International Justice Monitor

A project of the Open Society Justice Initiative

Witness: The State Must Protect Its Citizens, Even During Conflict

Rashida Manjoo, a former United Nations special rapporteur, told the Kenyan High Court the State had an obligation to protect the rights of its citizens even during a conflict.
Manjoo made her observation while testifying on May 23 in a case brought by survivors of sexual and gender-based violence committed during the conflict that erupted after the December 2007 election.

The case resumed after more than a month’s break. The last hearing was held on April 15 but it was closed to the public. The hearing before that, on April 14, was open to the public and a summary of it can be read here.
In the hearing of May 23, Manjoo was called to testify as an expert witness by the petitioners. She was called as an expert witness because for six years Manjoo served as the UN Special Rapporteur on Violence against Women, its Causes and Consequences.
 
A UN special rapporteur is someone who reports to the United Nations Human Rights Council but works independent of governments or the United Nations. A special rapporteur’s mandate may be country-specific or issue-specific.
 
The petition that was the subject of the May 23 hearing was filed by eight victims of sexual and gender-based violence and three non-governmental organizations in February 2013. They are asking the court to find the government failed to prevent the violence that shook Kenya after the December 2007 presidential election. The petitioners are also asking the court to find the government failed to protect the survivors of sexual and gender-based violence.
 
Manjoo, who served as UN Special Rapporteur between August 2009 and July 2015, said women “are disproportionately impacted” by violence in society. She said this is because society is male-dominated.
 
“In my opinion, globally, patriarchy is alive and well in every country in the world,” Manjoo said.
 
She said there are various factors that contribute to violence against women. She explained one of them is the stereotyping of women’s roles in society, which influences how women are viewed generally in a society and how they are treated.
 
She said violence in the home is one of the biggest manifestations of violence against women.
 
“The violence in [a] conflict situation is a result of the violence that women are subjugated to in their homes,” Manjoo told the court.
 
She said other ways violence against women is manifested is when the state perpetrates violence against them. She said violence against women can become transnational when women become victims of human trafficking.
 
Manjoo explained that her knowledge on the issue came from the more than 20 years work of the different people who have served as UN Special Rapporteurs on Violence against Women, Its Causes and Consequences.
 
She said that one of the shortcomings in eliminating violence against women is the lack of laws and policies aimed at doing that. However, Manjoo also observed having such laws or policies is not enough.
 
“But there is also a huge shortcoming in the implementation of policies and laws,” Manjoo said.
 
Willis Otieno, the lawyer for the petitioners, asked Manjoo whether the State can do anything if victims of violence do not report any violations.
 
Manjoo said it was the State’s role to create a system that is responsive to any reports of violence and build confidence of victims to report any violations.
 
“You then open the door to other people that the State will respond to complaints…so I do not have to fear taking any cases [to the authorities],” Manjoo said.
 
She said one reason victims do not report crimes committed against them is that the experience of many has been the State takes no action.
 
“For crimes against women and children the norm is impunity,” Manjoo said.
 
“Even if a case goes to court the sanctions are so low,” continued Manjoo said, explaining why victims may be reluctant to report any assault they have suffered.
 
Senior State Counsel Moimbo Momanyi asked Manjoo whether there were indicators that could be used to assess how a government was working to eliminate sexual violence. Momanyi is representing the Office of the Attorney General, the Inspector General of Police, the Ministry of Medical Services, and the Ministry of Public Health in the case. 
 
Manjoo said one of the indicators was the level of accountability there was in addressing cases of sexual violence. Another indicator she said was the availability of protective measures for victims of sexual violence.
 
“Are arrests an indicator?” asked Momanyi.
 
“Arrests are a starting point,” replied Manjoo.
 
Momanyi followed up with a question about preventing sexual violence.
 
“Are there circumstances where a state will 100 percent prevent sexual violence?” asked Momanyi.
 
Manjoo said she is not sure whether it was possible to completely prevent sexual violence.
 
“The problem is not the 100 percent,” replied Manjoo.
 
“The question is, ‘Are there sufficient responsive mechanisms in countries [to handle cases of sexual violence]? My conclusion is there are not,” Manjoo continued.
 
“I realize demanding the elimination of violence against women is pie in the sky, “ Manjoo said. However, the issue is whether “in good faith is the state working towards realizing elimination?”
 
Senior Assistant Director of Public Prosecutions Edwin Okello asked Manjoo whether there was anything a State could do if victims do not report crimes. His question was based on the fact that many of the petitioners did not report to the police the violations they suffered during the post-election violence.
 
“Can the State say it’s not my responsibility if they [the victims] do not report? Is this what we want in a rule of law democracy?” replied Manjoo.
 
Okello then asked if the State was to blame if crime was not reported. Manjoo said it was not an issue of blame.
 
“The question is has the State fulfilled its obligations with a duty of care, with good faith?” Manjoo said.
 
The hearing concluded after Otieno asked Manjoo some more questions in re-examination. The next witness testified on May 25.
 
The petition has been filed by six women and two men survivors of sexual and gender-based violence during the post-election period. Their identity is not public. When they testified in court, those sessions were closed to the public. The other petitioners are the Coalition against Violence against Women, the Independent Medical and Legal Unit, and the Kenya Section of the International Commission of Jurists.
 
The petition has been filed against the Attorney General, the Director of Public Prosecutions, the Inspector General of Police, the Independent Police Oversight Authority, the Ministry of Medical Services and Ministry of Public Health. When the petition was filed in February 2013, the two ministries existed. They have since been merged to form the Ministry of Health.

The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts. For more information, please see the following case report.

1 Comment
  1. I hope Bensouda, Ocampo and company would be keen to watch what is currently happening in Kenya. This is a repeat of what happened in 2007-2008 when the results of the elections were announced. The slogan was ‘NO RAILA NO PEACE’ which resulted in the chaos witnessed. Now they are at it again demanding the resignation of Independent Electoral and Boundary Commission which is in place by the constitution. They are demanding dialogue with the government insisting on negotiating out of parliament and the constitution. This if not checked out, we may end up with a repeat of 2007-2008 chaos. It is important to know why the case against Uhuru and Ruto failed. Because they were the wrong people who instigated violence. I think now it is clear where all this started and who brought it.

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