Justice denied: Inadequate resources, ineffective legal systems preventing prosecution of GBV cases

A special audit has revealed less than 30 percent of Gender Based Violence (GBV) cases filed in courts are completed within a year. The report by Auditor General Nancy Gathungu found that between 2018 and 2022, only 422 cases were finalised within recommended 360 days while 1,137 cases lasted longer. Auditor General Nancy Gathungu speech during media Stakeholders breakfast and launch of Kiswahili Audit report, Wed, May, 18, 2022.[Samson Wire. Standard]. In the report released in August, the Office of the Auditor General sampled seven counties, namely Kisumu, Kakamega, Kisii, Nakuru, Mombasa, Kilifi and Garissa to assess how the courts process GBV cases. The auditors further sampled nine law courts, seven Gender Based Violence Recover Centres (GBVRC), nine police stations, two regional government chemist offices, seven offices of ODPP and six private shelters. During the period under review, 3,578 sexual offence cases were filed in court. However, out of the 2,863 cases used in the analyses, 1,559 were closed and 1,304 remained active. In the reviewed cases in eight courts, 471 cases took at least two years to be completed, 424 cases took three years and 242 cases took at least four years. Another 242 cases took more than four years. Investigating officers were singled out for occasioning delays through failure to attend court hearings, missing police files and external interference of cases. It was also noted many cases were reported in GBRVCs and police stations but fewer cases ended up in court pointing to a lack of effective coordination among actors. For instance, during the five-year period under review, out of 29,972 cases were reported to GBVRC and to Police, only 3,505 were eventually taken to court, representing 12 per cent. DNA analysis While DNA analysis is key to GBV cases, the audit found 205 out of 1,742 samples delivered to the Government Chemist during the 2018-2022 period had not been analysed. Further analysis showed that out of 167 samples delivered to Nairobi and Mombasa regional offices, 15 samples were done within the recommended 21 days. It was revealed that analysis of samples took between 22 days and more than four years. For instance, 117 cases took more than 120 days to analyse due to a lack of reagents and the unavailability of reference samples for survivors and perpetrators. Out of 1,559 closed cases, 746 (47.9 per cent) were withdrawn by the prosecutor in the sampled courts due to the unwillingness of the complainants to proceed with the case as a result of out-of-court settlements and being compromised. The Judiciary and other actors in the criminal justice system were found to have failed to ensure timely dispensation of justice to GBV survivors. This was due to numerous court adjournments that resulted in prolonged court appearances, increased financial burden, increased trauma, out-of-court settlements and ultimately delayed justice for the survivor. The report noted that the timely completion of GBV cases was a challenge as a result of adjournment due to various reasons occasioned by all parties in the criminal justice system. Failing to show According to the report, the most prevalent reason for the adjournment of cases was the unavailability of the accused, mostly after paying bail and bond terms. The audit noted that some judicial officers granted low bond and bail terms and as such the accused person forfeited the bond, fled and failed to appear in court. "It was noted that some bond terms were as low as Sh2,000 which were meagre for sexual offences and the accused would easily pay to be released from custody and consequently not appear in subsequent court sessions," the audit report revealed. Additionally, complainants and their witnesses failed to show up during court hearings due to intimidation by the perpetrators given that they are people known to them and live in the same environment. For instance, in Garissa, the audit noted, instances of alternative dispute resolution through Maslaha hindered prosecution of GBV perpetrators in court. In Kajiado County, complainants were intimidated by their clan elders that they would be cursed or ex-communicated from the community if they were determined to follow up cases to their conclusion. The audit established that in some instances, investigating officers failed to notify the accused and complainant of the next hearing date, resulting in court adjournments and sometimes withdrawal of cases by the prosecution. Data management system At the same time, the lack of a gender data management system has negatively affected effective interventions towards the prevention of GBV. The State Department of Gender and Affirmative Action during the 2018-2022 period received Sh1.1 billion, comprising 75 per cent in donor support and 25 per cent from the exchequer. While the government committed to investing Sh100 million annually in GBV research and innovation, a review of the budget shows that the resources were not allocated. The state department was also found to have failed to develop a GBV management information system by 2022 for effective monitoring of interventions towards prevention and response to GBV at all levels. Due to budgetary constraints, county gender officers could not independently convene Gender Sector Working Group (GSWG) meetings. With the bulk of funding coming from donors, the department's authority to coordinate GBV activities in various counties was affected. Priority The audit further revealed there was a lack of prioritisation of GBV activities by the State Department and county governments and did not have a sustainability plan in the event donors were to withdraw their support. The audit also revealed underfunding hampered implementation of activities. In Garissa, the audit found that of a budget of Sh1.48 million, Sh208,004 was received in 2021-2022 for various anti-GBV activities. The audit established that all gender units in the National Police Service were not adequately equipped to enable gender desk officers to effectively serve GBV survivors. The audit noted the officers lacked stationery, computers and printers to prepare case files to facilitate prosecution. "Further, they lacked dedicated vehicles to ensure ease of rescue operations, escort of survivors to hospital including delivery of samples to government chemist for analysis," the audit shows. It was further established the gender desks were not conducive to offer privacy to GBV survivors, and they lacked adequate storage space for exhibits. Due to lack of facilitation, gender unit officers were forced to incur out-of-pocket expenses to print P3 forms, purchase dignity kits and buy food for minor survivors who were accommodated at police stations. The audit revealed that staff at GBVRCs were at times overstretched given the sensitive nature of GBV which requires one clinician to handle the survivor through history taking, trauma counselling and treatment. A lack of government safe shelters in the majority of the counties visited during the audit was a result of lack of prioritisation of gender matters by county governments. It was also established victims of sexual-based gender violence (SGBV) are handled differently from survivors of other forms of GBV. This means the survivors of other forms of GBV were charged between Sh1,000 and Sh1,500 to fill P3 forms, whereas survivors of SGBV were given free treatment.

Justice denied: Inadequate resources, ineffective legal systems preventing prosecution of GBV cases

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