In Kenya, We are Late: Delayed Justice and Impunity for Election-Related Sexual Violence

I was late. I was fumbling with the keys on my laptop as I rushed to connect to the virtual court session. Courts in Kenya were now holding online sessions because of restrictions put in place to combat the COVID-19 pandemic, which do not allow litigants nor their counsel to be physically present in court. However, this did not dampen my excitement. It was going to be the final hearing in the case for sexual violence victims of the 2007-08 post-election violence in Kenya. The judge was going to set a judgement date in the matter, which victims had brought against the government in 2013. Having spoken to the victim-petitioners three days before, I knew they were excited too. Everyone who had worked on the case for the past 10 years was excited. The victims’ long wait for justice was soon going to end.

I logged in. The court session was just beginning. As we waited for the court’s clerk to call the matter, I could not help but think of one of the victims.

Following the announcement of the 2007 general election results in Kenya, Ndinda,* who is a mother of two, was in her one-room home in Kibera, Africa’s largest slum, when five men broke into her home. Four of the men raped her. They also robbed her. Ndinda’s husband, who was away for work at the time of the gang rape, returned later only to blame Ndinda for what had happened. He soon abandoned Ndinda and the children. Ndinda tried to pursue justice but was rebuffed by the police. Thereafter, she lost hope and didn’t return to the police. Ndinda and her family have not received reparations or assistance from the Government of Kenya. She lives a life filled with struggle and pain.

However, Ndinda is only one out of a large number of survivors of sexual violence in Kenya; including survivors of conflict-related sexual violence particularly experienced during Kenya’s past elections.

Background

The post-election violence in Kenya from December 2007 to February 2008 was ignited by allegations of election fraud. The main opposition party, the Orange Democratic Movement, had been successful in the parliamentary vote, and its presidential candidate Raila Odinga was showing a commanding lead towards the end of the vote count. However, in the last few hours of vote counting, the results shifted to secure victory for the incumbent, President Mwai Kibaki of the Party of National Unity. Despite election irregularities having been reported, they remained unaddressed. The 2007 general election was also nestled in the context of ethnically divisive politics and a history of ethnic clashes occurring during election periods. Ethnic and tribal divisions in Kenya are undergirded by a history of inequalities, political, social, and economic marginalization, unaddressed human rights violations, and impunity for other historical injustices allegedly faced by certain tribes and ethnic groups. The disputed election process and results served as a catalyst and violence broke out in six of the eight regions of Kenya.

Following the widespread violence, the Government of Kenya established the Commission of Inquiry into the 2007 Post-Election Violence in Kenya (Waki Commission). The Waki Commission documented that that at least 1,000 people were killed, over 600,000 persons were forcibly displaced from their homes, and at least 900 women, girls, men and boys were subjected to various forms of sexual and gender-based violence. The Commission termed this number of 900 victims of sexual and gender-based violence only a “tip of the iceberg.” Human rights organizations estimate that there are thousands of sexual violence victims from the 2007-08 post-election violence period.

Accountability measures pursued thereafter, including the establishment of a special tribunal and an international crimes division at the High Court of Kenya, failed to take off. Regardless of victims’ continuous pursuit for justice, to date there have been no confirmed prosecutions of any perpetrators of 2007-08 election-related sexual violence. Further, the Truth, Justice and Reconciliation Commission (TJRC) released an impressive 4-volume report in 2013, which confirmed the findings of the Waki Commission. The TJRC report recommended the establishment of a comprehensive and responsive reparations framework, including the adoption of a draft reparations policy, in order to facilitate the provision of appropriate reparations to victims of gross human rights violations; including victims of sexual and gender-based violence considered as priority victims under the “most vulnerable” category. The Government of Kenya has yet to implement these and many other recommendations.

The Case

Together with other human rights lawyers and practitioners, I had keenly been following the government’s flailing efforts towards redressing violations that occurred during the 2007-08 post-election violence. Our work with victims and affected communities continued to echo an immediate and resounding need for an independent, domestic process that would secure justice and reparations for sexual and gender-based violence victims. Therefore, we formed an expert group composed of leading civil society organizations and individual experts in order to discuss the filing of a strategic human rights litigation case before the Kenyan courts. At the time, I worked for the Coalition on Violence against Women, which was one of the organizations constituting the expert group. Other organizations included the Kenyan Section of the International Commission of Jurists; Physicians for Human Rights; and the Federation of Women Lawyers – Kenya, among others.

For two years, we diligently developed a coherent legal and advocacy strategy. I was charged with several roles: to identify and interview victims and potential witnesses during fact-finding and documentation missions; to establish a consortium of human rights organizations committed to working on and supporting the proposed case; to create and curate the case file; and coordinate the drafting, finalization, filing, and conduct of the strategic litigation case.  

In February 2013, after five years of waiting for recognition, justice, and reparation, eight victims of sexual violence (six female and two male), together with four human rights organizations operating in Kenya filed Petition 122 before the Constitutional and Human Rights Division of the High Court of Kenya. The case seeks to establish government liability for its failure to effectively prevent and respond to sexual violence during the 2007-08 post-election violence.

The case outlines immediate and long-term measures to be taken by the Government of Kenya to hold perpetrators accountable, addressing impunity for sexual and gender-based violence; rehabilitate victims and affected communities; compensate victims for harm suffered; recognize and memorialize the experiences of victims; and ultimately, prevent sexual and gender-based violence. Of particular importance, the case calls for and serves as an impetus for the Government of Kenya to undertake structural reforms as part of guarantees of non-repetition, which contribute to prevention of sexual violence and protection of victims and populations, including during emergencies.

However, the case has faced inordinate delays. First, the government respondents took close to one year to file a response to the petition filed by the victims. The government only did so after a concerted advocacy and social media campaign called for the attorney general to immediately file a response to the petition. Second, the government’s lawyers asked for numerous adjournments in the case, including to read the Waki Commission report, which was authored by the government itself. Third, the court has transferred the case across six judges over the past seven years, denoting the government’s lack of urgency and commitment to effectively address sexual and gender-based violence in Kenya.

There have been tens of hearings and numerous more court mentions, most of which the victims of 2007-08 post-election violence sexual violence have painstakingly attended. Evidence has been presented by all eight victim-petitioners, a supporting witness, three health experts, and five experts in women’s and girls’ human rights: including Patricia Nyaundi, Rashida Manjoo, Maxine Marcus, Saida Ali, and Betty Murungi. This has all been at a great financial, physical, and mental cost to the institutional co-petitioners, human rights defenders working with victim communities, their funding partners, and most importantly, 2007-08 post-election violence victims of sexual violence and affected communities.

The (Almost) Final Hearing

“Petition 122 of 2013,” the court’s clerk called out.

“Mr. Willis Otieno appearing for the petitioners,” confirmed the lawyer representing victims in our case. 

Willis has been a warrior for the victims. He has stayed the course as the victims’ legal representative during the last five years. He informed the judge, Justice Weldon Korir, that in order to avoid further postponements in the case, especially in light of the delays in justice proceedings occasioned by the COVID-19 pandemic, the petitioners wished to adopt their written submissions in their current form. There would be no need to provide oral highlights later. The judge obliged. However, the judge then pointed out that several submissions were missing from the court’s file; including all the government respondents’ submissions. What was this now? My mouth was agape. This meant further delay. The victims were going to be so disappointed.

Justice Korir directed all submissions that were not in the court’s file to be filed immediately and ordered all parties to file anew the soft copies of their written submissions. The latter would speed up the writing of a judgment in the case. The judge then assigned June 8, 2020 as the next case mention date, when he would check compliance with his orders and fix a judgement date. Maybe there was cause to celebrate. It would not be long. Less than a month. However, the victims had heard this all before.

Consequences of Impunity

The Government of Kenya’s protracted inaction to effectively address sexual and gender-based violence in Kenya, including the widespread, systematic, and targeted sexual violence perpetrated during the 2007-08 post-election violence, has incubated an environment that allows for continued prevalence of sexual violence in Kenya. Impunity begets impunity. If unaddressed, sexual and gender-based violence remains cyclic.

In its Silhouettes of Brutality Report, the Kenya National Commission on Human Rights documented at least 201 cases of sexual violence perpetrated in 11 counties during the 2017 election period in Kenya. In 2019, the Office of the United Nations Office of the Commission on Human Rights undertook research and released a report entitled Breaking Cycles of Violence. The report provides guidance to the Government of Kenya on measures to be taken in order to effectively prevent and respond to sexual violence in future elections; equally applicable in conflict periods, other emergencies, and during peace times. With these measures yet to be implemented by the government, women and girls in Kenya remain particularly vulnerable to acts of gender-based violence.

Consequently, over the past few months, following adoption of special measures to contain the COVID-19 pandemic, at least one government agency and various civil society organizations have documented and/or recognized an increase in reported cases of sexual violence and other forms of gender-based violence in Kenya. This is a confirmation that impunity for sexual and gender-based violence all but guarantees the continuity of sexual and gender-based violence in Kenya; especially when an already weak system is further strained during times of emergency. Necessary measures, especially structural reforms, must be immediately taken by the government to effectively prevent and respond to sexual and gender-based violence in Kenya.

Conclusion

Despite the challenges and delays, Petition 122 continues to hold the promise of spurring the government to improve conditions, where prevention and response to sexual and gender-based violence, including during times of unrest and emergency, is appropriately prioritized and effectively undertaken.

Victims and communities have been so patient. Ever hopeful. Determined. Ndinda is faithfully waiting for the outcome of the case. She awaits vindication. Even though her circumstances are dire, she holds out hope that the case will offer her a chance to rebuild her life, for the benefit of her and her children.

We anxiously await the June 8 mention date. We hope that the judge finally fixes a judgement date. However, even though justice may come soon, one thing is for sure: in Kenya, we are late.

*Real name has been concealed for privacy reasons.

Lydia Muthiani is a human rights lawyer specialized on the advancement of women’s and girls’ human rights. She has worked on Petition 122/2013 since its inception and continues to work with victims and survivors of sexual and gender-based violence in Kenya and other countries within Africa. She is currently working as an independent consultant and is a co-founder of Utu Wetu, a collective of human rights experts particularly working on women’s rights.

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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