Legal tug-of-war as 2007 sexual violence survivors plead for Justice before Supreme Court

The 2007-2008 post-election sexual violence victims yesterday clashed with the government for failure to compensate them and prosecute the perpetrators, who included the police and private citizens.

 The seven victims, alongside the Coalition on Violence Against Women, the Independent Medico-Legal Unit, the International Commission of Jurists and Physicians for Human Rights, argued that it was unfair for the government to recognize persons who were killed, abducted or maimed by the police during instances of violence but leave out those who were sexually abused.

In reply, the Attorney General, the Director of Public Prosecutions (DPP) and the Independent Police Oversight Authority (IPOA),opposed the case, arguing separately that the government had done its best by allegedly pursuing at least 300 cases of sexual violence during the period.

Lawyers Willis Otieno and Dr Owiso Owiso faulted the Court of Appeal for applying the law, dealing with civil wrongs instead of looking into the constitutional violations.

Otieno told Chief Justice Martha Koome, Smokin Wanjala, Isaac Lenaola, William Ouko and Mohamed Warsame that although the violations happened before the 2010 Constitution was enacted, failure to charge the perpetrators and offer reparations after the promulgation is a continued violation. He said that the government’s silence now should be viewed as a failure in its obligations provided by the Constitution.

 Otieno also said that the Court of Appeal discriminated against four victims who were raped by civilians by awarding only those who were raped by the police.

“We do submit that the Court of Appeal recognized the violation to all petitioners but left 5,6,8 and 9 petitioners. Having found there was a violation of their rights, they did not provide adequate compensation. We ask the court to find that, in circumstances of violence, the state ought to have investigated, prosecuted and provided an effective remedy. There has been no investigation to date, even after the State confirmed, including in the Waki report, that there were violations. The State, including its medical records, was aware of these victims. However, it never prosecuted the perpetrators,” argued Otieno.

He added that although IPOA was exempted, after its establishment, it ought to re-look at the police infractions that existed in 2007. Why then do they exist if the conflict is the basis of their establishment?

 He also said that even the current government has equally sidelined victims of sexual violence while compensating those who were abducted or harmed by the police.

 “ To the extent there is no investigation, then their rights continue to be violated. Their rights cannot be limited to the time the violation happened,” argued Otieno.

In response, the AG through Dan Weche argued that it was impossible to apply the rights provided in the 2010 Constitution for violations that happened before its promulgation.

He said that the 1963 Constitution provided for avenues to resolve sexual violence incidents, but limited the same to individuals.

The petitioners have not made any case for the Supreme Court to interfere. They are trying to retrospectively apply the 2010 Constitution to what happened in 2008. This will prejudice the respondents’ rights that accrued under the 1963 Constitution.”

“ The petitioners lacked locus to bring a case on behalf of other persons. The Supreme Court does not have powers to re-open facts which are not in the Supreme Court’s role. Kenya had an effective framework to address gender-based violence at the time, contrary to the petitioners’ assertion that such a framework never existed. The appeal should be dismissed with costs," replied Weche.

While supporting Weche’s argument for a dismissal, Angela Fuchaka for the DPP said that the victims who were before the court ought to have provided evidence that they had reported to the police but failed to take action. She further argued that it was unfair to shift the burden to the government as some of the victims indicated they were rescued by the police.

“The State duly exercised its duty in terms of investigations. There was a total of 300 cases in relation to sexual violence which were reported and investigated and prosecuted. The petitioners never reported their cases and therefore cannot now claim they were not investigated,” replied Fuchaka.

IPOA’s lawyer Bernadette Nzwii, on her end, said that the agency was not existent at the time. She was of the view that Court of Appeal was right to find that it could not interrogate police conduct during the 2007-2008 PEV as it was established by the 2010 Constitution.

Before the Court of Appeal, Justices Daniel Musinga, Francis Tuiyott and George Odunga faulted the government for failing to acknowledge and publicly apologize to the victims of the 2007-2008 election chaos, who were victims of sexual and gender based violence (SGBV).

The trio said that the State cannot run away from its obligations, which include protection and reparation, adding that it can be held liable for omissions or commissions during unrest.

“We must point out that the State obligations to the citizenry are not suspended during periods of civil unrest or conflicts, which is not uncommon shortly before and/or immediately after the general election. The patterns of violence that have been witnessed in the past around such periods are sufficient to cause the State to be on high alert to protect its people,” the bench headed by Justice Musinga said.

At the same time, they declared that the government’s failure to classify the SGBV-related crimes committed during the post- election violence as crimes against humanity is a violation of Kenya’s obligations under the Constitution.

According to them, Kenya is a signatory to the Rome Statute and is required to investigate and prosecute crimes against humanity, including rape, torture, persecution, other sexual violence, and other inhumane acts.

“The failure to establish an independent and effective investigations and effective investigations and prosecutions of SGBV related crimes committed during the post-election violence is a violation of Kenya’s obligations under the Statute of the International Criminal Court, international human rights law and statutory law which requires the investigation and prosecution of Crimes against Humanity of torture, persecution, other sexual violence, and other inhumane acts (mutilations),” they found.

 The judges also faulted the government for failing to give the victims medical care and rehabilitation.

They, however, found that the High Court erred by finding that the Independent Police Oversight Authority (IPOA) was liable for failing to investigate alleged violations by both government and non-state actors.

Judges also declined to find that the government was liable for failing to release information to the eight women who had appealed High Court’s verdict over violation of their rights.

At the High Court, Justice Weldon Korir(now a Court of Appeal Judge) ruled that the government failed its own citizens by failing to take measures to protect them during the chaos that rocked the country and which resulted violations of the victims rights, injuries to their bodies and psychological torture occasioned by the violence.

“The state had a duty to enforce laws that prohibit all forms of violence against the women including forced sex. Sexual violence carries with it both physical and mental pain, I am satisfied that the victim’s rights were violated by state actors who should have protected them,” ruled Korir.

According to the judge, three of the victims proved beyond doubt that they were raped by General Service Unit (GSU) officers while the fourth victim was gang raped by a group of men known to her but the police failed to take action even after reporting the incident.

Justice Korir stated that he did not understand why other victims of post-election violence were compensated without seeking court orders like those who lost their homes who were resettled yet those who suffered sexual violence have never been compensated.

“Rape has elements of torture that include severe infliction of pain and suffering. The victims demonstrated that State actors were involved in acts of sexual violence against them. The State cannot escape liability and must pay for their illegal actions,” ruled Korir.