By Susan Kendi
Over 2,000 sexual and gender-based violence cases that occurred during the 2007/8 post-election violence were never reviewed by a special taskforce established to look into possibilities of prosecuting them, according to the team’s final report.
Only 4,000 of the 6,081 case files were reviewed by the taskforce established by the Director of Public Prosecutions and bringing together police investigators, prosecutors and gender experts in 2008, it emerged as a case seeking to compel government action wound to a close.
Senior prosecutor Jacinta Nyaboke Nyamosi, who was testifying as the last defence witness in a case filed by eight people who suffered sexual violations during the post-election violence, was hard-pressed to explain why only 150 sexual and gender-based violence case files were considered out of the 900 complaints recorded. The Commission of Inquiry into the Post-Election Violence, chaired by Court of Appeal Judge Philip Waki, received and considered 900 complaints of a sexual and gender-based nature.
Nyamosi, who heads the sexual and gender-based violence division in the Directorate of Public Prosecutions, told the High Court that there had been 11 convictions and one acquittal, while five cases were withdrawn and pending warrants of arrest issued in three. She was testifying as a witness for the defence in the case filed by eight people who have sued the government for failing to prevent the violence they suffered, failing to protect them and failing to prosecute the perpetrators.
“The eight petitioners never reported to the police, hence no case files were opened,” she said after being shown the affidavit of one of the petitioners.
One petitioner reported to the chief at Laini Saba in Kibera, and was given a letter referring her to Kilimani Police Station where she went to report later in the month. A police officer recorded the information and handed her back the letter, explaining that there were numerous similar cases but asked that she returns after a week.
Nyamosi was testifying under cross-examination on April 19, 2017 after she concluded her examination in chief as a witness for the State on March 29, 2017. Six female and two male survivors filed the case in February 2013 with the support of the Coalition on Violence against Women, the Kenya Section of the International Commission of Jurists-Kenya, the Independent Medico-Legal Unit, and Physicians for Human Rights.
The hearing began in March 2014 before then High Court Judge Isaac Lenaola Two expert witnesses, a nurse, a social worker and a psychiatrist as well as the eight petitioners have testified in court. The case seeks to have the court establish that important government offices and their holders failed to prevent the violence, protect the survivors from sexual violence, investigate and prosecute perpetrators, and provide effective remedies to victims. It is the case of the petitioners that these failures amount to violations of fundamental rights and freedoms protected in the Constitution even at that time.
Justice Chacha Mwita took over the hearing of the case, filed in 2013, after presiding Judge Lenaola was appointed to the Supreme Court in October 2016.
“Survivors want the truth about what happened to them known,” said Tina Alai of Physicians for Human Rights. “They want the state to acknowledge that they suffered, begin credible investigations and prosecutions, provide reparations including medical and psychological treatment, legal and social services, and compensation, and reform the responsible institutions and change the relevant policies so that no one else undergoes the suffering we have endured ever again.”
Nyamosi, who is a critical defence witness for the State, told the court that during the post-election violence, government facilities were overwhelmed since the conflict was unanticipated.
She said she never asked the Waki Commission, which concluded its work in 2008, to share its report on SGBV cases since the taskforce was already seized of the matter. Nyamosi, who works at the DPP’s office in Kisumu County, has been a member of the SGBV unit since 2007. She also said she was not aware about reports of sexual and gender-based violence in the Truth Justice and Reconciliation Commission report, which was presented to the President and Parliament in 2013.
The defence witness acknowledged that sexual and gender-based crimes in conflict and non-conflict situations are similar but differentiated by the setting in which they occur.
“During conflict, the first thing people usually think of is safety, not necessarily reporting. Reports can either be made immediately or maybe sometimes not done,” she said.
“You find the police handling all sorts of issues: some riots but during peace time as we are right now, it is easier because a report can be made to a gender desk,” Nyamosi told the presiding judge.
Nyamosi said the DPP was ready to prosecute if cases similar to the 2007/8 ever recurred in Kenya.
During his cross-examination, the petitioner’s lawyer, Willis Otieno, said it was apparent that sexual offences were only prosecuted if there was a public outcry.
Here are excerpts from the hearing.
OTIENO: What are the obligations of the State to its citizens in relation to security?
NYAMOSI: Right to security
OTIENO: What does it mean?
NYAMOSI: Given ample security
OTIENO: What does it mean to you?
NYAMOSI: Police taking care of its citizens as much as they can.
OTIENO: Are you aware of Article 28 on the right to human dignity?
NYAMOSI: Respect someone’s right to being human.
OTIENO: Is it the state’s obligation to preserve and protect these rights
OTIENO: What if there is a violation of these rights?
NYAMOSI: If I am robbed…
OTIENO: What is the States’ obligation?
NYAMOSI: There is investigations and prosecution.
OTIENO: Who does the investigations?
OTIENO: Is it a private agency
NYAMOSI: A state
OTIENO: Criminal proceedings are instituted by whom?
OTIENO: In which name?
NYAMOSI: In the name of republic
OTIENO: Why, in criminal law, are prosecutions conducted by the State?
NYAMOSI: State is there to take care of its citizens.
OTIENO: Are you aware whether SGBV occurred during PEV?
NYAMOSI: Offences were committed against people, yeah.
OTIENO: Annexure DN9, specifically the Table that confirms status of cases
(Replying affidavit, second respondents affidavit, 21 January 2015, BN9) Please confirm it is a press release and not a taskforce report?
NYAMOSI: It is a press release.
OTIENO: That is what has been produced in court?
NYAMOSI: Press release and report.
OTIENO: Are you telling us that the report is the press release?
OTIENO: Everything the task force did is here in press release?
NYAMOSI: Yes, it is a report.
OTIENO: Is this a final report?
NYAMOSI: Yes, it was on 17 August 2012.
OTIENO: You confirm this is the final report of the taskforce?
NYAMOSI: Yes, press brief presented as final report.
OTIENO: Confirm the date of the press brief?
NYAMOSI: 17 August 2012
OTIENO: Is this on 17 August 2012, the taskforce presented its final report?
NYAMOSI: Yes it was.
OTIENO: DN6I, third annex, letter to DPP, Dorcas Oduor?
NYAMOSI: She was a chairperson
OTIENO: What is the date of that letter?
NYAMOSI: 5 Sept 2012
OTIENO: Who is she writing to and [what is she] asking for?
OTIENO: Did the taskforce present its final report on August 2012?
NYAMOSI: Let me look at the report again?
OTIENO: (Reads the letter to COVAW) As of August 17, have they concluded the report?
NYAMOSI: I was not a member but I am reading the document, I can competently read. This is a final report and you can use it.
OTIENO: Paragraph 2 of the press brief, DN9, number of files they were to look at?
NYAMOSI: 6,081 files
OTIENO: Paragraph 3, how many did they review at the time of review?
OTIENO: There must be some to files the taskforce did not review?
NYAMOSI: Yeah, according to this …
OTIENO: How many approximately?
NYAMOSI: About 2000
OTIENO: Are you aware of CIPEV?
OTIENO: Who was chairing it?
NYAMOSI: I cannot remember.
OTIENO: Are you aware they conducted investigations on PEV?
NYAMOSI: They had their mandate but [I am] not sure what they did.
OTIENO: What is your position?
NYAMOSI: SGBV senior, I have been a member since 2007
OTIENO: Anything touching on SGBV would be of interest to you?
OTIENO: Are you aware the Waki Commission received about 900 complaints?
NYAMOSI: Yeah, but [I am] not sure about numbers.
OTIENO: DN9, how many SGBV cases did the taskforce consider?
NYAMOSI: 150 files were considered.
OTIENO: If the Waki Commission documents 900 complaints received, were there more files in the Waki Commission than in Task force?
OTIENO: They considered more than what you had?
OTIENO: Since Waki Commission, have you ever, as head of this unit, asked them to share any of the SGBV reports?
NYAMOSI: When it was out, I was not head of it. No, I have not done [so] in my capacity, because it was done by task force.
OTIENO: When was it done? Do you have a letter from taskforce to Waki?
OTIENO: But confirm the taskforce looked only at 150?
OTIENO: Prosecution led investigations? Prosecutor guided prosecutions?
NYAMOSI: If a complaint or report has been made, the DPP will then direct some of its prosecutors to assist police on legal technicalities on what is supposed to be done.
OTIENO: What makes DPP to assist police?
NYAMOSI: If [there is a] complicated case, or [it is] highlighted on social media or media.
OTIENO: So DPP can play an active role?
OTIENO: Has the DPP guided [prosecutions] for the PEV?
OTIENO: Which case?
NYAMOSI: Not a particular case; it was done by the taskforce.
OTIENO: Can you give us particulars?
NYAMOSI: All those cases in the report.
OTIENO: What is difference between SGBV in conflict and non-conflict [situations]?
NYAMOSI: Crime is the same, but in different scenarios during conflict, the first thing people think of is safety. People can report later. In conflict, generally, citizens are in chaos, the first thing is not to report. But during peace time, it is easier to report, at a gender desk.
OTIENO: In view of the difference, tell us, [what are the] international standards to investigate SGBV in conflict?
NYAMOSI: I have been trained on this, reports are either not made or later.
OTIENO: What did the jurisdiction do?
NYAMOSI: ICC may have had situations to rely on reports or testimonies or other agencies but [it] cannot be applicable in Kenya.
OTIENO: Have you attended any training in Uganda on this?
NYAMOSI: Yeah, I have.
OTIENO: What did you learn during the training?
NYAMOSI: SGBV during conflict, we have not had convictions in those cases.
OTIENO: Does the obligation of State to its citizens, does it diminish because violations took place during conflict?
OTIENO: Does state have an obligation to take measures for redress?
OTIENO: Just mention them?
NYAMOSI: If report is still made, State can see if they can gather evidence. We can have our agencies better prepared for this situation.
OTIENO: Beyond criminal prosecution, can State take other redress [measures]?
NYAMOSI: State can compensate if [there are] violated rights but not when it did not have role in ignoring rights of citizens.
OTIENO: Not in all situations?
NYAMOSI: In conflict, you cannot state ignored rights of citizens, they were looking at …
OTIENO: In compensation, State has an obligation?
NYAMOSI: To a certain extent, if you prove State ignored rights.
OTIENO: Does State have obligations to protect citizens? Can it abandon it?
NYAMOSI: You can say so.
OTIENO: Article 25 of the Constitution, freedom from torture, cruel or degrading punishment … absolute right.
NYAMOSI: A right to a fair trial.
OTIENO: Those obligations that you cited, do they fall under absolute rights?
OTIENO: State has an absolute obligation, what if there is a violation, does State have responsibility to redress?
NYAMOSI: If persons can prove there were violations, if it was done with menace in it.
OTIENO: Last paragraph of statement?
NYAMOSI: [Reading] What victim petitioners [went through] was harrowing, it would be hard to bring justice and they did not identify perpetrators.
OTIENO: You confirm victims have gone through harrowing situation, which victims?
OTIENO: What are you admitting in the last paragraph?
NYAMOSI: Harrowing experience.
OTIENO: So you are admitting it?
OTIENO: You said if they report to police, they will do something, in your statement?
NYAMOSI: I was confirming about victims.
OTIENO: So they have been violated but you are waiting for them to report?
OTIENO: Read paragraph 26.13 of the supporting affidavit by Lydia Muthiani, 20 February 2013. Who are the persons who violated the victims?
NYAMOSI: Two police officers.
OTIENO: Paragraph 27.3, who are the persons’ alleged?
NYAMOSI: Police officers
OTIENO: What does she say she did?
NYAMOSI: She reported to chief at Laini Saba.
OTIENO: What did chief do?
NYAMOSI: Gave her a letter and send her to Kilimani Police [Station].
OTIENO: What happened there?
NYAMOSI: She gave the letter to police and [they] told her to come back after a week.
OTIENO: 29.14 — Where was the report made?
NYAMOSI: Kilimani Police.
OTIENO: Based on this information, are we getting leads of reports made to state agencies?
OTIENO: There are allegations of violations by police?
OTIENO: You told us you participated in international trainings, are there instances where when violated by police, victims go through to reporting?
NYAMOSI: Reporting is a problem, you fear going to the same person.
OTIENO: To the best of your knowledge, has State ever gone to KNH [Kenyatta National Hospital] to inquire about any incidences of persons from SGBV during PEV?
NYAMOSI: I know I went to KNH, SGBV when I was on a taskforce on implementation of the Sexual Offences Act.
OTIENO: Let’s stay with SGBV during PEV. Are you aware if there has been any contact between state and KNH and Nairobi Women’s Hospital to take stock of persons who reported?
NYAMOSI: No, I am not aware.
OTIENO: You explained about trainings your officers go through. In your assessment, how have those trainings/ sexual offences prosecutions assisted in investigation or prosecuting post-election violence related SGBV?
NYAMOSI: Impact is not just for PEV; they came after the PEV as a way of dealing with SGBV
OTIENO: Before PEV you had nothing?
NYAMOSI: No, we did not have any SOPs.
OTIENO: Have you applied [the training] to PEV? It is continuing, no redress?
NYAMOSI: Not necessarily to PEV cases; all cases that come to us SOPS would be applied.
OTIENO: You talked about admission of medical evidence, it is your testimony, that there can be no prosecution of SGBV if no medical evidence?
NYAMOSI: Medical Evidence strengthen prosecution, in some cases yeah it does, it depends how the court will view evidence but we have taken cases to court with medical evidence
OTIENO: Are there cases where you can prosecute without medical evidence?
NYAMOSI: Yeah you can
OTIENO: Have you?
OTIENO: Have you get convictions?
NYAMOSI: It becomes difficult
OTIENO: Are you familiar with [Sexual Offences Act] and that it allows for prosecution for SGBV without medical evidence?
OTIENO: But you still never bothered to invoke that section in PEV cases?
NYAMOSI: We must take evidence as a whole.
OTIENO: You have never taken any PEV cases?
NYAMOSI: There are cases.
OTIENO: Did you take any without medical evidence?
NYAMOSI: I believe so.
OTIENO: Justice for Liz case? When did the offence take place?
NYAMOSI: I don’t remember but 2013?
OTIENO: Was it June 2013?
OTIENO: In summary at the time when she was violated, did she report to police?
NYAMOSI: Yeah, she did.
OTIENO: What did the police do?
NYAMOSI: Police investigated and DPP called for the file and we asked for prosecution.
OTIENO: Please note you are under oath; was there a public outcry?
OTIENO: Are you aware that the police imposed a penalty of slashing grass at public compound?
OTIENO: Was there any public outcry?
NYAMOSI: Yeah, it was reported that they slashed grass.
OTIENO: Which organisations brought the matter to the limelight?
OTIENO: Are you aware there was a public petition to give justice to Liz?
NYAMOSI: I am aware.
OTIENO: You head the SGBV unit for DPP? And you did tell court that one of the stellar cases is Justice for Liz. Why are you suffering from memory losses?
NYAMOSI: I can only remember when I started the case.
OTIENO: After the outcry?
NYAMOSI: We asked for the file and sent out a DPP investigator to carry out the investigations.
OTIENO: When did you go to court?
NYAMOSI: In January 2014.
OTIENO: Have they been convicted?
NYAMOSI: Yeah, seven and 15 years.
OTIENO: Mugo wa Wairimu case, you prosecuted?
NYAMOSI: It was a rape case.
OTIENO: Tell us, if you are involved in the prosecution of this case?
OTIENO: Was there a public outcry in this case?
NYAMOSI: Not, really.
OTIENO: We now have police gender desks, how many did you visit in Nairobi?
NYAMOSI: I visited one in Buruburu, one in Kisumu and my officers visited other places in Kilimani, and we visit at random, spot check.
OTIENO: Are they random or regular visitations? How regularly do you visit gender desks?
NYAMOSI: Once in a month.
OTIENO: What do you look out for?
NYAMOSI: Is there privacy, when reports are made and victims are handled.
OTIENO: What do you do in regard to reports that SGBV desks receive?
NYAMOSI: No we don’t, it is not our mandate to interfere with the police.
OTIENO: PEV was spontaneous in your statement?
NYAMOSI: Yeah, government facilities were overwhelmed.
OTIENO: Government was unable to respond because of the conflict?
NYAMOSI: Yeah, they were overwhelmed.
OTIENO: These violations were taking place during conflict?
OTIENO: Do obligations of State end when infrastructure is overwhelmed?
NYAMOSI: No, it does not.
OTIENO: Is it possible to supply us with particulars in the annex of [redacted]? Particulars of these cases? As DPP can you do it?
NYAMOSI: I am not sure if we can.
OTIENO: Can the DPP supply particulars of these cases?
NYAMOSI: Yeah, it is possible, (DN9).
OTIENO: Where you sit right now, do you think ODDP or State is well prepared to respond to a conflict situation that happens similar to 2007?
NYAMOSI: DPP is well prepared.
OTIENO: Are you aware that there has been a government program on [Internally Displaced Persons] IDPs?
NYAMOSI: I read about it.
OTIENO: You heard State paid IDPs compensation?
NYAMOSI: Yeah, I heard.
OTIENO: Are you aware that the President of the Republic in a State of the Nation address did establish a fund for victims of injustice?
NYAMOSI: I cannot remember but there must be a fund.
OTIENO: As head of the SGBV unit, did you participate in platforms of compensation to SGBV victims from this fund?
NYAMOSI: No, I did not.
OTIENO: As part of its response, the government established the Truth Justice and Reconciliation Commission [TRJRC], have you looked at it?
NYAMOSI: I know there is a report.
OTIENO: Are you aware they looked at SGBV?
NYAMOSI: I did not look at TOR [Terms of Reference].
OTIENO: Would it be something that interests you?
NYAMOSI: Yeah it would be very interesting.
OTIENO: Page 736, what did TJRC find at paragraph 87?
NYAMOSI: There are many victims…
OTIENO: TJRC found there were reports made of SGBV?
OTIENO: Have you ever looked at complaints received by TJRC?
NYAMOSI: I have not looked at them in detail but I would be interested in implementing this report.
OTIENO: In Volume IV, at page 34, what does the commission find in paragraph 162?
NYAMOSI: Finding of commission.
OTIENO: Has your office ever gone beyond this to confirm?
NYAMOSI: As a division, we go beyond to ensure that victims are taken care of.
OTIENO: As your division?
NYAMOSI: Taskforce went.
OTIENO: Based on TRJC findings, would you say the Kenyan State needs to do something for victims of violations?
NYAMOSI: Yeah, it is guilty to people if it means investigating, and prosecution.
OTIENO: If there is a failure to investigate, does the Kenyan State owe?
NYAMOSI: The best thing we can do is to give justice.
Otieno sought to introduce the TJRC report into evidence, but State Counsel Edward Okello objected.
OKELLO: This is not Otieno’s witness, he has had his witness and it should have been introduced with his witness like he did with the Waki Report. It is a public document but not sure if Parliament debated it or not.
OTIENO: This being a State document and it has been presented to the President but Parliament did not discuss it. In debating, it can only make recommendations?
OTIENO: It is a public document, she is a competent witness and according to the Evidence Act, we can produce it. It became relevant because of Jacinta’ testimony.
OKELLO: You cannot begin saying it has only now become relevant?
OTIENO: Look at record Witness Betty [Murungi] partially produced? I recommend to produce it as a full exhibit into Betty’s testimony?
JUDGE: Think about, it is an issue of procedure.
OTIENO: We want to produce Volume IIa and paragraphs.
JUDGE: We want you to think how to produce relevant portions, pending Willis’ decision on how to produce it?
OTIENO: We may have to recall [a witness]. (Making application of particulars from witness to produce evidence).
OKELLO: I think it would be a good conversation with Dorcas [Oduor], the chairperson [of the taskforce].
OTIENO: My Lord, I will serve Okello with what I need.
State Counsel Edward Okello then re-examined the defence witness.
OKELLO: You [talked] about 150 files by the taskforce. Our affidavit by David, BN 9, press brief and particularly indication that only 150 files received on SGBV?
OKELLO: And Waki Commission received over 900? Do you know where 900 files in the Waki Commission came from?
NYAMOSI: No, I cannot tell.
OKELLO: You made reference to prosecution-guided investigations? And whether will lead in task force? What was the response?
NYAMOSI: SOPs are what we are referring to.
OKELLO: Would you say that the process that taskforce used was prosecutor-guided?
OKELLO: Why do you say that?
NYAMOSI: It had senior representatives from police and DPP and the prosecutor guided them.
OTIENO: Objection! How can she talk about it when she was not part of it?
OKELLO: What are prosecution-guided investigations?
NYAMOSI: Prosecutor goes to the ground in a situation where police are investigating, what exactly are legal technicalities that need to be dealt with, just to help police when they need a legal mind.
OKELLO: The last bit of your statement, please clarify where you are referring to harrowing experience of victims. Why did you say they were harrowing?
NYAMOSI: I had opportunity to look at the petition, I reviewed the SGBV violence, it is obvious that the situation w