COVAW, IMLU et al. v Attorney-General of Kenya et al.
Eight individuals, two male and six females, who were subjected to sexual violence during the post-election violence in Kenya in 2007/2008, are seeking justice and reparation before the High Court of Kenya.
Following the announcement of election results in Kenya on 30 December 2007, widespread violence erupted throughout Kenya until March 2008.
Both women and men experienced different forms of sexual violence and gender-based violence (SGBV). Women were subjected to rape, attempted rape, defilement, attempted defilement, and gang rape. Men experienced sodomy, forced circumcision and amputation of their penises.
The police often refused to document and investigate reports of SGBV victims. Access to medical services was sometimes denied by the state-run hospitals.
Perpetrators of SGBV included members of the Kenya Police Service, Administrative Police and other state security agents as well as non-state actors.
These conflict-related SGBV crimes have not been sufficiently investigated or prosecuted by Kenyan authorities and victims have not received any form of reparation.
ACTION FOR JUSTICE
On 20 February 2013, four Kenyan civil society organisations, together with eight SGBV survivors filed a constitutional petition at the Constitutional and Human Rights Division of the High Court of Kenya in Nairobi.
The four Kenyan civil society organisations are: Coalition on Violence Against Women (COVAW),The Independent Medico-Legal Unit (IMLU), Kenyan Section of the International Commission of Jurists (ICJ), and Physicians for Human Rights (PHR).
The petition is directed against a number of national authorities. These include: The Attorney General of Kenya, the Director of Public Prosecution of Kenya, the Independent Police Oversight Authority, the Inspector-General of National Police Service of Kenya, the Minister for Medical Services of Kenya, and the Minister for Public Health and Sanitation of Kenya.
The petitioners claim that Kenyan authorities failed to protect civilians during the post-election violence in 2007/2008 when numerous forms of SGBV were committed against women, men, girls and boys.
They also claim that authorities have not fulfilled their obligation to investigate and prosecute SGBV crimes afterwards and to provide reparations to the victims.
On 27 August 2014, REDRESS was granted leave to file an amicus curiae brief on the international legal framework as well as international and regional jurisprudence on the state obligation towards SGBV victims, with a focus on reparation measures.
On 10 December 2020 the High Court in Nairobi issued a landmark judgement finding the Kenyan government responsible for failure to protect, investigate and prosecute the post-election sexual and gender-based violence (SGBV) that took place in Kenya in 2007-2008.
The Court reaffirmed that Kenya has the obligation to protect its citizens from SGBV and investigate and prosecute those crimes effectively. Discussing the rights violated, the Court recognized that rape and sexual violence constitute forms of torture, including acts of forced circumcision.
In relation to three survivors (petitioners 5, 6 and 9) who had been attacked by police officers, the Court found that their rights to life, protection from torture and ill treatment and right to security of the person had been breached due to the State’s failure to protect. Further, the Court ruled that the right of these survivors to an effective remedy had also been breached due to Kenya’s failure to conduct an effective investigation.
In relation to four survivors (petitioners 7, 10 and 11) who had been attacked by private actors, the Court found that there was no evidence to conclude that the crimes took place at the instigation, or with the consent or acquiescence of a public official or other person acting in an official capacity. Further, the Court didn’t find that the violence that took place in Kenya’s post-election could have been foreseen and prevented due to “its sudden and drawn-out nature”. Finally, the Court found that since the crimes were not initially reported by the victims, the police could not “be faulted for failing to investigate and prosecute cases of violence which they did not know of”. The Court did not consider Kenya’s failure to investigate and repair once these cases became known to the authorities.
The Court took a different approach in relation to petitioner 8, a survivor also attacked by private actors and who reported the crimes to the police. In that case, the Court found that the State had a duty to investigate and arrest the perpetrators, but didn’t do it breaching the petitioner’s right to an effective remedy.
The Court awarded petitioners 5, 6, 8 and 9 general damages for the amount of 4 million KSH (40,000 USD) each for failure of the Kenyan government to protect the petitioners’ rights and investigate and prosecute the crimes. While the Court also awarded legal costs in favor of these survivors, it failed to order other forms of reparations, including measures to ensure the non-repetition of these crimes.
In November 2021, the petitioners partly appealed the High Court judgement on the basis that it failed to recognize Kenya’s responsibility for the State’s failure to protect victims from SGBV perpetrated by non-State actors. The appeal is pending.
- Court/Body: Constitutional and Human Rights Division of the High Court of Kenya
- Case Name: COVAW, IMLU and Others v. Attorney-General of Kenya and Others
- Date Filed: 20 February 2013
- Current Status: High Court Judgement (20 December 2020)
- Legal representation: COVAW, IMLU, ICJ, PHR
Sexual violence refers to any act of a sexual nature which is perpetrated by force, threat, coercion, or by taking advantage of a coercive environment or the victim’s incapacity to give genuine consent.
Sexual violence in conflict refers to sexual violence that is committed in the context of an international or non-international armed conflict, under an oppressive regime or in any other situation of mass human rights abuses.
Gender-based violence (GBV) refers to any intentional act or omission that causes physical, psychological or other forms of harm perpetrated on the basis of discriminatory gender roles and unequal power relationships or that disproportionately affect women and girls.
Sexual and gender-based violence (SGBV) is a combined term for the two forms of violence described above with GBV and sexual violence often overlapping.
Amicus curiae means a person or group who is not a party to a lawsuit but who offers independent expertise to the court on specific matters relevant to the lawsuit at hand.