By Joyce J Wangui
Testimony by a victim of sexual crime “is the most valuable evidence” a judge can use to adjudicate a case, an international criminal investigation and prosecutions expert has told the High Court.
“If the victim’s testimony is believable, then yes, that’s enough,” said Maxine Marcus, an international criminal prosecutor and investigator, while responding to questions by Willis Otieno, the lawyer representing eight survivors of the post-election violence in a public interest case.
Eight survivors who are seeking official acknowledgment that the government failed to prevent sexual violence against them during the post-2007 election crisis, and culpability for failing to investigate and prosecute their tormentors, have already testified in private. Marcus is the sixth expert witness to be called to the stand; UN Special Rapporteur for Sexual Violence Rashida Manjoo testified in court in May this year.
Summoning expert witnesses has opened the hearing to the public since it was filed in February 2013. Over 20 women wearing white T-shirts with I Stand for Truth, Justice and Dignity inscribed on the front fill the jam-pack Courtroom No 3’s nine wooden benches in a show of solidarity with the petitioners as Marcus gives her testimony. At the back of the courtroom, men and women who had accompanied the petitioners stand for lack of seats.
A victim, Marcus explains, does not need to corroborate her evidence with either physical or forensic evidence. Her testimony can be enough and if credible to convince the judge, it can be relied upon to convict a rapist.
Presiding Judge Isaac Lenaola sits on a high-backed chair atop a platform in front of the court, scribbling vigorously and occasionally asking the witness to speak slowly so that he can capture what she is saying.
“Criminal cases — including sexual offences — rely almost exclusively on witness testimonies,” says the expert witness. She adds that the absence of supporting medical records, including documentary evidence or even lack of witnesses, should not deter victims from testifying in court. Should there be corroborating evidence, there is no harm bringing it forward as it may strengthen the case; but if it is lacking — as is always the case in many rape cases — victims should not be compelled to have it.
Microphones are not working, and speakers have to raise their voices to be heard, but Marcus is audible enough. Her black dress matches her raven head, with a scarf completing her picture of elegance. Marcus continues. Lack of supporting evidence from the victim should not be used as an excuse by investigators and prosecutors to abdicate their responsibilities.
Kenya has always maintained that it was humanly impossible, then and now, to initiate credible investigations and prosecutions of crimes committed during the post-election violence without victims coming forward to make a report to the police. It is the case the State is making in the petition.
“The obligation of the State should not be shifted to the victims,”counters Marcus. “When they fail to report their cases, it is simply because the conditions are not conducive.” Victims, she continues, should not hunt down the State to report their cases, instead it should ensure a safe environment that enables survivors to report cases with the faith that they will be handled with the respect and sensitivity that they deserve.
The State, she argues, is meant to be protective and not reactive. “The burden lies with the State to protect its people and to prevent occurrences such as sexual violence from happening.”
In Kenya, majority of survivors of rape during the post-election crisis did not report to the police or immediately get to hospital.
Insecurity, fear of reprisals, shame and stigma, are some of the reasons previously noted for low reporting. Testimony in court papers shows that majority of women were shunned by the police when they tried to report their cases. Some were told to bring physical evidence to prove their claims.
Lawyers for government agencies being sued in the case have brought their A-game. Edwin Okello, donning a dark suit, clean-shaven, is in court for the Office of the Attorney General. His tone is low but his questions are deliberate and calculated when he asks for the third time whether victims have a role in the investigation and prosecution of sexual violence cases.
Marcus gulps the water still left in her bottle, grins broadly, and responds: “The survivor’s evidence can prove her case.”
She drops her spectacles from her forehead to her eyes, smiles, and repeats her answer: “They are the ones to come forward and testify. That is the exact role of victims in sexual violence cases.” She looks back at Okello squarely and adds that it should not be on the victims to create circumstances to ensure that they get justice; that is the sole role of the State.
She is expressive with her gestures and expressions.
The State should call for the immediate investigation of these crimes, she says, but adds: “Having failed to do so, the State’s obligation is to provide them with the medical and psychological care as well as reparation support for their families.”
Okello: Don’t you agree this evidence is better corroborated by medical evidence?
Marcus: I cannot agree with that. The witness evidence is sufficient but it doesn’t mean if there is medical evidence, that will [not] make the case stronger.
Often times, she adds, investigators and prosecutors do not always have sufficient evidence to prove such cases, especially in the context of conflict.
Okello: But the best evidence in rape is medical.
Marcus: Not necessarily.
Okello: The fact that victims did not identify the perpetrators should not stop investigations, right?
The witness cites the example of a sexual violence case in Guatemala, where she has extensively worked, noting that survivors were not able to identify those who raped them but that inability did not impact on the case.
In February this year, the first ever conviction on sexual slavery as a war crime and a crimes against humanity, resulted after 30 years of survivors seeking justice.
In previous sessions, the lawyer for Independent Policing Oversight Authority (IPOA) paces up and down as she questions the witness.
Today, however, she is today rooted to one spot as she fires: “Would it be in order for a victim to report her ordeal to IPOA if the police are unable to investigate?” Judge Lenaola interjects, reminding the lawyer that IPOA was created four years after the post-election violence.
When the case is adjourned, as has happened several times before because Lenaola had to attend to his responsibilities as a Judge at the East African Court of Justice or the two times the petitioners had to change lawyers, the survivors and their supporters mill around the courtroom, uncertain but reluctant to go home.
They surround their lawyer to talk about their case. Otieno is careful not create false hope. None of them knows what the judge will decide.
Even though this case does not intend to send anyone to jail, the government – from the Attorney General, the Director of Public Prosecutions and the Independent Policing Oversight Authority – are defending the case with everything it has got.
A government lawyer says they will win “for the simple reason that there was no and still there is no evidence; that’s all I can tell you for now as I cannot dwell on the merits of the case.” At the next hearing in July, the government agencies that have been sued will reveal the identities of the witnesses they intend to call.