NGO Coordination Board 495 of 2015[5]), which ruled that deregistration of the organisation and the freezing of their accounts was unconstitutional, null, and void.^[6]

In addition to KHCR, on 15 August 2017 the NGO Coordination Board ordered the Directorate of Criminal Investigations to immediately shut down the African Centre for Open Governance (AfriCOG) and arrest its directors. The NGO Coordination Board claimed that AfriCOG was operating without proper registration under the 1990 NGO Coordination Act, which could carry a prison sentence of 18 months. The NGO Coordination Board also advised the Bank of Kenya to freeze all bank accounts and funds of AfriCOG. Executive Director of AfriCOG, Gladwell Otieno, had asked the courts to compel the Independent Election and Boundaries Commission to open the electoral roll for public scrutiny prior to the August election. The NGO Coordination Board has no mandate over AfriCOG’s operations as it is registered under the Companies Act. Civil society organisations in Kenya can be registered under several laws. The Kenya Revenue Authority, together with Kenya Police officers, attempted to gain entry into the AfriCOG offices on 16 August 2017 without prior notice and with defective supporting documentation.^[7]

Freedom of Expression

A joint report issued on 30 May 2017 by Human Rights Watch and Article 19 outlined how journalists and bloggers reporting on corruption, disputed land acquisition, counterterrorism operations, and the 2007-2008 post-electoral violence, among other sensitive issues, faced intimidation, beatings, and job loss. Ahead of the August 2017 elections, the government of Kenya routinely attempted to obstruct critical media with legal, administrative, and informal measures, including threats, intimidation, harassment, online and phone surveillance, and in some cases, physical assaults.^[8]

Emmanuel Namisi, a broadcast journalist for the Royal Media group, was assaulted at a Bungoma club on the night of 5 June 2017. Namisi said that men he identified as bodyguards of Kenneth Lusaka, governor of the western Kenyan county of Bungoma, threatened and assaulted him. He said the men were angry at a story he had written alleging they played a role in the death of a woman at a political rally three nights prior.^[9]

Walter Menya, a journalist for the Sunday Nation newspaper, was arrested on 18 June 2017 on charges of “soliciting a bribe to write a damaging story” in relation to an article he wrote on the involvement of three senior public officials in providing illegal funding for President Kenyatta’s campaign. He was later released on bail on 20 June 2017.^[10]

In early June 2017, the Communications Authority of Kenya released guidelines against the dissemination of “undesirable bulk political SMS and social media content” ahead of the August polls. The 12-page document gave authorities guidance for regulating speech over a number of channels, including text messaging, voice calls, blogs, document sharing sites, online discussion forums, and social networking sites. Authorities were concerned with the possibility that inflammatory claims could spread in ethnic languages, thus, the guidelines bared sending bulk content on telecommunications networks in any languages other than English or Swahili.^[11] The guidelines were criticised for being unnecessarily restrictive, as broadcasters could be held accountable for all content aired on their platforms and social media users were required to be “polite, truthful and respectful” and to adopt a “civilised” tone when posting political content.^[12] Moreover, on 17 July 2017, Communications Authority of Kenya Director-General Francis Wangusi warned that local administrators of WhatsApp groups could be held responsible for the spread of falsehood and hate speech on their networks.^[13]

At least 10 journalists were assaulted and harassed while covering the post-election violence that broke out after the disputed results were announced on the evening of 11 August 2017. On 12 August, Kenya Television Network journalist Duncan Khaemba was reporting live from Nairobi’s Kibera slum when he was arrested with his colleague Otieno Willis for allegedly possessing a helmet and body armour without a proper license – Kenya’s Firearms Act (1954) classifies bulletproof vests as firearms and stipulates a license for their possession. Matina Stevis, a correspondent with the Wall Street Journal, alleged she was hit over the head by security forces with a wooden stick on 12 August. Neil Shea, a freelance journalist shooting a documentary in Kibera, said he was attacked by four or five security officers who beat him and destroyed his camera. Similarly, Simon Achola, a reporter with the Kenya Broadcasting Corporation said that security personnel took his phone and deleted his photographs of the protests. Several other journalists such as freelance reporter Caleb Kingwara and Nation Media group Evans Habil, said they were attacked by civilians while covering the events after the election. ^[14] In the western city of Kisumu, an opposition stronghold, police officers blocked journalists from approaching demonstrators altogether.^[15]

Kenyan MP Paul Ongili, better known as Babu Owino, was arrested and charged with two counts of subversion and uttering abusive words against President Kenyatta after comments he made during an opposition rally on 25 September 2017.^[16]

Freedom of Peaceful Assembly

The Standard newspaper reported on 17 July 2017 that national security units had shipped crowd-control equipment, such as vehicles, guns and tear gas, into Kenya in anticipation of potential violent demonstrations following the August elections.^[17]

Police used batons and lobbed tear gas canisters to disperse two rival groups as protests erupted in opposition strongholds on 26 September 2017. The demonstrations were meant to force out electoral commission officials accused of mismanaging the 2017 presidential election.^[18]

On 28 September 2017, hundreds of University of Nairobi students protesting against the detention of opposition member Paul Ongili Owino clashed with police around their campus. Videos later emerged showing students being dragged from their dormitories and beaten by security forces.^[19] Administrators closed the university on 3 October citing fears for students’ safety in a planned protest over the beatings.^[20]

At least one person died on 2 October 2017 during protests in Siaya town, west of Nairobi, against the national electoral commission. That same day, police fired tear gas at demonstrators who lit fires and blocked roads in Nairobi, and opposition stronghold Kisumu in western Kenya.^[21]

^[1] Amnesty International, “Kill Those Criminals: Security Forces Violations in Kenya’s August 2017 Elections,,” 16 October 2017, http://www.amnestykenya.org/wp-content/uploads/2017/10/AFR3272492017ENGLISH.pdf, Accessed 17 October 2017.

^[2] Kenya National Commission on Human Rights, “Mirage at Dusk: A Human Rights Account of the 2017 General Elections,” 9 October 2017, https://www.knchr.org/Articles/ArtMID/2432/ArticleID/17/Mirage-at-Dusk-A-Human-Rights-Account-of-The-2017-General-Election, Accessed 17 October 2017.

^[3]     Minority Rights, “Huge victory for Kenya’s Ogiek as African Court sets major precedent for indigenous peoples’ land rights,” 26 May 2017, http://minorityrights.org/2017/05/26/huge-victory-kenyas-ogiek-african-court-sets-major-precedent-indigenous-peoples-land-rights/, Accessed 27 September 2017.

^[4]     Human Rights Watch, “Kenya: Intimidation Reports as Voting Nears,” 3 July 2017, https://www.hrw.org/news/2017/07/03/kenya-intimidation-reports-voting-nears, Accessed 27 September 2017.

[5] KHRC vs. NGO Coordination Board, Petition 495 of 2015, http://kenyalaw.org/caselaw/cases/view/121717/, Accessed 20 October 2017.

^[6]     CIVICUS Monitor, “Human Rights NGOs Face Closure and Possible Arrest of Their Leadership,” 16 August 2017, https://monitor.civicus.org/newsfeed/2017/08/16/kenya-deregistration-human-rights-CSOs/, Accessed 4 October 2017.

^[7]     CIVICUS Monitor, “Human Rights NGOs Face Closure and Possible Arrest of Their Leadership,” 16 August 2017, https://monitor.civicus.org/newsfeed/2017/08/16/kenya-deregistration-human-rights-CSOs/, Accessed 4 October 2017.

^[8]     Article 19, “Not Worth the Risk: Threats to Free Expression Ahead of Kenya’s 2017 Elections,” 30 May 2017, https://www.article19.org/resources.php/resource/38766/en/%E2%80%9Cnot-worth-the-risk%E2%80%9D:-threats-to-free-expression-ahead-of-kenya%E2%80%99s-2017-elections?utm_source=ARTICLE+19+Mailing+List&utm_campaign=dfea5d30c9-EMAIL_CAMPAIGN_2017_05_30&utm_medium=email&utm_term=0_c3bf82663f-dfea5d30c9-291287697, Accessed 27 September 2017.

^[9]     Committee to Protect Journalists, “Kenyan journalist threatened and assaulted,” 8 June 2017, https://cpj.org/2017/06/kenyan-journalist-threatened-and-assaulted.php, Accessed 27 September 2017.

^[10]    Reporters Without Borders, “Kenyan election campaign hits journalists and media freedom,” 8 July 2017, https://rsf.org/en/news/kenyan-election-campaign-hits-journalists-and-media-freedom, Accessed 27 September 2017.

^[11]    The Messenger, “New guidelines in Kenya against ‘undesirable’ political speech on social media,” 12 July 2017, https://messengerafrica.wordpress.com/2017/07/12/new-guidelines-in-kenya-against-undesirable-political-speech-on-social-media/, Accessed 27 September 2017.

^[12]    Committee to Protect Journalists, “Kenya seeks to restrict political commentary on social media ahead of elections,” 5 July 2017, https://cpj.org/2017/07/kenya-seeks-to-restrict-political-commentary-on-so.php, Accessed 27 September.

^[13]    The East African, “Kenya identifies 21 online hate monger groups,” 17 July 2017, http://www.theeastafrican.co.ke/news/Kenya-identifies-online-hate-monger-groups/2558-4018534-11nukry/index.html, Accessed 27 September 2017.

^[14]    Committee to Protect Journalists, “Kenyan journalists harassed, detained reporting on election violence,” 17 August 2017, https://cpj.org/2017/08/kenyan-journalists-harassed-detained-reporting-on-.php, Accessed 27 September 2017.

^[15]    The Star, “Outcry after police block journalists from covering Kisumu demos,” 10 August 2017, https://www.the-star.co.ke/news/2017/08/10/outcry-after-police-block-journalists-from-covering-kisumu-demos_c1614476, Accessed 27 September 2017.

^[16]    Daily Nation, “Babu Owino faces subversion, uttering abusive words charges,” 26 September 2017, http://www.nation.co.ke/news/Babu-Owino-charged-court/1056-4112452-ihdaiw/index.html, Accessed 4 October 2017.

^[17]    The Standard, “More tear gas, guns arrive to deal with mass protests after August elections,” 17 July 2017, https://www.standardmedia.co.ke/article/2001247838/more-tear-gas-guns-arrive-to-deal-with-mass-protests-after-august-elections, Accessed 27 September 2017.

^[18]    The East African, “Opposition supporters stage anti-IEBC demos in Nairobi, Kisumu,” 26 September 2017, http://www.theeastafrican.co.ke/news/Nasa-supporters-stage-demos-want-IEBC-CEO-out/2558-4112754-8qgen7z/index.html, Accessed 4 October 2017.

^[19]    NTV, “Video clips of police beating University Students emerge,” 28 September 2017, https://www.youtube.com/watch?v=SktLYvQc878, Accessed 4 October 2017.

^[20]    Reuters, “University of Nairobi closed as anger rises over police brutality,” 3 October 2017, https://www.reuters.com/article/us-kenya-police-idUSKCN1C81ARhttps://www.africanews.com/2017/08/01/death-of-kenya-polls-it-chief-dominates-papers-protesters-call-for-justice//, Accessed 4 October 2017.

^[21]    Africa Review, “Kenya opposition poll protests leave one dead,” 2 October 2017, https://www.africanews.com/2017/08/01/death-of-kenya-polls-it-chief-dominates-papers-protesters-call-for-justice//, Accessed 4 October 2017.