The Court of Appeal in Nairobi, Kenya today failed survivors of the 2007-2008 post-election sexual violence by delaying the judgement in a landmark court case.
“As the litigation at the High Court and Court of Appeal (Civil Appeal No. E645 of 2021) have been ongoing for more than 12 years, today’s postponement of a scheduled judgement is a devastating setback for the survivors who have courageously advocated for their rights,” Physicians for Human Rights (PHR) and partners said today.
“This frustrating delay prolongs the survivors’ fight for justice – and they have already fought for more than 17 years after the 2007-2008 post-election sexual violence,” said Suzanne Kidenda, acting head of office at PHR Kenya, one of the co-petitioner organizations in the case. “We hope this delay signals that the court is taking time to carefully consider the case. However, it also reinforces the many barriers survivors of sexual violence in Kenya face in accessing timely justice, redress, and healing.”
“With this delay, we are deeply concerned the case could be dragged into the next presidential election in Kenya in 2027. By enabling impunity for past election-related sexual violence, the court only increases the risk of further violence,” said Kidenda.
Civil Appeal No. E645 of 2021 was brought to the Court of Appeal in Nairobi by four survivors of election-related sexual violence during the 2007-2008 post-election violence in Kenya. At the trial level, the High Court in Nairobi determined that the state was responsible to provide redress to survivors who were violated by state security forces as well as those survivors who had reported to the police but where the police failed to investigate. However, the High Court found the state was not responsible to provide redress for the assaults endured by survivors where the perpetrators were non-state actors and where the survivors were not able to report the crimes to the police. Today’s scheduled judgment was intended to address whether the state has the responsibility to protect and provide redress to these survivors as well.
Even for the four survivors who won at the High Court, justice remains incomplete: four years later, the Government of Kenya has yet to fulfil the court-ordered compensation. This prolonged delay raises concern about a broader pattern of inaction that could signal systemic challenges in securing timely redress for survivors of sexual violence – both within the justice system and among state actors.
The Court of Appeal will notify the parties as soon as the Judgment is ready; however, no specific date has been set at this time.
Violence ripped through Kenya in the wake of the 2007 presidential elections, claiming more than 1,100 lives. Thousands more women, men, and children were raped or suffered other horrific forms sexual violence and brutality. Civil Appeal No. E645 of 2021 before the Court of Appeal, in Nairobi sought reparations for survivors of post-election violence, emphasizing the Government of Kenya’s failure to uphold its constitutional and international obligations to prevent, investigate, and prosecute acts of sexual violence, and to provide comprehensive redress The case was initiated on February 20, 2013, when six female and two male survivors filed a petition in the High Court in Nairobi, along with four non-governmental organizations – the Coalition on Violence against Women, Physicians for Human Rights, the International Commission of Jurists-Kenya (ICJ-K), and the Independent Medico-Legal Unit, which joined the suit as co-petitioners in the interest of the general public. The petition sought not only individual compensation, but also structural reforms to address the systemic impunity for sexual and gender-based violence in Kenya.
“After more than 17 years of waiting since the 2007-2008 post-election violence, today’s delay is an affront to our rights and a threat to our healing,” said Jane*, one of the survivor-petitioners in the case whose identity has been shielded for her protection. “Too much is at stake for further delays, both to us four survivors as well as to future survivors of sexual violence in Kenya. Each election cycle brings fresh reminders of the trauma we suffered; the court must act before the 2027 election. The Government of Kenya has an obligation to prevent sexual violence and to safeguard those who do experience such harms.”
“The long wait for this judgment has only deepened the pain for survivors of SGBV,” said Martin Mavenjina, Kenya Human Rights Commission (KHRC) Senior Program Advisor, Transitional Justice. “Every day without a verdict has felt like being trapped in a moment they’re trying so hard to move past. Instead of offering relief or protection, the justice system, which should have been a source of support, has become another burden to bear. We urge the judiciary to prioritize this important matter.”
“We urge the Judiciary of Kenya to be sensitive to the plight of survivors, where a single day’s delay is one too many,” said Grace Wangechi of Independent Medico-Legal Unit (IMLU). “The survivors remain patient and hopeful that justice will prevail – sooner rather than later. They continue to trust that the Kenyan judiciary will ultimately uphold their rights and set a meaningful precedent for accountability.”
“Survivors have carried this burden long enough. It is time the nation stands with them. Justice must not only be done. It must be seen. And it must be felt, urgently, fully, and without compromise,” said Tina Alai, Utu Wetu Trust.
Background
Constitutional Petition No. 122 seeks to hold the Kenyan government accountable for the failure to conduct adequate investigations or prosecutions of sexual violence in the 2007 post-election period. Violence ripped through Kenya in the wake of the 2007 presidential elections, claiming more than 1,100 lives. Thousands more women, men, and children were raped or suffered other horrific forms sexual violence and brutality. Despite these abuses, there has been no accountability for these crimes, and, today, countless Kenyan survivors continue to live with severe physical and psychological consequences of the violence they endured.
This court case, however, aimed to finally secure justice for the survivors. This high-profile litigation – officially known as Constitutional Petition No. 122 of 2013 when it came before the High Court in Nairobi and now Civil Appeal No. E645 of 2021 before the Court of Appeal – seeks reparations for survivors of post-election violence for the failure of the Government of Kenya to fulfill its state responsibility to provide meaningful investigations. The case was initiated on February 20, 2013, when six female and two male survivors filed a petition in the High Court in Nairobi, along with four non-governmental organizations – the Coalition on Violence against Women, Physicians for Human Rights, the International Commission of Jurists-Kenya (ICJ-K), and the Independent Medico-Legal Unit, which joined the suit as co-petitioners in the interest of the general public. As the first of its kind after the 2007-08 election violence in Kenya, this closely watched case has the potential to spur policy reforms that would improve the prevention of and medical-legal response to sexual violence, including better care for survivors and forensic documentation to support justice and reparations.
After years of delay, on December 10, 2020, in a landmark judgement, the High Court in Nairobi ruled in favor of four survivor-petitioners of post-election sexual violence in Kenya. In Constitutional Petition No. 122 of 2013, the Court found that the Government of Kenya was responsible for a “failure to conduct independent and effective investigations and prosecutions of SGBV [sexual and gender-based violence]-related crimes during the post-election violence.” The decision was marred by the fact that the court recognized the harms endured by only four out of the eight survivor-petitioners – because these survivors had been either sexually assaulted by state security forces or had reported to the police but the police had failed to investigate. Notably, these four survivors who did succeed at trial were each awarded compensation of KES 4 million “for the violation of their constitutional rights.” However, the government has still not issued these awards.
In 2021, one year after the trial judgment, a group of four survivors of 2007-2008 election-related sexual violence in Kenya and civil society organizations filed a partial appeal, asserting that a High Court decision delivered on December 10, 2020 failed to recognize the Government of Kenya’s responsibility to survivors previously denied redress for the state’s failure to protect them from sexual violence perpetrated by non-state actors.
Signed by:
- Coalition on Violence against Women (COVAW)
- Constitution and Reform Education Consortium (CRECO)
- Independent Medico-Legal Unit (IMLU)
- International Commission of Jurists – Kenya (ICJ-K)
- Kenya Human Rights Commission (KHRC)
- Kenya National Commission on Human Rights (KNCHR)
- Physicians for Human Rights (PHR)
- Utu Wetu Trust (UWT)
Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.