Situational Analysis and the Legal Framework on Sexual and Gender-Based Violence in Kenya: Challenges and Opportunities
Situational Analysis and the Legal Framework on Sexual and Gender-Based Violence in Kenya: Challenges and Opportunities
Dr. Ruth Aura*
Violence against women is perhaps the most widespread and socially tolerated of human rights violations, cutting across borders, race, class, ethnicity and religion. Sexual and gender-based violence (SGBV) is a particularly disturbing phenomenon which exists in all regions of the world. Kenya is not an exception to this form of brutality which negatively affects women and girls in particular. The term refers to any harmful act that is perpetrated against one person’s will and that is based on socially ascribed (gender) differences between males and females. It includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty, whether occurring in public or in private life. In 1993, the UN Declaration on the Elimination of Violence against Women offered the first official definition of gender-based violence:
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 deprivations of liberty, whether occurring in public or in private life.
SGBV entails widespread human rights violations, and is often linked to unequal gender relations within communities and abuses of power. According to Jewkes, violence against women is rooted in gender inequality. He argues that violence against women involves men and women where ‘the female is usually the victim and which arises from the unequal power relationships between men and women.’ It can take the form of sexual violence or persecution by the authorities, or can be the result of discrimination embedded in legislation or prevailing societal norms and practices. It can be both a cause of forced displacement and an intolerable part of the displacement experience.
SGBV in Kenya, as elsewhere in the world, is a complex issue that has as its root the structural inequalities between men and women that result in the persistence of power differentials between the sexes. Women’s subordinate status to men in many societies, coupled with a general acceptance of interpersonal violence as a means of resolving conflict, renders women disproportionately vulnerable to violence from all levels of society: individual men, within the family and community, and by the state. In blaming men’s violence for the impoverishment of the women, Cornwall Andrea states:
Men’s violence is a key determinant of the inequities and the inequalities of gender relations that both disempower and impoverish women. Violence is a fundamental dimension of human poverty. Yet, men’s natural aggression’ is often invoked as a defining characteristic of an essential gender difference and as an explanation for gendered hierarchical arrangements in the political and economic contexts of richer and poorer countries alike.
The impact of SGBV is devastating. The individual women who are victims of such violence often experience life-long emotional distress, mental health problems and poor reproductive health, as well as being at higher risk of acquiring HIV and intensive long-term users of health services. In addition, the cost to women, their children, families and communities is a significant obstacle to reducing poverty, achieving gender equality and ensuring a peaceful transition for post-conflict societies. This, in conjunction with the mental and physical health implications of gender-based violence, impacts on a state or region’s ability to develop and construct a stable, productive society, or reconstruct a country in the wake of conflict.
Effective protection can be established only by preventing SGBV, identifying risks and responding to survivors, using a coordinated, multi-sectoral approach. The present protection environment in Kenya is fraught with challenges and filled with opportunities, which should be carefully considered when devising responses. Whereas the Kenyan legal framework provides a mechanism for addressing SGBV, the levels to which the frameworks respond to the plight of the survivors of SGBV is debatable. The legal and policy framework mostly focuses on bringing of the accused person to ‘justice’ without a corresponding obligation of alleviating the conditions of the survivor of SGBV. In fact, the survivor of SGBV is more of an alien to the criminal justice system because the offence is perceived by the system to have been committed against the state, not against the survivor of the SGBV as an individual.
The state in most cases perpetrates or tolerates violence against women either through action or non-action by prioritizing custom or tradition over the respect of fundamental freedoms and rights belonging to women. Kenya is especially guilty of having a system that is replete with cases of abuse of women’s rights. However, the recent case of C.K.(A Child) Through Ripples International As Her Guardian And Next Friend) & 11 Others v. Commissioner Of Police/Inspector General Of The National Police Service & 3 Others where the High Court made a finding that the police’s failure to effectively enforce Section 8 of the Sexual Offences Act, 2006 infringed upon the petitioners right to equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya, 2010 was a step forward in the right direction. In addition, the court observed that by failing to enforce existing defilement laws the police contributed to development of a culture of tolerance for pervasive sexual violence against girl children and impunity. This decision informs the crux of this article and is therefore the point of departure.
1.2 Forms, Prevalence, Causes and Impact of SGBV in Kenya
1.2.1 Forms and Prevalence of Sexual and Gender-Based Violence in Kenya
The nature and extent of specific types of SGBV vary across the different cultures in Kenya. Examples of SGBV as has already been discussed in the introduction to this article include, but are not limited to sexual violence; sexual exploitation and abuse; forced prostitution; domestic violence; human trafficking; forced or early marriage; and harmful traditional practices such as female genital mutilation, honour killings, widow inheritance, among others. In Kenya, as in other places around the world, SGBV occurs in diverse forms across all socio-economic and cultural backgrounds and women are socialised to accept, tolerate and even rationalise it.
The 2008-09 Kenya Demographic and Health Survey (KDHS) reveals that about 39 per cent of women have experienced some form of SGBV since they were 15 years old. This data further reveals that experience of SGBV in all forms – emotional, physical and sexual – rises with age as well as with the number of living children she has. The survey urges that 39 percent of women have experienced physical violence and 21 percent have experienced sexual violence. Marital violence contributes to the majority of SGBV. Violence that may begin with threats may end in forced ‘suicide’, death from injuries or homicide. Moreover, familial violence is the next biggest contributor to physical violence in Kenya as more than two thirds of women who report abuse, report their abusers to be husbands or other relatives. Women who are employed are more likely to experience SGBV than those who are unemployed.
Rape is an acknowledged widespread problem but statistics are not certain due to societal pressures which impress the importance of chastity and honour. However, the statistics from police headquarters show that 2005 women and children were raped in 2002; these figures rose to 2908 in 2004. The reporting of rape is difficult as many women do not have the education or economic capacity to negotiate the legal system. Raped women are often traumatised and stigmatised and can be abandoned, divorced and declared unmarriageable. The low status of women contributes to their vulnerability in the wider society and within the home.
Traditional practices, such as widow inheritance, are widespread. A survey completed by UNAIDS found that 16 percent of married women are in polygamous marriages and 10 percent of girls between 15 and 19 are married compared to 1.3 percent of boys. Thus girls are often married to older men leaving them vulnerable to unequal power relations. Female Genital Mutilation (FGM) is widely practiced in many Kenyan communities. It involves either partial or total removal of the external female genitalia or other injury to female organs for cultural reasons. According to the 2008-9 KDHS there was a 7 percent decline recorded from 2003 to 2008, and the proportion of women circumcised increases with age. Therefore there has been a decline in the practice of female circumcision over the past two decades. A higher proportion of rural women (36 percent) than urban women (21 percent) have been circumcised. Moreover there is a strong relationship between education level and circumcision - 58 percent of women with no education are reported to be circumcised and only 21 percent of educated women. Religion also plays a part in the practice of FGM, with one-half of Muslim women circumcised as compared to one-third of non-Muslim women. This links to the practice of female genital cutting across ethnic groups within Kenya which widely varies. It is almost universal among Somali (97 percent), Kisii (96 percent) and Maasai (93 percent) tribes. Levels are lower among Kikuyu (34 percent) and Kamba (27 percent) women.
SGBV increased during the post-election violence in 2007-08 in Kenya as there was limited protection of women and girls from violence. A collapse in social order exacerbated sexual violence as sexual violence was used as a tool to terrorize individuals. During this period, however, documentation of such reports was not being taken seriously. As a result, this escalated health concerns. The challenges of data collection related to SGBV and pin-pointed shame and fear as the reasons why people did not report . This was because people subjected to SGBV hardly reported to the police and therefore there was a problem of under reporting for those that were available. Notable from was the fact that most women who are subjected to SGBV preferred to seek help from the family members.
1.2.2 Causes and Impact of SGBV in Kenya
The causes of gender-based violence are many, complex and varied depending on the types of violence. Traditional attitudes towards women around the world help perpetuate the violence. Stereotypical roles in which women are seen as subordinate to men constrain a woman’s ability to exercise choices that would enable her end the abuse. A study undertaken by Odhiambo reveals that the causes of SGBV varied and range from political, economic, legal, social and religious dimensions. Indeed Rhonda Capelon asserts that SGBV against women is systematic and structural, a mechanism of patriarchal control of women that is built on male superiority sex stereotype and expectations, and economic, social and political dominance of men and dependency of women.
Similarly, SGBV is as a result of many socio-economic variables such as the social position, employment, status, financial circumstances and self concept and personal as well as community values as contributing factors to the violence. From the above statements SGBV is therefore occasioned by and persists due to a number of factors and no single or major cause can be attributed to the prevalence of SGBV against women which transcends class or ethnic or race divisions. According to UNICEF, causes of SGBV can be categorised into four broad categories as being: socio-cultural causes; economic causes; legal causes; and political causes.
Socio-cultural causes, include gender-specific socialization; cultural definitions of appropriate sex roles; expectations of roles within relationships; belief in the inherent superiority of males; values that give men proprietary rights over women and girls; notion of the family as the private sphere and under male control; customs of marriage (bride price/dowry); and acceptability of violence as a means to resolve conflict. Economic causes include women’s economic dependence on men; limited access to cash and credit; discriminatory laws regarding inheritance, property rights, use of communal lands, and maintenance after divorce or widowhood; limited access to employment in formal and informal sectors; and limited access to education and training for women.
Legal causes include lesser legal status of women either by written law and/or by practice; laws regarding divorce, child custody, maintenance and inheritance; legal definitions of rape and domestic abuse; low levels of legal literacy among women; as well as insensitive treatment of women and girls by police and judiciary. Political causes include underrepresentation of women in power, politics, the media and in the legal and medical professions; SGBV not taken seriously; notions of family being private and beyond control of the state; risk of challenge to status quo/religious laws; limited organization of women as a political force; and limited participation of women in organized political system.
For a long time, men have assumed superiority over women in all aspects of life. This superiority has known no limits and women have been at the behest of all manner of violence executed by men. The question that must therefore be asked is: what makes men believe that they have a right to exercise violence against women? In an attempt to answer this question, Kivutha Kibwana argues that from the cradle to the grave, men are exposed to several myths and excuses which are used to justify and rationalize violence against women. Kibwana further contends that a man who identifies with these myths which constitute the motive force of ill-treatment of the opposite sex and embarks on demystifying and negating them, stands a chance of developing a proper attitude and relationship towards women, an attitude and relationship which cannot permit perpetration of violence.
The effects of Gender-based violence can be devastating and long lasting. They pose danger to a woman’s reproductive health and can scar a survivor psychologically, cognitively and interpersonally. A woman who experiences domestic violence and lives in an abusive relationship with her partner may be forced to become pregnant or have an abortion against her will, or her partner may knowingly expose her to a sexually transmitted infection such as HIV/AIDS.
1.3 Legal Framework Addressing SGBV in Kenya
SGBV does not only occur during war; it is rampant even where legal systems and institutions are working. Communities uphold, practice and normalize various forms of abuse against women that include SGBV, female genital mutilation, early or forced marriage as well as virginity testing. The value attached to female chastity is so high that even where a woman is a survivor of sexual abuse, the typical community response is to isolate and stigmatize her. The shame and stigma attached to gender-based violence against women, and the lenient penalties meted out on offenders in formal and traditional judicial systems, silence victims.
Many governments have committed themselves to prevent and end gender-based violence by ratifying international conventions and declarations, thus acknowledging the seriousness of the problem. Despite these efforts, violence against women is still rampant, hence the need to continuously conduct research in order to expose the hidden problem and suggest strategies that SGBV against women and children, but also prescribe how the victims can be compensated and supported. States have an obligation to promote and protect all human rights and fundamental freedoms of all citizens, and they must exercise due diligence to prevent, investigate and punish acts of violence against women and children. The state also has a duty to protect victims of any form of violence, a responsibility for which it ought to be held to account.
1.3.1 International Instruments
The substance and nature of SGBV can be so severe that it is a clear and unquestionable violation of the basic human rights of the victim. SGBV in its innumerable forms is a manifestation of discrimination against women and a violation of their substantive rights, including the right to life, the right to liberty and security of the person, the right to be free from torture and the right to health. Meyersfeld paints a grimmer picture when she posits that:
This is the fact. Every day, throughout the world, women are subjected to extreme acts of physical violence, which take place within the beguiling safety of domesticity. The violence is severe, painful, humiliating, and debilitating. And it is common. It is a phenomenon that stretches across borders, nationalities, cultures, and race. A binding characteristic of communities throughout the world, almost without exception, is the battering of women by men.
SGBV has been acknowledged as being an express violation of human rights particularly the rights of women. In this regard Romany posits that:
To assert that a particular social claim is a human right is to vest it emotionally and morally with an especially high order of legitimacy. Violence is an egregious form of certain infringement of the core and basic notions of civility and citizenship. Violence assaults life, dignity, and personal integrity. It transgresses norms of peaceful co-existence.
International law is an instrument employed by states to resolve global issues. These global issues are not only those affecting the state parties in their ‘national’ capacity, but also individual issues bordering on express or implicit violation of human rights. The surfeit of international legal instruments and statements dealing with violence against women suggest that international bodies and states have identified violence as a global rights concern. Until very recently, violence against women generally was not thought of as a proper subject for international human rights law. The main achievement of the international instruments therefore, is to recognize SGBV as a human rights violation.
Therefore internationally and regionally there exist a series of instruments meant to protect women and girls against SGBV. This in turn has aptly helped recognize SGBV as a human right violation. Of great importance is the principle of due diligence as enounced under international law principles.
The due diligence principle provides a standard of care used to determine whether a state has complied with its international obligations. In several international conventions and accords, there has now been explicit acknowledgment of the state’s responsibility for human rights violations by private actors in both the public and private spheres. A state has both negative and positive obligations towards her citizens. One of the duties is to refrain from acts of violence against women as well as to prevent and protect women from violence. Similarly, a state has a duty to punish perpetrators and compensate victims of violence. The state may be held responsible under international law for failure to provide reasonable and adequate measures to prevent or address women’s rights violations. DEVAW for instance, DEVAW includes explicit directions to countries to ‘not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.’
CEDAW establishes international standards for guaranteeing equality between women and men within the family as well as between the family and the state. The essence of this convention, as of the UDHR, is respect for human dignity and respect for the human capacity to make responsible choices. The 1993 World Conference on Human Rights in Vienna brought together women’s non-governmental activists with UN and human rights leaders. Together they agreed to further insist that state and local biases in the implementation of CEDAW, due to so-called religious and cultural interpretations or reservations, be eliminated.
DEVAW, as already stated, and BPFA later helped to further crystallize the doctrine that women’s rights are human rights. In particular, these accords reinforce CEDAW principles which establish that states be held responsible for failing to demonstrate ‘due diligence’ in averting or punishing violence against women that occurs either in the public or the private sphere. As a result, these Conventions and Agreements have created space in which practices that were once considered as private issues like domestic violence, which is a form of SGBV, can now be understood as human rights violations of public concern. The growing use and widespread application of human rights discourse itself has begun to dissolve the public-private divide, and has further provided a moral momentum for direct response by national governments and non-governmental sectors.
1.3.2 The Kenyan Constitutional Framework on the Protection of Women against SGBV
On 4th August 2010, Kenyans ratified the proposed Constitution at a national referendum held on that day. This ratification was followed by the promulgation on 27th of the same month. At last, Kenya began its transition to good governance, characterized by democracy, public participation, accountability, equity, equality and adherence to the rule of law. For many decades Kenya had been grappling with a moribund of challenges with regards to issues of democracy, rule law, equity and equality. The constitution review journey, including the setting up of the review bodies such as the Constitution of Kenya Review Commission and the Committee of Experts, entailed a struggle to ensure gender equality and equity.
The Bill of Rights in the Constitution of Kenya 2010 under Chapter 4 thus gives guarantees for a wide range of rights and fundamental freedoms. The Constitution provides the greatest opportunity to the people of Kenya to advocate for their rights founded on the provisions of the Constitution and also welcome in a new era of institutional overhaul. The Constitution further recognizes a number of important general principles that are of importance to gender equality and that have a general bearing on gender-based violence in the Country. These principles were either not given recognition by the previous Constitution or were given inadequate treatment.
Article 10 (2) (b) sets out the national values and principles of governance to include, among others, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. Article 19 (2) states the purpose of recognising and protecting human rights and fundamental freedoms as being to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. This general proposition is important and relevant to women’s struggle for gender equality and gender equity. Further, the Constitution imposes a positive duty on the State and all State organs to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
Also significant is Article 2 (5) and (6), which provides that the general rules of international law as well as any, treaty or convention ratified by Kenya form part of the law of Kenya. These two provisions may be interpreted to mean that international law becomes directly applicable by Kenyan courts, regardless of whether parliament has enacted specific implementing legislation to incorporate the international laws in question. Notable is Article 21 (4) which imposes on the State the obligation to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
Besides the fundamental change that has come about with the demise of Section 82(4), the 2010 Constitution contains a very detailed clause on equality and freedom from discrimination. From a gender equality perspective, this clause is commendable on four limbs. First, it states explicitly that men and women have the right to equal treatment and equal opportunities in the ‘political, economic, cultural and social sphere’. Second, the grounds on which the state is not to discriminate are much broader than existed under the old constitution, and they include pregnancy, marital status, health status, disability and dress. Third, it is not only the state that may not discriminate- the prohibition of discrimination applies horizontally among all persons Lastly, for the first time there is constitutional provision for the principle of affirmative action, in order to ‘give full effect to the realization of the rights guaranteed under this Article’ . The Constitution therefore recognizes that in order to give full effect to the right to full equality before the law, it may be necessary to take measures to redress past patterns of discrimination, such as those that relate to gender relations.
The Constitution further provides for the security of the person and protection against all forms of violence. The relevant Article provides that every person has right to freedom and security of their person which includes the right not to be subject to any form of violence from either public or private sources, any form of torture whether physical or psychological or cruel, inhuman or degrading treatment. The right to security means that the Constitutions safeguards women’s right against SGBV and any other related form of gender-based violence. However, SGBV is premised on power imbalance which is supported and sanctioned by culture. The Constitution does not provide for how the embedded culture can be dealt with to free women from violence, neither has it provided for mechanisms for educating people to shun culture that perpetuate violence.
1.3.3 The Legislative Framework
Kenya, like many African societies is a patriarchal society. Although there are still many gender related challenges facing the country, a few strides in form of policy developments and enactment of key legislation have been undertaken in the recent past geared at gender equality and protection. These include among others, the Sexual Offences Act ; the Children’s Act; in addition to key gender Bills awaiting enactment by parliament, in particular the Domestic Violence Bill. Other than changes to the Constitution, which is Kenya’s supreme law, the government has also undertaken several amendments of laws that relate to women’s rights.
Although most issues that affect women and girls are addressed in the legal framework discussed below, only a few legislations have been enacted. This is attributed to delays in debate, long legislation processes and limited commitment to ensure that legislation that give women equal opportunities in society are given parliamentary priority. Although the government has articulated a strong commitment to achieving gender equity, this is yet to be demonstrated through effective enactment and implementation.
i. Sexual Offences Act
The Sexual Offences Act was enacted in response to curb the escalating sexual violence. Primary purpose was to ensure complainants of sexual offences get justice commensurate to the harm caused to them. It makes provisions for the sexual offences, their definition, prevention and protection of all persons from harm arising from unlawful sexual acts. It provides for minimum sentence as opposed to the Penal Code which gave magistrates too much discretion on sentencing a signal of government’s commitment to eradicate sexual violence. It prohibits all manner of sexual offences from defilement to attempted defilement, rape to attempted rape, sexual harassment and sexual exploitation. This is the first legislation in Kenya’s legal history, to recognize sexual harassment as a crime. It has also prohibited child trafficking, prostitution and sex tourism. It recognizes also sexual offences of mentally impaired. It has not however criminalized marital rape in Kenya.
The enactment of the Sexual Offences Act has not been matched with adequate training and dissemination of the Act to law-enforcement officers and relevant justice system agents. Most of the awareness created on the Act has been conducted by Civil Society Organizations yet it is the government’s role to ensure that its citizens are made aware of any new laws. This means that most people are still not aware of the existence of the Act. Furthermore poor investigation of cases results in the lack of conviction of offenders thus denying justice to survivors of violence. The Act did not criminalize FGM for women above the age of 18 years thus rendering them vulnerable to negative cultural practices but this has been hitherto cured by Anti FGM Act 2011.
ii. The Penal Code
The Penal Code prohibits all acts of violence in its provisions. It however does not sufficiently address SGBV which is prevalent within the Kenyan society. SGBV, for instance, is only inferred by virtue of interpreting the vice as an assault as provided for under section 250 and 251 . There is no specific offence such as wife battery/ husband battery. The inadequacies for addressing SGBV present challenges to the fight against the vices.
iii. Children’s Act
The Children’s Act makes provisions for the safeguards of the rights and welfare for the children. The Act stipulates that all activities done on behalf of children should be in the best interest of the child. Violence meted against children therefore does not constitute best interest of the child. Section 13 guarantees children (both girls and boys) the right to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction. Under section 14 children are protected from female circumcision, early marriage or other cultural rites, customs, or traditional practices which are harmful to the child’s development. The Act also explicitly prohibits sexual exploitation of children as well as actions that expose children to torture or cruel or inhuman treatment such as circumcision or child marriages.
1.3.4 Policy Framework
National Guidelines on the Management of Sexual Violence
This guiding policy framework is critical as it spells out the essential procedures and services for management of survivors of sexual violence and explicitly recognizes sexual violence as a serious human rights and health issue which calls for imperative attention by all concerned. The guideline is a response to the devastating effects of sexual violence to the survivors and hence the need to be treated with dignity and respect to minimise the harm already occasioned.
The guidelines provide elemental information on management of sexual violence in a multi-pronged manner. It gives medical practitioners information on steps to be taken when treating a survivor of sexual violence, preservation of evidence for court use, issues of psycho-social support and other ethical issues related to the management of health-related problems of sexual violence. This is a completely new development. Unlike the previous invasive and unfriendly process in the old P-3 form system the guideline has improved in the documentation of evidence for sexual offences and ensured that it is done in a more friendly and comprehensive manner. In a nutshell, the guideline advocates for a holistic approach to addressing the problem through a comprehensive care provision system that brings all the relevant stakeholders under one roof.
National Framework toward Response and Prevention of Gender Based Violence in Kenya The framework is a specific strategy to coordinate the various state and non state actors’ responses to domestic violence in Kenya. It was borne of the realization that there are various actors in the fight SGBV, but their responses are uncoordinated. The framework therefore provides guidance for coordination mechanisms among the various actors, including the government, non-governmental organisations, the police and the civil society among others, aimed at eliminating duplication as well as strengthening and enhancing the effectiveness of intervention in a cohesive and comprehensive manner.
The framework creates an environment for understanding violence by highlighting the various forms of sexual and gender based violence in Kenya in detail. It has analyzed the existing legislative and policy responses, community interventions as well as their efficacy and weakness and given directions for future actions to end domestic violence in Kenya. The framework is emphatic of the need for an aggressive and multi-dimensional approach to addressing domestic violence in Kenya in line with international legal instruments. The framework has been aligned to the international instruments such as CEDAW, BPFA, and the Nairobi Forward-Looking Strategy. The framework takes cognizance of the feminist argument that SGBV is complex and varied and therefore requires a multi-faceted approach.
The framework also makes provision for the enhancement of capacity of the Kenyan police to respond adequately to cases of sexual and gender-based violence. This is a tacit acknowledgment of the police’s failure to provide effective protection to victims of SGBV as is evidence in the 160 girls case already alluded to.
1.4 Legislations and Policy Implementation Challenges
Despite the existence of policies, legislative reforms, plans and programmes, gender disparities still exist in legal, social, economic and political levels of participation in decision making, as well as access to and control of resources, opportunities and benefits. Overall, the implementation of policies and laws has been slow; a situation attributed to gaps in the laws, delayed enactment of gender related legislation and lack of comprehensiveness in content of the same laws, for example, the Sexual Offences Act and the Children Act. These gaps have already been referred to in the various laws discussed above. However, there still exist other challenges which include:
(a) Weak Coordination, harmonization and networking among actors at all levels
In order to effectively deal with the myriad of issues related to SGBV, it is important that all the relevant players participate fully in the process. This means that both government and private entities consistently engage each other in an attempt at eradicating the vice. This has not been the case, however, as there have been disjointed efforts at dealing with issues relating to SGBV. The government has failed to effectively engage the civil society and other private actors in dealing with SGBV, more so at the grassroots level.
(b) Inadequate resources
Lack of and/or inadequate resources, both human and financial have led to watered down efforts in terms of dealing with SGBV. Resources, especially manpower and fiscal, are needed to deal with cases of SGBV are more prevalent. This is because there is need to disseminate information through organisation of workshops, training programmes and sponsoring gender-related courses in schools in order to create awareness on the highlights and consequences of SGBV to the entire community. This cannot be done where the resources are either limited or are not there completely.
(c) Limited technical capacity and capacity consistency due to deployment transfers
Technical capacity means the ability of the relevant players to adequately meet policy requirements, including technical knowledge and personnel capability. The process of creating awareness about the scourge of SGBV requires highly trained and skilled personnel. Sometimes it is not easy to get persons who can easily be part of policy and programme implementation programmes. The effect of this is to have policies and programmes which are frustrated ab initio. Even in situations where the required personnel are obtained, the constant deployment and re-deployment of officers means that the implementation process can be frustrated at times.
(d) Lack of Monitoring and Evaluation (M&E) framework
There lacks a proper mechanism in place to follow up on the implementation processes. The projects and programmes on the ground need to be constantly monitored and evaluated in order to ensure that policy implementation agencies do not veer off the right course. The consequence of absence of or ineffective monitoring and evaluation frameworks is that the projects and/or programmes risk not achieving the intended goal or waning along the way.
(e) Socio-cultural issues
Socio-cultural biases which favour men over women and the girl child have consistently continued to frustrate the implementation of the legal framework. Traditionally, women have been viewed as lesser beings than men. This means that the man can do whatever he wishes to the woman given that he ‘bought’ the woman through payment of pride price. Violence has thus been condoned and accepted as a socio-cultural norm within the society. This has greatly frustrated the implementation of legislation and policies.
(f) Misinterpretation of the concept of gender as women rather than women, men, boys and girls
The understanding of most laypersons of the concept of ‘gender’ is that gender is synonymous with ‘women.’ This means that most people would easily dismiss gender workshops or training programmes as dealing with women-related issues only as opposed to issues touching on ‘men and women’ as well as boys and girls. This is highly detrimental to the implementation process. In order to effectively implement gender policies, gender must be understood for what it is, that is, a concept referring to social and cultural constructs which society assigns to behaviours, characteristics and values attributed to men and women, reinforced by symbols, laws and regulations, institutions, and perceptions.
Despite legislation and programmes addressing SGBV, there are still some inconsistencies in terms of judicial actions. Women also are not aware of their rights, and that enforcing such rights is thus a huge challenge. Attempts to come up with gender sensitive legislation have received inadequate support due to traditional cultures and practises as well as a male-dominated parliament which is gender insensitive and un-responsive.
Marital rape remains a source of controversy within sexual violence legislation and court’s interpretation of the same. Grounded in traditional notions of women as property, customary laws in many countries have long defined sex within marriage as necessarily consensual, leading to the ‘conceptual impossibility’ of a man raping his wife. This conception underlies the ‘marital rape exception’ that still exists in many jurisdictions. Indeed, the ‘defense of marriage’ remains a legal defense in at least 53 countries, including Kenya. However, many local courts continue to grapple with the task of defining the act of rape, determining whether marital rape can and/or should be criminalized, and clarifying where consent ends and force begins. National sentencing practices SGBV cases vary greatly, and thus have been subject to criticism on several grounds. Despite these challenges, the jurisprudence of sexual violence continues to evolve to better acknowledge and redress the horrific experiences of victims.
In comparison, the South African SGBV jurisprudence, with the help of the courts, has become much more developed than that of Kenya. This became especially more pronounced with the coming into effect of a new constitutional dispensation in South Africa which sought to promote the rights of women in all relational spheres. For instance, South Africa has legislation enacted the Domestic Violence Act to deal with domestic violence. The Court in the case of Omar v The Government of the Republic of South Africa and Others noted that the Act serves an important social and legal purpose in addressing the scourge of domestic violence and South Africa’s obligations under the Constitution and international law to combat domestic violence. The Bill of Rights under the South African Constitution has been emphasized repeatedly in judgments recently handed down by the Constitutional Court. In Fraser v Children’s Court, Pretoria North and Others, the Constitutional Court confirmed this:
There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised.
With respect to domestic violence, the case of The State vs Godfrey Baloyi & 2 others is instructive. Sachs, J., while delivering the verdict of the Constitutional Court of South Africa was of the opinion that the Constitution directly compels the state to protect the right of everyone. Subsequently in, Carmichele v. Minister of Safety and Security, the court pointed out that the South Africa government also has a duty under international law to prohibit all gender-based discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and to take reasonable and appropriate measures to prevent the violation of those rights.
Similarly, the Supreme Court of Appeal in the matter of Van Eeden v. Minister of Safety and Security held that the appellant was owed a duty by the respondent, the state, to take reasonable measures to stop an escaped serial rapist from harming her. The Supreme Court of Appeal upheld an appeal by a young woman (appellant) who sought damages from the state. Her action was based on the state’s breach of its duty of care towards her, following her sexual assault, rape and robbery by a known dangerous criminal who had escaped from police custody.
The court held that it was the duty of the state to protect people against violent crime and that the police had a duty of care towards the victim. The court further held that the state was obliged to protect individuals by taking active steps to prevent violations of the constitutional right to freedom and security of the person. The court also held that the state was obliged by international law to protect women against violent crime and that in the light of these imperatives a special relationship between the plaintiff and the defendant was not required for the duty of care to exist. The Court declared that the conduct of the police was wrongful and the State (as employer of the police) was liable to the plaintiff for such damages as she was able to prove. This shows that South Africa is far ahead compared to Kenya in terms of how the give effect to international human rights law by upholding the principle of due diligence
The Kenyan courts have recently adopted this approach in protecting the rights of women as was observed in C.K. (A Child) & 11 others vs. The Commissioner of Police & 2 others where the petitioners had sought the assistance of the court to declare that the effect of the respondents, that is the police, failure to conduct prompt, effective, proper and professional investigations into the petitioners' complaints of defilement violated the petitioners' fundamental rights and freedoms. The court in agreeing with the petitioners held that:
Having considered the evidence in the petitioners' affidavit and the petition herein, the relevant articles in the Constitution of Kenya, 2010, the general rules of international law, treaty or convention ratified by Kenya and other related and relevant laws applicable in Kenya, I am satisfied that the petitioners have proved their petition and that the failure on part of the respondents to conduct prompt, effective, proper and professional investigations into the petitioners complaints of defilement and other forms of sexual violence infringes on the petitioners fundamental rights and freedoms, under Articles 21(1), 21(3), 27, 28, 29, 48, 50(1) and 53(1) (d) of the Constitution of Kenya, 2010.
While this case provided a positive starting point in terms of protecting the rights of both women and children against sexual and gender-based violence, a lot still needs to be done to be up to standard as what is happening in South Africa.
(h) Legal Illiteracy
In recent years, the focus of literacy has changed from an emphasis on levels of schooling to a focus on functional skills. Most lay people are not alive to the realities of the legal environment. Knowledge of the law is power and helps in self realization. Laird Hunter suggests that people who use the legal system must be able to guide themselves through a process that they understand and, at appropriate places along the way, they are able to recognize that they have a legal right or responsibility, so as to enable them to exercise or assume it. Legal literacy also involves the ability to recognize when a problem or conflict is a legal one and when a legal solution is available; know how to take the necessary action to avoid problems, and where this is not possible, how to help themselves appropriately; know how and where to find information on the law, and be able to find information that is accessible to them, know when and how to obtain suitable legal assistance; have confidence that the legal system will provide a remedy, and understand the process clearly enough to perceive that justice has been done.
Where people are not alive to their rights, this becomes a good breeding ground for all forms of injustices. Women become the biggest victims as they are more vulnerable to abuse by men. It is through awareness of the laws and the objectives served by them that citizens, particularly marginalized or underprivileged groups, can obtain the benefits that law seeks to offer them. Taking into consideration the present scenario, issues like empowerment of women and making them aware of their rights, which they can use to fight injustices, become a distant dream in the absence of legal literacy. Lack of awareness and education are the main causes for injustices being meted out to the marginalized populations, especially women.
In 1995 the Fourth United Nations World Conference on Women was held in Beijing with the object of achieving equality for women in various walks of life. The conference adopted the BPFA which emphasized the need for access to free or low-cost legal services, including legal literacy, especially focusing on women living in poverty. It also noted that women’s poverty was connected to the absence of economic opportunities and autonomy, lack of access to economic resources, including credit, land ownership and inheritance, limited access to education and support services and women’s minimal participation in the decision-making process.
Legal literacy programmes have also been credited with helping women to understand the link between their rights and other aspects of their lives, and in demonstrating that cost-effective initiatives can be undertaken to help women obtain those rights.
(i) Shelter for Victims
Currently there is no legislation in Kenya that makes provision for the establishment of shelters for victims of SGBV, and therefore no government funded shelter that victims of violence can seek temporary refuge in to escape further violence. There are few shelters run by non-governmental organisations but even their capacities are insufficient because of the high demand and the fact that they are only located in the capital city. The absence of safe shelters for victims of SGBV complicates situations for victims who then are forced to bear the pain and indignity for lack of place for refuge or temporary accommodation.
The biggest challenge facing Kenya today thus is how to create an enabling environment for gender equality and translating commitments into action, together with concrete strategies to eliminate persistent gender inequality and recognize the roles of both women and men in the development of the country.
There are several opportunities that may be exploited in order to combat the scourge of SGBV. The opportunities are as follows:
Constitution of Kenya 2010
The Constitution of Kenya has provided expressly for the freedom and security of the person. The same article also protects all persons from any form of violence from either public, or private sources , and any manner of torture whether physical or psychological . The new Constitution places the duty to ensure that the bill of rights is followed on the state and its organs. This duty is also placed on all public officers. The state and the public officers are required to address the need of vulnerable groups within the society including women, older members of the society, persons with disabilities, children, youth, members of minorities or marginalized communities and members of particular ethnic, religious or cultural community.
The Constitution also requires the state to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. The new Constitution also provides for the right to any person to institute court proceedings claiming that a right or fundamental freedom has been infringed or denied. The high court has been given jurisdiction to hear and determine applications for redress of a denial, violation or infringement, or threat to a right or fundamental freedoms in the Bill of Rights.
The effect of these provisions is that the state is given more responsibility to combat SGBV, to prevent it and to prosecute it. The survivors of the violence not only have the right to have the perpetrators of SGBV taken to court, they also have the right to institute proceedings against the public officers who are supposed to handle the cases if they do not uphold his/her rights. Again, one after showing cause can institute private proceedings upon leave of court. The promulgation of the Constitution therefore puts emphasis on accountability in the investigation and prosecution of SGBV cases. This will also apply to the provincial administration, court officials, public health centres, etc. This is a great opportunity that may result in many persons being aware of their rights relating to SGBV, and general knowledge of the bill of rights and demands for enforcement in case of violations.
Increased Awareness of SGBV
Kenya as a community is developing intolerance with torture, forced labour and sexual violence especially of minors due to heightened awareness. As a result, the public is ready to report child molesters and have them prosecuted in court. The youth are actively involved in many NGO funded programs and activities aimed at aggressive public education, the changing of harmful attitudes, the training in positive masculinity and femininity and so on. The increased awareness is a good starting point in the fight against SGBV as one of the most important factors that aid SGBV is ignorance and complacency of the community.
The Creation of SGBV Networks
Important to note is the greater co-operation between the non state actors and an increased tendency to form alliances and networks regionally and nationally. This in turn gives the organization more lobbying power. This co-operation also allows for consultation between the bodies in different parts and the sharing of ideas in the fight against SGBV. Co-operation therefore presents a united front and a bigger capacity to deal with SGBV. As a result, the monitoring of the implementation of government policy regarding SGBV is likely to be done in a uniform and coherent manner all over the country if there is effective coordination of activities of these actors. These connections and networks are also going to aid in the data collection in different regions and thus ensure the availability of better and up dated data in the trends in SGBV. This will aid in research and in identifying the benchmarks in the fight against SGBV.
Amendment of Section 38 of the Sexual Offences Act
Section 38 of the Sexual Offences Act, before amendment, provided that:
"Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of."
The effect of this section was to make it hard for victims of sexual abuse from coming forward to report cases of SGBV and was therefore criticized for transgressing the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, both of which Kenya has ratified, has since been repealed. The section was seen as going against the common law principles of fairness and equity and was further criticized for being too harsh and risked being viewed as one that imposed fear even to a complainant with a genuine complaint. Taking into account that most Kenyans, including those who have gone to school, do not understand legal issues, one may be persuaded to argue that a false allegation may include where an accused has been acquitted, erroneous as it may be or where a case is dismissed on a technicality. The amendment of this section is therefore a major achievement in advancement of women’s rights in the fight against SGBV.
Creation of Comprehensive Care Centres
There has been a move towards the creation of comprehensive care centres in the hospitals which are intended to offer all services needed by victims of violence at one stop. This move is intended to make the reporting and collection of evidence more effective. It is also meant to make it easier for the survivors to get all the treatment they need in the form of PEP, counselling, and follow ups/referrals in one stop, thereby maintaining the confidential nature of the cases and streamlining the treatment of survivors of sexual violence.
The creation of comprehensive care centres is likely to make it easier for survivors to report and get treatment for sexual violence. Further, the collection and recording of evidence will also be easier and more efficient which will lead to an increase in the number of convictions. With more convictions, may be a deterrent for the would-be offenders and in turn lead to a reduction in SGBV.
Sexual and gender-based violence does not only occur during times of national strife; it is rampant even where legal systems and institutions are working. Many different societies and their legal systems have grappled with the problem of SGBV for eons. However, most societies have learnt and accepted to uphold and normalise practises and various forms of abuse against women. A feminist critical lens creates an encompassing form of analysis when considering the phenomenon of SGBV. In regard to the controversy of sexual violence, the most glaring factor is gender.
The prevalence of SGBV against women is alarming, especially in a continent that grapples with major issues of poverty and socio-political downfall. Although the trend recently has slightly shifted towards battering of men, statistics still show that women are at the worst receiving end of this faux pas. This has been caused primarily due to biased cultural norms and gender insensitive legislations which have been enacted. Although international law standards require that states enact legislations that protect the interests of both men and women equally, little progress has been realized on this front. Even where such legislation is in place, it is marred with implementation challenges as discussed earlier. It would be sad to note that Kenya still does not have a particular legislation dealing with the societal menace of spousal abuse.
Kenya has since moved at a sluggish pace in its attempts at realizing equal opportunities for both men and women. This was more because of the constitutional position which allowed for discrimination against women. That position has since been changed with the advent of a new constitutional order after a successful referendum in 2010 which saw the realization of a new Constitution. The Constitution of Kenya 2010 has since sought to level the playing field for both men and women with propositions for legislations which are gender sensitive. A good example would be the Domestic Violence Bill 2012 which if enacted would see that women and children are protected from SGBV, particularly domestic violence.
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