The Court of Appeal in Nairobi will deliver its judgment on Civil Appeal No. E645 of 2021, brought by four survivors of election-related sexual violence during the 2007-2008 post-election violence in Kenya. The four survivors were previously denied redress due to the High Court’s failure to recognize government’s responsibility to protect them from election-related sexual violence perpetrated by non-state actors, as well as survivors’ whose violence was perpetrated by state actors but who failed to report to the police. Friday’s judgment will determine whether the survivors will receive justice and if the Government of Kenya will be held accountable for failing to protect them and provide redress.
WHAT: Judgement for Civil Appeal No. E645 of 2021: Coalition of Women Against Violence vs. the Attorney General of the Republic of Kenya
WHEN: February, April 11, 2025 (time TBD)
WHERE: Court of Appeal, Supreme Court Building, Nairobi, Kenya (judgement will be delivered electronically and posted by Kenya Law, with petitioner-led press conference on Friday or Saturday)
WHY:
“After more than 17 years since the post-election sexual violence and 12 years of legal challenges, survivors will finally have a chance at justice this Friday,” said Suzanne Kidenda, Physicians for Human Rights (PHR) acting head of office, Kenya. “The stakes are sky-high not only for the four courageous survivor-petitioners in this case, but also for survivors across Kenya and globally. The judgement has the potential to set a powerful precedent for addressing state accountability in sexual and gender-based violence cases. The Government of Kenya must be held accountable for its clear failure to prevent, investigate, and prosecute sexual violence committed during political unrest in 2007-2008.”
“For us survivors, this judgement represents a long-awaited opportunity for justice after so many years of challenges both in court and in our personal lives,” said Jane*, one of the survivor-petitioners whose name has been changed to protect her identity. “It is an important moment that could recognize our suffering and affirm our rights. The Government failed to protect us during the election. A favorable ruling would acknowledge the difficulties we endured, provide an opportunity to heal, and a pathway for other survivors to be protected and supported in the future. This is even more important as Kenya approaches another election in two years and the risks of additional election-related violence remains high.”
“Kenya is facing a gender-based violence crisis that makes headlines around the world,” said Kidenda. “With this judgement, there is an opening for a critical legal precedent for sexual and gender-based violence cases. It would reinforce the principle that governments have a duty of care to prevent, investigate, and redress sexual violence, regardless of the perpetrator’s identity. It could pave the way for stronger national policies on sexual violence and contribute to the evolving standards of state responsibility in gender justice cases.”
“Beyond the court’s judgement Friday, the Government of Kenya should take immediate steps to prevent and respond to the epidemic of femicide and sexual violence in the country, including comprehensive support to survivors and accountability for perpetrators, said Kidenda. “Policy and practice reforms are urgently needed.”
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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.
An ongoing court case, however, aims 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 of 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 of 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.
After more than three years of delays, Friday’s judgement date will determine if the four survivor-petitioners are offered justice and accountability.
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.