Survivors of 2007-2008 election-related sexual violence (ERSV) will have their first day in court since 2020, as they appeal a judgement that denied relief for four of the eight survivor-petitioners who experienced ERSV perpetrated by non-state actors
WHAT: Hearing for Civil Appeal No. E645 of 2021: Coalition of Women Against Violence vs. the Attorney General of the Republic of Kenya
WHEN: Tuesday, 4 February at 9 a.m. Nairobi
WHERE: Court of Appeal, Supreme Court Building, Nairobi, Kenya (hearing will be live-streamed; link forthcoming)
WHY:
“Nearly 17 years after the post-election sexual violence and after 12 years of legal challenges, on Tuesday the Court of Appeal has the opportunity to finally provide the relief and redress to courageous survivors of sexual violence who have fought for so long,” said Suzanne Kidenda, Physicians for Human Rights (PHR) acting head of office, Kenya.
“The world is watching – this is an opportunity for the Kenyan Court of Appeal to do the right thing and stand up against sexual violence in a visible way,” said Kidenda. “Kenya is facing a gender-based violence crisis that is making headlines globally. This case marks a pivotal moment to affirm that the Government of Kenya has a duty of care to protect the public, perpetrators of sexual violence will be investigated and prosecuted, and survivors have a right to access to reparations and remedy. We prevail upon the court to affirm that investigation and accountability for sexual violence is a constitutional obligation – and that the Government of Kenya cannot turn a blind eye to instances of sexual violence that have been widely documented simply because the perpetrators did not have a connection to the state or because survivors faced barriers to reporting in the moments after unrest.”
PHR experts and other co-petitioners in the case are available for interview.
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 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, Tuesday’s hearing marks a critical step forward. The hearing should result in the Court of Appeal setting a judgement date for the appeal.
###
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.