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THE EQUAL RIGHTS TRUST IN PARTNERSHIP WITH THE KENYA HUMAN RIGHTS COMMISSION In the Spirit of Harambee Addressing Discrimination and Inequality in Kenya ERT Country Report Series: 1 London, February 2012 The Equal Rights Trust (ERT) is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. Established as an advocacy organisation, resource centre and think tank, ERT focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. © February 2012 The Equal Rights Trust © Cover February 2012 Dafina Gueorguieva Printed in the UK by Prontaprint Bayswater DesignISBN: and layout: 978-0-9560717-5-0 Dafina Gueorguieva All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. The Equal Rights Trust 126 North End Road London W14 9PP United Kingdom Tel. +44 (0) 207 610 2786 Fax: +44 (0) 203 441 7436 www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288. “Our motto ‘harambee’* was conceived in the realisation of the challenge of national building that now lies ahead of us. It was conceived in the knowl- edge that to meet this challenge, the government and the people of Kenya must pull together. We know only out of our efforts and toil can we build a new and better Kenya.” Jomo Kenyatta, 13 December, 1963, Statement at the Opening of Parliament “We, the people of Kenya.... PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation... RECOGNISING the aspirations of all Kenyans for a government based on the es- sential values of human rights, equality, freedom, democracy, social justice and the rule of law... ADOPT, ENACT and GIVE this Constitution to ourselves and to our future generations...” Preamble to the Constitution of Kenya 2010 *Harambee (Swahili) - “all pull together”, the official motto of Kenya which ap- pears on its coat of arms. In the Spirit of Harambee TABLE OF CONTENTS ACKNOWLEDGEMENTS ACRONYMS EXECUTIVE SUMMARY 1. INTRODUCTION. 1 1.1 Purpose and Structure of This Report. 1 1.2 Conceptual Framework and Research Methodology. 8 1.3 Country Context. 24 1.4 Recent History and Politics. .28 1.5 Ground for Hope: The New Constitution. 32 2. PATTERNS OF DISCRIMINATION AND INEQUALITY. 36 2.1 Poverty, Inequality and Discrimination. 38 2.2 Tribe, Ethnicity and Region . .46 2.2.1 Indigenous Pastoralist and Traditionalist Groups. 66 2.2.2 Kenyan Somalis and Somali Refugees. 78 2.2.3 Kenyan Nubians. 86 2.3 Women. 92 2.4 Lesbian, Gay, Bi-Sexual, Transgender and Intersex Persons. 114 2.5 Persons with Disabilities. 130 In the Spirit of Harambee 2.5.1 Persons with Physical and Sensory Disabilities . 134 2.5.2 Persons with Mental and Intellectual Disabilities . 139 2.6 Persons with Albinism. 146 2.7 Persons Living with HIV and AIDS. 150 2.8 Other Patterns of Discrimination and Disadvantage. 159 3. THE LEGAL AND POLICY FRAMEWORK ON EQUALITY . 164 3.1 International Law. 165 3.2 National Law. 170 3.2.1 The Constitution of Kenya. 170 . 184 3.2.33.2.2 Non-DSpecificiscrimination Anti-Discrimination Provisions Laws in Other Legislation. 201 3.3 National Policies . 220 3.4 Implementation and Enforcement. 227 4. CONCLUSIONS AND RECOMMENDATIONS. 244 4.1 Conclusions. 244 4.2 Recommendations . 249 BIBLIOGRAPHY. .261 In the Spirit of Harambee ACKNOWLEDGEMENTS This report is published by The Equal Rights Trust (ERT), in partnership with the Kenya Human Rights Commission (KHRC). The principal drafter of the report is Jim Fitzgerald (ERT). He was assisted by other ERT staff, particularly Jessica Duggan-Larkin, who provided research, drafting and editing advice and support. Paola Uccellari provided guidance, advice and direction throughout the drafting of this report. Dimitrina Petrova, Executive Director of ERT, oversaw the research and drafting of the report, copy-edited and authorised the report for publication. ERT staff including Natalie Brinham, Libby Clarke, Amal De Chickera, Ingrid Dessauvages, Anne Muthee and Nicola Simpson provided assistance. - port was gathered. One research team, which travelled to various locations in November-DecemberERT and KHRC undertook 2010, field consisted research of Dimitrinaduring which Petrova testimony (ERT), forEric the Gitari re (KHRC) and David Kuria of the Gay and Lesbian Coalition of Kenya (GALCK). Kaneva, who also produced full interview transcripts after the mission. A sec- ondThey research were assisted team comprised throughout Jim the Fitzgerald field mission (ERT), Monicahby ERT Kareithivolunteer (KHRC) Vania and Joy Matara (Consultant). They travelled to various locations in Kenya in March 2011. In August 2011, Dimitrina Petrova, Monicah Kareithi, and An- thony Oluoch (GALCK) conducted a third study on patterns of discrimination and capabilities of stakeholders to challenge them, featuring individual inter- views and focus groups in Nairobi and Kisumu. ERT and KHRC are grateful to interns who undertook desk-based research and analysis. Particular thanks are due to James Smith who carried out the initial desk research for the report in its early stages. Thanks also go to ERT interns and volunteers Ellie Bramley, Lily Cutler, Vickie Knox, Sandra Nges- Alleyan individuals and Isidora and Stakić. organisations who responded to queries, provided infor- thanked. In particular, we wish to thank Mumbi Ngugi of the Albinism Foun- dationmation ofand East advice Africa, and for met her with insights ERT, KHRC into andproblems our field faced researchers by persons are with also albinism; David Kuria and Denis Nzioka for sharing their knowledge and ex- In the Spirit of Harambee perience on issues affecting lesbian, gay, bisexual, transgender and intersex persons; and Edah Maina of the Kenya Society for the Mentally Handicapped, for providing analysis of discrimination experienced by persons with mental and intellectual disabilities. ERT and KHRC are very grateful to Barbara Cohen and Tom Kagwe for reviewing a draft of the report and providing feedback. cover and layout of the report. Very special thanks go to our volunteer Dafina Gueorguieva who designed the This report is an outcome of a partnership between ERT and KHRC, which began in 2009 with the project “Empowering Disadvantaged Groups through Combating Discrimination and Promoting Equality” funded by the UK De- partment for International Development (DfID) and has continued with the projects “Embedding Equality under Kenya’s New Constitution” funded by funded by the Arcus Foundation. ERT is very grateful for the support pro- DfID; and “Promoting LGBT Rights in Kenya in a Unified Equality Framework” of these projects was Jim Fitzgerald; Dimitrina Petrova managed the third. Barbaravided by CohenDfID and was the project Arcus advisorFoundation. of the The two project DfID-funded manager projects. of the first ERT two is indebted to her for sharing her expertise and experience and for giving her - ofunflagging the above support projects. to the projects. Special thanks are also due to the Federa tion of Women Lawyers - Kenya which partnered ERT and KHRC on the first Finally, we wish to thank all persons who shared their stories with us. This report is dedicated to them and all other persons in Kenya who have suffered – and those who continue to suffer – discrimination and exclusion. In the Spirit of Harambee ACRONYMS AAC Augmentative and Alternative Communication ACHPR African Charter on Human and Peoples’ Rights AFEA Albinism Foundation of East Africa ASAL Arid and Semi-Arid Lands ASK Albinism Society of Kenya AU African Union AUB African Union of the Blind CDF Community Development Fund CEDAW Convention on the Elimination of All Forms of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic Social and Cultural Rights CPED International Convention for the Protection of All Persons from Enforced Disappearance CRC Convention on the Rights of the Child CREAD Center for Disability Rights, Education and Advocacy CRPD Convention on the Rights of Persons with Disabilities DfID UK Department for International Development EFA Education for All ERT The Equal Rights Trust FGM Female Genital Mutilation FIDA-K Federation of Women Lawyers- Kenya FORD Forum for the Restoration of Democracy GALCK Gay and Lesbian Coalition of Kenya GDP Gross Domestic Product HDI Human Development Index HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic Social and Cultural Rights IDP Internally Displaced Person IGO Inter-Governmental Organisation ILO International Labour Organisation KADU Kenya African Democratic Union In the Spirit of Harambee KANU Kenyan African National Union KAU Kenya African Union KHRC Kenya Human Rights Commission KNCHR Kenya National Commission on Human Rights KNDR Kenya National Dialogue and Reconciliation KPU Kenya People’s Union KSMH Kenya Society for the Mentally Handicapped
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