It is no secret that rape and sexual violence were part of the 2008 Post Election Violence (PEV).
Widespread
cases of rape, forcible circumcision and amputation of sexual organs
pepper the contents of the Commission of Inquiry into the Post-Election
Violence (CIPEV) report better known as the Waki Commission.
In
the findings from CIPEV, it is noted that the 900 cases of SGBV that
were reported during the post-election violence were only the “tip of
the iceberg.”
The hearing of petition 122/2013 began on 22nd
January, 2014. It was filed by 8 individuals and 4 civil society
organizations against the Attorney General and 5 other senior government
officials for their failure to protect victims of sexual and gender
based violence (SGBV) during the post-election violence of 2007-08. The
hearing of this case has been scheduled for March 25th, 2014.
The
civil society organizations were the Coalition on Violence Against
Women (COVAW), The Independent Medico-Legal Unit (IMLU), The Kenya
Section of the International Commission of Jurists (ICJ-Kenya) and
Physicians for Human Rights (PHR-Kenya).
TWO COURT ORDERS
This constitutional petition was filed in February 20th,
2013, giving the AG and his fellow respondents more than a year to
respond to the application. Two court orders requiring a reply have been
given since the petition was filed, yet none of the 6 respondents –
The Attorney General, The Director of Public Prosecution, the
Independent Policing Oversight Authority, the Inspector General of the
National Police, the Minister for Medical Services and The Minister for
Public Health and Sanitation - filed a response for 11 months.
Civil
society to bring the matter to public attention through the mass media
and online efforts. The online campaign included a massive singular
drive aimed at urging the Attorney General to respond to the petition,
dubbed #SGBVjusticeKE.
We can say that the pressure worked, because on 22nd
January, the AG and the DPP finally filed a response, a response that
unfortunately was commensurate to erasing the existence of victims of
SGBV and their concerns. The AG and DPP argue in their response that the
petition is premised on generalities of exertions and does not specify
factual happenings.
In addition, in his separate
filing, the AG claims that many victims sought refuge and were offered
protection, and those who needed medical attention were attended to. The
DPP claims that the petitioners have never made any report to any
police station and their names do not appear among the 381 sexual
offences reported and investigated.
These responses are
not only an erasure of the depth of suffering endured by the
petitioners themselves, but are also a completely disingenuous attempt
to sweep away the serious matter of SGBV violence as a systemic
component of the post-election violence.
On the matter
of cases of sexual violence reported to the police, the DPP himself has
admitted that out of the mere 369 cases that they have looked at since
2008, just 163 were taken to court, and only 122 had been concluded by
September 2013, resulting in 54 people being jailed over Sexual and
Gender Based Violence.
This is a clear shortfall on the
part of the DPP. The figures of cases he claims to have worked on are
almost insignificant given the magnitude of the incidences from the PEV.
In fact, to claim that the petitioners’ constitutional case is without
merit and based on generalities is to deny the findings of the CIPEV
report which indicates that over 900 cases were reported.
SURVIVORS WERE DISPLACED
The
AG and the DPP are yet to provide any sort of viable argument that can
conclusively attest to the fact that the government indeed provided
protection and medical care to the thousands of affected men, women and
children who are survivors of Sexual and Gender Based Violence from
2008. Indeed, it appears that their stand is that if the person was
injured, they must have gone to hospital or to the police, forgetting
that many of the survivors of sexual violence were displaced persons
forced to flee their homes.
Thus they could not directly access medical care and certainly did not have any sort of protection.
It
is truly a reflection of the general dismissal that this government has
chosen over the plight of thousands of victims of sexual violence from
2008; indeed in the last 7 years, this government has done absolutely
nothing to assist survivors of SGBV in any humanitarian capacity. This
sort of victim-erasure still goes on, and it is the reason that the
constitutional petition by these brave 6 females and 2 males is so
important, not just to those victims from 2008, but also to other
victims of sexual violence.
Christine Alai, a human rights lawyer with Physicians for Human Rights is quite explicit in the obligations that are required of the Kenya government.
“Where
does the buck stop? It stops with the State that is legally obligated
to ensure that any of its citizens who face any form of crime has a
right to a proper formal response. When we speak about sexual violence
more particularly, the laws of our land, the Constitution,
international, regional and human rights treaties that we have signed
and committed to as a country, all obligate us as a country.” She said.
By
his own admission, the sum total value of the 2012 task force DPP
Keriako Tobiko initiated involving several agencies resulted in “4000
PEV cases that are un-prosecutable.” This was a finding that came about
from the admission that most of the cases did not meet the threshold for
prosecution because “there was not enough evidence or the
investigations were botched.”
For
too long, we have found that the attitude of this government and its
prosecution and investigation agencies towards victims of sexual and
gender based violence is that the victim must produce evidence that they
were violated, rather than the state being obligated to investigate
reported cases to the fullest extent and further prosecute perpetrators.
ABANDONED BY GOVERNMENT
It
is unacceptable; completely and utterly unacceptable that victims of
sexual assault are abandoned in every sense by a government that is
fully obligated by the supreme laws in the Kenya Constitution and
further by the treaties and international laws and protocols of which
Kenya is a party to. This attitude is indicative of the prevalence of
rape culture and normalization of rape and sexual violence in the
nation, stemming directly from the very law enforcement agencies
mandated to protect citizens.
Shailja Patel adds that
"not one single leader from ODM, now CORD or PNU now Jubilee, has ever
apologized to the people of Kenya, to the women, girls, men; who were
displaced, who were raped, who were tortured".
Barbara
Mwamburi, a student and artist, defines the extent of the damage she
endured as a survivor of sexual violence succinctly.
“We
are not taking people seriously. It is viewed as a lesser crime because
it’s like nothing was taken away from you. I feel anger; once that
happens to you, you die a little inside, it’s like something that was
inside of you was sucked away.”
It is clear that the
DPP, and the Attorney-General by extension, should have reached a point
of self-reflective truth; he cannot proceed on these cases from the 2008
post-election violence, but he is not at liberty nonetheless to lend a
callous, insidious and inconsiderate response to constitutional
petitions by survivors. The answer ‘No’ cannot, is not, and will never
be acceptable from them.
Twitter@: bettywaitherero
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