Despite being home to several of the world’s worst performing countries in terms of respect for human rights, the African continent saw overall if uneven progress toward democratization during the 1990s and the early 2000s. However, recent years have seen backsliding among both the top performers, such as South Africa, and the more repressive countries, such as The Gambia and Ethiopia. Lack of adherence to the rule of law, infringements on the freedoms of expression and association, widespread corruption, and discrimination against women and the LGBT community remain serious problems in many countries.
The Freedom House, an independent watchdog organization recognized for expansion of freedom and democracy around the world by analyzing the challenges to freedom and advocating for greater political rights, civil liberties and human rights, rated Kenya as partly free in administration of social justice in the 2017 report.
The special Freedom House report focused on political developments in Kenya beginning in 2013 – when the country held its first general elections under a new Constitution that was designed to improve protection of basic rights, constrain executive power, and devolve some powers to newly created country governments.
In terms of Civic space; the report found that Kenya boasts a vigorous civic space where political parties, CSOs, the media, and various social groups interact in a relatively accommodating legal and institutional environment.
They observed that the 2010 constitution and relevant electoral laws facilitate free and fair elections that feature a variety of political parties. Distribution of state power across the executive branch, the legislature, the judiciary, and independent commissions discourages governmental excesses. Protections for civil society, the media, and individual rights exist and are taken seriously.
However, political and bureaucratic corruption and regular state overreach prevent the full promise of Kenya’s legal and institutional framework from being realized. The 2013 elections, though judged free and fair by international monitors, were undermined by administrative problems and bias toward the incumbent party. The executive branch, while not authoritarian, is able to exert undue influence on the legislature, judiciary and bureaucracy. Ethnic politics, criminal cartels, and big business play an outsize role in public life.
Freedoms of association, assembly, and the press are defended by civil society and some branches of the government, but are subject to the repressive impulses of others.
In regards to Security and human rights, the watchdog found that Kenya’s democracy is substantially impaired by persistent and serious abuses by the security services, often justified in the context of combatting crime and terrorism. Despite constitutional and other legal safeguards against violence and ill treatment, civilians experience regular hostility from state authorities, most frequently the police. Extrajudicial killings and custodial torture are not uncommon. Police have used excessive force against political protestors and vulnerable populations such as immigrants, ethnic minorities, and incarcerated persons.
Concerning Rule of Law and Independence of the Judiciary, the report indicates that Kenya’s judiciary is robust, and has made strides toward greater independence, effectiveness, and fairness in recent years. An increase in the number of judges and courts, in addition to stronger vetting and training processes for judges and magistrates, has expanded citizens’ access to an improved legal system. The courts have also been a critical defender of civil rights, blocking implementation of repressive legislation and ruling in favor of individuals and CSOs in their disputes with the government.
However, bureaucratic and political obstacles prevent the judiciary from consistently asserting its authority. High court fees and institutional corruption impede public access to justice. The executive branch has attempted to manipulate and undermine the judiciary by expanding its powers of appointment and ignoring rulings with which it does not agree. Additionally, political considerations often color prosecutorial decisions, negatively impacting the rule of law.
In matters Corruption and Accountability, Freedom House confirms that Kenya continues to struggle with significant political and bureaucratic corruption. Cumbersome regulatory regimes undermine economic freedom and create opportunities for graft. Scandals involving embezzlement, misallocation of funds, and distribution of patronage have implicated elected officials, cabinet secretaries, the tax authorities, and other state agents.
A counterfeit economy that is exacerbated by all manner of cartels with ethnic alliances dealing in sugar, charcoal, maize, water, etc. also contributes to political and bureaucratic corruption. The Kenya Association of Manufacturers (KAM) says the counterfeit economy in Kenya is worth 1.2 trillion shillings. Impunity is the norm for corrupt practices, especially for the politically powerful and those connected to the ruling party. A number of measures have been introduced in recent years to fight these trends, including stronger financial disclosure requirements, auditing mechanisms, supervisory bodies and witness protections. However, local and international observers agree that such reforms have been insufficient to meaningfully address corruption.