Sunday, 9 March 2014

For many, there’s little to celebrate on International Women’s Day

8th March, was International Women’s Day.
In Kenya, this auspicious event marked a continued state of injustice for women and inequalities at the legal and social level.
Significantly, the fact that hardly any cases of sexual and gender based violence from the post-election violence (PEV) of 2008 have been prosecuted speaks loudly of the state of persistent injustice in Kenya for women and girls in particular.
In so far as common law is applied in Kenya, the DPP indeed cannot be faulted given the circumstances he has presented as reasons why he cannot proceed with these cases.
However, ever since we promulgated the Constitution in 2010, statute laws under treaties Kenya signed and ratified were domesticated, and this includes the Rome Statute. Within article 7 of the Rome Statute, sexual and gender based crimes such as rape, forcible circumcision, genital mutilation and sexual slavery are prosecutable offenses falling under International Crimes, yet there seems to be a clear lack of political will to pursue justice under these laws.
This is evident in the response to application 122/2013 by the DPP. To put the DPP’s response in perspective we have to revisit the situation back in 2008. After election disputes erupted over the presidential election results, there followed a period of 2 months during which violence and insecurity was pervasive throughout “hot spots” in parts of Rift Valley, Nairobi, Kisumu, Mombasa and Western Kenya.
Widespread, systematic violence took on ethnic proportions in which people from ethnic communities perceived to belong to rival political parties ODM and PNU were targeted, attacked, brutalized and killed. Out of this vicious conflict, the story of one particular young man’s experience should haunt us all.
At the time, this young man was only 12 years-old, Luo and living in Naivasha area. He says that he and many other young boys were dragged to a field, stripped naked, and held down by four men who then used a machete to “circumcise” him. He passed out from the brutality of the ordeal, and later woke up in what he describes as a field of blood.
Out of the tens of boys who were attacked that day, this young man believes he was the only one who survived because none of the others left that field. He does not know who his attackers were, nor can he identify them.
It has always been the argument in common law, and indeed the prevalent attitude that the victim must present evidence of a crime being committed and also to identify the perpetrator of the crime. This is a skewed version of justice where the crime did not occur if the victim is not able to report the crime or identify his attacker.
Yet, in statute law, the onus of proving that a crime occurred is no longer placed upon the victim, but upon the prosecutor. It is the prosecutor who is mandated and expected to conduct investigations, and who is responsible for seeking justice on behalf of the victims.
It is clear that as far as statute laws in Kenya are concerned, the DPP has failed victims abysmally.
It may be that the culture of impunity is vested in the culture of the people. It’s a fact however that when it comes to women and girls, the prevailing cultural attitude is that they are assets, such that if a woman is violated or raped, then a man’s asset has been violated. Does the DPP then expect some man somewhere to come forward with evidence that his female assets were violated and for that man to identify the other man who violated his assets? In the entire discourse, the woman, her body and her rights have ceased to exist.
That same discrimination and impunity regarding sexual violence has in turn affected boys and men who are also subjected to crimes such as forcible circumcision, genital amputation and sodomy.
The truth is that as long as this society practices entrenched patriarchy that denies human rights to women, that same patriarchy will create victims out of men as well.
We choose to belong to the international community by signing treaties and ratifying them. We also choose to celebrate international days alongside the rest of the world. But we as a nation refuse to recognize that half of our society is even human.
This is not just a problem at the societal level but an ingrained policy that is finely expressed through the patriarchy in our laws.
That prevailing patriarchal attitude and disproportionate discrimination against women and girls in particular defines the implicit state of Female Justice in Kenya.
Twitter: @bettywaitherero

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