Here in Kenya, the sentencing practices of SGBV cases vary greatly and thus have been subject to criticism on several grounds. Despite this and many other challenges, the jurisprudence of SGBV continues to evolve to better recognize and ameliorate the egregious experiences of victims. Also, efforts are being made to roll out National SGBV Court and CUCs across the country to ensure tailor-made justice for victims of SGBV, with a special focus on establishing trauma informed court rooms and training of Judicial Officers on SGBV sensitive handling of cases. The SGBV Courts and the custom-made CUCs are intended to be the justice sector response to the unacceptable state of affairs with regards to SGBV and, if well implemented, will certainly lead to enhanced access to justice for the victims and survivors of SGBV.
The crux of this article is to explore and help us understand SGBV issues in Kenya and further provide a critical assessment of interventions and approaches adopted by Kenya, particularly the launch of National SGBV CUCs, in order to provide a platform for actors in the justice sector at the local or regional level; to consider improvements in the operations of the SGBV courts; coordinate functions of all agencies within the justice system; and improve the interaction of various stakeholders. Conclusions from this analysis will then highlight recommendations aimed at making SGBV courts and CUCs efficacious for current and future priorities.
The status of SGBV in Kenya
SGBV is a disturbing phenomenon that still exists in all regions of the world.[1] Kenya is not an exception to this form of cruelty which negatively affects women, men, boys and girls. Research from World Health Organization (WHO) shows that SGBV is common in the East and Southern Africa region and cuts across nationality, ethnicity, and socioeconomic status.[2] SGBV affects a large proportion of women across the region; for example one in three women is at risk of SGBV in Kenya, while 18 percent of young boys are at risk.[3] This is mostly because of the impunity of perpetrators which is as a result of the history of a low number of successful prosecutions.[4]
There is a surfeit of causes of SGBV, which are intricate and vary depending on the types of violence. These causes vary and range from political, economic, legal, social and religious dimensions.[5] Traditional attitudes towards women around the world help perpetuate violence. Stereotypical roles in which women are seen as subordinate to men constrain a woman’s ability to exercise choices that would enable her to end the abuse.[6] In that regard, there are some forms of violence targeting exclusively girls such as early and forced marriage, female genital mutilation, statutory rape, sale of children, child sexual exploitation, and child pornography. These types of violence women and girls experience have become increasingly complex, with increasing rates of violence committed using information and communications technology, such as online harassment, cyber-bullying, stalking and image-based abuse, as well as the production and circulation of child abuse materials. Rape is a recognized prevalent problem, but statistics are not certain due to societal pressures which impress the importance of chastity and honour.[7] The reporting of rape is difficult as many women do not have the education or economic capacity to negotiate the legal system.[8] Raped women are often traumatised and stigmatised and can be abandoned, divorced and declared unmarriageable. The perceived “low status” of women contributes to their vulnerability in the wider society and within the home.[9]
The impact of SGBV is devastating.[10] The individual women who are victims of such violence often experience life-long emotional distress, mental health problems and poor reproductive health, as well as being at higher risk of acquiring HIV and intensive long-term users of health services.[11] In addition, the cost to women, their children, families and communities is a significant obstacle to reducing poverty, achieving gender equality and ensuring a peaceful transition for post-conflict societies.[12] This, in conjunction with the mental and physical health implications of gender-based violence, impacts on a state or region’s ability to develop and construct a stable, productive society, or reconstruct a country in the wake of conflict.[13]
Many governments (Kenya included) have committed themselves to prevent and end SGBV by enacting laws and ratifying international conventions and declarations, thus acknowledging the seriousness of the problem.[14] However, these efforts alone have been insufficient in preventing rampant cases of SGBV hence the need for a unique/additional mechanism in order to expose the hidden problem and suggest strategies that SGBV against women and children can be ameliorated and also prescribe how the victims can be compensated and supported. It’s the obligation of the State to promote and protect all human rights and fundamental freedoms of all citizens, and they must exercise due diligence to prevent, investigate and punish acts of violence against women, men and children. The state also has a duty to protect victims of any form of violence, a responsibility for which it ought to be held to account.
Scaling up the fight against SGBV: A promising approach
Everyone is entitled to the right to a fair trial which is a fundamental human right, ingrained in most modern constitutions and recognised under regional and international law.[15] In this context, the elements that form a fair trial with regards to SGBV must safeguard the defendant, the victim as well as the witnesses. This in tandem with the dictum in Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone[16]where the Court held as follows: “…one of the fundamental rights under the Constitution is access to justice for all, and non-discrimination. Consequently, all litigants are to be accorded equal right of access to the court”.[17]
Whereas the Kenyan legal framework provides a mechanism for addressing SGBV, the levels to which the frameworks respond to the plight of the survivors of SGBV is debatable. The legal and policy framework mostly focuses on bringing of the accused person to ‘justice’ without a corresponding obligation of alleviating the conditions of the survivors of SGBV.[18] In fact, the survivor of SGBV is more of an alien to the criminal justice system because the offence is perceived by the system to have been committed against the state, not against the survivor of the SGBV as an individual.[19]
Kenya’s autochthonous Constitution (2010), in Article 10 (2) (b), sets out the national values and principles of governance to include, among others, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. Further, Article 19 (2) enunciates the purpose of recognising and protecting human rights and fundamental freedoms as being to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. This general proposition is important and relevant to women’s struggle for gender equality and gender equity. This is mostly because dignity is that intangible element that makes a human being complete and goes to the heart of human identity. Dignity is the cornerstone of other human rights entrenched in the Constitution.
Further, the Constitution imposes a positive duty on the State and all State organs to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. Also pertinent is Article 2 (5) and (6), which provides that the general rules of international law as well as any, treaty or convention ratified by Kenya form part of the law of Kenya,[20] for example, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), having been ratified by Kenya, provides for the protection against sexual and gender-based violence, including by establishing safeguards against sexual violence as a result of gender-based discrimination. The Constitution further provides for the security of the person and protection against all forms of violence.[21] This relevant Article provides that every person has right to freedom and security of their person which includes the right not to be subjected to any form of violence from either public or private sources, any form of torture whether physical or psychological or cruel, inhuman or degrading treatment.[22] The right to security means that the Constitutions safeguards citizens’ rights against SGBV and any other related form of SGBV.
In addition to the Constitutional provisions aimed at protecting Kenyans against SGBV, there’s also legislative framework where Statutes have been enacted for the same purpose inter alia: Sexual Offences Act; the Penal Code; Children’s Act etc.
Despite the existence of policies, legislative reforms, plans and programmes, SGBV still exist in legal, social, economic and political domains. Overall, the implementation of policies and laws has been slow; a situation attributed to gaps in the laws, delayed enactment of gender related legislation and lack of comprehensiveness in content of the same laws, for example, the Sexual Offences Act and the Children Act.[23]
Kenya, having recognised that they must address SGBV if they are to make progress toward human development goals, including significant reductions in poverty, HIV incidence, and maternal and infant mortality, have tried various approaches to SGBV response, including strengthening the capacities of the police, judicial, and social services sectors to improve psychosocial support and legal actions. In light of the foregoing, Kenya, has established specialized courts to deal with specific gender-based crimes/issues and upgrading the capacities of regular courts. When Kenya got its first Lady Chief Justice, she was not only liberal and progressive but a passionate human rights defender who did not shy away from gender politics, defence of vulnerable groups, and a gender forward stance on the patriarchy. Chief Justice Martha Koome has been very emphatic about these issues and the necessity of their improvement. She has gone on to facilitate, along with the International Development Law Organisation (IDLO), led by the Kenya Country Manager Teresa Mugadza and International Association of Women Judges Kenya Chapter (IAWJ-KE), the launch of SGBV courts and CUCs across the country from Shanzu Law Courts.
This idea of specialized courts (SGBV courts) is globally recognized as a necessity for the promotion of equality and gender justice. This is because sensitized judicial actors play a key role in achieving a sturdy protection and response system for tackling SGBV. A few countries have responded to concerns raised by victims who have had negative experiences with the judiciary by establishing specialized courts on SGBV and introducing special measures in regular courts to respond to the needs of victims. Such specialization measures have been evaluated and found to be effective in many instances, as they provide a stronger possibility that the judiciary will be specialized and gender-sensitive regarding SGBV, and that more efficient case management systems are in place and that the courtroom environment will be more hospitable to victims. Having SGBV courts rolled out across the country from Shanzu Law Courts will therefore ensure they are uniquely placed to ensure that relevant criminal laws, including those relating to gender-based violence are interpreted through the lens of international standards and norms; are effectively enforced; protect women and girls from violence, including from the recurrence of violence; hold perpetrators accountable; and provide effective reparations for victims. SGBV courts across the country will also be responsible for ensuring that the defendants’ right to a robust defence does not eclipse the victims’ rights to be treated with dignity and respect. Due to their position, the SGBV courts’ judges will have the ability to ensure that victims of SGBV are not subjected to secondary victimization by the justice system across the country. These judges will be the ones to take victims seriously and recognize the challenges that going through the justice system may entail, including damage to victims’ reputations, in a context where their most intimate and violating traumas, characteristics, and behaviour are publicly discussed. The launch of National SGBV and CUCs in Kenya is indeed a step further in attaining gender justice in the country.
Court Users Committees (CUC) on the other hand, have been set up as fora to bring together stakeholders by the National Council on the Administration of Justice (NCAJ) at the local court and community level. The Constitution of Kenya 2010, which ushered in a new era for the judicial systems in Kenya, provides for the establishment of the Court Users Committees (CUCs) at the National and County level. Article 159(1) of the Constitution recognizes that “judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution”. Moreover, Section 35 of the Judicial Service Act institutionalizes CUCs by providing for the establishment of the National Council on the Administration of Justice (NCAJ) to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and the transformation of the justice system. The NCAJ in turn is required to establish CUCs at the county level and to review and implement their reports.
Having SGBV CUCs across the country will provide a platform for key actors in the administration of justice and the public to participate in efforts to strengthen the judicial processes as well as create solutions to the challenges in the delivery of justice. SGBV CUCs will bolster the effectiveness of the SGBV Courts. This is pivotal given the unique nature of Sexual and Gender-Based Violence. The CUCs, being fora that bring together players, both state and non-state and it is involved in the administration of justice at the local level, will be domiciled at the grassroots level, specifically at the SGBV court level, with the primary mandate of ensuring the efficient administration of justice within the court’s jurisdiction. The CUCs will ensure accountability and performance of the justice actors and cultivate partnerships amongst various stakeholders in the justice sector. Ordinarily, since CUCs are expected to resolve local disputes regarding the administration of justice and find local solutions to emerging issues, they will be required to meet every quarter and address emerging issues and implement their work plans. Legal, policy and administrative matters that the SGBV CUCs cannot handle will be transferred to the Council through the Secretariat for deliberation and directions. The Council decisions then trickle back to the SGBV CUCs or the specific justice institutions for action.
With SGBV CUCs, the sensitization in the communities across the country will improve the way in which communities report cases which will in turn help reduce SGBV issues, a reduction attributable to an increased gender sensitivity, responsiveness and interdisciplinary engagement of the court with other stakeholders where the magistrates would have also initiated public baraza at the grassroots.
Conclusion and recommendations
The prevalence of SGBV in Kenya is alarming. This is in addition to other major issues of poverty and socio-political downfall that the country is still grappling with. The launch of National SGBV courts and CUCs will thus help to create an enabling environment for the discussion of SGBV issues that affects communities on daily basis. Therefore, for the country to have efficacious SGBV courts and CUCs, the State should: Provide the SGBV Courts and the bespoke CUCs with adequate funding- adequate funding of SGBV courts and CUCs is a key element in ensuring and safeguarding the independence of these institutions and its members because it determines the conditions in which the SGBV courts and CUCs perform their functions; SGBV courts and CUCs should also be provided with sufficient tools, such as guidelines, protocols, and bench books; and lastly the State should also provide proper human resources and capacity-building measures – as the SGBV Court is a specialized court with a specific mandate and guidelines, all its members together with those of CUCs must undergo relevant training to get familiarized with the protocols of the relevant institution and develop important survivor-handling skills such as sensitivity, empathy, lack of judgement, etc. All the members appointed should not only undergo initial training but must continue to receive periodic training during their service to ensure they are able to maintain objectivity as well understand the nuances of gender discrimination in the country and its manifestations in various forms.
The author is a law student at JKUAT, Karen Campus available at adakidexter@gmail.com
[1] Elson, Lynne and Jill Keesbury. “PEPFAR Special Initiative on Sexual and Gender-Based Violence: Baseline Report,” Lusaka: Population Council, (2010).
[2] “Violence Against Women” Available at https://www.who.int/news-room/fact-sheets/detail/violence-against-women Accessed on 15 Feb 2023.
[3] Ibid.
[4] Dr. Ruth Aura, Situational Analysis and the Legal Framework on Sexual and Gender Based Violence in Kenya: Challenges and Opportunities.
[5] Kishor, S., and K. Johnson. Profiling Domestic Violence—A Multi-Country Study, ORC Macro (2004).
[6] Ibid.
[7] Campbell, R. and T. Self. “The Impact of Rappe on Women’s Sexual Health Risk Behaviors,” Health Psychology 23(1): 67-74(2004).
[8] Ibid.
[9] Ibid
[10] Dr. Ruth Aura, Situational Analysis and the Legal Framework on Sexual and Gender Based Violence in Kenya: Challenges and Opportunities.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Government of Kenya, Ministries of Public Health and Sanitation and Medical Services. National Guidelines on the Management of Sexual Violence in Kenya: Nairobi Kenya (2010).
[15] Constitution of Kenya 2010, Article 50. See also Article 48.
[16] Civil Application No. 4 of 2012.
[17] Ibid.
[18] See Dr. Ruth Aura, n. 13.
[19] Ibid.
[20] Ibid.
[21] Constitution of Kenya 2010, Article 29.
[22] Ibid. See also Article 25.
[23] See Dr. Ruth Aura, n. 13.
