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.
FIELD OF BLOOD
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.
FIELD OF BLOOD
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.
FAILED 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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