Do we have enough laws and enforcement methods in place to curb domestic violence? A commentary

This article seeks to outline different types of domestic violence and their effects. It also challenges some practices that have been taken to be solutions to the vice. It suggests that apart from dealing with violence matters under the Judiciary, a government department should be set aside to provide support to domestic violence victims.

As defined in the Protection Against Domestic Violence Act, it is any form of violence against a person, threat of violence or imminent danger to that person, by any other person with whom that person is, or has been, in a domestic relationship.[1] For years in Kenya, domestic violence has been meted out on men, women, and children and there was no specific legislation on such a crime. In 2015, the Protection Against Domestic Violence Act (PADV), was accented to and its commencement date was June, 2015. This legislation is historical because it is the only legislation in Kenya that solely addresses violence within the family set up.

On 30th July, 2015, the gender forum in Nairobi sought to discuss the relatively new legislation and provide awareness to the public on its contents. Hon. Nancy Baraza who had overseen the drafting of the Protection Against Domestic Violence Act began by giving the justification for the Statute. She stated that by enacting this Act, Kenya was not only fulfilling

international conventions that protect individuals against violence but also it was implementing its Constitution, 2010 provisions as stated in Articles 10, 28, 29, 43 and 45. Article 10 of the Constitution provides for the national values and principles of governance. They include human dignity, equity, social justice, equality, human rights, non-discrimination and protection of the marginalized among others.[2] Article 28 of the Constitution of Kenya, 2010 further reiterates and provides for human dignity. It states that every person has inherent dignity and the right to have that dignity protected and respected.[3] Article 29 of the Constitution of Kenya outlines the freedom and security of the person and states that every person has the right to freedom and security of the person which includes the right not to be subjected to torture in any manner, whether physical or psychological; treated or punished in cruel, inhuman or degrading manner.[4] Article 43 of the Constitution of Kenya lists all the economic and social rights that the citizens of Kenya should enjoy. Further Article 45 of the Constitution of Kenya recognizes the institution of family.

The Act sought to provide relief and protection to victims of domestic violence. Some of the non-conventional offences now prosecutable under the Act include economic violence, emotional abuse, stalking, virginity testing and sexual violence in marriage. Additionally, a welcome clause in the legislation is that any person can report abuse on behalf of the victim; initially, it was restricted to only the victim.

Measures to ensure the protection of the victim and dependants are set out in the Act for example, the state is supposed to provide protection orders to the victims and at the same time the court can order counseling services and compensation to the victim. The Act seeks to protect those in domestic relationships that is those married, previously married, living in the same household, relatives and children. It is always a question of whether this has really come to be. The Act is not discriminative as it cuts across and provides protection to men, women and children. The Act challenges nay-sayers who rely on the archaic culture for domestic violence by saying that wife battery is a way of showing love, as this truly is a myth. The Act protects the natural and fundamental unit of society which is the family.

There are several challenges that come with the implementation of various legislations. For this particular one for instance, it is clear that it needs adequate funding to ensure measures such as counseling services are available to victims. Two or more rules and regulations of the Act need to be made clear as well as reporting mechanisms. Most importantly, the need for public awareness on the legislation is vital for its effects to be felt among citizens. To whom the instances should be reported include the police. It is so unfortunate that the same sadly go ahead and conceal the vital information that they get because of major and known reasons. So is the system really functioning in its capacity or it is acting to the detriment of the victims? Take for example the landmark case of the 160 Girls who had undergone sexual abuse in Meru in 2012 and reported it to the police who didn’t take any action. Can we really trust the police? The evidence submitted in the case included a ‘bundle’ that was 502 pages in length, detailing the specifics of the police treatment of the girls’ defilement claims. The girls had made complaints to the police about defilement at the hands of family members, caregivers, neighbors, employers, and in the case of one girl, a police officer.[5]

The Court took note of the documented police response in each case, which ranged from requests for money, interrogating the victims in a humiliating manner, refusing to investigate, refusing to gather and bring physical evidence to the court, refusing to make arrests, and in some cases even refusing to record the complaints at all. The court was presented with the affidavit evidence of C.K, a five-year-old girl who had been raped by her uncle. When Ripples brought this incident to police attention, the police asked for money in order to intervene. Similarly, when fifteen-year-old F.K. became pregnant after being raped by her neighbour, police said they would have to wait until the baby was born before they would investigate or arrest the perpetrator. These are clear instances of corruption, delay of justice and advocating for the growth of injustice dealings causing infringement on human rights.

The petition alleged that the Respondents had violated several of the girls’ rights under the Kenyan Constitution and other regional and international human rights treaties by failing to properly investigate defilement claims. These rights include the right to equality and freedom from discrimination, the right to security of the person and the right to access justice. In addition to the 12 Petitioners (which included the 11 defilement victims and Ripples International), the following two leading human rights organizations also intervened in the case, The Federation of Women Lawyers (FIDA) Kenya and the Kenya National Commission on Human Rights (KNCHR).

On May 27, 2013, the High Court of Kenya ruled in the girls’ favour. In the decision, Makau J.A began by dismissing the arguments of all the Respondents as they were having no merit. Turning to the girls’ evidence, the Court accepted that the Respondents’ inaction had created a climate of impunity for defilement, which rendered them indirectly responsible for the harm inflicted by the perpetrators. The court also found the Respondents directly responsible for the psychological harms flowing from the mistreatment the girls received from the police, harms which were found to amount to violations of the girls’ constitutional rights. By way of remedies, the Court ordered the National Police Service to conduct “prompt, effective, proper and professional investigations” into each of the Claimants’ cases.

Furthermore, as a systemic remedy with the potential to drive a far-reaching change in police practice, the court ordered the Service to take measures to implement Article 244 of the Kenyan Constitution. The provision requires among other measures, that the Police Service comply with human rights standards and train staff to respect these standards.

The ’160 Girls’ decision has made legal history in Kenya, as well as in Africa and beyond, it has set the high-water mark for girls’ rights internationally. It should result in long-awaited access to justice for the claimants themselves, as well as changes in police practice that will benefit all girls in Kenya. The decision recognizes the obligation of the Kenyan Police to conduct proper investigations in cases of sexual abuse and could easily be extended to apply to other forms of gender-based violence, as well as to other contexts internationally. International human rights guarantees have no geographical borders, and a key precedent set in one country may be used as a powerful advocacy tool by women and girls worldwide to address similar human rights infringements.

It is worth noting that the over 160 girls involved in the case have now been empowered with the knowledge of the human rights they are owed, and with the knowledge that it is possible for them to hold their state accountable for these rights. As one of the girls described it, they now “know what justice looks like” and have seen the results that can be achieved by having the courage to demand that justice. The case received a very positive international response and a significant amount of international media coverage.

The case has resonated with women and girls worldwide. Almost immediately after the judgment was rendered and picked up by the media, the equality effect was contacted by women in countries including the Democratic Republic of Congo, Somalia, Tanzania and Uganda, all hoping to achieve similar victories in their own countries. Other women’s rights organizations in Kenya are now relying on the decision to bolster their advocacy initiatives.

While it remains to be seen how this decision may end up being used as a precedent internationally, what is unequivocal is that the “160 Girls” victory marks a historic moment in the realization of the fundamental human rights of Kenyan women and girls; and the equality effect is committed to continuing working with its Kenyan partners to ensure that the full effect of the Court’s order is achieved in Kenya.[6]

The harsh effects of domestic violence include the exposing of victims in most cases who are women and children to risks that make them vulnerable thus causing a threat to their lives. The most severe ones include death, severe physical injuries, mental illness, loss of income and property, separation or divorce. The unrelenting cycle of violence produces diminished self-esteem, helplessness, and depression. What makes most people stay in abusive relationships include material obstacles since most are financially dependent on their abusers. Reporting to the police has become the least that one could do since the department has been proven to be full of animosity. They offer no protection against retaliation. Also, most partners become very vengeful precisely when the victim tries to leave.

The victims are always kept behind bars by the perpetrators hence the lack of freedom. Lack of access to most facilities including health services is one of the most dangerous outcomes of being kept behind the bars. This causes death in most cases or long-term effects following a small injury or illness. In Kenya today, it is extremely difficult to obtain the prevalence of violence by husbands against their wives because the problem in many cases is still accepted as a cultural practice or a private affair and this is rarely reported to authorities.[7]

In most cases, all types of abuse are done for the purpose of gaining power and control over the victim. Some are as a result of drug abuse and substances. Power refers to the capacity to impose one’s will on others regardless of any resistance they might offer. It thus refers to the capacity to influence, manipulate and control others. Physical violence is any act or threat intended to cause physical pain, injury suffering or bodily harm. This can include hitting, slapping, punching, chocking, pushing, and any other type of content that results in physical injury to the victim, depriving the victim of sleep or other functions necessary to live or forcing them to engage in drug abuse or alcohol use against their will. It can also include inflicting physical injury on their targets, such as children or pets in order to cause psychological harm to the victim.

The penal code cap 63 laws of Kenya, provides for the crime of assault that shoulders domestic violence against women. This act should provide expressly for the crime this is because many perpetrators get a light sentence or worse go free which makes it hard to curb the crime.

The state in most cases perpetrates or tolerates violence against women either through action or non-action by prioritizing custom or tradition over the respect of fundamental freedoms and rights belonging to women.  Kenya is especially guilty of having a system that is replete with cases of abuse of women’s rights. However, the recent case of C.K.(A Child) Through Ripples International As Her Guardian And Next Friend) & 11 Others v. Commissioner Of Police/Inspector General Of The National Police Service & 3 Others[8] where the High Court made a finding that the police’s failure to effectively enforce Section 8 of the Sexual Offences Act, 2006,[9] infringed upon the petitioners right to equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya, 2010[10] was a step forward in the right direction. In addition, the court observed that by failing to enforce existing defilement laws the police contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity. This decision informs the crux of this article and is therefore the point of departure to fighting for justice in cases of domestic violence.

Reference can also be made to the famous case of State v Truphena Ndonga Aswani [2021]EKLR. According to Amnesty International, a slap, a punch, a kick, a forceful shove, intimidation, coercion and fear, dominance, power and control are elements that constitute domestic violence. The defendant in this case was a woman remembered for being butchered, battered, dehumanized and violated with no voice. She persevered through the domestic violence meted on her by her late husband who was described as irresponsible and violent. She killed her husband in the process of defending her own life. She was however not willing to leave her matrimonial home because she had borne her husband one child and only son and thought that he would change for the better. His other two wives had parted ways with him because of the violence meted out on them. Truphena was sued for the offence of murder under section 203 read with 204 of the Penal Code of Kenya.

The learned Judge R.E. Aburili stated in the above case that considering her mitigations and circumstances under which the offence was committed, and appreciating the fact that each and every life is precious, he sentenced the accused Truphena Ndonga Aswani to serve a non-custodial sentence of one-day imprisonment, that lasted to the end of the court session. He also issued protection orders for the victim.

This judgment brings some equality in the justice system and creates an avenue where domestic violence victims can have a glamour of hope for justice. It also upholds the enforcement of some of the provisions of the Protection Against Domestic Violence Act.

In conclusion, domestic violence is a vice that permeates all aspects of life and is experienced in all societies and cultures. It is however lamentable that despite the recognition of domestic violence in all its manifestations the enforcement system against Domestic Violence in Kenya is very weak. The laws in place can be said to be enough but the enforcement methods are questionable. There is a need to sensitize the masses to domestic violence. They should be encouraged not to be silent if this is what we call awareness and their protection enforced. This will highly to a certain significant extent safeguard human rights and integrity as so provided for by the Constitution of Kenya, 2010.

Motari Leonida Bosibori is a third-year student at the University of Nairobi, School of Law.

[1] Protection Against Domestic Violence Act, 2015, s 3 (3).

[2] Constitution of Kenya, 2010, Article 10 (2) (b).

[3] Constitution of Kenya, 2010, Article 28.

[4] Constitution of Kenya, 2010, Article 29 (d), (f).

[5] C.K. (A Child) & 11 Others v Commissioner of Police/ Inspector General of the National Police Service & 2 Others [2012]Eklr.

[6] Dr. Winfred Kamau and another, Case Comment – Victory for 160 Girls in Defilement Constitutional Challenge; High Court of Meru, C.K. (A Child) & 11 Others v Commissioner of Police/ Inspector General of the National Police Service & 2 Others [2012]Eklr.

[7] Atetwe, L.K., “Relationship Between drug abuse and Domestic Violence in Luanda Division of Vihiga County, 2008.”

[8] C.K. (A Child) Through Ripples International as Her Guardian and Next Friend) & 11 Others v. Commissioner of Police/Inspector General of the National Police Service & 3 Others

[9] Sexual Offences Act, 2006, s 2.

[10] Constitution of Kenya,2010, Article 27.

Guest author The Platform Magazine