International Justice Monitor

A project of the Open Society Justice Initiative

Sexual Violence Victims Do Not Always Speak Immediately About Their Assault, Says Witness

Victims of sexual violence may not want to speak immediately about what they have gone through, a witness told the Kenyan High Court during a hearing into a petition filed by survivors of sexual and gender-based violence (SGBV) perpetrated after the 2007 presidential poll.

Saida Ali, a former executive director of the Coalition on Violence Against Women (COVAW), made the observation on July 21 in response to a question from Senior Assistant Director of Public Prosecutions Edwin Okello. Ali, who is the 15th witness for the petitioners, was testifying for a second day during which lawyers representing the government and government agencies cross-examined her. You can read about her first day of testimony here.

Before Okello asked Ali his question, he had referred to statements of three survivors of SGBV in which they described the kind of assistance they got from police soon after they were assaulted in 2008.

The prosecutor did not name the survivors, who are also petitioners in the case, but referred to them by pseudonym. He also did not go into detail about when and where they received police assistance. The survivors testified in court during the early part of the case, but those hearings were closed to the public.

After going through some of the details of the police assistance that the three survivors received, Okello asked why they did not offer to tell the police what had happened to them.

“I think it is important to be cognizant why victims do not immediately speak of their experiences,” Ali said.

Saying that when victims delay in reporting an assault makes their case weaker, “is not valid because it refuses to recognize it [sexual violence] is a traumatic experience, and she may not be ready to speak of her experience,” Ali explained.

Okello later asked Ali about the gender desks at Kenyan police stations set up to assist victims of sexual and gender-based violence.

“How effective have these gender desks been?” asked Okello.

“They have not been effective, and everyone who works on gender violence issues knows this,” Ali replied.

Last Thursday, Ali was testifying for the petitioners as an expert witness because of her work in the area of women’s rights. She was also testifying as someone who participated in the preparation of the petition because it was filed while she was still the executive director of COVAW, one of the petitioners.

The hearing started with Senior Principal State Counsel Emmanuel Bitta cross-examining Ali. Bitta is representing the Attorney General, the Inspector General of Police, 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.

One of the lines of questioning Bitta pursued was the issue of compensation. He asked Ali when a person’s property is destroyed whether it is something that can be seen. She said yes. Bitta then asked whether it is possible just by looking at someone to know that they were a victim of sexual violence. Ali said no.

Bitta asked her why then would she say the state should compensate someone for something that cannot be seen.

“Because I would expect the state to go beyond that,” said Ali.

“To say the state cannot compensate victims of sexual violence because they cannot see that that person is a victim is problematic and underlines the diversion we are talking about,” Ali continued.

“Is it rational to compensate what you can see and not compensate what you can’t see?” Bitta asked.

“I’d expect the state to do more, to dig more to understand what happened,” said Ali.

Earlier, Bitta asked Ali about various policies, laws, and actions the government has taken to improve the lives of survivors of the violence that engulfed Kenya for two months after December 2007 presidential election.

He asked about the apology to victims of past injustices President Uhuru Kenyatta offered during his March 2015 State of the Nation address. Bitta also asked about a report from the Office of the Directorate of Public Prosecutions the president referred to in that speech. The report was based on work of a multi-agency task force that reviewed 4,575 case files originating from the time of the post-election violence period and concluded there were no cases to prosecute because there was insufficient evidence, among other reasons. Bitta also asked about the measures the president spoke about in that speech, which he said his government would take to improve the lives of victims of past injustices.

Ali acknowledged that the president did make a public apology and announced some actions his government would take in support of victims of past injustices. She also acknowledged what the Director of Public Prosecutions was reported to have concluded about the case files from the post-election violence period.

Bitta then asked other questions about the Commission of Inquiry into Post-Election Violence set up in mid-2008 and the new constitution that came into effect in August 2010.

“Would I be right in saying the bottom line is that COVAW does not agree with the measures the state has taken?” asked Bitta.

“I don’t think that it’s just about the bottom line,” answered Ali. “[W]hen files are opened and files are closed without their hearing [victims of sexual and gender-based violence], that is not addressing their issues.”

A few questions later, Bitta asked Ali what she would do to address the concerns of victims of SGBV if she was the government.

“If I were government, I would set up a mechanism to bring it all together so that the safety [of victims reporting violations] is taken care of,” said Ali.

Bitta later returned to the issue of what he considered to be the basis of the petition.

“The bottom line is you do not agree with the way the government is doing things. You think your way is better. That is the gist of this petition, isn’t it?” Bitta asked.

“I wouldn’t say that,” replied Ali.

Bernadette Mutie, representing the Independent Police Oversight Authority asked Ali about the report of the Commission of Inquiry into Post-Election Violence, particularly its findings on sexual violence. Mutie observed that the commission reported it handled 900 cases of sexual violence committed during the post-election violence, and 31 victims testified before it.

“Do you agree with me that the identities of the victims are not revealed in the report?” asked Mutie.

“Yes. In fact it [the victims’ testimonies] was done in camera,” Ali replied.

“It is also true that the alleged perpetrators were never revealed in that report?” Mutie asked.

“Yes, it’s true,” said Ali.

“You would agree that the police would not be able to investigate sexual and gender-based violence cases based on the Waki Report?” asked Mutie, using the popular name the commission’s report is known by. Waki refers to the last name of the Kenyan judge, Philip Waki, who chaired the commission.

“No, I don’t agree. It could be one of the bases for investigating,” such cases, Ali responded.

When Mutie concluded her cross-examination, lawyers Willis Otieno and Abdulkadir Noormohamed then asked Ali questions in re-examination after which the hearing concluded for the day.

The next hearing is scheduled for August 16.

The petition that was the subject of Thursday’s hearing was filed by six women and two men survivors of SGBV during the post-election period. Four organizations are co-petitioners. These are: COVAW, the Independent Medical and Legal Unit, the International Commission of Jurists-Kenya Chapter, and Physicians for Human Rights.

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.

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

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