Kenyan judge awards SGBV survivors millions of shillings in general damages

By Susan Kendi

Kenya’s High Court has awarded four million Kenya shillings each as general damages to four survivors of sexual and gender-based violence (SGBV) that occurred during political turmoil 12 years ago.

High Court Judge Weldon Korir said on Thursday he awarded the four sexual and gender-based violence survivors the general damages because their constitutional rights were violated during the upheaval that followed the December 2007 presidential election.

Judge Korir released the judgment on December 10, the International Human Rights Day. He said during a virtual hearing that he would only read out in court the disposition and orders section of the judgment because it was lengthy. Korir and a court officer were the only ones in the courtroom.

“In light of the above analysis and determination, I enter the judgement as follows: one, a declaratory order is hereby issued to the effect that the failure to conduct independent and effective investigations and prosecutions of the SGBV-related crimes during the [2007/2008] post-election violence is a violation of the positive obligation by the Kenyan state to investigate and prosecute violations of the rights to life, the prohibition of torture, inhumane and degrading treatment and the security of person of the fifth, sixth, eighth and nineth petitioners,” said Judge Weldon Korir.

“Two, a declaratory order is hereby issued to the effect that the right to life, the prohibition of torture, inhumane and degrading treatment and the right to security of persons, the right to protection of the law, the right to equality and freedom from discrimination and the right to remedy were violated in relation to the fifth, sixth, eighth and nineth petitioners during the 2007/2008 post-election violence as a result of the failure of the government of Kenya to protect those rights,” said Judge Korir.

He said that in addition to awarding them general damages he was ordering the Attorney General and the Inspector General of Police to pay the four petitioners’ costs of their petition. The Attorney General and the Inspector General of Police are the first and fourth respondents to the petition.

In a news release issued by Physicians for Human Rights (PHR) on Thursday, Naitore Nyamu, head of the Kenya office of Physicians for Human Rights, is quoted as saying, “some justice has finally been served,” after seven years of litigation and delays. PHR is one of four non-governmental organisations that are also petitioners in the case.

“This is a historic day for survivors of the rampant sexual violence perpetrated in the aftermath of the 2007 election, who have waited for accountability for far too long. The court’s decision will reverberate widely for the prevention, investigation and prosecution of sexual and gender-based violence in Kenya and around the world,” said Nyamu.

One of the four survivors who was awarded general damages by the High Court is also quoted in the same news release as saying she is happy with the judgment.

“However, we do not understand why the court separated us (victims) and did not offer compensation for the other four victims. We have been walking this journey together. We will continue the journey until the other four victims get justice,” said the survivor.

She is one of the eight survivors of sexual and gender-based violence who filed the petition in February 2013. The eight survivors are six women and two men. Together with the survivors, there are four non-governmental organisations that are also petitioners in the case. The organisations are: PHR; the Coalition on Violence against Women (COVAW); the Independent Medico-Legal Unit (IMLU); and the Kenyan Section of The International Commission of Jurists (ICJ-Kenya).

The other respondents to the petition are the Director of Public Prosecutions; the Independent Police Oversight Authority (IPOA); the Inspector General of Police; the Minister for Medical Services and the Minister for Public Health and Sanitation.

During the post-election violence that occurred between December 2007 and February 2008 more than 1,000 people were killed. At the height of the violence more than 600,000 people were displaced from their homes.

As part of the political settlement that ended the violence, the government set up a commission to investigate it. It was called the Commission of Inquiry into Post-Election Violence and in its October 2008 report the commission estimated 900 women suffered sexual violence during the upheaval.

Read full judgement here