Role of Judges in Realizing States’ Responsibility to Eliminate Violence against Women: Perspectives from C.K. & Others v. Commissioner of Police & Others [Meru Pet. 8 of 2012]
January 8, 2014
Presented at the 2013 Women & Justice Conference
Theme: State Responsibility for Eliminating Violence against Women: The Due Diligence Principle and the Role of Judges
December 10-12, 2013
New York City, New York, USA
by Justice James Aaron Makau
Whereas the perpetrators are directly responsible for the harms to the petitioners, the respondents herein cannot escape blame and responsibility. The respondents’ ongoing failure to ensure criminal consequence through proper and effective investigation and prosecution of these crimes has created a “climate of impunity” for commission of sexual offences and in particular defilement…this to me makes the respondents responsible for physical and psychological harms inflicted by perpetrators…the State’s duty to protect is heightened in the case of vulnerable groups such as girl-children and the State’s failure to protect need not be intentional for it to constitute a breach of its obligations.
Meru Petition 8 of 2012
The Preamble to the Constitution of Kenya recognizes the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. Article 10 of the Constitution also requires that national values and principles of governance bind all state organs, state officers, public officers and all persons whenever any of them apply or interpret the Constitution, enact, applies or interprets any law or makes or implements public policy decisions. These values are said to include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.
Article 21 of the Constitution of Kenya makes it a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. Under Clause(3) of the same Article, “All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities.”
This means that in addition to the duty of care that is imposed on state organs and public officers by the various enabling statutes, there is now a higher standard imposed by the Constitution to uphold human rights in the performance of one’s duties. This duty of care extends to obligations imposed by international instruments. This is because Article 2 (6) of the Constitution recognizes international law as part of the corpus of law that applies in Kenya.
The entrenchment of the aspirations of Kenyans in the Constitution and the expansion of the breadth of rights that are now available for all persons is a direct response to the inadequacies of the old Constitution, and particularly the stringent requirements for the enforcement of the Bill of Rights. Firstly, it took a very long time for the rules of procedure for the enforcement of the Bill of Rights under the previous constitution to be published by the Chief Justice. The courts interpreted the absence of the rules of procedure to mean that individuals could not file petitions to enforce these rights. When the rules were finally published, the courts ruled on several occasions that a petitioner had to meet a 4-tier test, including the requirement of locus for their petition to be entertained.[ii] This led to continued infringement of human rights both by the government and private citizens due to the difficulty in enforcing these rights.
The 2010 Constitution ameliorates this situation in several ways. Firstly, there is now no requirement that a person who files a petition have nexus with the rights that are sought to be enforced, i.e. locus standi. This was a requirement under the old Constitution. This article now provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. It makes it clear that in addition to a person acting in their own interest, proceedings can be instituted by a person acting on behalf of another person, acting in the public interest or by an association acting in the interests of one of its members. C.K. & Others v. Commissioner of Police & Others (Meru Petition 8 of 2012) was filed by among others, a non-governmental organization specializing in the promotion and protection of child rights and welfare.
Even though this Article requires the Chief Justice to make rules providing for the court proceedings, it makes it clear that the absence of rules does not limit the right of any person to commence court proceedings and to have the matter heard and determined by the court. At the time of the filing of petition 8/2012, these rules were not yet in force and they only came into force in 2013.[iii]
Secondly, the Constitution expands the range of reliefs that a court can grant in proceedings to enforce the Bill of Rights. These remedies are said to include a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law that violates a right or fundamental freedom, an order for compensation and an order for judicial review.
VIOLENCE AGAINST WOMEN
The Declaration on the Elimination of Violence against Women defines violence as “any act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or private life.”[iv]
Violence against women can be physical, social, and/or psychological. Even though there are certain forms of violence that are considered universal, violence against women varies from country to country. Whereas in some countries, violence against women mostly takes the form of sexual violence, in others, it can include domestic violence, dowry-related violence (especially in African countries), female genital mutilation (FGM), trafficking in women, sexual harassment, forced prostitution, forced pregnancy & denial of use of contraceptives. More often than not, the form that the violence takes is influenced by culture.
While the Constitution recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation, and while it also recognizes the right of a person to practise their culture, the constitution also makes it clear that any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency.
Causes of Violence
It is posited that violence against women is part of a historical process that has to do with male dominance over time, well entrenched by the patriarchal nature of most societies. Among the historical power relations responsible for violence against women are the economic and social forces which exploit female labour and the female body. Economically disadvantaged women are more vulnerable to sexual harassment, trafficking and sexual slavery. In addition, denying women economic power and economic independence is a major cause of violence against women, as it prolongs their vulnerability and dependence.[v]
Even in the family context, the historical power relations are played out. The family, which ought to be a place where all members are cared for and nurtured, has become a place where labour is exploited and disempowerment of women takes place. It is postulated that it is the environment in which the female sexual identity is often created and that in some cases, it may lead to negative images of the self which inhibit women from realizing their full potential.[vi] This includes the area of reproductive health where even though women now have a greater say, there is still a big manifestation of power relations in relation to abortion and birth control. Three main factors have been cited as contributing to continued violence against women:
Violence against women is used to control female sexual behavior and this is given as the reason why violence against women often finds expression in sexual forms, whether it is as rape, sexual harassment or female genital mutilation.[vii] The control of female sexual behaviour is to ensure chastity and violence against women who are seen as being the property of the males in a rival social group. Violence against women therefore becomes a means of defiling the honour of that social group.[viii]
2. Cultural Ideologies
It is also posited that the prevalence of ideologies justifying female subordination promotes violence against women. This is because there is a traditional legitimacy given to men to use violence against women which includes wife battery, female genital mutilation, foot binding, male preference, early marriages, virginity tests, dowry deaths, and female infanticide among others. In these cases, custom, tradition and religion are used to justify the use of violence against women and the blind adherence to these practices and state inaction with regard to the same has made possible continued violence against women.[ix] Cultural ideologies hold greater sway in parts of Africa than the law of the land. In the words of Lightfoot-Klein,
Custom in Africa is stronger than domination, stronger than the law, stronger even than religion. Over the years, customary practices have been incorporated into religion, and ultimately have come to be believed by their practitioners to be demanded by their adopted gods, whoever they may be…[x]
It does therefore appear that in as much as states are under an obligation to ensure that women are protected from violence, the laws and obligations of the state operate in a culture that legitimizes violence against women. Most cases of violence against women go unreported and are taken to be part of the social norm.[xi] The rate of teenage pregnancies has therefore grown alarmingly in Kenya of late, especially in rural areas.[xii] Some cultural practices such as ‘beading’ among the Samburu people in Kenya are a good example of cultural practices that are not only oppressive to the women, but also contribute to the high incidences of teenage pregnancies in rural areas.[xiii] What makes such cases worse is the collusion with local leaders to keep the matters out of the formal dispute resolution channels.[xiv]
Strongly linked to the culture are religious beliefs which also play a part in the subordination of women to men. In most religions, the women are considered inferior to the men, and this can clearly been seen in the fact that most religious leaders are men. This makes most religions undemocratic and provides a ripe forum for the subordination of women who are often excluded from major decisions, and provides a basis for justification of human rights abuses.[xv]
Although the Constitution of Kenya encourages the use of alternative dispute resolution methods, it puts a caveat on traditional dispute resolution methods by stipulating that:
Traditional dispute resolution mechanisms shall not be used in a way that
a) Contravenes the Bill of Rights;
b) Is repugnant to justice and morality or results in outcomes that are repugnant to justice and morality.[xvi]
3. State Ambivalence
States are under an obligation to enact laws that provide protection of the rights of vulnerable groups such as women and children. Indeed Article 21 (4) of our Constitution which deals with the implementation of rights and fundamental freedoms creates an obligation on the part of the state to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. This includes conventions and treaties that provide for the elimination of all forms of violence against women and children.
It is not sufficient for a state to enact laws to provide for the protection of these vulnerable groups. It must in addition take good faith measures intended to ensure that these rights are realized. This includes the political commitment of resources to programmes and policies aimed at eradicating violence against women.
The failure by the state and its organs to act in situations of violence is one of the major factors that allow violence to continue and the active intervention of the state may be the catalyst required for reforming power relations within society. A good example of this is the doctrine of privacy in the home which is invoked as a reason for refusal to act unless the violence in the home becomes a public nuisance.[xvii]
It is also the role of the state to ensure that women stand on equal footing with men in so far as the realization of their aspirations goes. Due to the history of discrimination against women in Kenya, the constitution now requires the state to take legislative and other measures, including affirmative action programmes and other policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. This includes the requirement on the part of the state to implement the principle that, that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.[xviii]
Where violence against women is allowed to continue unabated, it results in degradation, humiliation and belittling of women, it engenders a sense of fear and insecurity in women victims, it prevents women from leading independent lives, curtails their movement and determines their manner of dressing. The overall effect is that their potential remains unrealized and their energies are stifled as women are prevented from participating fully in the family and community life. Abused women are susceptible to depression and personality disorders, which affects their confidence and self-esteem.
For the society, there is also a cost as the financial implications of dealing with violence as well as the time spent are costly. However, the greater cost is that which is lost by the suppression of women’s rights and the denial of women’s potential to participate fully in society.[xix]
THE LEGAL FRAMEWORK ON VIOLENCE AGAINST WOMEN IN KENYA
Kenya has ratified or acceded to several international instruments that include the protection of women from violence in their provisions. These include the Universal Declaration of Human Rights, the International Covenant on Civil & Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Declaration on the Elimination of the Violence against Women (DEVAW), the Convention on the Rights of the Child, the African Charter on Human and People’s Rights, the African Charter on the Rights and Welfare of the Child. By dint of Article 2 (6) of the Constitution, any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. These laws are as binding as national law.
In addition to these international obligations, there are also national legal provisions which provide for protection of women from violence. These include the Penal Code (chapter 63 of the Laws of Kenya) and the Sexual Offences Act (No. 3 of 2006) which prescribe the penalties for sexual offences and offences against the person.
Several attempts have been made to pass the Family Protection Bill, which contains provisions on domestic violence since 1999 but the latest publication in 2012 is yet to be debated in Parliament.[xx] It has since been revised and updated to reflect present day requirements by making it wider and flexible to accommodate and tackle all matters related to domestic violence without limiting it to the penal law alone. It seeks to make provisions for the protection and relief of victims of domestic violence and to provide for related matters.[xxi]
THE DUE DILIGENCE STANDARD
The due diligence standard for violence against women is set out in the Declaration on the Elimination of Violence against Women (1993). Under Article 4 (c), states are urged to “exercise due diligence to prevent, investigate and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.” It has also been noted by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in General Comment 19 that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence”.
Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) acknowledges the right to effective remedy. It provides as follows:
Each State Party to the present Covenant undertakes:
“(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.”
It has been stated by the Inter-American Court of Human Rights that Conventions and treaties define the human rights of individuals and also establish the obligations and duties of States generated by these rights. Indeed, it is States that must respect, protect and guarantee the rights of every person. In this respect, States must adopt measures so that human rights violations do not occur or do not go unpunished (by action or omission). This applies irrespective of whether the perpetrators are authorities, institutions, individuals, or non-state agents or actors. In this way, human rights violations even when committed by individuals (non-state actors), constitute a form of non-compliance with the human rights obligations of States. However, the responsibility of States is not unlimited. It is dependent on their knowledge of the situation, the resources they have to comply with their obligations, and the level of due diligence they have adopted to prevent, investigate and punish the violations and the violators of human rights, among other factors.[xxii]
The existence of this standard serves as a tool for citizens to hold states and organs of states accountable. This is especially so where the potential infringement comes through a duty-bearer’s failure to act, as it can be difficult in the absence of a standard to assess whether an omission constituted a violation of their right without a basis for the appraisal.[xxiii] The Kenyan Constitution imposes a right to freedom and security of the person and a right to dignity. It also imposes a requirement on organs such as the Directorate of Public Prosecutions to act in the public interest in the execution of their duties. There is however no yardstick established in the Constitution for assessing the effectiveness of their performance and more importantly, whether an omission to act has the effect of violating a right established in the Bill of Rights.
ROLE OF THE JUDGES IN THE DUE DILIGENCE PRINCIPLE-PERSPECTIVES FROM KENYA
- Ensuring That Human Rights Commitments Are Implemented
The Constitution provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. In applying a provision of the Bill of Rights, a court is under an obligation to (a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and to adopt the interpretation that most favours the enforcement of a right or fundamental freedom.[xxiv]
It is the Constitutional right of every child to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.[xxv]
The role of the judges of the High Court in the interpretation of the Constitution cannot be overstated. It is the role of the court to delimit the obligations and duties that a State has in relation to fundamental rights and freedoms. Some countries have a constitutional court which is tasked with the handling of constitutional matters. In Kenya, it is the High Court that is entrusted with the jurisdiction to determine whether a right or fundamental freedom is denied, violated, infringed or threatened. Since the Kenyan Constitution is in its infant stages, it is the process of interpretation that gives life to the provisions of the constitution that are new to Kenya. Where the courts adopt a strict interpretation of the law, aggrieved parties are deprived of the benefit of protection of the law. Since the decisions of the High Court are binding on the lower courts, the High Court judges have the privilege of making law in the process of decision making.
Where a court is presented with a case such as the one before me, a purposive interpretation of the Constitution and international instruments is necessary not only to ensure that the petitioners receive an effective remedy but also to have the necessary deterrent effect to would-be perpetrators. Even though the Constitution imposed an obligation on the DPP and the police by extension to act in the public interest, there was no express provision holding them responsible where they failed so to do. The court therefore needed to have recourse to international law in order to ensure that an effective remedy was availed to those whose rights were violated by the inaction of the police.
- Ensuring Accountability for Human Rights Violations
It is the role of the court to ensure that human rights violations do not go unpunished where these are brought to the attention of the court. This is because where perpetrators are brought to book, it restores public confidence in the workings of the justice system. Conversely, where perpetrators are not held to account, citizens lose their confidence in the ability of the State to protect their rights and this may result in anarchy.
For victims of violence, where the state fails to act to protect them from the perpetrators, it causes them and their families to live in fear of a repeat occurrence of the violence, especially where the perpetrators are known to the victims and their families. The idea of justice being seen to be done accords victims a sense of closure, peace of mind and a sense of dignity to the victims.
In my decision, I cited with approval the decision of the South African constitutional court in Carmichele v. Minister Safety and Security & Another[xxvi] where the court stated that “the courts are under a duty to send a clear message to the accused, and to other potential rapists and to the community. I found in my decision that there was both a statutory and a constitutional duty to act, the breach of which infringed on the petitioners’ right to equal protection and benefit of the law, contrary to Article 27 of the Constitution. As a result, the failure to enforce the existing defilement laws had contributed to the development of a culture of tolerance for pervasive sexual violence against children and impunity. This had caused some of the victims to flee their homes in fear at a time when they needed the support of their friends and family the most. It is therefore the role of judicial officers to protect the victims and their families and ensure that perpetrators are held accountable to reduce the cases of gender-based violence.
- Protection of Vulnerable Groups
The duty of the state to protect is heightened in the case of vulnerable groups such as girl-children and the State’s failure to protect vulnerable persons need not be intentional for it to constitute a breach of its obligation. Article 21 (3) of our Constitution creates an obligation on the state to address the needs of vulnerable persons, including children. In my decision, I found that there is a clear duty to investigate crime and the failure to do so constitutes a constitutional violation of a claimant’s rights.
The court also has a role in ensuring that actors that have constitutional responsibilities perform their roles in ensuring compliance with the constitution. Indeed it is part of the mandate of the High Court under Article 165 (3) to determine the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution. The entrenchment of rights in the Constitution is not sufficient to ensure that they are afforded to citizens. In addition to the enactment of provisions that ensure the protection of human rights, the state has to ensure that there is compliance by state organs. Where the state fails to do so, it is the right of citizens to seek the enforcement of these rights by petitioning the court. Therefore, the state not only bears a negative duty to abstain from acts that infringe on fundamental rights and freedoms of its citizens, it also bears a positive duty to take active steps to ensure protection and realization of these rights. This means that both action and inaction by state organs attracts a cause of action. Where the court holds perpetrators to account, it helps to reduce cases of gender-based violence.
I noted in my judgment in particular that the constitutional requirement to protect the best interests of the child requires not only the establishment of relevant laws but more so their proper enforcement by state agencies and any failure to implement laws aimed at protecting children amounts to infringement and/or violation of their Constitutional rights. The South African court has ruled that the police is one of the primary agencies of the state responsible for the protection of the public in general and women and children in particular against the invasion of their fundamental rights by perpetrators of violent crime.[xxvii] In addition to the requirement under the constitution for the office of the DPP to have regard to the public interest and apply national values and principles, the DPP had a responsibility to investigate and prosecute violations of the Sexual Offences Act.
- Ensuring Non-Discrimination In Acting On Cases Of Sexual Violence
It is the role of judicial officers to ensure that justice is delivered equally to all individuals irrespective of their gender, race or financial status. It is the right of Kenyans everywhere to enjoy freedom and security of the person and the duty of the state to ensure that this right is availed irrespective of gender and status. Where the state fails to investigate and act on cases of sexual violence, it is the role of the court to compel state organs to act to protect the rights of vulnerable groups.
The due diligence principle goes hand in hand with the principle of non-discrimination. What this means is that states are under an obligation to act on cases of violence against women in the same manner as other forms of violence. It requires States to use the same level of commitment in relation to preventing, investigating, punishing and providing remedies for acts of VAW as they do with other forms of violence.[xxviii]
It is therefore not sufficient for states to merely enact formal legal provisions. States and their organs are required to implement due diligence obligations in good faith and make a reasonable effort towards acting on cases of violence against women and not leave the same to non-state actors such as non-governmental organizations. The ultimate obligation for meeting due diligence obligations rests on the state and it cannot be delegated.
- Informing The Legal System’s Response To Gender Based Violence
If the fight against gender based violence is to be effective, the Judiciary has to play a leading role. Judges and magistrates are the final authority in civil and criminal matters involving violence against women. Judicial officers preside over cases of inheritance, property rights, custody, employment, discrimination, sexual harassment, rape domestic violence. [xxix] It is their role to ensure equal justice through proactivity. For instance, in cases of inheritance, it is the role of the court to ensure that grant intestate includes the shares of all persons beneficially entitled, including female relatives before confirmation of the grant of letters of administration.[xxx] Cruelty has also become one of the common grounds for seeking divorce or separation. It is the role of the court to step away from conservatism and apply the provisions of international human rights instruments to protect the rights of women.
Impediments to Accessing Justice in Cases of Violence
Barriers in the legal system that impede victims’ ability to access justice include:
- Hours of operation and/or location of the court
- Difficulty in obtaining certification from a medical doctor
- Delay in court procedures and
- Monetary sanctions imposed against perpetrators.[xxxi]
- The requirement that evidence of violence against women be corroborated. In Kenya, there are strict rules of evidence in relation to sexual offences, whereby as a matter of judicial practice, the evidence of sexual offences was required to be corroborated.[xxxii]
PROPOSALS FOR THE WAY FORWARD
- Compensation for Victims: It is proposed that this due diligence standard be extended to issues such as compensation of victims so that the focus shifts from responding to acts of violence that have already occurred. This can be done through tools such as legislative reform, access to justice and provision of care services.[xxxiii] Such a framework would operate under the principles of prevention, protection, punishment and reparations. This shift of focus would also need activism/innovative thinking on the part of the bench. Kenya for instance has provision for economic and social rights, which include the right of every person to the highest standard of health care. Judges can interpret this to include the provision of care services for those who have been victims of VAW. Ensuring Access to health care and social services for victims in Kenya is currently left to non-governmental organizations yet it should be the preserve of the state.
- The Creation of Policy: It is also the role of the court to contribute to policy on human rights issues. This would include how human rights issues should be handled by the state. The court noted with concern the lackluster police standards in relation to handling of cases of defilement, despite the critical role played by the police in the criminal justice system; and how an abdication of this role would inevitably deprive the claimant’s access to the courts and lead to a miscarriage of justice or deny justice altogether. The court therefore issued an order compelling the National Police Service to implement Article 244 of the Constitution, which not only requires the police to comply with constitutional standards of human rights and fundamental freedoms, but also to train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity.[xxxiv]
- Educational Support: The government should set up educational institutions in areas where violence against women and girls is rampant. This would enable those who have had to drop out of school due to pregnancy to take up education again and increase their levels of economic empowerment among victims of abuse.
- Creation of Awareness: As a counter to the culture of violence against women, it is also proposed that the state continues to work to develop awareness on violence against women through awareness-raising campaigns, large scale media campaigns, national days of action, zero tolerance policies. For such strategies to be effective, the state needs to involve both boys and men in such campaigns in order to deprecate cultural practices and ideologies that justify female subordination.[xxxv] Kenya is joining other countries in marking the international campaign 16 Days of Activism against Gender Violence with activities throughout the country aimed at creating awareness on the adverse effects of violence against women.
- Training: The state should also provide training for specialized groups such as the police, prosecutors and the Judiciary on ways in which state organs can work together to eliminate violence against women. Article 244 of our Constitution already requires the National Police Service to train staff on the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity. In the decision of the court in petition 8/2012 I issued an order of mandamus compelling the Inspector General of Police to implement this provision of the Constitution. If this measure of sensitization is to be fully effective, these three organs of state need to synergize their efforts in creation of awareness and acting to prevent violence against women.
The Inspector-General of Police has recently assured the public that the police are now being trained on gender-based violence, possibly as a result of huge public outcry over the police handling of such cases and partly as a result of the judgment in Meru Petition 8 of 2012. He reported that police training colleges have improved their curriculum to include human rights issues that touch on gender based violence and that the new recruits are well instructed on preventive measures and how to deal with victims reporting such crimes.[xxxvi]
- Transparency and Accountability: there is need for performance assessment matrix and/or reward mechanism for deterrent efforts of law enforcers and proper investigations e.g. the number of convictions duly secured or professionalism in police force/prosecution authorities.
- Sensitization of Judicial Officers: The sensitization of the Judiciary is especially important. If the decisions of the court are to effectively deal with violence against women, the courts must be sensitive to the needs of women victims of violence.[xxxvii]
- Culture Change: Since most of the violence against women is attributed to cultural ideologies, the state should work to transform the society to implement laws that abolish male domination and achieve equity for women. This includes areas such as probate and administration where the female relatives are often left out of the process of administration of a deceased person’s estate. The state should also work to eliminate segregation in domestic and wage labour as the empowerment of women reduces their chances of being victims of violence.
- Reporting Mechanisms: Promotion and support of women empowerment codified in the law and international instruments such as CEDAW, ICCCPR, ICESCR and the Beijing Platform for Action. The government should also make reports to the relevant reporting mechanisms for the various international instruments on how far it has gone in implementing its obligations under international women’s rights instruments.
[i] Judge of the High Court of Kenya
[ii] See the case of Anarita Karimi Njeru v. The Republic (No. 1) [1976-80] 1 KLR 1272
[iii]The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 were published on the 28th of June 2013.
[iv] Article 1
[v] See Dr. Patricia Kameri-Mbote: Violence Against Women in Kenya: An Analysis of Law, Policy and Institutions, International Environmental Law Research Centre Working Paper 2000-1 at page 1, available on <http://www.ielrc.org/content/w0001.pdf>
[vii] This kind of violence can occur both during war and in peace. In Kenya for instance, sexual violations occurred during the post-election violence of 2007/8 which were mostly targeted at women and girls.
[viii] Ibid, p. 2
[x] Hanny Lightfoot-Klein, Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa, Routledge, 1989 at p. 47
[xi] See for instance the case of a 6-year old girl who was violated by a 45-year-old man and whose parents accepted 8 sheep as compensation for the same to not pursue the prosecution of the perpetrator available on <http://www.citizennews.co.ke/features/item/14986-stolen-innocence-6-year-old-raped-by-45-year-old-man> accessed on the 12th of November 2013. It is reported that about 98% of cases of sexual violence go unreported in Wajir County-see <http://www.nation.co.ke/news/Wajir-Rape-Cases-Sexual-Violence/-/1056/2068970/-/ttyw6i/-/index.html> accessed on the 12th of November 2013.
[xii] Mt. Elgon, in Western Kenya, has in the past been ravaged by violence and insecurity which has resulted in many teenage pregnancies. See <http://www.citizennews.co.ke/features/item/15005-whose-babies?-part-2> accessed on the 12th of November 2013.
[xiii]In this practice, a Moran (young warrior) places beads on the neck of a girl he fancies and this acts as a sign of ‘engagement’. Thereafter, he is allowed to have sex with her but he cannot marry her and they must not have a child. Should the girl become pregnant, the mother of the child is forced to perform the abortion. See Beads of Bondage available on <http://www.youtube.com/watch?v=XaMcO0Oox7M> accessed on the 13th of November 2013.
[xiv] This issue has been reported widely and has even formed the subject of debate in the National Assembly due to public outcry. See for instance http://www.thepeople.co.ke/32635/where-8-sheep-take-the-place-of-justice/ accessed on the 26th of November 2013.
[xv] Maureen Kambarami, Femininity, Sexuality and Culture: Patriarchy and Female Subordination in Zimbabwe , African Regional Sexuality Resource Centre, 2006, available on
[xvi] See Article 159 (3) of the Constitution.
[xvii] Ibid, p. 3
[xviii] See Article 27 (8) of the Constitution of Kenya 2010.
[xix] Kameri-Mbote, id (n.4)
[xx] The Protection against Domestic Violence Bill, 2012. In 2000, the bill, then titled the Domestic Violence (Family Protection) Bill, was tabled in Parliament but it lapsed before it was enacted. It was published again in 2007 and later in 2012.
[xxi] See Nancy Baraza, Family Law Reforms in Kenya: An Overview, presented at Heinrich Boll Foundation’s Gender Forum in Nairobi on the 30th of April 2009 at page 10.
[xxii] Cotton Field: Proposals for Analysis and Monitoring Of the “Cotton Field” Case Sentence regarding human rights violations committed by the Mexican State, February 2010.
[xxiii]Special Rapporteur on Violence against Women: Summary Paper, The Due Diligence Standard for Violence against Women, available on <www2.ohchr.org/English>, accessed on the 22nd of October 2013.
[xxiv] See Article 20.
[xxv] Article 53.
[xxvi] 2001 (4) SA 938 (CC)
[xxviii] Special Rapporteur on Violence against Women, The Due Diligence Standard as a Tool for the Elimination of Violence against Women, ¶ 35, U.N. Doc. E/CN.4/2006/61 (2006).
[xxix] Tanzania Women Judges Association, Stopping the Abuse of Power for Purposes of Sexual Exploitation: Naming, Shaming and Ending Sextortion at page 9.
[xxx] The exclusion of female beneficiaries from grants intestate is common in Kenya and it is largely attributed to cultural demands which exclude women from inheriting property. The Law of Succession Act however recognizes the equal right of men and women to inherit property.
[xxxi]id (n. 17)
[xxxii] It is the opinion of practitioners that the requirement for corroboration in sexual offences implies a lack of trust in complainants and the courts have made decisions to the effect that women victims of sexual offences are likely to mislead the court as to the nature of their sexual encounters with the alleged perpetrators. See for instance the decision of the court in Maina v. R  EA 370. Indeed even the Sexual Offences Act contained a provision, section 38, making it an offence to make a false allegation of a sexual offence, making the complainant liable to punishment equal to that for the offence complained of. The section was repealed by the Statute Law (Miscellaneous Amendments) Act, 2012. The Court of Appeal has since ruled that the requirement for corroboration was unconstitutional as it was discriminatory (see the decision of Mukungu v. R (2003) AHRLR 175 (KeCA 2003)
[xxxiii] Ibid p.15
[xxxiv] The laxity in the prosecution of cases of violence against women continue to be reported, with a recent case of a 16-year-old girl who was defiled by 6 men and dumped in a 15-foot pit latrine in Busia, Western Kenya in June this year. The incident left the girl in a wheelchair. The suspects were arrested and later released after being made to cut grass, despite the victim identifying the suspects. Though there have been repeated calls for the arrest and prosecutions of the suspects, the suspects remain at large. See Radical Protest for Rape Victim Liz Kicks Off available on <http://www.nation.co.ke/lifestyle/women/Radical-protest-for-rape-victim-Liz-kicks-off/-/1950830/2054340/-/bpcvoxz/-/index.html>, Kenya Rape: Protests After Attackers Given Grass-Cutting Punishment available on <http://www.theguardian.com/world/2013/oct/31/kenya-gang-rape-protests-nairobi-attackers-grass-cutting-punishment> and Police Failure Abetting Rape and Deviancy available on <http://www.nation.co.ke/oped/Opinion/Police-failure-abetting-rape-and-deviancy/-/440808/2037060/-/4137wr/-/index.html> (both accessed on the 11th of November 2013).
[xxxv] See Benjamin Obegi ‘Moran Mobilization the new tactic in the fight against FGM’ The Standard Xtra, (Nairobi, 27 November, 2013), 2. It has been noted that even though gains have been made in the fight against female genital mutilation in Samburu, the battle will not be won until men change their attitudes about the rights of uncircumcised girls.
[xxxvi] See http://www.nation.co.ke/news/Police-vow-to-fight-gender-violence/-/1056/2088426/-/prbymgz/-/index.html accessed on the 26th of November 2013.
[xxxvii] The Kenyan Judiciary has in the past taken a beating for being insensitive and for being slow in incorporating international provisions on women’s human rights in their decisions. See for instance the Court of Appeal decision in Omambia v. Republic Criminal Appeal No. 47 of 1995 and Stephen Muendo Koti v. R where the court held that touching a woman’s bosom and behind did not constitute indecent assault as they were not part of her private parts. The incorporation of international human rights instruments into the municipal law has contributed to ameliorating this situation but the courts have to complete the process by incorporating these principles in case law.