Partially Protected: The state of civic space in Kenya

In August 2010, Kenya adopted a new constitution that was hailed globally as progressive due to the rights and freedoms that it guaranteed Kenyans. However, it does not automatically follow that such guarantees will be respected in practice.

This report provides a review of international and national reports that examine the status of civic space in Kenya, using the conceptual framing of civic space as proposed by the Transparency and Accountability Initiative (TA/I; Malena, 2015). 

In general, Kenya has a strong record of ratifying major international and regional human rights instruments, including those that relate to civic space. Kenya is a party to six of the seven core UN human rights treaties, with the exception being the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families.

Further, the Kenyan constitution states that any treaty or convention ratified by Kenya shall form part of the law of Kenya. However, corresponding local laws tend to appear contradictory and the domestication of international laws and treaties has remained erratic and selective. Table 3.1 below lists some of the international laws and treaties that have been ratified in Kenya and the corresponding national legislation that potentially restricts their full implementation. 

 Assessment of Civic Space in Kenya

  • Restricted Space in Freedom of Information and Expression: Though this freedom is protected in the country’s constitution and in a number of ratified treaties, there are numerous pieces of legislation in place that restrict this space. These include the Media Act (2013), Books and Newspapers Act, and Official Secrets Act. Evidence such as regular threats and arrests of journalists and the signing into law by President Uhuru Kenyatta of the Media Law and the Security Laws 2014 is a manifestation that this freedom is not fully protected. The recent arraignment in court of bloggers and social media enthusiasts who have criticised the government is cause for further concern. The Access to Information law that was assented to in August 2016 took effect in September 2016, but is yet to be rolled out.
  • Partially Protected Space in Freedom of Assembly and Association: Citizens’ rights to assembly are protected in the Bill of Rights of Kenya’s 2010 Constitution and are visible in the right to strike and picket, the provision for independent candidates to run for political office, and the many peaceful assemblies and political rallies (despite some incidences of police brutality in political rallies).  However, there are loopholes such as in the new Security Laws 2014 that potentially restrict freedom of assembly in order to protect national security, law and order. There is also the Public Benefits Act that restricts civil society from being completely free.
  • Partially Protected Space in Citizen Participation: The right to participate in governance, planning and development processes is protected in the country’s constitution as one of its core principles, and structures have been developed at both national and county level to realise this freedom. However, non-adherence to this principle by relevant authorities, especially in the budget-making process and in presidential directives, and structural factors (e.g. weak institutions, poverty, and inequality) continue to hinder its realisation. Public participation remains largely controlled by the political class, stage-managed sometimes for favourable outcomes or to ensure no meaningful interaction with the public.
  • Partially Protected Space in Non-Discrimination / Inclusion: This right has seen progressive legislation in recent years which seeks to include youth, women and disabled people and historically marginalized communities in the national politico-economic development processes and structures. But historical structural factors, such as attitudes to ethnicity, gender and sexuality and uneven levels of development between different parts of the country, continue to hamper efforts at fully realising political and social justice for many Kenyans who remain marginalised.
  • Restricted Space in Human Rights and the Rule of Law. Through the Sessional Paper Number 3 of 2014, the Government of Kenya put in place the National Policy and Action Plan on Human Rights. However, there have been persistent allegations of extrajudicial killings, enforced disappearances and excessive use of force by police officers on protesters, and widespread practices of arbitrary detention by the police, and intimidation and harassment of human rights defenders. 

Click here to read the full report.

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