A landmark class action case against the Kenyan government is unfolding in the Nairobi High Court. Sexual violence survivors and Kenyan non-governmental organizations (NGOs) acting on behalf of all victims of sexual violence committed in the aftermath of the 2007 Kenyan presidential election brought a case against the government alleging numerous violations of the Kenyan constitution for the government’s failures to protect them, to investigate and punish the perpetrators, and to provide reparations.
At the most recent hearing, the petitioners’ lead expert witness testified about these failures. The witness, Patricia Nyaundi, is a Kenyan women’s rights leader, a former member of the Truth, Justice and Reconciliation Commission (TJRC), and the secretary of the Kenya National Commission on Human Rights. She argued that the government has failed in its responsibility to protect persons from violence and continues to neglect victims by failing to recognize their claims of sexual and gender based violence (SGBV) and to remedy their situation.
Case No. 122 of 2013 was filed in February 2013 on behalf of eight victims of post election violence and four NGOs, Coalition on Violence Against Women (COVAW), Independent Medico-Legal Unit (IMLU), the Kenyan Section of the International Commission of Jurists (ICJ), and Physicians for Human Rights. Eight Kenyans, two men and six women, from various areas of Kenya, were victims of sexual and gender based crimes during the post-election crisis. Even though the case was filed early last year, proceedings did not commence until 2014 due to the government’s failure to respond until Judge Isaac Leanola threatened to proceed with the trial without the government.
The petitioners allege that the government failed to anticipate and adequately prepare police practices to prevent violence. They also argued that the government had a duty to investigate and prosecute perpetrators of human rights violations and failed to take steps to investigate violations of sexual and gender based crimes. Further, the petitioners allege that the government failed to provide necessary care and compensation for their suffering. The petitioners are asking the High Court to issue a declaratory order stating that specific rights, including the right to life, prohibition on torture, the right to equality, and freedom from discrimination, were violated during the post-election violence as a result of the Kenyan government’s failure to protect its citizens. The petitioners are also seeking to establish a database for victims of SGBV committed during the post-election violence and set up an independent body tasked with monitoring of the provisions of reparations to the victims.
The respondents include the Attorney General, Department of Public Prosecutions, Inspector General of the National Police Service, Independent Police Oversight Authority (IPOA), Ministry of Medical Services, and Ministry of Health and Sanitations. In response, the Attorney General and Director of Public Prosecutions have denied the petitioners’ arguments and instead claim that many victims of the post-election violence sought and obtained protection within the police stations around the country, and victims were also able to obtain necessary medical services. In response to the petitioner’s claims that thousands of cases of sexual violence have never been investigated, the government argues that it was not obligated to investigate cases where the victims failed to report the crimes to the police. The government also argued that the police took steps to prevent the violence, but the magnitude of the violence and speed at which the violence spread across Kenya prevented the police to provide security for every Kenyan.
Patricia Nyaundi testified for parts of seven days, beginning on March 25. She was called as an expert in human rights and international law to testify about the violations following the presidential election and the government’s responsibility to protect its citizens. Ms. Nyaundi focused her testimony on the findings in the Waki Commission report and the Truth, Justice and Reconciliation Commission report and said that the Kenyan government failed to properly respond and protect victims of sexual and gender based violence committed after the disputed presidential elections in 2007. Ms. Nyaundi noted that a single hospital reported more than 900 cases of sexual and gender based violence during the post-election violence, and the director of the hospital testified that these victims were only “the tip of the iceberg” with respect to the full magnitude of the SGBV crimes committed during the violence. Ms. Nyaundi further stated that the police themselves committed sexual and gender based crimes instead of protecting the victims.
The government began its cross-examination of Ms. Nyuandi on May 14, 2014 (the case has not been assigned consecutive hearing dates and so far has proceeded with only one or two hearing days each month). During the cross-examination, government lawyers representing the Attorney General, Director of Public Prosecutions, and Independent Police Oversight Authority questioned the strength of the Waki Commission’s methods and findings and the witness’s views on Kenya’s obligations to SGBV victims under national and international law.
For example, the Waki Commission report stated there was an increase in the commission of sexual and gender based violence during the post-election crisis. The government repeatedly asked Ms. Nyaundi to explain this reported increase of SGBV given that prior to 2009 Kenya did not distinguish reporting rape, defilement, and sexual violence as separate crimes. Ms. Nyaundi explained that while rape was not recorded as a separate crime, a demographic survey conducted in 2009 showed that one in four women had experienced SGBV. The witness also pointed out that the lack of available statistics from the time of post-election violence were due to victims’ fear of the police and the stigma attached to rape and sexual violence within Kenyan society. Ms. Nyaundi acknowledged that the Sexual Offences Act passed in 2006 provided for a robust legal framework to prosecute sexual and gender based crimes, but implementation of the law poses a serious challenge. In addition to the implementation, Ms. Nyaundi testified that the Kenyan culture of silence and stigmatization of victims, along with a defeatist attitude that reporting crime will amount to nothing, prevented many victims from reporting SGBV crimes. Ms. Nyaundi specifically noted that the lack of statistics available for sodomy and forced circumcision against men is due to the patriarchal society where the stereotype of manhood is highly valued, preventing men from speaking publicly about the violations.
The government also questioned the witness about the role of the government in protecting its citizens. The government argued that it is impossible to protect every single Kenyan, rather the government’s responsibility is to provide security and the policy duty is to the public at large, not for specific individuals. Ms. Nyaundi rejected the government’s claim arguing that the law guarantees that every citizen has a right to life, and once an individual’s right is violated, the state should have machinery in place to carry out investigations and arrest and punish the perpetrator. She further noted that there is a contract between a citizen and the state, and the state cannot exclude itself from its responsibility simply because protection of such rights may be inconvenient.
While Ms. Nyaundi argued that the state has the responsibility to protect its citizens, the government’s lawyers posed questions on citizens’ obligations to ensure that rights are protected and guaranteed. The state cannot investigate crimes without receiving reports. Thus, individuals have an obligation to report crimes in order for police to follow up and investigate. Ms. Nyaundi did not dispute that citizens have obligations to report crime under normal circumstances. However, in circumstances like the post-election crisis, where Kenyans experienced the breakdown of the law and were unable to reach police stations, the burden then switches to the state to exercise additional responsibility.
The petitioners also argued that the state not only failed to protect them, but has also failed to compensate them for their violations. The government argued that victims could have launched their grievances with various government bodies, such as the IPOA, Gender and Equality Commission, or the Human Rights Commission, but chose to pursue public interest litigation instead.
Ms. Nyaundi pointed out that the government chose to treat victims of various violations differently. While the government compensated internally displaced persons (IDPs) and created a database for IDPs, it has failed to take any action in acknowledging the suffering of victims of sexual and gender based violence. Further, while some government bodies may have jurisdiction to hear complaints of sexual and gender based violations, the gravity of these crimes and the importance of highlighting the plight of so many victims necessitates the establishment of a separate entity whose mandate would cover SGBV crimes and serve as a voice for victims whose suffering has gone unaddressed. The establishment of such entity would be an important first step in raising the issue of SGBV and its magnitude within the society. It would be also be an important step in recognition by Kenya that sexual and gender based violence occurred during the post-election crisis, and victims require reparation and recognition of their suffering.
During her testimony, Ms. Nyaundi emphasized the barriers that victims faced in reporting a crime. Not only did victims face difficulties in accessing police stations, but many chose not to report a crime because they knew the police would not take appropriate action. In addition to the mistrust of the police, culture played an important role in victims’ unwillingness to speak up about their suffering. Male victims were particularly silenced in reporting a crime because of the patriarchal culture. However, the fact that the Waki Commission did not interview a single male victim does not mean that no crime against men occurred, Ms. Nyaundi noted. Ms. Nyaundi called on the government to take action to recognize the magnitude of SGBV crimes in the country, set up a database for victims, and spearhead an agency that would lead a discussion on SGBV in Kenya and allow victims to seek justice and reparations.
At the conclusion of Ms. Nyaundi’s cross-examination, Judge Leanola adjourned the case until August 27 when the court will resume its hearings of witness testimony. The trial is expected to continue through the end of 2014.
Eva Nudd is a member of the ABA IHRC's Steering Committee. She is currently working with the International Center for Transitional Justice in Kenya on police vetting and sexual and gender based violence projects. She previously was a public interest law fellow at the Open Society Justice Initiative where she worked on issues of international criminal law.
The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts. For more information, please see the following case report.
Reprint: International Justice Monitor