Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar
16 Days of Activism against Gender-Based Violence is an international campaign that runs yearly from 25 November, the International Day for the Elimination of Violence against Women, to 10 December, International Human Rights Day. The period is observed in many African countries including Kenya, culminating in a colorful thematic event on the last day of the campaign. During this period, governments may reevaluate their national policies and action plans to completely eradicate practices that discriminately affect women in the community. This campaign provides an opportune moment to create awareness, on a worldwide scale, of the prevalence of sexual and gender-based violence (SGBV) and to galvanise support to curtail its escalation to pandemic proportions.
Over the years, the determination to curb the rise of SGBV has gained momentum globally due to the efforts of dedicated human rights activists, which has led to ground breaking women’s rights movements: #Orange the World, #HearMeToo, #MeToo, and #Times Up. These movements have had a rippling effect on the global fight for gender equality and bringing the perpetrators of sexual and gender-based violence to full accountability.
Additionally, relentless efforts by civil society organisations and stakeholders to combat SGBV globally, has led to the adoption of international instruments and national laws to combat the vice. The adoption of the Beijing Declaration and Plan of Action 25 years ago laid a solid foundation for gender equality and women’s empowerment efforts. Kenya has made great progress in the advancement of women’s rights issues over the years. However, the fight for equality in Kenya is far from over. Despite enactment of national laws, strategies, and policies on sexual and gender-based violence, Kenya is still grappling with increased cases of violence against women at catastrophic levels.
Historically, both women and children have borne the brunt of repugnant socio-economic and cultural ideas and practices that perpetuate sexual and gender-based violence. Gender inequality also accelerates sexual and gender-based violence against women. Gender-defined roles, such as childcare and domestic chores, continue to hinder women’s economic prospects owing to substantial time constraints. The persistent gender gap in economic undertakings is restricting Kenya’s attainment of its full economic potential averaging loss of billions annually. Kenya must accelerate women’s empowerment through all spheres of society, which includes political participation, access to healthcare, educational fulfillment, and employment. Whereas significant progress has been made in Kenya, gender equality for women and girls is still far from satisfactory.
In recent years, a rise in sexual and gender-based violence in Kenya has resulted in about 45% of women between the ages of 15 and 49 experiencing physical or sexual violence and 14% of women and 6% of men between the ages of 15 and 49 reported having experienced sexual violence at least once in their lifetimes. Gender-based violence has dire economic consequences, costing an estimated 1.2%-3.7% of GDP in some countries due to lost productivity, equivalent to the average spending of low and middle-income countries on primary education. According to the World Health Organisation report, Violence and Health 2002, SGBV is a persistent human rights challenge, with devastating consequences on women’s physical, psychological, sexual and reproductive health at all stages of their life. Despite this reality, it remains largely unreported due to the impunity, silence, stigma, and shame surrounding it, coupled with the lack of commitment and goodwill by the government.
According to a 2015 UN- Women Report, many victims of gender-based violence were unwilling to pursue justice; only 5% of the survivors seen in facilities were willing to go to court. Poverty, illiteracy, insensitivity of law enforcers, and several other barriers greatly deter women from reporting incidences of violence occurring in their communities. The underlying gender inequality in distribution of socio-economic opportunities, also greatly impedes the realisation of human rights for survivors of gender-based violence, majority of whom are women.
The case of the 160 girls was a step in the right direction on the fight against SGBV in Kenya. In 2013, the High Court in Meru delivered a landmark constitutional decision in the case of 160 girls project. The petition successfully challenged the Kenyan government’s failure to act on sexual violence cases against children in the region. The respondents, the police, were held accountable for the trauma occasioned to the petitioners by failure to conduct speedy and efficient investigations into their complaints of sexual violence and abuse. Remarkably, the court acknowledged the Kenyan government’s responsibility and accountability for systemic violence, failure to guarantee appropriate, efficient, effective investigation and prosecution of sexual offence cases created an environment of lawlessness for perpetration of such offences. For the first time, the Kenyan government was sued for failure to protect rights in relation to sexual violence. However, seven years after this landmark ruling, statistics on SGBV against women and girls in Kenya remains shockingly high.
Over the past few years, women reportedly killed by their most trusted partners has drastically increased. Many of these supposed “crimes of passion” are still pending in court, and many more do not have any perpetrators linked to them. Surprisingly, several accused persons are prominent members of the society holding high positions in government agencies, who are perceived as role models or defenders of vulnerable members of the society. The number of women dying under mysterious circumstances in Kenya is appalling. On a weekly basis, at least one case is reported by the mainstream media on atrocities committed against women at home, workplace or even on the streets. SGBV is slowly becoming a norm in Kenya, a menace that needs to be uprooted rapidly.
To combat sexual and gender-based violence, Kenya has made tremendous legal reforms. The Constitution of Kenya (2010) advocates for the elimination of discrimination against women and for equal protection before the law. Additionally, the Constitution prohibits any form of torture whether physical or psychological or cruel, inhumane, or degrading treatment. Although the laws are progressive, a majority of women continue to suffer violations at the hands of trusted partners, friends and even relatives, with inadequate protection or access to appropriate resources. Legislation is essential for a successful response to violence against women. Kenya has clear-cut obligations under international law to enact, implement and monitor legislation addressing all forms of violence against women. However, significant gaps remain that render it impossible to combat the problem completely. Although the government has passed legislation to protect women from violence, it is often inadequate in coverage, or is not enforced. Victims are often unable to access the much-required services and resources to pursue justice.
Regional instruments such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) addresses state obligation to eliminate violence against women. The Maputo Protocol demands the eradication of all forms of gender-based violence pegged on the rights to life, integrity, and security of the person with additional stipulations highlighting state obligation to end gender-based violence. Kenya ratified the Maputo Protocol in 2010.
Whereas Kenya has made methodical strides to address gender discrimination and inequality through the adoption of various legislations that seek to promote women’s rights, substantial disparities hinder full implementation of the Protocol. For example, some aspects of national laws contravene provisions of the Maputo Protocol. Kenya entered a reservation to Article 14 (2) (c) of the protocol on sexual and reproductive rights. So far, Kenya has not enacted any specific legislation that legalises abortion. The Kenyan Constitution provides that life begins at conception (Article 26(2)) and “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” Therefore, abortion in any other circumstances is criminal and illegal; victims of sexual abuse cannot legally terminate a pregnancy. The Kenyan Penal Code creates an offence of seeking or performing an abortion or providing materials that might be used to procure an abortion. The penalties remain severe: seven (7) to fourteen (14) years imprisonment for performing or procuring an abortion; and 3 years imprisonment for supporting or aiding an abortion procedure. Although, the government has enacted laws to protect women from all forms of violence and discrimination, nevertheless, no further efforts have been executed to efficiently implement these laws. There are minimal to limited, structures, resources, procedures, and reporting mechanisms with regards to implementation.
In a recent meeting in Niamey, Niger, the African Commission of Human and People’s Rights during its 60th Ordinary Session adopted the Guidelines on Combating Sexual Violence and Its Consequences in Africa. These guidelines are aimed at promoting, protecting and ensuring member states are committed to combating gender-based violence. The guidelines direct member states including Kenya, to adopt measures to ensure victims of violence are protected and have access to any assistance they can get including access to justice.
When a state party fails to comply with regional obligations, victims may file complaints with the African Commission. The Kenyan government has an obligation under international and regional treaties it has ratified to prevent and protect women from violence. Kenya has an obligation as a member state to the African Union and the United Nations to combat all forms of violence against women. Other than creation of laws and regulations to punish the perpetrator, Kenya should endeavor to create processes that ensure women report incidences of violence and are provided with adequate support, including shelter, medical and psychological support and legal aid services. It is also paramount to have long term solutions to combat violence against women besides short-term relief.
In order to monitor progress and identify further programmatic directions, Kenya needs to invest in systematic and well-funded research on violence against women. It is clear that sexual and gender-based violence in Kenya has generally been a neglected area of research. Evidence suggests that it is a public health problem of substantial proportions, hence much more needs to be done both to understand its occurrence and ways to prevent it. Insufficient data describing the nature and extent of the problem has contributed to its lack of visibility on the agenda of policymakers and donors. Therefore, additional, and substantial research on almost every aspect of sexual and gender-based violence is required. The United States Strategy to Prevent and Respond to Gender-based Violence Globally stresses the importance of proper collection, analysis, and use of data and research to enhance gender-based violence prevention and response efforts.
Financial resources are also a critical factor and necessary tool for change. Adequate funding will enable Kenya to integrate creative gender-based violence prevention and response interventions into its current programs. It is unfortunate that many programs in Kenya seeking to protect survivors of gender-based violence depend entirely on donor funding from development partners. Therefore, the national and county governments must allocate adequate resources to SGBV programs to combat the scourge.
Counties have an opportune moment to revisit their policies, laws, strategies to ensure they comply to international standards and women are accorded the protection they deserve as citizens of Kenya. Ultimately, breaking the silence requires strong commitment and involvement of the government and civil society together with a coordinated response across a range of sectors to end violence against women. Therefore, in order to enjoy the commitments of the Beijing Declaration 25 years on, both the national and county governments must invest and prioritise the wellbeing of women in Kenya, through; allocation of funds for research, legal aid activities, shelters and monitoring implementation of the Constitution of Kenya 2010, and all other acts of Parliament enacted to protect and prevent sexual and gender-based violence. The government of Kenya must reignite its accountability efforts to the people of Kenya to combat the rise in sexual and gender-based violence.
About the Author:
Juliet Nyamao is a human rights attorney admitted to the Kenyan bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a consultant and gender expert.