
Kenya Must Address Post-Election Sexual Violence
Today, after over eleven years of litigation and four years since the initial ruling, a Kenyan court heard the appeal of four survivors of sexual violence in the COVAW et al. case.
This civil claim was first brought in 2013 by eight survivors of sexual violence following the 2007 election by members of the police force and non-state actors. The claims of four of the survivors were dismissed and are now being appealed.
“ […] 14 years on, justice has not been served for all survivors of the 2007/2008 [electoral and post electoral violence]. The government has forgotten the survivors and refused to recognise its failure in protecting us. The violence negatively impacted our lives, and we still bear the scars to date”. – One of the survivors.
This appeal takes place within the broader context of impunity for sexual violence in Kenya, due to the country’ systematic failure to investigate such crimes or provide reparation to the victims. Kenya has also consistently failed to prevent the excessive use of force by the Police in protests settings, as demonstrated by the violence against protesters that took place last summer.
In its December 2020 ruling, the High Court found Kenya responsible for failing to protect civilians, and for violating the right to life, security, freedom from torture, equal protection under the law, freedom from discrimination, and the right to an effective remedy for three of the survivors who had been subjected to sexual violence by public officials. The Court ordered the Kenyan government to provide them with compensation. One petitioner who had filed a police complaint, but whose case was not subsequently investigated, was also granted compensation. Despite this landmark decision, to date the petitioners have not received the compensation granted to them and none of the perpetrators have been investigated and punished.
In this same judgment, the High Court dismissed the claims of four of the survivors, finding the acts of non-state actors were not attributable to the State. The court reasoned that the victims had not reported the crime to the police, and that the violence could not have been reasonably foreseen by State authorities.
The Appeals Court now has the opportunity to review the first instance decision and reaffirm Kenya’s due diligence obligations to prevent sexual violence, investigate it, prosecute and punish perpetrators, and provide reparation to victims. The widespread and publicly documented use of sexual violence during and after the elections, particularly against protestors, has been denounced yet no significant action has been taken to support survivors or address the prevailing impunity for sexual violence.
As noted by the lawyer of the victims, Willis Otieno, during the hearing, “when sexual violence occurs in a conflict setting, we must not rely solely on traditional reporting rules that attribute liability only to State officers. In such cases, the State’s responsibility extends to violations committed by non-state actors as well. The State must take measures to mitigate risks, investigate and prosecute sexual violence during the post-electoral period, and provide psychosocial support to survivors.”
Reparation for severe crimes should not be contingent on the filing of a complaint, or the identification or conviction of a perpetrator. But the Kenyan State has systematically failed to take adequate measures to prevent sexual violence, to adequately plan and prepare police operations, train police officers, or intervene to protect individuals from sexual violence, and respond to it.
“The appeal seeks the court’s affirmation of the Government’s obligation to provide reparation to victims and survivors of CRSV, not only when violations are committed by State actors but also by non-state actors. This is particularly important in contexts such as Kenya, where recurrent cycles of election-related violence are often perpetrated by unidentified criminals. The State has a duty to take effective measures to prevent such violence from recurring and to address the needs of victims and survivors whenever these violations occur. The appeal also seeks affirmation of the State’s standing obligations, even when victims are unable to report violations due to security and other barriers or to identify their assailants.” – Christine Alai – Executive Director – Utu Wetu
The Court now must decide, and its judgment is scheduled to be delivered on 11 April 2025. A strong ruling recognising the State’s failures would ensure compensation for the four victims who have been denied justice for years but also set an important precedent for other survivors. It would reaffirm the State’s obligations to provide justice and reparation to survivors of and victims of sexual violence, and in doing so contribute to preventing such violations from happening again.
Note: The case was submitted by the Coalition on Violence Against Women (COVAW), the Independent Medico-Legal Unit (IMLU), the Kenyan Section of the International Commission of Jurists (ICJ Kenya), and Physicians for Human Rights (PHR). They have been supported by Wangu Kanja, Grace Agenda, International Center for Transitional Justice (ICTJ) Kenya, the Survivors’ Network, Utu Wetu, CSO Network, REDRESS, and others.
Photo credit: UN OCHA