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map courtesy CIA World Factbook; click for enlargement Constitution, Government & Legislation

The republic of Kenya has a unicameral assembly consisting of 210 members elected to a term of up to five years, plus 12 members appointed by the president. The president appoints the vice president and cabinet members from among those elected to the assembly. The attorney general and the speaker are ex-officio members of the National Assembly. Local administration is divided among 63 rural districts, each headed by a presidentially appointed commissioner. The districts are joined to form seven rural provinces. The Nairobi area has special status and is not included in any district or province. The government supervises administration of districts and provinces. The president is the head of state and commander in chief of the armed forces. Following the presidential elections in 1997, Daniel Arap Moi was elected president for a second term of five years. Moi has been in power since 1978. In 1991, a constitutional amendment limited the term of office of a president to two five-year terms. Although Moi is constitutionally mandated to leave office in 2002, there have been talks that he should be made "president for life."

Source: U.S. Department of State

Courts & Judgments

The Kenyan Constitution provides for an independent judiciary; however, in practice the judiciary is often corrupt and subject to executive branch influence. The President has extensive powers over appointments, including those of the Attorney General, the Chief Justice, and Appeal and High Court judges. The President also can dismiss judges and the Attorney General upon the recommendation of a special presidentially appointed tribunal. Although judges have life tenure (except for the very few foreign judges who are hired by contract), the President has extensive authority over transfers.

The court system consists of a Court of Appeals, a High Court, and two levels of magistrate courts, where most criminal and civil cases originate. The Chief Justice is a member of both the Court of Appeals and the High Court, which undercuts the principle of judicial review. Military personnel are tried by military courts-martial, and verdicts may be appealed through military court channels. The Chief Justice appoints attorneys for military personnel on a case-by-case basis.

There are no customary or traditional courts in the country. However, the national courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law. This is done most often in cases that involve marriage, death, and inheritance issues and in which there is an original contract founded in customary law. For example, if a couple married under national law, then their divorce is adjudicated under national law, but if they married under customary law, then their divorce is adjudicated under customary law. Citizens may choose between national and customary law when they enter into marriage or other contracts; thereafter, however, the courts determine which kind of law governs the enforcement of the contract. Some women's organizations seek to eliminate customary law because they feel it is biased in favor of men (see Section 5).

Civilians are tried publicly, although some testimony may be given in closed session. The law provides for a presumption of innocence, and for defendants to have the right to attend their trial, to confront witnesses, and to present witnesses and evidence. Civilians also can appeal a verdict to the High Court and ultimately to the Court of Appeals. Judges hear all cases. In treason and murder cases, the deputy registrar of the High Court can appoint three assessors to sit with the High Court judge. The assessors are taken from all walks of life and receive a sitting allowance for the case. Although the assessors render a verdict, their judgment is not binding. Lawyers can object to the appointments of specific assessors.

Defendants do not have the right to government-provided legal counsel, except in capital cases. For lesser charges, free legal aid is not usually available outside Nairobi or other major cities. As a result, poor persons may be convicted for lack of an articulate defense. Although defendants have access to an attorney in advance of trial, defense lawyers do not always have access to government-held evidence. The Government can plead the State Security Secrets Clause as a basis for withholding evidence, and local officials sometimes classify documents to hide guilt. Court fees for filing and hearing cases are high for ordinary citizens. The daily rate of at least $25 (2,000 shillings) for arguing a case before a judge is beyond the reach of most citizens.

Source: U.S. Department of State

Human Rights

The Kenyan Government's human rights record remained poor in 2001, and it continued to commit numerous, serious abuses. Citizens' ability to change their government peacefully has not yet been demonstrated fully. Security forces, particularly the police, continued to commit extrajudicial killings, torture and beat detainees, use excessive force, rape, and otherwise abuse persons. Prison conditions remained life threatening. Police harassed and arbitrarily arrested and detained persons, including journalists, politicians, and political activists. The Government arrested and prosecuted a number of police officers for abuses; however, most police who committed abuses were neither investigated nor punished. Lengthy pretrial detention is a problem, and the judiciary is subject to executive branch influence. The authorities infringed on citizens' privacy rights. The Government limited freedom of speech and of the press, and harassed, intimidated, and economically pressured newspapers that often were critical of the Government; however, in recent years the Government continued to reduce its domination of the domestic broadcast media. The Government repeatedly restricted freedom of assembly, and the police disrupted public meetings and used force to disperse demonstrators and protesters. The Government restricted freedom of association. The Government continued to limit the independence of its Standing Committee on Human Rights (SCHR), and the President continued to criticize nongovernmental human rights organizations (NGO's) for their alleged involvement in partisan politics. Violence and discrimination against women and abuse of children remained serious problems. Female genital mutilation (FGM) remained widespread, child prostitution remained a problem, and the spread of HIV/AIDS created many orphans. There was some discrimination against persons with disabilities. The Government continued to exacerbate ethnic tensions by discriminating against many ethnic groups; interethnic tensions continued and resulted in numerous violent conflicts and some deaths. There continued to be reports of ritual murders associated with aspects of traditional indigenous religious rites. The Government continued to limit some worker rights. Child labor remained a problem, and there were instances of forced child labor. Violence by mobs and by nongovernmental armed groups also resulted in many deaths.

Source: U.S. Department of State

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Victor Mosoti
Assistant Law Lecturer, Moi University Faculty of Law