NAIROBI — A group of survivors of 2007-2008 election-related sexual violence in Kenya and civil society organizations today filed a partial appeal at the Court of Appeal at Nairobi, 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.
The appellants also seek to hold the state accountable for failing to prevent or respond to post-election sexual violence perpetrated by ethnic militias and civilians – a risk of violence that was widely anticipated.
“Partial justice is an injustice,” said Naitore Nyamu-Mathenge, LLM, MA, Kenya head of office at Physicians for Human Rights, one of the co-petitioner organizations that filed the appeal. “While it was a milestone victory for survivors of sexual violence, we find that the High Court’s original ruling did not go nearly far enough to recognize the trauma experienced by four of the eight survivors, as well as the Government of Kenya’s legal obligation to prevent and respond to post-election sexual violence. It is no surprise that some survivors of the post-election sexual violence did not report to police, as some police were perpetrating the sexual violence themselves. And even when these heinous crimes are committed by militias or civilians, the state is still obligated to prevent, protect, investigate, and provide redress.”
In a landmark judgement in December 2020, the High Court in Nairobi ruled in favor of four of eight petitioners who are survivors of post-election sexual violence in Kenya. In Constitutional Petition No. 122 of 2013, the Court found that, in those instances where state security officials sexually violated the survivor-petitioners or where a survivor-petitioner reported their case to the police and the police then failed to act, 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 four successful survivor-petitioners in the case were each awarded compensation of KES 4 million (approximately USD 35,000) “for the violation of their constitutional rights.” However, the compensation has not yet been delivered.
In the partial appeal filed today, the appellants urged the Court of Appeal at Nairobi to reconsider the state’s responsibility for its failure to ensure accountability for violations experienced by the remaining four survivor-petitioners and to award appropriate remedies.
The appellants assert that the High Court:
- Only considered state obligations to investigate sexual violence, failing to consider state obligations to prevent sexual violence or provide protection and reparation to survivors.
- Erred by only providing redress to the survivors who experienced SGBV perpetrated by a state actor (police or security forces).
- Failed to consider the many structural barriers that survivors of SGBV face in reporting their experiences, only ruling in favor of the survivor-petitioners who made reports to the police at the time.
- Failed to determine the state’s legal obligations to investigate and prosecute SGBV committed by non-state actors, such as the ethnic militia or civilians who perpetrated forced circumcisions and rapes during the 2007-2008 post-election violence.
- Failed to consider the state’s obligation to put measures in place to protect people from SGBV by third parties, and, when it occurs, to conduct prompt, credible, and thorough investigations and award reparations to survivors.
- Failed to consider the widespread and systematic nature of the post-election violence. The High Court could have ordered structural measures that could help lead to broader reparations for the thousands of other survivors of the 2007-2008 post-election violence.
- Failed to consider that Kenya’s Independent Policing Oversight Authority has failed to carry out any investigations into SGBV perpetrated by police officers during the post-election violence.
“We are approaching eight years since this case was filed and 14 years since the crimes occurred. Yet again, the survivors are showing their bravery, patience, and solidarity, as all eight have come together to file this appeal and seek justice together. We honor them and hope that the Court of Appeal at Nairobi will do the same,” said Nyamu-Mathenge.
In the historic judgement in December 2020, the High Court in Nairobi found a “violation of the Kenyan state to investigate and prosecute violations of the rights to life, the prevention of torture, inhuman, and degrading treatment, and the security of person.”
Today, the eight survivor-petitioners (six women and two men) of the post-election sexual violence, alongside Physicians for Human Rights, the Coalition on Violence Against Women (COVAW), the Kenyan Section of the International Commission of Jurists (ICJ-Kenya), and the Independent Medico-Legal Unit (IMLU), filed a partial appeal in the Court of Appeal at Nairobi to pursue justice and accountability on behalf of the other four survivor-petitioners, whose violations were not recognized or offered compensation in the December 2020 judgement. The appellants contend that the Government of Kenya owed the survivors a duty of care of protection, as the risks of election-related violence were widely anticipated and known. These four survivor-petitioners were wrongly denied redress for the state’s failure to protect them from sexual violence perpetrated by non-state actors.
“With elections looming in 2022, the Government of Kenya has an opportunity and obligation to make amends for its past failures and to help prevent a repeat of the horrific post-election violence,” said Nyamu-Mathenge.
“The appeal means that all is not lost, that partners join in our pain to see justice served and, further, that the agenda was not an end in itself, but a means to an end — that end being reparations,” said Jaqueline Mutere, founder of the Grace Agenda and a sexual violence survivor. “It also means that there will be visibility of sexual violence, which is often put on the back burner during transitional justice and it be a lesson to all those perpetrating the same. It will also generate a discussion on survivor-centered approaches because justice means different things to different people.”
“There is an urgent need to end and deter atrocities and impunity for international crimes through justice and accountability, be it through domestic, regional, or international judicial mechanisms,” said Elsy C. Sainna, executive director of ICJ-Kenya, a co-petitioner. “ICJ-Kenya is appealing the High Court decision rendered in Petition 122 of 2013 as part of its long-standing commitment to support justice for victims of grave crimes, including the SGBV victims of the 2007/08 post-election violence.”
“Fairness and consideration of inclusivity are important tenets in the interpretation of how justice is perceived by survivors of SGBV and citizens in general,” said Wairimu Munyinyi-Wahome, executive director of COVAW, a co-petitioner. “By appealing, we hope to secure an outcome that factors in all the survivors of SGBV that are part of this petition and, by extension, the many others whose voices are yet to be heard.”
More information about Constitutional Petition No. 122 of 2013 is available here.
The scale of the sexual and gender-based violence (SGBV) perpetrated during the 2007-2008 post-election violence is not fully known, but the Kenyan Commission of Inquiry into Post-Election Violence (the Waki Commission) reported that it documented more than 900 cases of sexual violence committed during that period alone. Women and girls were subjected to rape, defilement (sexual assault of a minor), gang rape, forced pregnancy, and other forms of sexual and gender-based violence. Men and boys were subjected to sodomy, forced circumcision, and amputation of their penises, among other forms of SGBV.
Despite the fact that 13 years have passed since the events took place, only a handful of individuals have been convicted for crimes of sexual violence related to the post-election violence, and cases before the Constitutional Court have been marred by delays.
The limited number of convictions for sexual violence crimes mirrors the broader context, in which the Kenyan authorities have shown apathy and reluctance to initiate genuine, credible, independent, and effective measures to investigate, prosecute, and punish perpetrators of the post-election violence and provide meaningful reparations to victims.
Due to lack of cooperation from the Kenyan government and allegations of witness interference, the cases brought before the International Criminal Court (ICC) against Kenyan senior government officials, including the president and deputy president, were either withdrawn by the ICC prosecutor or terminated by the court and none has been determined on the merits.
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.