XPA 2017 country profile: Kenya

Civic Space 5 min read
ARTICLE 19

Population:

47 Million approx.

System of Government:

Kenya is a constitutional democracy with multi-party elections held every five years since 1992. The ruling party/coalition has been in power for five years and just won a second five-year term

Legislative Structure:

The Parliament of Kenya is made up of the National Assembly of Kenya and the Senate. This is based on a Presidential system of government.

Freedom of expression: key legislation and instruments

Freedom of expression is guaranteed under Article 33 of the Constitution of Kenya (2010). The Constitution also explicitly guarantees media freedom (Article 34) and Access to Information (Article 35).

Kenya has ratified the ICCPR and most other key international and regional human rights instruments that guarantee the right to freedom of expression.

Offences classified under Sedition were repealed in 1997 and provisions allowing for charges of criminal defamation and undermining the authority of a public officer have been found to be unconstitutional by the High Court. The ‘publication of false news’ remains a criminal offence under the Penal Code.

Major political developments 2016 /17

Kenya held two highly-contested Presidential elections in August and October 2017.

The Supreme Court of Kenya nullified the Presidential election of August 2017 and ordered a fresh election to be held within 60 days. This was the first time that an African court had invalidated the election of a sitting leader. The Court upheld the petition of opposition candidate, Raila Odinga, who claimed that the re-election of President Uhuru Kenyatta, on 8 August 2017, was fraudulent.

Members of the electoral management body, the Independent Elections and Boundaries Commission, resigned in October 2016 as part of political agreement to reform the body ahead of general elections to be held in August 2017. This came after a failed bid for a constitutional referendum on three main issues: increasing money allocated to the devolved county governments, system of government, and disbanding the then electoral management body in 2014. The failed referendum was followed by a series of major protests by the opposition, which argued that the existing electoral system was deeply flawed.

Key freedom of expression issues

Protests

The Public Order Management Act has been used to unduly restrict demonstrations, protests and picketing even though the right to freedom of association and assembly are guaranteed by the Constitution.    In the wake of recent elections, different organisations have documented the use of excessive force by security agencies against laid down law and procedures resulting in over 50 deaths.

Repressive legal framework

The Kenya Information and Communication Act, the Kenya Information and Communication (Amendment) Act (2013), the Official Secrets Act, the Security Laws (Amendment) Act (2014), the Prevention of Terrorism Act are part of the powerful legal machinery that allows for the repression of freedom of expression in Kenya.

Access to Information Law

The Access to Information Act was passed in August 2016 but implementation remains hampered as the Minister of ICT has not yet developed the requisite set of regulations.

State advertising

The government continues to use state advertising as a tool to influence editorial decisions of media as there are no regulatory guidelines on this issue.

Attacks on journalists, media workers

Cases of attacks against journalists by security agencies and political party activists have increased recently. Further, the cases of two journalists killed in the last ten years remain open and unresolved leading to impunity.

Prospects for change

The passage of the Access to Information Act and the recent cases affirming the need for State bodies to disclose information offer hope with regards to improving transparency and public participation. There are examples of cases challenging secrecy and denial of information, and the constitutionality of some administrative decisions at the High court. It is likely that the Supreme Court and other lower courts’ decisions regarding election petitions will entrench values of public participation, transparency, and accountability.

There remains sustained attacks on civic space, however, continued attempts to shrink civic space will likely encourage civil society groups to work together and in solidarity to push back in response to the challenge.