International Justice Monitor

A project of the Open Society Justice Initiative

Kenya Has No Reparations Policy, but the Constitution Does Provide Such a Right, Says Witness

An expert witness told Kenya’s High Court the failure of a sexual violence victim to report what happened to them does not invalidate their right to reparations.

Betty Murungi testified on Friday during the hearing of a petition filed by survivors of sexual and gender-based violence (SGBV) that occurred when bloodshed erupted after the December 2007 presidential poll.

The petitioners – six women and two men – are asking the court to find that the government failed to protect them during the violence that shook Kenya between December 2007 and February 2008 and is commonly referred to as post-election violence. Four organizations are also petitioners in the case. These are: the Coalition on Violence against Women; Physicians for Human Rights; 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.

After a break of about six weeks, on Friday the court resumed receiving witness testimony in the petition. The previous hearings were held on July 20 and July 21.

Murungi’s testimony centered on the issue of reparations. She was called as an expert witness because of her work with a variety of international organizations in the area of women and sexual violence. Between 2009 and 2013 Murungi served as the director representing Africa on the International Criminal Court’s Trust Fund for Victims. She is the 16th witness called by the petitioners.

“Does failure to report by the victims of SGBV vitiate their need for reparations?” asked Willis Otieno, the lawyer for the petitioners.

“No. Failure to report does not vitiate the need for reparations,” replied Murungi.

“Does the failure of a victim of SGBV to get a medical report vitiate that victim’s right to reparations?” asked Otieno.

“No,” Murungi answered.

Earlier, Senior State Counsel Moimbo Momanyi asked Murungi about whether Kenya has a policy on reparations.

“Is it your understanding that we do not have a reparations policy?” asked Momanyi.

“No. We don’t have a state policy on reparation, but we have a constitutional right to reparations,” answered Murungi, referring to provisions in Kenya’s constitution.

During his examination-in-chief, Otieno asked Murungi about guidelines on reparations. She said international guidelines on reparations are given in a 2005 resolution of the United Nations General Assembly. Murungi said these guidelines have been used in the work of various international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the Inter-American Court of Human Rights, and the European Court of Human Rights.

Murungi also told the court that as part of its report, the Truth, Justice and Reconciliation Commission had included a draft reparations framework. The Truth, Justice and Reconciliation Commission investigated injustices that occurred in Kenya between the day the country became independent from Britain, that is December 12, 1963, until February 28, 2008. This is the date the government and opposition signed a deal to end the post-election violence and share political power.

“I think it is important for there to be a reparations policy because questions of eligibility and criteria will arise,” said Murungi.

Senior Assistant Director of Public Prosecutions Edwin Okello asked Murungi about the evidence needed to establish someone was a victim of sexual violence.

“First, your word that you have been sexually assaulted,” said Murungi. “My experience is women who have been raped, gang raped … would not make those allegations unless they are true.”

Okello asked whether a victim could be expected to present evidence other than their testimony, such as medical reports or witnesses.

“Sometimes. You have to understand the context of sexual violence in conflict. It is very rare that you will have witnesses,” said Murungi.

At the start of the hearing, Otieno asked Murungi to give the court an overview of what reparations are. She said there were five types of reparations. She said these are restitution, compensation, rehabilitation, satisfaction, and guarantee of non-repetition.

Murungi said satisfaction referred to acknowledging that a crime had occurred. She gave the example of the work of Kenya’s Truth, Justice and Reconciliation Commission. Murungi said for the nine months she served as a member of the commission, victims of injustices often talked about the cathartic value of their being able to tell their story.

The guarantee of non-repetition was the state making a commitment that the harms victims suffered would not reoccur by taking measures to ensure this, Murungi told the court.

Once Murungi concluded her testimony, Otieno said the petitioners had closed their case after presenting 16 witnesses. He then applied to the court for the judge presiding over the case, Judge Isaac Lenaola, to visit two public hospitals, Kenyatta National Hospital and Mbagathi District Hospital. None of the lawyers representing other parties had any objections to the application. Judge Lenaola set November 4 as the day he will visit the two hospitals with the lawyers present.

Momanyi said the government wanted to call witnesses. Judge Lenaola gave him until November 4 to file their statements with the court.

The court then adjourned until November 4.

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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