The 34-page report, “Kenya’s Unfinished Democracy: A Human Rights Agenda for the New Government,” reveals that while Kenya has gained many important freedoms since the early 1990s, and is considered a relatively free and open society– especially in comparison with many other African countries– a closed system of patronage and graft continues to undermine human rights in the country.

Limits on Democracy
Although officially Kenya no longer detains political prisoners, torture in police cells is reported to be common. Interference with democratic processes also remains widespread. During the1990s, Kenya held two multi-party elections, but both were suspect, and accompanied by politically motivated ‘ethnic’ violence, which resulted in hundreds of deaths and the displacement of some 400,000 people.

The media often presents critical views of the ruling party, but bureaucratic restrictions on radio licenses mean few opposition voices can be heard outside of Nairobi. Kenya’s notorious sedition laws were scrapped in 1997, yet several politicians have since instigated dubious, but successful, defamation lawsuits to silence criticism. Likewise, while the atmosphere at public meetings is freer than ten years ago, some activists still experience police harassment.

“The paradox of Kenya is that the country seems very free on the surface, but this freedom does not extend to everyone,” said Takirambudde.

Activists in poor, remote areas face particular limitations. For example, two land reform advocates, Nicodemus Mutuku and Alois Mwaiwa Muia, for example, have been charged with murder in Machakos, a provincial town, though they were reportedly not in the area at the time the victim was killed. The activists say they are being framed to silence their protests over the illegal grabbing of public by powerful, politically connected individuals.

Constitutional Changes Uncertain
The change-over from the 1963 constitution to the constitution drafted last year presents an ideal moment for Kenya to improve its human rights record. It has been clear for many years that the country’s constitution, drawn up by the British at independence and subsequently amended in ways that placed even greater limits on freedom, needed to be rewritten. A review commission has just published a new draft constitution, developed with extensive civil-society participation.

“If adopted, the new constitution could dramatically improve the human rights protections for Kenyans,” said Takirambudde. However, the constitution proffered has been undermined by lawsuits and other forms of interference by associates of the ruling party, and its future is not yet secure.

Report Recommendations
Human Rights Watch urged Kenya’s leaders to address the tension between the country’s democratic and anti-democratic tendencies, which has created an element of suspense both with respect to the upcoming election and to Kenya’s future in general. In particular, Human Rights Watch called upon Kenya’s new leadership to adopt the following reforms:

• Put an end to torture, extortion, forced confessions, and extra-judicial killings in Kenya’s jails and prisons, which have become routine. In the past, most victims of such human rights abuses by Kenya’s security forces were lawyers, activists, and academics. Most victims today are ordinary poor people, and not necessarily dissidents.
  
  
• Enforce the official ban on ad hoc vigilante gangs that terrorize people at political rallies and spread fear and violence in the slums. Many gangs are recruited by powerful politicians who exploit the poverty and boredom of slum youths.
  
  
• Uphold the independence of the judiciary. At present, the president has enormous power over the appointment and discipline of judges, which allows for executive interference in court cases. Greater judicial independence would make an enormous contribution to the right to justice in Kenya. The new government should also take steps to stamp out corruption, incompetence, and inefficiency in the justice system.
  
  
• Seriously prosecute major cases of corruption. The average Kenyan is now poorer than he was twenty years ago. This economic decline is partly a direct consequence of the looting of public resources and public land by government officials and their collaborators, including the treasury, government agencies, and parastatals. None of these offenses has been seriously prosecuted.
  
  
• Provide justice to the victims of politically motivated ethnic clashes. Throughout the 1990s, widespread politically motivated ethnic violence resulted in the deaths of thousands of Kenyans and the displacement of hundreds of thousands of potential opposition voters. To date, tens of thousands of people remain displaced from their Rift Valley farms, and their land remains occupied by government supporters. The clashes are believed to have been instigated by powerful politicians, who took advantage of a long history of land disputes in the region to stoke tribal hostilities. Human Rights Watch urges the government to help clash victims seeking redress through the courts.
  
  
• Enforce the right to free expression. Police and candidates’ thugs sometimes harass journalists, while outside of Nairobi, the government has almost total control of the media. For most Kenyans the only source of local news outside of the capital is the government-run radio station, whose reporting tends to favor the ruling party. Radio and TV stations seeking to obtain licenses to broadcast beyond the capital face bureaucratic obstacles that are, so far, insurmountable. Human Rights Watch urges Kenya’s new leaders to close the vast urban-rural gap in access to information that denied millions of people unbiased information as the election approached.
  
  
• Establish clear policies to govern the rights of workers in the informal economy. Many of Kenya’s street hawkers and kiosk vendors are subject to arbitrary harassment by the police and local authorities, 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 these abuses of police power.
  
  
• End the culture of impunity. 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. Kenyans must urgently begin an intensive national debate on accountability for past crimes, including corruption and the manipulation of ethnic violence.

Kenya’s foreign donors eagerly look forward to a change of government, but 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.