Is the criminal justice system in Kenya well equipped to protect women from gender-based violence? This a critical question because in July this year, the Sexual Offences Act (SOA) is celebrating two years of existence having came into force on 21 July 2006.
It has been lauded as an evolutionally piece of legislation that provides for the prevention and protection of all persons from harmful and unlawful sexual acts. It expanded the definition of rape to comply with jurisprudence that is evolving from the international arena and introduces new crimes that did not exist in the previous legal framework.
The Office of the Attorney General has formulated a Reference Manual  that expounds the Act as well as setting standards and recommendations on best practices to various key service providers. The target is not only the police investigator and prosecutor, but also medical practitioners, civil society, gender activists and general consumers of criminal justice services.
If used well, the manual can become an important tool in achieving the objectives set out in the preamble of the Act as well as sensitizing communities through outreach programs.
This discussion paper is going to examine the shortcomings encountered by women who seek redress within the criminal justice sector as well as making recommendations to counter them. The right to development, to peace and to justice cannot be overemphasized .
Violence against women denies women peace of mind, bodily integrity and a sense of development, curtailing their contribution to development.
INADEQUACIES WITHIN THE NATIONAL LEGAL FRAMEWORK
According to international practice, it is the duty of states to promote and protect human rights at the national level. In its 85th Plenary Meeting held on 20th December 1993, the General Assembly of the United Nations passed the Declaration on the Elimination of Violence against Women.
It encourages governments to take steps to ensure that women are protected from all forms of violence be it of physical, sexual psychological nature. Among specific acts of violence delineated in the declaration are sexual offences, battering, marital rape, FGM, dowry related violence etc.
Kenya has a legal framework that purports to comply with the above declaration and other related instruments. Unfortunately, it has failed to go the full mile and criminalize all the offences envisioned in the Declaration.
I think it is correct to say that there appears to be subtle discriminations within our legal framework that blatantly refuses to recognize that all women, no matter marital status, are equal before the law and should therefore get equal treatment and protection. The status quo is that marital status and cultural relativism are being used to deny a certain section of the women constituency a sip from the communal calabash of justice.
There is no justification for the continued failure to criminalize domestic violence and marital rape. Our sisters from the SADC countries seem to be steps ahead in this thrust and heave for the ultimate price that is equality in justice.
Already, six countries; Zimbabwe, Lesotho, Namibia, Seychelles, South Africa, and Tanzania have taken the cue from international organizations and agreements and passed legislation that criminalizes marital rape.
The truth is that rape is rape, is rape; whatever name may precede it.
Pamela Mhlanga observed that "Rape in all its forms can be a matter of life and death, causes untold trauma on survivors and in some cases social ostracizition including permanent scars, aside from destroying the essence of their life ."
PRACTICAL PROBLEMS ENCOUNTERED WHILE ACCESSING PROTECTION UNDER THE SEXUAL OFFENCES ACT
Even for those women who have a ‘legitimate’ right not to be raped; (because their experience of rape fall under the legislative mandate) their road to legal redress is not smooth sailing. Apart from the high cost of accessing justice, ignorance and technicality of the court process, they risk falling foul to rogue police officers who may take advantage of their vulnerability to extract the ‘extra pound’ of flesh before they receive services.
It is unfortunate that although section 24 of SOA prohibits law enforcement officers extracting sexual favors from people who seek their services, there is no enforcing and monitoring mechanism in place to ensure compliance.
Women who seek services at the police station have get sexually attacked; harassed or simply forced to give bribes in order to receive services. Take the case on Sarah, a woman who had complained against her estranged husband for assault. Every time the case came for hearing it got adjourned. When she made inquiries from the prosecutor, she learnt that the magistrate was waiting to be ‘seen’. The prosecutor asked for her mobile number and she began to receive very seductive messages from the trial magistrate. He wanted to have sexual relations with her and at one time told her that her case would not ‘go’ anywhere unless she complies. Although the matter was referred to police for investigations, nothing happened. They alerted the rogue magistrate who stopped sending the offensive messages. They also claimed that they did not have the technical know-how to extract the previous messages from Sarah’s phone. In the end, the matter fizzled to oblivion after the case got transferred to another court. The trial magistrate later got disciplined by getting a transfer to a remote area, where it is feared, he may be continuing his wayward ways against defenseless, disempowered and ignorant women.
At the worst, a woman who is a victim of violence also risks being victimized under section 38 of the SOA which criminalizes the offence of making false allegations. Many police investigators and prosecutors are categorical that they would not hesitate to charge complainants in sexual offences case if the trial magistrate failed to place an accused on his defense. To them failure of a prosecution case at this stage showed that the complainant had given false allegations. The police need to be disabused from this hackneyed interpretation of section 38. They should know that a criminal prosecution can flounder for other reasons. Sometimes a crucial witness such as a doctor can fail to appear in court and exhibits can get misplaced.
Another problem facing women in Kenya in their quest for justice is lack of specialization and sensitization of police investigators and prosecutors. Police prosecutors carry out most prosecutions before subordinate courts where most sexual offences are prosecuted. State counsels who are trained lawyers handle the more serious crimes like murder and treason in High court.
Many factors contribute to the high rate of acquittals in sexual offences. In a system where access to justice is based on dichotomies of whether one is rich or poor, man or woman, health or sick; with the first variable almost always getting the upper hand, women are bound to suffer.
This makes nonsense the doctrine of equality and non-discrimination in justice, which is the cornerstone of international, regional and national jurisprudence.
Also heavy work loads on the part of prosecutors lead to shoddy prosecutions. In a day, a prosecutor may handle 25 cases, so he is not able to give focused attention on any particular case. Logistics deny him research facilities, which put him at a disadvantage when compared with sharp defense lawyers who have all the time and facilities to prepare for their cases. There is no opportunity for holding pre-trial interviews with witnesses or even visiting the scene of crime in preparation for the hearing. Most prosecutors’ offices are one room affairs tucked in a corner of the court premises and sometimes it is shared between two to five prosecutors. This makes it impossible to comply with the good practices recommended to services providers in cases of violence against women .
DORMANT ‘WHITE ELEPHANT’ PROVISIONS
It is laudable that the Attorney General has appointed a multi-sectoral task force that is now in the process of developing a National Policy Framework to guide in the implementation and enforcement of the SOA. Once the policy is formulated, the Attorney General will have complied with the provisions of section 46 of the Sexual Offences Act.
Unfortunately, there are many sections existing in our current legal framework, which are not yet operational for lack of regulations to make them effective. Designated officers who are mandated to formulate rules and guidance to trigger their operation have failed to do their duty.
I have in mind section 39 of SOA, which places the onus of keeping a register and a data bank of convicted sexual offenders on the registrar of the high court. Section 47 likewise gives the implementing minister power to prescribe regulations on what is to be contained in this data bank. I am not sure such regulations have been formulated so far. Perhaps they will be included in the National Policy Framework.
Another glaring example is section 329 (A) which was introduced by a 2003 amendment of the Criminal Procedure Code. The Chief Justice is required to make rules and regulations to guide the manner in which Victim Impact Statements can be received and their use by courts. Such statements are intended to guide the court in its exercise of sentencing discretion as well as assessing damages that can be ordered against convicted accused person. Attempts by prosecutors to produce such statements in spousal battering cases get rejected because courts are of the opinion that ground rules have not been legally defined.
THE PROBLEM WITH CIVIL SOCIETY, NGOS AND GENDER ACTIVISTS
Agitators for equality and justice among the justice system are ignorant about the law, the legal process and the court procedure.
Many members of civil society do not appear to know that the office of the Attorney General can help in cases where victims feel they have been short charged by first line service providers.
A good example is a recommendation appearing in COVAW report entitled; ‘In pursuit of justice’, Recommendation Number 5.3.2 advices women to seek other supportive mechanisms ‘be they social or legal from the civil society or other higher ranks within the provincial administration.’ Should they feel that the services they are getting ‘wanting’
How is an ignorant and non-legal person to know that a service is wanting if no parameters are defined to show them what to expect? Secondly, which specific ‘high’ rank officers should these women approach at the provincial level? Would it not have been better if the report had identified some particular officers within the provincial administration who can be approached for help?
One such officer should ideally be the state counsel who ideally monitors the administration of justice within a province or even district.
Gender activists need to do more in monitoring the quality of services that victims of violence receive from service providers. My experience with most civil societies is that they come into the scene when it is too late. Even when they do, they concentrate on raising their public profile through postulating to the media and international press at the expense of seeking real justice for the victim.
Many do not take the trouble to observe and monitor the case through the various criminal justice stages. Perhaps it due to lack of knowledge about procedure and processes applied in court of law or even lack of sufficient funding that is the culprit here.
Where a gender activist in not well versed in legal procedures, it would be advisable to get a trained lawyer or even a paralegal who can ‘watch legal brief’ during the day to day hearing of the case in order to protect the interests of the victim. This effort would force the magistrate and prosecutor to be on best professional behavior because they are ‘aware’ that they are being watched. It minimizes opportunities for mischief, which would favor the accused defendant.
There is more to case monitoring than just appearing from the blues after an accused has been acquitted for lack of sufficient evidence and threatening magistrates to hold demonstrations to protest release of dangerous criminals.
Apart from this, gender activists need to familiarize themselves with post trial process. They should know the ground rules for appeals and the role of Attorney General in criminal appeals. Appeal is a creature of statute and the A-G can only appeal on grounds of law not facts.
CONCLUSION AND RECOMMENDATIONS
It is evident that the office of the Attorney General has taken the initiative to initiate a national policy framework that will aid justice consumers access justice. Until the task force completes it work, it is not possible to know what practice tools will be developed. Apart from making the policy framework, it is recommended that a gender unit be established in the department of public prosecution. Its work should be to monitor how cases that are brought under the Act are dealt with through the various stages of our criminal justice system. One of the greatest bottlenecks facing research in Kenya is lack of information on court cases. There is no established mechanisms for addressing existing bottlenecks because there is not data to go by. Other suggestion are as follows.
- To win the war against violence against women, we must first have a paradigm shift in our service delivery system.
- We must make our services consumer friendly and sensitive.
- Gender focal points manned by specialized officers should be available in all police stations.
- Gender mainstreaming within the police department should be taken seriously, so that more women get appointed as prosecutors and officers commanding stations (OCS).
- Model One-stop centers ought to be introduced at select police stations, preferably in every province.
- Community outreach programs during chiefs barazas so that women and communities at large can be sensitized about VAW.
- Human rights training for women’s groups and service providers should be given.
- Training of paralegals within society and encouraging volunteering by key community leaders can effectively protect wome
- Monitoring of out come of criminal cases in court should be done as a matter of routine by the A-G.
- Simple guidance manuals that can aid consumers of justice in understanding court process so that they can adequately represent their interests.
- Which brings me to my final recommendation: we must have an oversight body to police the police and other service providers in order to stop the impunity with which violence against women is treated.
*Ann Nyambura Kithaka is a Judicial System Monitor in the Legal and Judicial System Support Division (LJSSD), United Nations Mission Mission in Liberia (UNMIL)
* Please send comments to email@example.com or comment online at http://www.pambazuka.org/
1. The Reference Manual on the Sexual Offences Act, 2006 for Prosecutors which a product of joint collaboration between the Office of the Attorney General, in particular the Department of Public Prosecutions and Women in Law and Development in Africa (WILDAF).
2. Koffi Annan; in Larger Freedom 2005 available at www.un.org
3. An article entitled ‘South Africa: Justice for survivors of marital rape, how far has SADC come?’ by Pamela Mhlanga Reported in www.pambazuka.org/16 days of activism against gender violence last accessed 22.01.08
4. www.un.org/womenwatch/daw/egm/vaw-gp-2005/doc/finaldoc/goodpractices.pdf last accessed on 26-1-08