Delay or denial? A quest for a day in court for post-election violence survivors

Utu Wetu Trust Programs Associate, Leah Aoko. [Courtesy]

The 2007/2008 election period remains to be one of the darkest chapters in Kenyan history. The general elections were followed by a period of organized and spontaneous violence.

According to the International Criminal Court, crimes against humanity such as murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts took place in the country.  During the ensuing violence, several men and women were sexually abused, harassed, and killed on the basis of ethnic identity.

Subsequently, in 2013, 8 survivors alongside Physicians for Human Rights, the Coalition on Violence Against Women (COVAW), the Kenyan Section of the International Commission of Jurists (ICJ-Kenya), and the Independent Medico-Legal Unit (IMLU), went to court to hold the state accountable failing to prevent, protect and respond to conflict-related sexual violence.

Notably, the Constitution of Kenya under the Bill of Rights, provides for the security of the person and protection against all forms of violence. Articles 25(a), 29(d) and (f) and 50 prohibit any form of torture or treatment that is cruel, inhuman, and degrading from either public or private entities. This means that the Constitution safeguards any person against sexual violence.

The doors of the courts were opened up for any person acting on their own behalf or on behalf of others including a group of persons, or in the interest of the public, to institute court proceedings claiming that a right or fundamental freedom in the bill rights has been denied, violated, infringed or is threatened. This is in accordance with Article 22 of the Constitution, thus increasing the access to the courts for anyone seeking remedies for any violation of human rights.

In 2020, the Kenyan courts gave a judgement in favour of only 4 out of 8 petitioner survivors of the 2007/2008 violence.

Consequently, the 8 survivor-petitioners, alongside the petitioner institutions filed a partial appeal in the Court of Appeal at Nairobi to pursue justice and accountability on behalf of the other 4 survivor-petitioners, whose violations were not recognized or offered compensation in the December 2020 judgement. The appellants grounded their quest on the basis that the High Court:

1. Only considered state obligations to investigate sexual violence, failing to consider state obligations to prevent sexual violence or provide protection and reparation to survivors.

2. Erred by only providing redress to the survivors who experienced SGBV perpetrated by a state actor (police or security forces).

3. Failed to consider the many structural barriers that survivors of SGBV face in reporting their experiences, only ruling in favour of the survivor-petitioners who made reports to the police at the time.

4. Failed to determine the state's legal obligations to investigate and prosecute SGBV committed by non-state actors, such as the ethnic militia or civilians who perpetrated forced circumcisions and rapes during the 2007-2008 post-election violence.

5. Failed to consider the state's obligation to put measures in place to protect people from SGBV by third parties, and, when it occurs, to conduct prompt, credible, and thorough investigations, and award reparations to survivors.

6. Failed to consider the widespread and systematic nature of the post-election violence. The High Court could have ordered structural measures that could help lead to broader reparations for the thousands of other survivors of the 2007-2008 post-election violence.

7. Failed to consider that Kenya's Independent Policing Oversight Authority has failed to carry out any investigations into SGBV perpetrated by police officers during the post-election violence.

Since the filing of an appeal and several follow-up requests for a date, the appellant survivors have yet to have their day in court.

Despite the existing court of appeal rules and practice directions in place to facilitate the expedient disposal of matters, the hurdles that survivors continue to face in pursuit of justice point to the challenges litigants encounter in seeking remedies from the courts when their rights are under threat or are violated.

It is becoming more evident that the justice delivery mechanism for these survivors has hit a stalemate, hopefully a temporary one. This situation requires urgent attention and effective solutions considering the nature of crimes and abuse suffered by not only these survivors but also several others not in the case.

It portends a double injustice and psychological distress to the survivors and their families who do not understand how despite progressive protection of rights under Chapter 4 of the Constitution, the wheels of justice are barely moving in their direction. In this case, an 11-year delay is anything but fair for the survivors. It also sets a poor precedent not to be emulated in future cases involving conflict-related sexual violence.

It is trite that justice delayed is justice denied. The effects of a failure to realise justice on time have deleterious impacts on the lives of the survivors. This also leads to further violations of fundamental rights related to fair hearing. Any continued delay of justice constitutes a further breach and discourages other existing survivors of sexual violence from seeking redress from the courts resulting from the weight of fatigue associated with lengthy court cases.

The net effect of this is to place the state in a bad light in relation to its commitments to international law obligations amongst its peers that is to guarantee effective remedies for any human rights violations.

-The writer, Leah Aoko, is the Programs Associate, Utu Wetu Trust