Government

Political System Overview

Kenya is a republic dominated by a strong presidency. The political system is in flux as contentious debate continues on efforts to adopt a new constitution. A popular referendum in 2005 defeated a proposed constitution supported by the government. The constitution to be replaced was drawn up at independence. This constitution, heavily indebted to English law, has already been amended more than 30 times but is widely agreed to require a major overhaul. The constitution gives the president wide-ranging powers, provides for no prime minister, and is ill-suited to multiparty politics, despite the 1991 repeal of a section that had formalized the one-party state. Key proposals in the recently defeated draft constitution called for reducing the powers vested in the office of the president, providing for a prime minister, and ensuring the independence of the judiciary.

Besides the constitution, a pressing concern in Kenyan politics is corruption. Recent anticorruption efforts have led to the establishment of the Kenya Anti-Corruption Commission (KACC) and to laws requiring civil servants to disclose assets and mandating transparency in procurement. The government also promised to trace ill-gotten assets and has set up commissions to unravel the decades-old illegal allocation of public lands and a major corruption scandal from the 1990s, the Goldenberg Affair. Despite such anticorruption activity, Kenya’s anticorruption campaign, in the perception of most Kenyans surveyed, has stagnated.

Executive Branch

Under Kenya’s current constitution, the president is both the chief of state and head of government. The president is elected by popular vote for a five-year term, with the possibility of re-election to a second term. The presidential candidate must receive the largest number of votes in absolute terms and also, in order to avoid a runoff, must win 25 percent or more of the vote in at least five of Kenya’s seven provinces and the Nairobi area. The president appoints the vice president and members of the cabinet, who must be members of the National Assembly. The president also exercises direct control over the key areas of security and defense and has extensive powers over the appointment of the attorney general, the chief justice of the Court of Appeal, and Court of Appeal and High Court judges.

Legislative Branch

Kenya’s National Assembly, or Bunge, is a unicameral legislature with 224 members, 210 of whom are elected by popular vote for five-year terms. The president appoints 12 “nominated” members, who are selected by the parties in proportion to the votes the parties receive in parliamentary elections. Two members serve ex-officio.

Judicial Branch

Kenya’s court hierarchy consists of the Court of Appeal, High Court, resident and district magistrates’ courts, and kadhis courts, which adjudicate Muslim personal law concerning personal status, marriage, divorce, and inheritance among Muslims. Kenya’s president appoints judges, including the chief justice, who presides in the Court of Appeal. The High Court is responsible for judicial review. Kenya accepts compulsory International Court of Justice jurisdiction, with reservations. The judiciary is constitutionally independent, and judges have security of tenure. This constitutional status and the theoretical life tenure of judges have not, however, ensured immunity from executive-branch pressure.

Administrative Divisions

Kenya is divided into seven provinces and the Nairobi Area. The provinces are Central, Coast, Eastern, North-Eastern, Nyanza, Rift Valley, and Western. Lower-level administrative units include 40 districts and further subdivisions.

Provincial and Local Government

The seven provinces and the Nairobi Area are administered by provincial commissioners who are answerable to the president. Elective municipal, town, and county councils have limited powers delegated by the national government. Important council officials such as the town clerk and treasurer all are appointed by the central government in Nairobi.

Judicial and Legal System

Kenya’s legal system is based on Kenyan statutory law, Kenyan and English common law, tribal law, and Islamic law. Bias and corruption in the court system frequently compromise the right to a fair trial. In 2003, following the resignation of the chief justice, the anticorruption authority found credible evidence of corruption against five of nine Court of Appeal judges and proof of misconduct against 18 of 36 High Court judges and 82 of 254 magistrates. In October 2003, one-half of Kenya’s senior judges were suspended over allegations of corruption, and tribunals were established to investigate the charges against them. Many of the judges resigned rather than face tribunals.

Electoral System

Suffrage in Kenya is universal at age 18. National presidential and parliamentary elections are held every five years. Election is by a plurality of votes. The most recent elections for president and for parliament were held in December 2002 and will next be held in late 2007.

Politics and Political Parties

Multiparty politics reemerged in Kenya after December 1991, with the repeal of Section 2a of the constitution. In 1982 Section 2a had officially made Kenya a one-party state, with the Kenya African National Union (KANU) the sole legal party. Kenya had been a de facto one-party state since 1969. As of that date, all political candidates had to be members of KANU. The reemergence of a multiparty system in the 1990s initially produced a fractured opposition to President Moi and KANU. After 1991 an important new opposition party, the Forum for the Restoration of Democracy (FORD), soon split into factions, and numerous other parties emerged. After two national elections in which Moi won against divided opposition, various opposition elements formed the National Rainbow Coalition (NARC), a coalition of a dozen parties, including the National Alliance of Kenya (NAK) and the Liberal Democratic Party (LDP). NARC ran Mwai Kibaki as its candidate for president in 2002 and won a solid victory to become the governing party. Several years after the election, NARC broke up over disagreements about the draft constitution. Some constituent elements of NARC joined KANU to form a new opposition coalition, the Orange Democratic Movement, while other elements became part of a new pro-Kibaki group, NARC–Kenya.

Foreign Relations

Under Jomo Kenyatta (1963–78), one of the more pro-British of African leaders, Kenya was officially nonaligned but set a pattern of friendly relations with the West. The United Kingdom (UK), the former colonial power, provided assistance to smooth Kenya’s transition to black majority rule by compensating white settlers. Kenya permitted the UK to use its hinterlands for military training. An important foreign relations development under President Moi was Kenya’s support of U.S. military commitments in the Indian Ocean. This support has gained renewed importance since the Horn of Africa became a front line in the fight against terrorism. The ongoing threat of terrorist attacks by Islamists in the area stands to cement the country’s close ties with the United States.

In addition to its ties with Western powers, Kenya is a major player regionally, taking an active role in the affairs of its neighbors. At various times, Kenya has had conflicts with each of the five neighbors over, for example, boundaries, border incursions, harboring rebels, interfering with cross-border traffic flow, and the use of Nile waters. Diplomatic and mediation efforts, often spearheaded by Kenya, typically have eased the conflicts. Most recently, for instance, Kenya helped in peace talks that aimed to end the civil war in southern Sudan, along with the war’s spillover effects in Kenya. The most intractable problems at present are with unstable Somalia, which claims a restive Somali-populated part of Kenya and is a source of outlaws, refugees, hostile craft, and, possibly, terrorists. Concerned about Islamist strength in Somalia, Kenya lent indirect support to the military campaign waged in Somalia in December 2006 by Ethiopia and Somalia’s Transitional Federal Government against the Union of Islamic Courts militia. In January 2007, Kenya closed its border with Somalia in order to exclude the routed Islamists. More positive relations between Kenya and its neighbors, namely, Uganda and Tanzania, are currently developing through the relaunch of the tripartite trade bloc, the East African Community (EAC), as well as the broader organization, the Common Market for Eastern and Southern Africa (COMESA).

Human Rights

The Kibaki government has worked to improve the human rights environment in Kenya and has reduced the use of the legal system to harass government critics. The Moi administration consistently received international criticism of its record on human rights. Under Moi, security forces regularly subjected opposition leaders and pro-democracy activists to arbitrary arrest, detention without trial, abuse in custody, and lethal force. International donors and governments such as the United States, Germany, the United Kingdom, and Norway periodically broke off diplomatic relations and suspended aid allocations, pending human rights improvement. Under the new government, politically motivated human rights violations have diminished, but other serious human rights abuses persist, a great many at the hands of security forces, particularly the police. The police force is widely viewed as the most corrupt entity in the country, given to extorting bribes, complicity in criminal activity, and using excessive force against both criminal suspects and crowds. Most police who commit abuses still do so with impunity. Prison conditions remain life threatening. Apart from police and penal system abuses, infringements of rights in the course of legal proceedings are widespread, despite recent pressure on judicial personnel. Freedom of speech and of the press continue to be compromised through various forms of harassment of journalists and activists, such as the March 2006 police raids on facilities of the Kenya Television Network and The Standard, Kenya’s oldest newspaper.

Violence and discrimination against women are rife. Women’s property rights violations are prevalent, aggravating the fact that women, although constituting 80 percent of the agricultural labor force, own only about 5 percent of the land. The abuse of children, including in forced labor and prostitution, is a serious problem. Female genital mutilation (FGM) remains widespread, despite 2001 legislation against it for girls under 16. The abuse of women and girls, including early marriage and wife inheritance, is a factor in the spread of human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS).

Kenya made some progress in 2003, when it set up the Kenya National Human Rights Commission, with a mandate to ensure Kenya’s compliance with international human rights standards. Also, parliament passed the Children’s Act to ensure the protection of minors, as well as the Disability Act, outlawing discrimination against the disabled.

In 2007 Kenya, along with Ethiopia, the United States, and the Transitional Federal Government of Somalia, was implicated in a secret detention program for people who fled the fighting between the Union of Islamic Courts and the joint forces of the Transitional Federal Government and Ethiopia from December 2006 through January 2007. Kenyan security forces allegedly arrested at least 150 individuals at crossing points with Somalia, held them without charge, and transferred them for interrogation to detention facilities in Ethiopia.

Source: Library of Congress – Federal Research Division Country Profile: Kenya, June 2007