Time to rethink strategies for combating Gender Based Violence (GBV); Legislation is not enough

Whereas the Constitution of Kenya[3] protects children and women[4] from abuse, harmful cultural practices, and all forms of violence, and though Kenya has enacted legislation to protect the children[5] and has prohibited forms of violence such as Female Genital Mutilation,[6] the gruesome reports in our media platforms is a clear indication that a lot is yet to be done.

This article tries to demonstrate that there is a present gap between legislation and implementation, and that we are perhaps not doing enough to protect our women from Gender-Based Violence and our children from all forms of abuse.

 From the gouging out of Baby Sagini’s eyes to a man accused of beheading his two children in Kisii County,[7] child abuse seems to be on the rise. It is also unfortunate that forms of violence against women continue to change formula and style, but nevertheless survive the system. For instance, perpetrators of FGM can now procure the procedure from licenced medical practitioners in the backroom of their clinics or chemists.[8] These are very unfortunate incidences that have prevailed despite and in spite of the good laws in place. This article does not, therefore, propose for more legislation, but seeks to give suggestions that if implemented, will guarantee better protection for women and children against all forms of violence.

  1. Economic empowerment of women

According to the latest survey by KNBS, 33% of women own a house, out of whom only 5% do so alone while the remaining 28% own it jointly with their spouse or partner.[9] The numbers go lower when it comes to owning land, noting that only 7% of women own non-agricultural land.

Ownership of assets for women commensurate to better protection in case of marital conflict, divorce or abandonment. It gives them positive influence and decrease vulnerability to forms of violence and discrimination.  

Economic empowerment is key if women are to walk away from different forms of abuse being perpetrated against them or their children. Women should be given greater opportunities to create wealth, and when they generate the said income, they must be informed enough to have property registered in their names, whether jointly with their spouses or individually. This will ensure matters in court involving succession and matrimonial property where contribution must be proven are simplified.[10]

  • Breaking the silence, secrecy and social indifference surrounding GBV and violence against children

Victims of GBV, whether women or men, have a fear of stigmatization, embarrassment, emotional stress and victimization. It is unfortunate that it the victims of violence that are criticized, labelled, intimidated or branded. This is the reason why many cases of violence go unreported and victims choose to be silent. [11]

However, even when victims and their guardians choose to remain silent, violence against children will always show through its effects which include hampering a child’s development, learning abilities and positive relationships while provoking low self-esteem or in the alternative, aggressive behaviour.[12]

GBV and violence against children will continue to thrive unless we stop perceiving it as a social taboo or a needed form of discipline. With little or no reporting, then statistics from courts, police and our hospitals will not give an actual status and the magnitude of this phenomenon. Consequently, this issue will remain unattended to with the vigour it deserves.

Stigma surrounding victims of abuse can and should be broken. A strong political will that places protection against violence as a crucial agenda, not a matter to be side-lined, would go a long way. Let’s hear Women representatives do campaigns against GBV, lets have members of parliament talking to Wazee’s on issues to do with FGM and early marriages, and lets even hear the President acknowledge that GBV and violence against children needs to stop. The blame must be seen to shift from the victim, to the perpetrator.

  • Establishing detection and reporting mechanisms through professionals

Training should be provided to police officers, teachers, clergy, administrators and other crucial members of the society on how to recognize different forms of violence against children and how to identify signs that children may be at risk or victims of violence. In addition to taking initiative to report, there should be a legal obligation for professionals routinely in contact with the children such as teachers to report cases of abuse.[13] Silence should be equated to being an accomplice to the abuser.

Further, the government should ensure that there are safe, child friendly and gender sensitive mechanisms for report or complain about incidents of violence. Why the state? Why the government? Article 32 of the Convention on the Rights of the Child[14] gives the State the primary responsibility to ensure that the child is protected from all forms of violence, and so does Article 4 of the Declaration on the Elimination of Violence against Women.[15] It is the role of government, not only to ensure that perpetrators of violence are brought to book, but to protect the children and the women from violence from the very beginning.

  • Pursuing monetary compensation for survivors of violence

Closure for criminal matters such as GBV or sexual offences against children looks different to different survivors. It may be assumed that upon obtaining a conviction, the victims should be happy with the justice obtained and move on. It is however imperative to ask critical questions surrounding the monetary losses incurred by these victims, pursuant to the acts of violence perpetrated against them. Whereas monetary compensation may not be commensurate with the pain survivors of sexual and gender based violence suffer, it is important to make provision for it to alleviate some of the problems they have to live with, sometimes for life. Monetary compensation would be necessary, for example, in offsetting fees for counseling therapy, medical bills and other related support for the survivor may need.[16] The Bill of Rights within our Constitution gives a good forum and provision to pursue compensation, and when a few cases are prosecuted in civil courts for compensation, following strict execution of decrees, the message will be loud and clear, that beyond criminal culpability, one can be held financially liable for their actions. The ripple effect is to have more restraint against gender based violence and violence against children.

  • Prioritizing prevention of GBV and violence against children

There are facilities in place to assist victims of violence, including witness protection. However, there must be more efforts in protection of children against violence as is required by law as opposed to mitigating the consequence of violence already perpetrated against the victims. Community services, protection, health and security must work together to ensure that a comprehensive approach is implemented and that GBV prevention is integrated in all aspects of response.[17]One of the best ways to uphold prevention is to establish an elaborate communication strategy incorporating all actors including the public, service providers, government agencies and non-state actors so as to effectively respond to threat of GBV or violence against children.[18] Every member of the society, regardless of age or gender should know to whom a report is to be made if there is a danger of violence and understand the possible steps that may be undertaken. Indeed, there should be more shelters established by both government and people of goodwill to accommodate, not just victims of violence, but also those that are in vulnerable environments as a preventive measure.

We should borrow from countries like Greenland that have made significant steps in limiting risk factors associated with violence such as the sale of alcohol because alcohol abuse and problematic drinking evidently lead to more severe violent episodes. [19]

Conclusion

Sometimes legislation is not enough, and society must do more to catch up with the objectives of the law already in place. This article has outlined some of the strategies the state can apply to see change as far as violence against women and children is concerned. The responsibility to protect children against violence cannot be taken lightly, because broken children mean a ruined future, they are the future. 

Mary Mukoma is the Lead Counsel at Mukoma & Associates

mukoma@mukomadvocates.com


[1] https://www.unhcr.org/gender-based-violence.html last accessed on 25th January, 2023

[2] 2022

[3] 2010

[4] Article 53, Article 27

[5] Children’s Act, 2022

[6] Female Genital Mutilation Act, 2011

[7] https://www.standardmedia.co.ke/sports/opinion/article/2001464689/why-cruelty-to-children-is-a-growing-problem last accessed on 25th January, 2022

[8] https://www.theguardian.com/society/2022/dec/15/every-chemist-has-a-backroom-how-medicalised-fgm-risks-gains-made-in-kenya last accessed on 25th January, 2022

[9] 2022 Kenya Demographic and Health Survey

[10] Section 7  of  the Matrimonial Property Act states as below: 

“Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

[11] Chege F (2017) Education and Empowerment of Girls Against Gender-Based Violence, Journal of International Cooperation in Education, 10(1)

[12] https://violenceagainstchildren.un.org/news/protecting-children-violence-human-rights-imperative

[13] UNODC (2014). Study facilitating the identification, description and evaluation of the effects of new information technologies on the abuse and exploitation of children, E/CN.15/2014/CRP.

[14] Adopted on 20th November 1989 by General Assembly Resolution 44/25

[15] Adopted on 20th December, 1993 by General Assembly Resolution 48/104

[16] https://www.acordinternational.org/silo/files/pursuing-justice-for-sexual-and-gender-based-violence-in-kenya.pdf

[17] National Policy For Prevention And Response to Gender Based Violence,  2014 (pg21) http://psyg.go.ke/docs/National%20Policy%20on%20prevention%20and%20Response%20to%20Gender%20Based%20Violence.pdf lastly accessed on 25th Jan, 2023

[18] National Policy For Prevention And Response to Gender Based Violence, (pg 22) http://psyg.go.ke/docs/National%20Policy%20on%20prevention%20and%20Response%20to%20Gender%20Based%20Violence.pdf lastly accessed on 25th Jan, 2023

[19] https://www.unicef-irc.org/evidence-for-action/five-ways-governments-are-responding-to-violence-against-women-and-children-during-covid-19/

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She is an advocate of the High Court of Kenya and is the Lead Counsel at Mukoma & Associates, currently pursuing her Masters Degree at University of Nairobi in Constitutional Law and Governance.