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Responding to the Waki Commission’s inquiry

cc. Following the unprecedented focus on sexual and gender-based violence by the Waki Commission, Kenyans for Peace, Truth and Justice (KPTJ) reviews the commission’s findings. While supportive of its recommendations, KPTJ emphasises that the commission’s report is lacking in its focus on individual experiences at the expense of investigating patterns of conflicts, violations and violence. For the purpose of ensuring the implementation of these recommendations, KPTJ sets out a series of essential steps for the prevention and response to instances of sexual and gender-based violence, including greatly improved access to health and legal services for victims, and the removal of any form of amnesty for the perpetrators of sexual crimes.

For the first time in Kenya’s history, a commission of inquiry isolated sexual and gender-based violence for special attention.

The Commission of Inquiry into Post-Election Violence felt strongly about focusing on sexual violence first because it fell within its mandate, and secondly because it was horrified by the stories of sexual violence. Commissioners wanted to learn and expose what had happened with a view to deterring its recurrence.

Before beginning its task, the commission listened to many specialist agencies on the best way to determine that gender-based violence occurred as well as ways in which it could reach survivors for their testimonies. Some 40 organisations in Kenya – which included groups from the health and gender ministry departments as well as the judiciary, UN agencies, the Red Cross and Red Crescent, and local and international non-governmental organisations – had come together to reach out to victims of sexual violence after the 2007 elections even before the commission had begun its sessions. This umbrella group had responded to the sexual violence in the post-election period, particularly against women, by providing medical, psychosocial and other services for survivors.

The commission sought to know from the organisations if sexual violence had occurred, where it occurred, its manifestation, where to find evidence of it, and how that evidence should be collected.


The commission then took five major steps. The first was to help locate and speak to victims of sexual violence in the post-election period from various parts of Kenya. The second was to ensure that the work on sexual violence was culturally sensitive, and to allow the commission to contact specialists as needed, it set up a committee from the umbrella group to work with its investigators in identifying and preparing victims who wanted to testify.

Thirdly, the commission encouraged survivors of sexual violence to come forward, and in order to make it less painful for them to speak to investigators and the commission, two women investigators who had experience in dealing with sexual violence against women were hired. Fourthly, the commission allowed two lawyers who had experience in dealing with gender issues to take part in its proceedings.

Lastly, because of the anticipated challenge of asking someone who had experienced sexual violence to relive it by testifying, a full-time psychologist was hired to interact with and assist victims before, during, and after they testified.


The commission relied on the expertise of the organisations and individuals as well as the testimony of the survivors to make recommendations on how to deal with the perpetrators of sexual and gender-based violence.

Many women testified to the commission in closed-door hearings, which accounted for 40 per cent of the commission’s evidence. Even then, the commission was aware that if all testimony from victims of sexual violence was heard in private rather than in public, the issue might get lost and never be discussed or flagged to the public.

The commission noted that though known to exist, no male survivors of sexual violence came forward to give testimony.

Generally, victims of sexual violence were too fearful to seek police intervention, not only because were the police otherwise engaged, but also because of discomfort in filing complaints with institutions they felt were associated with the perpetrators of the violence.

Realising that it would be easier to find out what had happened in Nairobi than in the countryside, where a lack of anonymity and fear of speaking up might be a greater problem, the commission chose to focus on this area. Sexual and other forms of gender-based violence reached epidemic proportions in Nairobi. This area proved the most problematic in terms of determining the extent of violations.

The sexual violence experienced demands immediate responses through the provision of more effective physical protection, especially in the poorer areas of Nairobi, where women and children faced and continue to face the greatest risks.


Although government hospitals had established Gender Violence Recovery Centres offering free medical services to victims, most survivors did not know about them. The commission recommends that citizens be informed about them in awareness campaigns. Such a campaign has started in Mombasa and needs to be repeated in other parts of the country. These centres should be set up as departments in every public hospital with their own staff, facilities, and budget. Currently, they fall under other departments and rely on them for funding as well as staff, thus reducing their visibility and effectiveness.

Every police station should have a gender unit that will treat victims of sexual violence with sensitivity, properly record all cases and investigate them. The current units are limited and sometimes only constitute having a woman officer available to deal with women victims. For such units to be effective, the security forces, including the police, have to change their attitude radically. Police require first-aid training, as well as skills on how to handle sexual violence cases, but only after mechanisms for accountability within the security forces are in place. An example would be severe punishment for police and other security personnel who commit crimes of sexual violence and those who mishandle victims of sexual violence dismissed.

Non-governmental organisations working in the health sector should collaborate with medical institutions and share information to ensure a swifter and improved response to sexual violence. There is a low level of awareness about the possibility of help that victims of sexual violence can receive, and there is no pressure on law enforcers to do the right thing when dealing with cases of sexual violence.

Parliament should pass a law to create the office of Rapporteur on Sexual Violence. The rapporteur will continuously highlight the fact that sexual violence is a serious crime and needs an equally serious response on the part of law enforcement authorities. The rapporteur should have appropriate staff and would be required and empowered to work with existing government institutions that address sexual violence, including the courts, the police, and the National Commission on Gender. Once every year, the rapporteur should present a report to the National Assembly outlining how cases of sexual violence were handled during that year.


All these recommendations react to the situation, rather than providing a structural framework to address, comprehensively, sexual and gender-based violence. Preventive structures within the community setting are vital, rather than just ‘after-the-event’ measures.

Overall, it appears that sexual and gender-based violence was not investigated with the same rigour by the Waki Commission as other kinds of post-election violence.

Questions still linger about whether the commission could have done more to guarantee respect for the dignity of the survivors, assure confidentiality, and guarantee them more security. As it is, the Witness Protection Act is still not yet fully in force.

From the report, it is not clear what impact the evidence received in private had on the commission’s conclusions. It is not clear from the report what sources of information or evidence the commission relied on. It would have been helpful if the commission had said which women and men gave evidence, and the type – whether forensic, personal or dialogical.

The commission only consulted experts on gender-based violence on an ad hoc basis. Had the commission wanted to examine sexual and gender-based violence with the same lens as it did other forms of violence, it would have investigated it as a phenomenon that cut across the gender and sexual divide rather than as a ‘women’s’ issue.

Various civil society organisations presented data and case analyses to the commission to enable it to investigate gender-based violence and seek ways of reaching possible witnesses. The commission’s report does not reflect the use of this information and even when it is touched on, the quality of the presentations is lost.

Because the conclusions are set out in general terms, they appear to undermine the credibility and value of the report. In this respect, the commission falls short of the expectations in its terms of reference.

Despite the commission’s specific mandate to investigate the causes of the election violence and make recommendations to the Truth, Justice and Reconciliation Commission, it does not provide an in-depth, factual and analytical investigation of gender-based violence. It is not apparent that the commission assessed itself to find out if it created sufficient and appropriate space for women to speak about their experiences. It is not clear whether or not women considered the commission as a safe public space given the danger of re-experiencing traumatic events, the fact that amnesty agreements signal that violence goes unpunished, and that perpetrators of crimes occupy powerful positions in society.

From its report, the commission outlines the remote causes of the violence as being the growing politicisation and proliferation of violence in Kenya, the feeling of certain ethnic groups as marginalised, and the growing population of poor unemployed youth. It does not address the core question: What caused the violence? It appears to have taken no deliberate steps to discover the causes of sexual and gender-based violence.

The report would have been richer if it had focused on delivering truths about patterns of conflicts, violations and violence rather than individual experiences.


It is recognised the world over that gender-based violence is always widespread in emergencies. The post-election violence in Kenya in January and February 2008 witnessed the systematic and rampant use of sexual violence in various conflict areas and situations as a method of vengeance to brutalise and instil fear in the civilian population, especially women and girls. As a member of the United Nations family, Kenya should be guided by the measures taken to address gender-based violence in conflict situations, especially to the most vulnerable persons in society.

The UN secretary-general has laid out Special Measures for Protection from Sexual Exploitation and Sexual Abuse to prevent gender-based violence, including in particular sexual violence, ensuring appropriate care and follow-up for victims and survivors, and working towards holding perpetrators accountable.

Besides increasing access to comprehensive survivor services, reducing the negative health effects of sexual and gender-based violence and assisting survivors to access legal service and protection, Kenya needs to reframe sexual and gender-based violence as a public concern. That way, preventive measures to identify women in danger before violence breaks out or escalates can be taken and protection offered to them.

These reforms require a systems approach to gender-based violence. Institutional reforms targeting to educate and train policy makers and law enforcement officers should be a priority to improve policies specific to gender-based violence.

Survivors should have access to forensic examinations, post-exposure prophylaxis for HIV and the protection of confidentiality through policies and protocols. There is also an urgent need to pass laws that are more sensible for professionals handling gender-based violence cases, providers and caregivers to file reports.

Legal protection and social services for survivors is often lacking in low-income areas. There is a need for professional investigators, medical personnel and legal officers working in coordination.

All public health programmes should be prepared to respond to gender-based violence by having sufficient supplies of services and preventive medicines. The government should put in place a forensic nursing system and install systems for data collection.

Ultimately, community mobilisation can be extremely effective in preventing sexual and gender-based violence. It is essential for improving the service response for survivors.

It is important to develop a best-practice policy and plan of action to strengthen the capacity to deal with gender-based violence. By building on existing policies and guidelines, including a best-practice matrix for gender-based violence interventions in conflict situations, Kenya can promote a coherent, participatory and multi-sectoral approach to prevent and respond to gender-based violence.


In addition to the recommendations the commission made, it is important that the following steps are undertaken:

- End to impunity for human rights violations: Investigate sexual violence crimes committed by civilians and government security agents and prosecute perpetrators.
- Fast-track justice: Sexual and gender-based violence cases, tagged at a certain date, should be fast-tracked as a pointer that the state has ‘zero-tolerance’ on sexual exploitation and sexual gender-based violence.
- Ensure protection for survivors and witnesses: Assess all cases and seek ways of addressing urgent health concerns, short-term and long-term implications as well as medical–legal and compensation of survivors of sexual violence.
- Improve and increase access to services: Prevention and response for survivors at the community level through sustained support to key sectors including health, legal, judicial, security and psychological. A special focus on gaps such as availability of forensic examiners, legal aid and an expeditious judicial system, with a prioritisation of sexual violence cases.
- No amnesty for sexual violence crimes: Completely exclude sexual violence crimes from any amnesty provisions, negotiations, or truth and justice processes.
- Provide security: Women, boys and girls in conflict situations and in resettlement areas should be guaranteed protection to prevent the occurrence or recurrence of sexual violence through the provision of police stations, gender desks and increased surveillance.
- Resources for implementation of the Sexual Offences Act: Allocate adequate resources for effective coordination and prosecution of sexual offences, as well as the interpretation and implementation of the act, together with policy guidelines for addressing sexual violence in times of conflict.
- Protect other rights due to survivors of gender-based violence (GBV): Property rights for widowed women, HIV-infected persons and orphans should be guaranteed and cultural biases eradicated.
- Community support: Set up community-based psychosocial support mechanisms for survivors of sexual violence and their families.
- Arrest and prosecute all known perpetrators of sexual violence and implement the creation of a databank of known perpetrators.
- Legislative reforms: Repeal section 38 of the Sexual Offenders Act, enact the Family Protection Bill, and implement the HIV/AIDS Control and Prevention Act as well as the Witness Protection Act.
- Gender equality at the TJRC and all other commissions of inquiry.

* This article was written collaboratively by Kenyans for Peace, Truth and Justice (KPTJ). KPTJ is a coalition of over 30 Kenyan and east African legal, human rights, and governance organisations, together with ordinary Kenyans and friends of Kenya, working for equitable justice for all Kenyans.
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