Kenyans are currently awaiting a decision by the International Criminal Court (ICC) on whether or not the trial in The Hague against President Uhuru Kenyatta will proceed. The Kenyatta case has garnered significant attention because the defendant is a sitting head of state. However, the case is also noteworthy because it represents the only major effort to investigate and initiate prosecution of sexual violence committed against women, men, and children during Kenya’s 2007–2008 post-election violence (PEV).
While the ICC’s case against President Kenyatta has received much attention, many Kenyans will be focusing on remarkable public interest litigation unfolding in their own High Court in Nairobi next week. Despite enormous risk, eight courageous survivors broke their silence and demanded action from the government of Kenya, filing a petition in February 2013 against the attorney general, the director of public prosecutions, and members of the police and public health authorities. In addition to the eight survivors (six women and two men) who suffered sexual violence during this period, the petitioners include Physicians for Human Rights, Coalition on Violence Against Women (COVAW), the International Commission of Jurists (ICJ-Kenya), and Independent Medical-Legal Unit (IMLU).
The petition demands that it is the government’s responsibility to protect civilians against sexual violence and ensure credible police investigations and prosecutions of these crimes. The petition is premised on the notion that the primary responsibility to protect citizens and provide redress when rights are violated lies with each sovereign state. In this instance, the government of Kenya bears legal responsibility entrenched in the county’s constitution and international and regional human rights treaties adopted by Kenya to enact and enforce laws, establish effective complaint mechanisms, and support competent tribunals that prohibit and sanction sexual violence. Further, the government is obligated to promptly and impartially investigate, prosecute, and punish alleged perpetrators of sexual violence, and provide adequate compensation to victims of these crimes. Moreover, whenever such violence occurs, the government must ensure that survivors have adequate access to medical services and psychological care.
After a year of postponements and deferrals, a hearing of the petition is finally scheduled to take place in the High Court of Kenya on Tuesday, March 25, 2014, during which the eight survivors will assert their rights and have an opportunity to hold the government to account. Their testimonies will reveal that the government failed not only to train and prepare law enforcement officials to protect civilians from sexual violence, but also denied survivors emergency medical services following the violations. Furthermore, even as the director of public prosecutions insists that there is no evidence to prosecute PEV cases, the survivors will demonstrate that the police refused to document their claims and that the government’s continued inaction represents persistent and willful neglect to codify effective measures to investigate and prosecute the perpetrators. The survivors will also argue that the government has failed to provide comprehensive reparations.
The eight petitioners, of course, are not the only survivors of the widespread and brutal acts of sexual violence perpetrated during the PEV. They are representative of more than 900 other victims, whose testimonies and reports were submitted to the Commission of Inquiry into the Post-Election Violence (CIPEV) in 2008, detailing gruesome incidents of individual and gang rape, defilement, forced circumcision, sodomy, and other forms of sexual brutality. These violations resulted in severe physical injuries and detrimental psychological and socio-economic effects, among other serious health complications, that many survivors have borne over the last six years. As both international legal principles and Kenya’s constitution mandate, the state has the responsibility to comprehensively punish the perpetrators of these violations and provide redress to survivors. This case provides the government of Kenya with the chance to finally articulate its political will and commitment to meaningfully addressing PEV crimes and combatting sexual violence, particularly against vulnerable groups such as women and children who are consistently disproportionately affected by this vice. Let’s hope the government of Kenya does not miss this historic opportunity.