Introduction

Gender-based violence (GBV) is one of the most obstinate violations of human rights across the globe with the most prevalent being Sexual and Gender Based Violence SGBV. It is also one of the most widespread and socially tolerated forms of human rights violations, cutting across nationality, race, class, ethnicity, and religion. Currently it is a major source of inequality in Kenya. GBV has a profound socio-economic impacts on individuals, families, communities, and the nation, as well as serious ramifications on national security.

Contextualization of Gender Based Violence

Gender Based Violence is an umbrella term for any harmful act that is perpetrated against a person‘s will and is based on socially ascribed (gender) differences between men and women. The nature and extent of specific types of GBV vary across cultures, countries and regions. Examples include sexual violence; rape; sexual exploitation and abuse; forced prostitution; domestic violence; human trafficking; forced or early marriage; and harmful traditional practices, such as female genital mutilation; honor killings; widow inheritance, among others. In Kenya, GBV occurs in diverse forms across all socio-economic and cultural backgrounds and women are often socialized to accept, tolerate and even rationalize it.

In Kenya, the existence and nature of GBV is documented in various studies as well as media reports. Generally the victims are women although incidents of men‘s victimization are also reported. Women in Kenya continue to call for justice on the rising cases of femicide, as young women are more than ever before are being murdered under mysterious circumstances. There is no disaggregated data on homicide or femicide. However, the data on domestic violence as set out in the 2014 Kenya Demographic Health Survey is a valuable indicator of who the major perpetrators of femicide are. The survey notes that although the percentages of men and women aged 15–49 years who have been victims of violence are roughly the same, with women at 45% and men at 44%, the perpetrators of violence are vastly different. In particular:

“…Among every-married woman, the most commonly reported perpetrator of physical violence is the current husband or partner (57 percent) followed by the former husband/partner (24 percent). By contrast, among every-married men, the most common perpetrators are those in the “other” category (46 percent), followed by teachers (29 percent). Only about 1 in 10 men who have experienced physical violence since age 15 mention their current spouse as a perpetrator of physical violence.” According to Counting Dead Women Kenya, 108 women were victims of femicide between 1^st January and 30^th December, 2019.

It is worth mentioning that cases of sexual and gender based violence are prevalent during times of conflict especially during the electioneering period and tribal clashes. In many instances, survivors of sexual violence during conflict are mainly girls and women but this too seems to be changing as men and boys too have become vulnerable to sexual violence. Cases of sexual violence are largely opportunistic, the product of a larger breakdown in the rule of law and social order that may occur anytime but escalate during times of conflict.

Sexual violence was historically abhorred by most of the Kenyan communities and persons accused of sexually abusing others were punished as per the set rules of the  respective communities with the most common punishment across most communities being the death penalty. However, with time the erosion of African norms and values has led to an increase in the cases of sexual and gender-based violence especially during times of conflict. In the recent past sexual violence has been acknowledged by state agencies but statistics are not certain due to societal pressures which impress the importance of chastity and honor. This makes the reporting of rape, defilement and sodomy difficult as many survivors and victims do not have the prerequisite education or economic capacity to seek redress at the various legal systems, especially those in the rural areas and in informal settlements. Survivors are often traumatized and stigmatized and are normally abandoned, divorced and or declared unmarriageable. The Kenyan Prevention of Torture Act views Sexual violence as a form of torture in its schedule whereupon it further categorizes the various forms of torture to include physical and psychological.

Legal framework

There are also several international and regional human rights instruments that Kenya has ratified which address the obligations of the State on sexual violence. Article 2(5) and (6) of the Constitution of Kenya 2010, provides that the general principles of international law shall form part of the laws of Kenya. This means that any treaty or convention that Kenya ratifies shall automatically form part of the national laws. Further, Article 21 (4) imposes on the State the obligation to enact and implement legislation to fulfill its regional and international obligations to respect, promote and protect human rights and fundamental freedoms.

Kenya has also enacted various vibrant legislations curbing the mischief of Gender Based Violence with the Sexual Offences Act being the key legislation that provides a national framework in the criminalization and deterrence of Sexual Gender Based Violence in Kenya.

The following are the relevant legal instruments and Kenyan legislation relating to sexual and Gender Based Violence:

1. The Convention on Elimination of all forms of Discrimination against Women (CEDAW) of 1979: CEDAW bestows responsibility on state parties for acts and omissions by its organs and agents that constitute gender-based violence against women. It further requires State parties to prevent these acts or omissions through training, adoption, implementation and monitoring of legal provisions, administrative regulations and codes of conduct, to investigate, prosecute and apply appropriate legal or disciplinary sanctions as well as provide reparation in all cases of gender-based violence against women.
2. The United Nations Declaration on the Elimination of Violence against Women (1993): Although non-binding on countries, the declaration uniformly defines GBV as “any act that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivations of liberty, whether occurring in public or private life.

Article 4 (c) of the Declaration obligates states to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.

• Guidelines on Combating Sexual Violence and its Consequences in Africa-Niamey Guidelines by the African Union: These guidelines provide guidance for African Union member states in effectively implementing their commitments and obligations to combat sexual violence and its consequences. States are further obligated to put in place prevention mechanisms to eliminate the root causes of violence and protection mechanisms to ensure all victims receive the required support including medical, access to justice and reparations.

1. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (Maputo Protocol): Article 4 provides, prohibits all forms of exploitation, cruel, inhuman or degrading Punishment and treatment including sexual violence and obligates to set up both protection and promotion mechanisms to ensure the prohibition of all forms of violence against women including unwanted or forced sex, and ensure the prevention, punishment and eradication of all forms of violence against women. Kenya has ratified the Protocol but has however made reservation on Article 14 2 (c) of the Maputo Protocol which allows for abortion in cases of sexual violence.
2. The Convention Against Torture (CAT) of 1984: Under CAT, Kenya has an obligation to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
3. Rome Statute of 1998: Article 7 lists “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” under crimes against humanity.

• Constitution of Kenya, 2010: The Constitution recognizes a number of important general principles that are of importance to gender equality and that have a general bearing on gender-based violence in the Country. Article 10 (2) (b) sets out the national values and principles of governance to include, among others, human dignity equity social justice, inclusivity, equality, human rights, non-discrimination and the protection of the marginalized. Further, Article 19 (2) presupposes the importance of recognizing and protecting human rights and freedoms to preservation of the dignity of individuals and communities and the promotion of social justice and the realization of the potential of all human beings.

Further, Article 21 imposes and obligation on the State to enact and implement legislation to protect and promote human rights and freedoms.

The Constitution of Kenya provides for the security of the person and protection against all forms of violence. Articles 25(a), 29(d) and (f) and 50 prohibit any form of torture or treatment that is cruel, inhuman and degrading from either public or private entities. This means that the Constitution safeguards women’s rights against sexual violence.

Article 27 provides for equal protection of both women and men before the law and in all spheres of life. It prohibits any discrimination and obligates the State to take measures to address any disadvantage suffered by any individual or group because of past discrimination.

Article 28 provides for every person having inherent dignity and the right to have that dignity respected and protected. Article 30 (1) states that a person shall not be held in slavery or servitude. Article 30 (2) provides that a person shall not be required to perform forced labour.

• Penal Code: The Penal Code prohibits all acts of violence in its provisions. It however does not sufficiently address SGBV which is prevalent within the Kenyan society. SGBV, for instance, is only inferred by virtue of interpreting the vice as an assault as provided for under section 250 and 251. There is no specific offence such as wife battery/ husband battery.  The inadequacies for addressing SGBV present challenges to the fight against the vices.

1. Children’s Act: The Children’s Act makes provisions that safeguards the rights and welfare of children. The Act stipulates that all activities done on behalf of children should be in the best interest of the child. Violence meted against children therefore does not constitute best interest of the child. Section 13 guarantees children (both girls and boys) the right to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction. Under section 14 children are protected from female circumcision, early marriage or other cultural rites, customs, or traditional practices which are harmful to the child’s development. The Act also explicitly prohibits sexual exploitation of children as well as actions that expose children to torture or cruel or inhuman treatment such as circumcision or child marriages.
2. Sexual Offences Act 2006: The Act was enacted to curb the escalating cases of sexual violence cases experienced in the country on or about 2006. Its primary purpose is to provide for the protection of persons from harm from unlawful sexual acts and act as a deterrence by providing for minimum sentences for sexual offences. The Act is a comprehensive law that criminalizes a wide range of behaviours including rape, sexual assault, defilement, compelled or induced indecent acts with children, imbeciles or adults, gang rape, child pornography, child trafficking, child sex tourism, child prostitution, exploitation of prostitution, incest by male and female persons, sexual harassment, deliberate transmission of HIV or other life threatening sexually transmitted disease, stupefying with sexual intent, forced sexual acts for cultural or religious reasons among others. It is the first law in Kenya to recognize sexual harassment as a crime.

Section 43 (5) of the Act exempts lawfully married persons in the commission of intentional and unlawful acts under the act.

1. Criminal Procedure Code: Section 176 empowers courts to promote reconciliation and settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.

• The Protection against Domestic Violence Act

This piece of legislation provides for the protection and relief of victims of domestic violence by empowering persons who are in a domestic relationship with another person to apply to the Court for a protection order in respect of that other person. It also provides for the protection of a spouse and any children or other dependent persons from domestic violence.

• Police Service Standing Orders (PSSO), 2017: Chapter 67 of the Service Standing Orders states how the police will respond and sexual violence cases. The Standing Orders prohibit any form of sexual violence by Police Officers while on duty and places mechanism for both reporting and investigation. Specifically, a police commander who receives a report of an incident of sexual violence or harassment should respond as quickly as the circumstances of the case may require.
• Employment Act: The Employment Act under Section 6 defines what constitutes sexual harassment and outlaws the same. The Act also under Section 6 (2) further obligates an employer who employs twenty or more employees to develop a Sexual harassment policy after consulting with its employees or their representatives.

1. Kenya’s Vision 2030

The long-term development blueprint that seeks to transform Kenya to providing a high quality of life to all its citizens in a clean and secure environment. The plan is anchored on three pillars namely economic, social and political governance. The vision has flagged out projects addressing the MDGs. These aims cannot be holistically achieved in an insecure socioeconomic environment as embodied by gender based violence. Through vision 2030 social pillar, Kenya commits to improve the quality of life for all Kenyans by targeting gender equality programmes.

• Prohibition of female genital mutilation (FGM) Act 2011: The prohibition of FGM Act 2011 seeks to prevent any girl circumcision as a harmful cultural practice.

Legal analysis

The Constitution of Kenya under Article 159 (2) recognizes forms of dispute resolution including reconciliation and implores upon the judiciary to be guided by alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms when exercising judicial authority. However the caveat to this is so long as the Traditional dispute resolution mechanisms is not used in a manner that:

1. Contravenes the Bill of Rights
2. Is repugnant to justice and morality or results in outcomes that are Repugnant to justice or morality
3. Is inconsistent with this Constitution or any written law

The Criminal Procedure Code under section 176 provides:

In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.

From the reading of Section 176 Criminal Procedure Code, it is quite evident that application of Alternative Dispute Resolution mechanisms in criminal proceedings was intended to be very limited. The Judicature Act in fact only envisages the use of the African customary law in dispute resolution only in civil cases that affect one or more of the parties that is subject to the particular customary law. It is also evident that even where the alternative dispute resolution mechanisms are to be used in the criminal matters, it is limited to misdemeanors and not on felonies.

The rationale for this is based on the notion that the real complainant in all criminal cases, and especially so felonies, is the state. The victims of such crimes are nominal complainants and the state, as the complainant, cannot be allowed to withdraw any such case because the victim has forgiven the accused. The state can only be allowed to withdraw a criminal case under section 87A of the Criminal procedure Code or enter a nolle prosequi when it has no evidence against the accused or on some ground of public interest. More so, the state can only enter nolle prosequi after it has convinced the court that the case should be withdrawn.

The proper way of withdrawing a criminal matter upon the application of alternative dispute resolution was clearly demonstrated in the case of Republic v Mohamed Abdow Mohamed High Court Criminal Case No. 86 of 2011 [2013] eKLR, where the accused was facing murder a charge. The families of the accused and the deceased had reached a settlement after some compensation was made and traditional rituals conducted. Afterwards, the family of the deceased communicated to the prosecution by a letter that they did not wish to pursue the matter further. The prosecution made an oral application to have the matter marked as settled citing Article 159 of the Constitution and a dully sworn Affidavit by the deceased’s father. The court proceeded to allow the application for withdrawal, citing the powers of the Director of Public Prosecutions to discontinue proceedings. What this case demonstrates is that the application to withdraw a criminal matter has to be communicated first to the prosecution who in turn makes a formal application to court for the dismissal of the case. Bypassing the prosecution would be departing from the very essence of public prosecutions.

In the African society marital rape remains a source of controversy within sexual violence legislation and court’s interpretation of the same. Grounded in traditional notions of women as property, customary laws in many countries have long defined sex within marriage as necessarily consensual leading to the ‘conceptual impossibility’ of a man raping his wife. The Sexual Offences Act does not prohibit or criminalize forced sex within marriage. Spousal rape has been explicitly exempted in section 43 (5) which provide ‘with regards to claims of sexual abuse such as rape it shall not apply in respect of persons who are lawful married to each other.’ This exemption clause tends to legalize rape within marriage. The lack of laws criminalizing marital rape creates an assumption that the wife is an exclusive property of the husband. It also asserts a lower status of married women.

It is important to note that Kenya, like many other African countries is a patriarchal society. This has a direct correlation to the challenges encountered in enactment and implementation of legislation in regards to SGBV in Kenya. Petition No. 8 of 2012, 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 clearly illustrates the challenges faced by the Kenyan government in the implementation of laws against SGBV. The petition alleged that by failing to conduct prompt, effective, proper and professional investigations into the first 11 petitioners’ complaints of defilement the respondents had violated the petitioners’ rights under the Constitution of Kenya 2010, specifically the rights to equality and freedom from discrimination on the grounds of sex and age; rights to human dignity, security of the person and protection from all forms of violence and cruel, inhuman or degrading treatment; right of access to justice; the right of children to be protected from abuse, violence or inhuman treatment. The court held that it is the responsibility of the state to ensure access to justice for girls who have experienced sexual abuse. The court found that the state was responsible for the violation of the rights of the girls in this case because of omissions and inaction on the part of the police, the Director of Public Prosecutions and the Minister, Justice, national Cohesion and Constitutional Affairs. This case highlighted the fact that the elaborate legislations against SGBV have not been sufficient. It was evident that the State had failed to safeguard the rights of girls and women by failing to take the necessary action to ensure that girls and women were free from all forms of GBV in particular SGBV.

That said, Courts in Kenya have treated GBV cases with the solemnity that they deserve. Lesit J in Republic v Ruth Wanjiku Kamande [2018] eKLR opined that “It is important to say that in my view that discretion to pass a sentence other than death in capital offences should only be exercised in the deserving cases. I do not find this a deserving case. I think to pass any other sentence than the one prescribed would turn the accused to a hero. I want young people to know that it is not cool to kill your boy or girlfriend. Even where you feel disappointed or frustrated don’t do it. Instead it is cool to walk away and thereafter forgive. 

The accused person in this particular case was sentenced to death after the prosecution successfully proved that the accused person had murdered her boyfriend by stabbing him 25 times.

Conclusion

Overall, though patriarchy is still prevalent in the current Kenyan society, the country has made strides though sluggish to commit to eliminating GBV and to protecting survivors through robust legislation, policy frameworks, and commitment to regional and international conventions and instruments on GBV.