Senior Prosecutor Tells Kenyan Court About Challenges of Taking SGBV Cases to Trial

A senior prosecutor told the High Court of Kenya 21 sexual and gender-based violence cases were filed in court following the violence that wracked Kenya after the 2007 presidential election.

Jacinta Nyaboke Nyamosi told the High Court on Wednesday, March 29, this was information in a press brief made by a multi-agency task force that reviewed cases from the post-election violence of December 2007 to February 2008.

“We got 11 convictions. In one case there was an acquittal. Five cases were withdrawn. In three cases there were warrants pending,” Nyamosi told the court.

“The accused absconded?” asked Judge Enock Chacha Mwita.

“Yes,” Nyamosi replied.

Nyamosi was testifying on Wednesday as a witness for one of the respondents to a petition by survivors of sexual and gender-based violence (SGBV) that occurred after the bloodshed that followed the 2007 presidential poll.

She was called to testify by the Office of the Director of Public Prosecutions (ODPP). She is the head of the Sexual and Gender-based Violence Division at the ODPP.

Nyamosi told the court that the task force found there were 150 SGBV cases reported to the police during the post-election violence period.

“From this report would you say the police took action on cases that were reported to them?” asked Edwin Okello, a Senior Assistant Director of Public Prosecutions.

“Yes, the police did take action,” Nyamosi replied.

Nyamosi was testifying in a case in which six women and two men have petitioned the court to find the government failed to protect them during the post-election violence period. 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.

The last time a witness was heard in this case was on February 14 when one of the witnesses for the petitioners re-testified. That hearing was closed to the public. The petitioners closed their case in September last year but because Judge Mwita was new to the case, one of the petitioners’ witnesses was asked to re-testify. The judge who had been hearing the petition, Judge Isaac Lenaola, was promoted to the Supreme Court in October last year. This change affected the hearing of the petition.

On Wednesday, Nyamosi told the court that the multi-agency task force that reviewed the post-election violence cases was set up by the Director of Public Prosecutions in April 2012. She said the task force had representatives from the ODPP, the Attorney-General’s office, and the police, among other government departments and agencies.

Towards the end of the hearing, Okello asked Nyamosi whether any of the eight petitioners reported to the police what happened to them. She said they did not report and no case files were opened for them.

“Are you aware whether these eight victims at any time made a complaint or report to the DPP [Director of Public Prosecutions]?” asked Okello.

“I’m not aware whether they made any report to the DPP,” said Nyamosi.

A separate line of questioning Okello pursued was on the challenges prosecutors face when litigating SGBV cases.

“Handling victims can be a big challenge and at times we don’t get the victim to open up and talk about their experience. We have situations where victims opt to not proceed with their cases out of fear of being victimized,” Nyamosi told the court.

She said DNA and scientific evidence, “is crucial” in SGBV cases, but in some cases such evidence is not handled with care.

“Specimens have not been kept properly, and by the time they get to the Government Chemist the evidence is compromised,” said Nyamosi. The Government Chemist is the government agency that analyses DNA samples and other scientific evidence in criminal cases in Kenya.

“Even when the evidence has been presented to the Government Chemist it takes so long to get a report, again compromising the case,” Nyamosi said.

She told the court that one reason the Government Chemist has given for delaying reports on evidence is “they have a problem with the equipment, and sometimes they have to send the evidence abroad for analysis.”

Okello also asked Nyamosi to respond to some of the issues the petitioners have asked the court to compel the respondents to act on.

He asked her about the petitioners’ demand that the ODPP set up a unit to deal with international crimes. Nyamosi said there is an international crimes division in the ODPP that is active.

Okello asked her about the petitioners’ demand that the government create a database of sexual offenders. Nyamosi told the court she worked on another task force that was responsible for implementing provisions of Kenya’s Sexual Offences Act and one of those provisions was such a database. Nyamosi said the database has been created.

“The only thing is for it to be filled. Otherwise the tool is running,” Nyamosi told the court.

The lawyer for the petitioners was not able to cross-examine Nyamosi on Wednesday because Judge Mwita did not have enough time in his schedule. Nyamosi is scheduled to testify on April 19.

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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