I. SUMMARY

Kenya is at a crucial turning point in its history. On December 27, 2002, Kenyans will go to the polls to elect a new president. The retirement of President Daniel arap Moi after two decades, the upcoming multiparty election, and a new draft constitution awaiting enactment carry many implications for human rights in Kenya.

As power struggles and backroom deals among various political parties dominate Kenyan politics, there is little discussion of human rights, and few of the candidates contesting the current election have presented a detailed agenda for improving rights and governance in the country. Kenya's new draft constitution, released in September 2002, aims to remedy many of the ills of the current system by creating more accountability and a balance of powers. However, the fate of the new constitution is far from secure.

There is a strong likelihood that human rights concerns will be overlooked by the new government. In the aftermath of the election, there will be a pressing need for Kenya's new leaders to act on the following human rights concerns:

· Personal Security
Kenyan citizens are vulnerable to police brutality. Despite official commitments to rid the police force and prisons of unlawful conduct, the use of torture, extortion, forced confessions, and extra-judicial killings continues. Underpaid, poorly trained police officers shoot to kill fleeing suspects. Prosecutions of offending police officers are rare, and inquiries by human rights groups meet with little or no government response. In Kenya's prisons, beatings, torture, and inhuman living conditions have led to the deaths of inmates.

Several powerful politicians have exploited the poverty and boredom of slum youths by recruiting them into ad hoc vigilante gangs to terrorize people at political rallies and spread fear and violence in the slums. These gangs have been officially banned, but the ban has not been enforced.

· Justice
The foundation of any democracy rests on the right to a fair trial. But in Kenya the justice system is severely compromised by endemic corruption, incompetence, and inefficiency. The president has enormous power over the appointment and discipline of judges, which allows for executive interference in court cases. Long court delays caused by understaffing violate Kenyans' right to due process and a speedy trial. Corrupt judges should be removed and Parliament should be involved in judicial appointments and discipline.

· Assembly
Generally, the atmosphere at public meetings is much freer than in the past. For example, the donor sponsored National Civic Education Program workshops proceeded largely without incident. But activists attempting to raise awareness about the grabbing of public land and the rights of farmers claim the police often harass them, and some of them have been arrested on trumped up murder charges. Also, the police and local administrators sometimes selectively enforce the right to assembly by, for example, blocking certain opposition rallies in areas dominated by the ruling Kenya African National Union (KANU) party. As the election approached, several campaign rallies were disrupted, sometimes violently.

· Free and Fair Elections
Politically motivated ethnic clashes have occurred in this election season, but they have not been as widespread as they were in 1992 and 1997. Otherwise, the electoral process is considerably more transparent today than in the past. In the run-up to the current election, some voting procedures have been clarified, and voter registration has gone fairly smoothly, although youths in some parts of the country claim that they have been offered money in exchange for their registrations cards.. In October 2002, Parliament passed the Presidential and Parliamentary Elections (Amendment) Act, permitting ballots to be counted in polling stations. In past elections, there were allegations that the practice of transporting ballot boxes to central locations created opportunities for rigging. The president has yet to sign this act into law, but Human Rights Watch urges him to do so before the next election.

Human rights groups are concerned that Kenya's parliamentary constituencies represent vastly unequal populations. While many democratic nations, including the U.S., lack proportional representation, there is concern that the size and distribution of Kenya's constituencies heavily favor the ruling KANU party and encourage tribal animosity.

· Freedom of Expression
The Kenyan media regularly presents critical views of the ruling party, but press freedom is still limited in numerous subtle ways. The notorious sedition laws were scrapped in 1997, but since then, many newspapers, magazines, and bookstores have been charged with defamation and libel, often, but not always, by KANU officials. The large awards granted to plaintiffs in defamation cases intimidate the press, and contribute to self-censorship. Because Kenya has no freedom of information laws, journalists are often unable to obtain government documents that could strengthen their cases in court.

Outside of Nairobi, the media is largely government-controlled and opposition voices are seldom heard. For most Kenyans the only source of local news outside of the capital is the Kenya Broadcasting Corporation, whose reporting has tended to favor KANU. Radio and TV stations seeking to obtain licenses to broadcast beyond the capital face bureaucratic obstacles that are, so far, insurmountable. The urban-rural gap in access to information denied millions of rural Kenyans unbiased election information as the election approached. Journalists reporting on political developments also complain that they are sometimes threatened and beaten by the police or by candidates' thugs. A new media law, passed in May 2002, imposed exorbitant fees on all publications, and this could handicap many small news outlets.

· Due Process and Protection of Livelihoods
The average Kenyan is now poorer than he was twenty years ago, increasingly deprived of health care, education, and an adequate livelihood. Much of Kenya's widespread poverty is a direct consequence of government inaction on key policy issues, including corruption, land adjudication, and workers' rights. It is also the result of politically motivated ethnic clashes and the looting by government officials and their collaborators of public resources, including the treasury, government agencies, parastatals, and public land. None of these offenses have been seriously prosecuted.

Many Kenyan workers are subject to arbitrary harassment by the police and local authorities because the government has failed to establish clear policies to govern the rights of workers in the informal economy. Millions of Kenyans earn their living in the informal sector, as street hawkers, matatu touts, kiosk vendors, prostitutes, and casual laborers. Recently, many hawkers and kiosk owners have been harassed by police and city council askaris (guards), who extort bribes, destroy their property, steal their goods, or hold them in prison until they manage to bribe their way out. The new government must curb the abuses of police power and create clear policies to govern the informal economy.

Democracy in Kenya is inconsistent. Many human rights are guaranteed under the law, but the laws are selectively enforced. While diverse political points of view are increasingly tolerated, the nation's fragile institutions are continually undermined by a closed system of patronage and graft. The government has established numerous commissions to investigate major cases of corruption, the political manipulation of ethnic violence, the grabbing of public lands for use as political patronage, and other issues. However, few reports of these investigations have been released to the public, and no one has been held accountable for major crimes. As a result, the international community sees Kenya both as an island of stability in a war-torn region and as a mire of corruption and poverty.

In many respects, Kenya's civil institutions are among the freest in Africa. During the late 1980s and 1990s, activists, lawyers, religious leaders, and foreign donors forced the Moi government to reverse many of its most repressive policies, including detention without trial, the ban on political parties, and the sedition laws that silenced critical voices in the media. Today, Kenya's fractious Parliament sometimes passes laws the president dislikes. Civil society is vibrant, with many non-governmental organizations (NGOs) engaged in political and social issues. Major Kenyan newspapers are openly critical of the government. Dissidents continue to live relatively freely in the country. Many international NGOs and foreign governments have their regional headquarters in Kenya. Despite the corruption and high crime rates, many observers still see Kenya as a relatively peaceful hub in a troubled part of the world.

However, Kenya's emerging democratic institutions must continually struggle against the country's corrupt political system, largely based on patronage and ethnic alliances. Entrenched corruption has facilitated numerous human rights abuses, including the deprivation of the right to personal security, the right to a fair trial, and the right to a decent standard of living. It has also been used as a political device to manipulate elections and reinforce the power of local and national leaders. The plunder of state resources has helped the government cling to power, while reducing opportunities for health care, education, and employment. Ethnic clashes, election manipulation, police abuse, and judicial corruption have scared foreign donors and investors. One impact of corruption has been increased poverty, which, in turn, has led to greater demand for patronage resources. The result is a vicious cycle of corruption, poverty, and poor governance. In the past, most human rights violations in Kenya were aimed at lawyers, activists, and academics, but most victims today are ordinary poor people, who are not necessarily dissidents.

During the past ten years, some forty political parties have been established in Kenya, most of which are aligned with one or a small number of the country's roughly forty tribes. To date, Moi's Kenya African National Union (KANU) has been the only party able to attract broad support from diverse regions and ethnic groups. In previous elections, opposition candidates split the majority of the votes, and KANU won easily. But in the summer of 2002, thirteen political parties came together to form the National Alliance Party of Kenya (NAK). At around the same time, Moi chose as his preferred successor Uhuru Kenyatta, the politically inexperienced son of Kenya's first president, Jomo Kenyatta, and Moi has been actively campaigning on Uhuru's behalf. Moi's choice angered some KANU ministers and, in protest, they formed a coalition within KANU known as Rainbow. Members of Rainbow had hoped that KANU's presidential candidate would be chosen by secret ballot at the party's nominating convention. When Moi refused to permit this, the Rainbow ministers abandoned KANU and joined the opposition Liberal Democratic Party, which merged with NAK in October 2002 to form a super-opposition alliance known as the National Rainbow Coalition (NARC), with Democratic Party Chairman Mwai Kibaki as its single presidential candidate.

What Kenya needs are stronger governmental and non-governmental institutions that can ensure greater transparency and guarantee basic human rights. While Kenya's foreign donors eagerly look forward to a change of government, many Kenyans recognize that the greater challenge is to create a just and open system of governance based on checks and balances and separation of powers. Kenya's new draft constitution aims to form the basis for such a system. The existing constitution was drawn up with the guidance of British advisors in the early 1960s. In the decades after independence, the constitution was amended to strengthen the powers of the president at the expense of other institutions. The change in leadership and the new draft constitution provide a unique opportunity for Kenya to rectify this imbalance and address longstanding human rights concerns. Human Rights Watch urges the new Kenyan government and the international community to embrace this opportunity.