In the Spirit of Harambee: Addressing Discrimination and Inequality

320 Pages·2008·1.99 MB·English

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
Design and layout: Dafina Gueorguieva
Printed in the UK by Prontaprint Bayswater
ISBN: 978-0-9560717-5-0
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. [phone]
Fax: [phone]
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
2. P1A.5T TGrEoRuNnSd OfoFr DHIoSpCeR: ITMhIeN NAeTwIO CNo nAsNtiDtu ItNioEnQ .U.A..L.I.T..Y.................32
................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
3. 2 T.8H OE tLhEeGr APaLt AteNrnDs PoOf DLIisCcYr iFmRiAnaMtiEoWn OanRdK D OisNa dEvQaUnAtaLgIeT .Y.. .......... 159
.......... 164
3.1 International Law ............................................. 165
3.2 National Law .................................................. 170
3.2.1 The Constitution of Kenya ................................ 170
3.2.2 Specific Anti-Discrimination Laws ........................ 184
3.2.3 Non-Discrimination Provisions in Other Legislation ....... 201
3.3 National Policies .............................................. 220
4. C3O.4N ICmLpUlSeImOeNnSta AtiNoDn aRnEdC EOnMfoMrcEeNmDeAnTtI .O.N..S......................... 227
........................ 244
4.1 Conclusions ................................................... 244
BIBL4IO.2G RRAecPoHmYm ..e.n.d..a.t.io..n.s. ..........................................................................................224691
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.
ERT and KHRC undertook field research during which testimony for the re-
port was gathered. One research team, which travelled to various locations in
November-December 2010, consisted of Dimitrina Petrova (ERT), Eric Gitari
(KHRC) and David Kuria of the Gay and Lesbian Coalition of Kenya (GALCK).
They were assisted throughout the field mission by ERT volunteer Vania
Kaneva, who also produced full interview transcripts after the mission. A sec-
ond research team comprised Jim Fitzgerald (ERT), Monicah Kareithi (KHRC)
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-
eyan and Isidora Stakić.
All individuals and organisations who responded to queries, provided infor-
mation and advice and met with ERT, KHRC and our field researchers are also
thanked. In particular, we wish to thank Mumbi Ngugi of the Albinism Foun-
dation of East Africa, for her insights into problems faced by persons with
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.
Very special thanks go to our volunteer Dafina Gueorguieva who designed the
cover and layout of the report.
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
DfID; and “Promoting LGBT Rights in Kenya in a Unified Equality Framework”
funded by the Arcus Foundation. ERT is very grateful for the support pro-
vided by DfID and the Arcus Foundation. The project manager of the first two
of these projects was Jim Fitzgerald; Dimitrina Petrova managed the third.
Barbara Cohen was project advisor of the two DfID-funded projects. ERT is
indebted to her for sharing her expertise and experience and for giving her
unflagging support to the projects. Special thanks are also due to the Federa-
tion of Women Lawyers - Kenya which partnered ERT and KHRC on the first
of the above projects.
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.