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.