For many survivors, justice remains unobtainable. Some have waited for years during which they face stigma, shame and prejudice.
The glaring gaps in the justice system for this disenfranchised group has seen opinion leaders and activists blame the weak justice system in the country for failing to tackle sexual violence and hold all perpetrators accountable.
This was revealed during a discussion on the Standard Group's Twitter Spaces @StandardKenya. The discussion, moderated by Deputy Editor Christine Koech, was organised by the Gender desk within the organisation's News Hub to mark 16 days of Activism Against Gender-Based Violence.
Over the last decade and a half, the Kenyan government has enacted laws including the 2015 Protection Against Domestic Violence Act, the 2011 Female Genital Mutilation Act, and the 2006 Sexual Offences Act, to counter various acts of GBV.
It has also established guidelines on how incidences of GBV should be managed and survivors supported by the police, specialised medical staff, and judicial officials.
Kenya has ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and several international treaties that obligate it to protect women and girls from discrimination and GBV.
The speakers pointed out the gaps that exist at every level in the Justice chain starting with stigma and discrimination.
“This emanates for the community for instance incest related violations, such kind of cases community prefer to settle and fail to report the matter to the police,” said Marion Ageto, Associate Programme Officer, End Sexual Violence Programme at Equality Now.
However, of the cases reported, some are handled by law enforcement officers who do not how to handle forensic evidence for victims of Sexual Gender Based Violence.
“They do not handle the cases seriously. Some officers encourage families to settle the matter at a family level,” Ageto said.
She added that law enforcement does not fully appreciate the need for justice when it comes to cases of SGBV in many instances, it's difficult for victims to even access or seek justice for lack of money.
She observed that to file a case there is a fee required and one must be able to afford a lawyer.
In some police stations, she said, the process begins with a survivor being asked to pay money for printing papers.
She acknowledged the efforts by several NGOs and CSOs in training police officers, especially those who sit on gender desk within police stations, to understand and appreciate the magnitude of GBV.
“However, because of a high rate of transfers, many are unable to continue with cases that they started these deal a big blow to the process of seeking justice,” she observed.
She also cited the lack of collaboration between different actors in the same justice chain as a challenge adding that they all play different roles. However, many times, they fail to work together making it difficult to get to a conviction.
“For instance, you find that a police officer and their medics are supposed to cooperate since medics are responsible for filling P3 (medical examination forms), but they don’t communicate,” she said.
She explained there is a lack of awareness of who handles the evidence and at what point, hence the medic will fill in the P3 form if there is a need for forensic evidence to be collected. However, some police officers lack adequate knowledge on handling the evidence.
This brings in the issue known as ‘chain of custody of evidence ' which helps to explain the next stage of the evidence collected whether it must go through a government chemist for testing.
“Understanding the nuance of sexual and gender-based violence is a major gap that we still grapple with in the country,” she noted.
Some actors, Ageto said, do not understand the role they play. For instance, the law dictates that P3 forms are not supposed to be charged but in some counties, survivors pay Sh1,000.
In some police stations, the officers ask the victims to fuel the police vehicle to have the perpetrators arrested.
“For someone who has been traumatised to that extent, and in the process of seeking justice meets all these barriers, they are unlikely to come back,” she said.
Because of the backlog of cases in the criminal justice system coupled with few judicial officers and prosecutors and few courts, SGBV cases tend to take a long time," she said.
In some cases, people have to travel long distances to access a court making it difficult for victims who are undergoing trauma and in the process of healing.
Ageto revealed that with the outlined barriers cases of defilement and rape can even take three, four, or five years depending on the court.
SGBV and GBV cases are supposed to be treated differently from other cases, how you handle the survivor or the victim must be with ultimate care.
"It's supposed to be very different from the point of reporting the case, the reason behind gender desk in police stations, there must be a high level of dignity, how victims are handled in court to the point of sentencing the offender," she said.
The constitution says that every accused person has a right to bail a point that communities do not understand.
Thus, the perpetrators are likely to interfere with witnesses and even the victim when out on bail given that the country lacks sufficient rescue centers or safe houses.
And in border counties, perpetrators find ways to escape.
Jackline Mutere, Founder and Director of Grace Agenda in Nairobi, reiterated the fact that communities settle the matter without involving police and in some communities, it’s taboo to talk about the SGBV issue.
“Some officers ask victims intimidation questions such as, 'Where were you? How were you dressed?' this makes the victim go numb,” Mutere said.
"But rape and defilement are happening every day. And it's not going to stop because now the community is feeling like instead of reporting it's best to keep quiet, as there is nothing they gain and their perpetrators live freely," she said.
Women, especially those who lost their jobs and earnings due to the Covid-19 pandemic and were made completely dependent on their husbands or partners, and girls who were stuck at home with no school, faced elevated levels of sexual and physical domestic violence while the restrictions on mobility limited their access to protection and treatment services and justice for survivors.
According to data from the national gender-based violence hotline 1195 run by Healthcare Assistance Kenya - an NGO that works with survivors of GBV in Kenya - in partnership with the Ministry of Public Service and Gender, there was a staggering 301 per cent increase in calls reporting violence against women and girls in the first two weeks of the lockdown between March and April 2020.
Two government bodies reported increases in cases of violence against women and girls during lockdowns in the early part of the pandemic in 2020.
The National Crime Research Centre (NCRC) reported that the total number of GBV cases increased by 87.7 per cent during the 3-month-long (April–June 2020) Covid-19-related restrictions on assembly and mobility. It noted: significant increases of at least 30 per cent were recorded in forms of GBV such as physical abuse, sexual abuse, emotional abuse, and child marriage.
Kenya has experienced increases in violence against women and girls, and men and boys to a lesser degree, during previous emergencies such as around elections and other periods of political upheaval, civil unrest, and other humanitarian situations.
Human Rights Watch documented widespread sexual violence against women and girls, as well as incidents of sexual violence against men and boys, following Kenya’s 2007–2008 and the 2017 general elections, and the government’s failure to prevent or protect against such abuse or to provide survivors with redress.
Kenyan police and other state security agents have been implicated as key perpetrators of serious human rights violations against Kenyans and have been implicated in many cases of rape and other sexual violence against women and girls, and men and boys, particularly during times of crisis. Very few have faced justice.