This week, as commemoration of the 16 Days of Activism against Gender-Based Violence approaches its peak, thousands of victims of sexual violence committed during the 2007-08 post-election violence (PEV) in Kenya will be holding their breath in anticipation of the delivery of a judgment in a landmark case in the High Court in Nairobi. The case was filed in 2013 by six female victims who were gang raped by militia and state security officers, and two male victims who suffered forced circumcision in the hands of ethnic militia, during the PEV, with the support of four non-governmental organizations.
This seminal case, filed as a constitutional petition, seeks to hold the government of Kenya legally responsible for human rights violations suffered by victims as a result of its institutions’ failures to effectively prevent and respond to PEV-related sexual violence.
Regrettably, the case has dragged on in court for more than seven years, in which the petitioners have been subjected to inefficiencies of a judicial system characterised by systemic challenges including huge case backlogs, undue delays and adjournments, ad hoc transfer of judicial officers and the lack of a predictable and effective system to ensure seamless and timely continuity of cases. Delays in the court proceedings, in the hands of five different judges, have been a source of re-traumatization for many victims, who have invested significant hope in the outcome of the case following other failed justice processes including the stalled implementation of reparation measures provided in the 2013 report of the Truth Justice and Reconciliation Commission. Thus, with the judgment now scheduled to be delivered on International Human Rights Day, 10th December 2020, there is a glimmer of hope that victims of PEV-related sexual violence may finally have justice.
The upcoming judgment is momentous and worth observing, not just for the affected victims, but also the larger Kenyan citizenry, for a number of reasons.
First, the judgment will be the culmination of a prolonged process that has had at its core the aim of eliciting formal recognition and acknowledgement of victims of sexual and gender-based violence, the harm and losses they have suffered, and their resulting needs, which have been overlooked since the PEV. Victims suffered horrendous forms of sexual violence including gang rape, defilement, genital mutilation, forced circumcision, sexual enslavement and sexual assault. In many instances, victims were abused in the presence of their children and spouses. Further, many women and girls conceived unwanted pregnancies and bore children from the brutal rapes that they suffered. Yet, for more than twelve years since the PEV, the State has obliviously remained silent as victims have continued to endure debilitating physical, psychological, sexual and reproductive health conditions, socio-economic losses, and layers of stigma and discrimination.
Second, if the petitioners’ prayers are granted, the judgment will affirm that the government and its institutions can no longer be bystanders in the face of imminent or actual occurrence of sexual violence during election-related violence and other periods of conflict and civil strife. In the past, the government has adopted a reactive approach to reported incidences of election-related sexual violence once they have occurred and thrown up its arms in defeat, when victims are unable to themselves identify or lead them to perpetrators. The petitioners have asserted in the case, that the government must live up to its constitutional obligations to take proactive steps to establish social, legal, policy, administrative and institutional measures that can effectively prevent sexual violence during elections and provide appropriate emergency and long-term health care, psychosocial support, legal assistance and justice to affected victims.
The petitioners maintain that such measures should take into account the unique barriers and challenges encountered by victims of sexual violence during election-related conflict, including stigma and biases rooted in ethnic, socio-political and gender-based discrimination that fuels such violence in the first place. They would also like such measures to take into account the breakdown in infrastructure, law and order; and existing systemic gaps in the social, health and criminal justice sectors, which affect timely access to assistance measures and reporting by victims, as well as investigations and prosecution of perpetrators, including state security officers responsible for committing election-related sexual violations. To this end, the petitioners’ prayers include orders to compel the state to establish specific and practical measures that would go a long way in enhancing protection of women, girls, men and boys in communities that have repeatedly experienced SGBV during elections. These measures include enhanced training of law enforcement officers on lawful and human-rights based policing. They also include the establishment of an independent body or “internationalized special division” within the Office of the Directorate of Public Prosecutions for investigations and prosecution of PEV-related sexual violence, independent of the police, and capable of addressing patterns of crime that rise to the level of international crimes. Other measures the petitioners are asking for include the creation of a database of all victims of PEV-related SGBV, and to ensure that such victims are provided with appropriate, ongoing medical and psychosocial care, legal and social services. The petitioners also want the establishment of an independent body tomonitor the provision of reparations to victims of PEV-related SGBV; analyze and report on systemic deficiencies in the provision of effective remedies for SGBV victims; and periodically report to the court on the implementation of reparation measures.
Thirdly, the timing of the judgment is quite apt. It comes at a time when the Kenyan public has been engaged in a debate on the necessity, pros and cons of reopening the discourse on accountability for PEV-related violations. This has been triggered by the recent announcement of the Director of Criminal Investigations on reopening of PEV-related investigations following reports of renewed ethnic-based undercurrents and threats in communities affected by the PEV, and lawyer Paul Gicheru’s surrender to the International Criminal Court to face charges of interference with witnesses in previous trials involving Deputy President William Ruto. In response, the political elite have declared that they have reconciled and no one should be allowed to reopen wounds and the dark past of the PEV. Furthermore, reforms proposed through the Building Bridges Initiative have been fronted as the antidote to future election-related violence. Thus, many have questioned why victims cannot, therefore, just forgive, forget and move on.
However, regardless of its outcome, the anticipated judgment should spur us, collectively, as the Kenyan society to pause and reflect on the implications of our failure to meaningfully and conclusively deal with the consequences of the PEV and other historical injustices. Notably, while political elites form convenient coalitions under the guise of reconciliation, our citizens who have borne the price of political violence with their lives and those of their loved ones have been stuck in time, unable to move forward under the weight of encumbering social, economic and health conditions and losses. How can we morally or rationally demand of them to move forward without as much as some form of recognition or redress for their losses? What does our collective stance toward PEV victims say about our national ethos and constitutional obligations to protect the lives and human rights of every person, even the lowest amongst us? We owe PEV victims a moral and legal obligation to acknowledge and provide reparation for the harm they have suffered.
Furthermore, as our own experience and that of numerous countries around the world demonstrate, continued delay to address the consequences of PEV and past political violence, denies the country the opportunity to challenge impunity, understand and effectively address root causes of such violence, and forge national healing and cohesion with the participation of all citizens, including affected victims and communities. To illustrate, lack of accountability for past violence and the State’s failure to plug systemic legal and institutional gaps resulted in renewed violence, including widespread sexual violence, during the 2017 elections. It is only logical that if the Kenyan State continues to bury its head in the sand, a similar cycle of violence is expected in the 2022 General Election. As we mark this International Human Rights Day, let us be reminded that sustainable peace will only be achieved through a deliberate and genuine effort, with political commitment and leadership from the highest level of the Presidency, to confront past injustices and provide redress and reparation to victims affected by political violence. Such sustainable peace will also only be achieved if a deliberate and genuine effort is made to dismantle sex, gender, ethnic, social, regional and other bases of discrimination and marginalization, which fuel persisting tensions, divisions and cycles of election-related violence and gross human rights violations in Kenya.
Christine Alai is a human rights lawyer and transitional justice expert who has been involved in the 2013 constitutional petition filed by PEV sexual violence victims.