By Tom Maliti
High Court of Kenya Judge Weldon Korir has said that in less than a month’s time he will set a judgement date for a petition filed by survivors of sexual and gender-based violence that occurred during the bloodshed that erupted after the December 2007 presidential poll.
Judge Korir made the announcement on Wednesday, May 13, when the case came up for hearing before him. He said that on June 8, he would set a judgement date once he has confirmed that all submissions have been refiled.
The judge asked the Attorney General’s Office and one of the interested parties to refile submissions they first filed in October 2018 because he noticed that the court file before him did not have those submissions.
Eight survivors of sexual and gender-based violence – six women and two men – filed a petition in 2013 asking the High Court of Kenya to find that the government failed to protect them during the violence that wracked Kenya between December 2007 and February 2008.
Four organizations are also petitioners in this case: Coalition on Violence Against Women; Physicians for Human Rights; the Independent Medical and Legal Unit; and the Kenyan Section of the International Commission of Jurists.
During Wednesday’s hearing, Judge Korir made his decision following a request lawyer Willis Otieno made that given the COVID-19 pandemic, it was not necessary for the parties involved to highlight their submissions before the judge. Otieno represents the petitioners in the case.
“We propose to adopt our submissions as filed, and we will wait for a judgement date,” said Otieno. Mitchelle Omuom, who represented the Attorney General’s Office, said their submissions were comprehensive, and they did not object to Otieno’s request.
It was after Omuom spoke that Judge Korir observed the submissions she referred to were not in the file before him.
The “submissions by [the] respondents are not on record,” said Judge Korir. This was when he suggested the parties appear before him on a new date “to ensure that your pleadings are there.”
The respondents Judge Korir referred to are government ministries or offices the Attorney General represents in the case. These are the Attorney General’s Office, the Inspector General of Police, the Ministry of Medical Services, and the Ministry of Public Health. When the respondents filed their petition in February 2013, the two ministries existed. They have since been merged to form the Ministry of Health.
Once Judge Korir heard all submissions, he gave directions on how the case will proceed. He said those who are refiling their submissions would send the court soft copies of those submissions.
“The earliest date I can mention your case is on 8th of June for fixing of a judgement date,” said Judge Korir.
This case has been heard at the Constitutional and Human Rights Division of the High Court since February 2013. Five judges have presided over the case at different times. Judges handling the case have changed over the past seven years because they have been posted to other courts or promoted. The petitioners presented 16 witnesses. The last witness for the petitioners to testify was Betty Murungi, a women’s rights and sexual violence expert, who testified on August 30, 2016.
The Office of the Directorate of Public Prosecutions, one of the respondents in the case, called one witness, Jacinta Nyaboke Nyamosi, who testified on March 29, 2017 and April 19, 2017. Nyamosi is a senior prosecutor, and she is the only witness called to testify in the case by any of the respondents.
Wednesday’s hearing took place virtually. Only Judge Korir was in court. Lawyers followed and contributed to the proceedings via the video conferencing platform, Microsoft Teams. Observers were also able to follow the proceedings via video conference. The National Council on the Administration of Justice (NCAJ) put in place these measures to enable the judiciary to continue working while keeping people safe from the spread of COVID-19.
The NCAJ decided on April 21 to allow court hearings on selected cases to proceed virtually to help reduce the current backlog of cases. No hearings are being held in courtrooms, except in criminal cases when suspects are due to take a plea. Courtrooms in Kenya have been closed to the public since March 15 as part of measures to mitigate against COVID-19.
Between March 15 and April 21, the NCAJ had allowed only plea taking in criminal cases to take place in courtrooms. During this period, the NCAJ had also directed that the majority of judicial staff would work remotely with duty judges handling only urgent matters via video conferencing platforms. Also, during this period, the NCAJ had required judges to issue their judgements and rulings electronically. The NCAJ ordered these measures on March 15 after the government announced the first case of a person infected with the coronavirus in the country.
The NCAJ revised its orders on April 21 to allow more court activity while adhering to social distancing measures to reduce the spread of COVID-19. Chief Justice David Maraga chairs the NCAJ.
The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts. For more information, please see the following case report.