Meeting the Survivors Behind the Cases

2016 Dionne Desbiens Esther-1By Esther Dionne Desbiens

My internship with Equality Effect & Ripples International in Meru, Kenya was amazing. I cannot believe how fast it went by. Kenya gave me a very warm karibu (welcome in Swahili), and for that I am very thankful.

On a gloomy day this July (one of the coolest months in Kenya), a coworker told the staff at Ripples International to “carry [our] own weather”. I thought this expression was such a nice reminder to be positive. While people at Ripples International did encourage each other to be positive, I did encounter a cultural difference here. In Canada, people would say I’m outgoing and friendly. However, at Ripples International, some of my colleagues said that my personality was like that of a cartoon character. I didn’t know if this was an insult or a compliment, but my Kenyan friend and colleague reassured me that it was a compliment! My personality was not the only thing that made me stand out in rural Kenya. Being a muzungu (person of European descent) did not go unnoticed. I would often be greeted with the word muzungu when running errands or just walking around. After learning some Swahili, I was able to respond to those greetings with sasa (how are you) to which people answered poa (good). This response sparked conversations as the people I interacted with realized that I was willing to learn more about their language and culture. Knowing some Swahili meant that I was no longer a stranger to Kenya, it showed that I was there to learn.

Now on to my work experience. This has been the most hands-on, field work focused and interactive legal experience. So much of my work as a legal intern for Equality Effect at Ripples International revolved around meeting police officers, magistrates, survivors and their guardians in many different settings. This internship had so much fieldwork, I really felt as though I was able to fully immerse myself not only in Kenyan culture, but also in the Kenyan criminal justice system. For example, on July 21st, Ashley and I spent less than one hour at the office. We started off the day at 7:00 talking about our internship in Kenya on the radio in Isiolo, we then conducted a guardian interview at the office, we then participated in a women’s support group meeting, and finally we ended our day at 18:00 in town to conduct another guardian interview. Continuously meeting passionate people wanting to contribute to the 160 Girls Project aiming to protect children from sexual abuse was truly inspiring.

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

I often found that while studying law, there is a disconnect between the judgments we read and the people’s stories behind these judgments. Studying for my extra-contractual law exam in first year, I found myself trying to memorize the case Bazley v Curry as if it was simply a case that I had to understand in order to do well on my exam. I stopped myself after a moment to think about this case which involved a Children’s Foundation employee sexually abusing children. What was I doing? I was simplifying this horrible story into a set of legal rules that I could use to answer the fact pattern on my exam. This moment of reflection made me aware of my lack of knowledge on the stories behind the decisions that I read for my law courses.

This internship has been a great way to fill the gap that I experienced in my law courses. As part of our police monitoring work, my colleagues and I closely followed around 40 cases by visiting police stations, contacting guardians and attending numerous court hearings. Not only did I know the case files of the survivors very well, but often, I interacted with the girls who lived at Tumaini Rescue Centre. I could piece the difficult stories we read in case files with the girls I spent time with at the shelter. While knowing the girls’ stories made my work difficult emotionally, interacting with the girls, and seeing how wonderful they are, really gave me hope that the support they receive from Equality Effect and Ripples International is bettering their lives.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

Ashley and I met with one of the girls after she was discharged from the shelter. We had gone to her step-father’s judgment hearing in Githongo Law Courts where he was convicted to life imprisonment for sexually abusing her. Talking with her was truly inspiring. She first said the following: “I’d like to thank Ripples. Going through the case wasn’t easy at first, but I overcame.” She told us that Ripples International’s counselling gave her the courage to testify. Ashley and I even bonded with her after she told us, “I dream to be a lawyer. I especially would like to help the girl child.” We talked about law school and encouraged her to keep working hard in school. It’s wonderful to see such a strong girl wanting to give back to other survivors of sexual abuse. I hope her dream of becoming a lawyer comes true because we need compassionate and caring lawyers to advocate for children’s rights.

  This picture was taken during our meeting with this brave survivor who wants to become a lawyer!


This picture was taken during our meeting with this brave survivor who wants to become a lawyer!

Our internship was challenging at times, but overall, the experience was incredibly rewarding on emotional, social and legal levels. However, in court, I did encounter some access to justice issues that organizations such as Ripples International and Equality Effect are trying to mitigate by providing legal support to survivors.

Delays

One big problem was delays in court. We would often go to court and matters were delayed for many reasons: the magistrate was not in, the accused was not in custody, the accused was in custody but was not brought to court, the hearing was rescheduled. These delays were incredibly frustrating, particularly because at Tumaini Centre rescuing the girls is usually temporary. Thus, girls are often discharged after they testify. When court hearings are delayed, this means that the survivor cannot testify, thus cannot be discharged, and therefore cannot go back to school. A magistrate was worried about the delays for one of the girl’s case as not going to school would go against the best interest of the child. In Kenya, the best interest of the child is a primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. [1] This is an interesting difference with Canada, where the best interest of the child is a main concept in family law, but not a general overarching concept in all actions involving children.

Cross-Examinations

Another occurrence which shocked me in court is that the accused in Kenya will often cross-examine the witnesses (including the victim), as most accused are not represented by a lawyer. While Legal Aid and Pro-Bono programs are in place in Kenya, most are not yet operational. Our coworker in the Access to Justice Department noted that in theory, Kenya has great laws, but that in practice, it’s often a different story. I attended two victim testimony hearings during my three months in Kenya, and both times the accused cross-examined the victim. One time, I was the only person sitting between the victim and the accused. I felt like a buffer, but not a sufficient buffer to prevent further harm to the victim. This is an access to justice issue on two different levels. First, the accused person is disadvantaged because he/she does not know the procedural and evidentiary rules. Second, this impedes on the survivor’s emotional access to justice as being cross-examined by your perpetrator is a form of re-victimization. In Canada, it is very rare for an unrepresented accused to cross-examine the victim in a criminal case because of applications made by prosecutors under section 486.3 of the Criminal Code to appoint counsel for cross-examinations. This reality in Kenyan criminal law courts demonstrates a need for the implementation of testimonial aids.

Finally, awareness campaigns are really important to make sure the laws to protect children—the Sexual Offences Act, the Children Act, the Kenyan Constitution—are fully implemented. I ended my enriching internship on a very positive note. I helped the 160 Girls social worker, Cornelius, facilitate a “Girls for Justice” Public Legal Education session in a primary school. The children asked very thoughtful questions and were eager to participate when we taught them the 160 Girls anthem “Say No”.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

I will never forget this internship, and I hope to come back to Kenya one day. Until then, asante sana (thank you very much) for this beautiful experience and tutaonana (goodbye and see you again) Kenya.

Beautiful Kenya.

Beautiful Kenya.

[1] Children Act, The Republic of Kenya, Revised Edition 2012 [2010], Chapter 141, s 4(2).

Working Together à la Harambee to Protect and Promote Girls’ Rights in Kenya

By Esther Dionne Desbiens

I am doing my human rights internship with Equality Effect, a Canadian organisation that has developed a strong partnership with Ripples International, a local grass-root organisation in Meru, Kenya.

My stay in Meru has been great so far. I have been picking up some Swahili – Habari ya ko? [1] – as well as enjoying the fresh fruit and vegetables, wild life sightings, lush trees, blooming flowers and the mountains that surround the city.

1. Meru Town Market

Meru Town Market

Meru

Meru

I am assigned to the 160 Girls Project, bringing Ripples International and Equality Effect together to tackle defilement (consensual or non-consensual sex with a child under 18 or child rape) of girls and ensure proper police treatment of defilement cases. To do so, Equality Effect not only keeps track of police treatment, they also provide training to police officers, organize community awareness campaigns and facilitate public legal education seminars. As a legal intern, I help monitor police treatment of defilement cases by contacting police stations, attending court to track the progress of defilement cases and updating the survivors’ files. I also help facilitate public legal education seminars, raise awareness at events and conduct complainant’s evaluation of police treatment of defilement cases.

I have attended hearings in multiple courts so far. I have been to Meru Law Courts, Tigania Law Courts, Githongo Law Courts and Maua Law Courts. In every court room, you can find the Kenyan coat of arms above the Magistrate’s chair (pictured below). I noticed that the word Harambee is part of the Kenyan coat of arms. Ashley Boggild, my colleague from the University of Toronto, and I asked our colleague, who is an incredible social worker at Ripples International, what it meant. He answered that Harambee symbolizes togetherness. After doing some research, I found that it is a philosophy developed by the first President of the independent Republic of Kenya, Jomo Kenyatta. Some describe the word as meaning “pulling together” and “invok[ing] the spirit of self-help amongst Kenyans”. [2] What a great word to discover on our first few days of work with Ripples International and Equality Effect here in Kenya! The idea of togetherness really resonated with me as working collaboratively is necessary to tackle such an important human rights issue and protect the rights of the most vulnerable human beings in our society.

Kenyan Coat of Arms

Kenyan Coat of Arms

4. Maua Law Courts

At Maua Law Courts. From left to right: Muthomi Thiankolu (Equality Effect Human Rights Lawyer), myself, Benson Mzizi, Ashley Boggild, and Gilbert Cheptinde (Ripples International Social Worker).

The word Harambee perfectly reflects the work being cooperatively accomplished by Ripples International and Equality Effect in the Meru region. Ripples International’s motto is “Saving Lives, Serving Children”. They run a school, an orphanage (Newstart Babies Rescue Home), an access to justice program, a community outreach program and a shelter (Brenda Boone Tumaini Home) for young girls’ survivors of physical, sexual and/or psychological violence. While at the shelter and in the community, Ripples International social workers and counselors offer the survivors assistance (medical, legal, social) and counselling. Many survivors stay at the shelter while their cases are proceeding in court. I am so happy to see such a strong local organisation offering these survivors a safe haven in Meru.

A National Survey conducted in 2010 by UNICEF found that one in three Kenyan girls under the age of eighteen experience sexual violence. [3] At the request of Ripples International, Equality Effect joined forces with Ripples International in order to tackle impunity in cases of defilement through the 160 Girls Project in Kenya and address this prevalent issue. Together they instigated a constitutional claim in 2012 at the High Court of Meru against the Kenyan government and the Kenyan Police Service regarding police treatment in cases of defilement and they won. The High Court of Meru found that

police unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints. That failure caused grave harm to the petitioners and also created a climate of impunity for defilement as perpetrators were let free. [4]

The decision is known as the 160 Girls Decision since Ripples International had sheltered 160 girls, survivors of defilement, at their rescue center when the project began. The project we were tasked to work on, the 160 Girls Project, is the implementation of this very important decision.

While the 160 Girls Decision is a step in the right direction, it does not mean that the road to real change is going to be easy. Addressing defilement and child abuse is something that every society struggles with, from Canada to Kenya. So many forces –social, economic, cultural, religious, legal, etc. –   are at play when it comes to sexual violence against girls. Therefore, to make waves of change, Ripples International along with Equality Effect staff work together and adopt a multifaceted approach to tackle this epidemic of violence against girls in Kenya.

On June 7th 2016, Ashley and I attended the judgment hearing for a step-father accused of defiling his two step-daughters, both under the age of ten at the time of the offense. The two girls were staying at the shelter during the proceedings. The accused was found guilty on two counts of defilement and he was convicted to life imprisonment. This conviction was somewhat of a “happy ending” to a difficult story of abuse. Now we know that these two young girls will be a little bit safer when they leave the shelter as their perpetrator will be behind bars. However, defilement cases, even when they reach a conviction, are never really won by anyone because a successful criminal case does not undo the mental, physical and emotional trauma of defilement and prison time does not guarantee that the perpetrator will be rehabilitated.

The goal is to eradicate violence against girls, but in the meantime, strong legal support is necessary to make sure existing laws protecting girls’ rights are enforced. Hence, convictions are just one part of the puzzle. By piecing together all the different ways to address violence against girls – e.g. legal assistance, social work, education, awareness raising, community outreach and access to justice – we can truly bring about change in society.

Photo taken at a Public Legal Education Seminar for Community Leaders on the 160 Girls Project in Maua, where the members of the group pledged to raise awareness on girls’ rights in their respective communities.

Photo taken at a Public Legal Education Seminar for Community Leaders on the 160 Girls Project in Maua, where the members of the group pledged to raise awareness on girls’ rights in their respective communities.

Ashley and I talking about the 160 Girls Project on the Day of the African Child, June 16th 2016, on the radio in Isiolo.

Ashley and I talking about the 160 Girls Project on the Day of the African Child, June 16th 2016, on the radio in Isiolo.

Finally, we should never give up on fighting -peacefully- for human rights. Seeing the girls at the shelter smile, dance and play together gives me hope for the future. It also puts a face on the epidemic of violence against girls that we must work together, à la Harambee, to eradicate. We must keep the momentum going as the legal and societal consequences of the 160 Girls Decision just keep growing. I believe that by joining forces to tackle serious issues such as defilement, real change can happen. However, patience is key, as waves of change are formed one ripple at a time.

To find out more about the 160 Girls Project: http://theequalityeffect.org/160-girls/

Great video on the 160 Girls Project by The Equality Effect on YouTube: https://www.youtube.com/watch?v=zBR5lBmR5lI

[1] How are you in Swahili.

[2] A.V. Noreh, “Harambee in Kenya: A Bibliography” (1988) University of Nairobi Library at p.1.

[3] Violence against Children in Kenya: Findings from a 2010 National Survey. Nairobi, Kenya: UNICEF Kenya Country Office, Division of Violence Prevention, National Center for Injury Prevention and Control, U.S. Centers for Disease Control and Prevention, and the Kenya National Bureau of Statistics, 2012.

[4] K. (A Child) through Ripples International as her guardian and Next Friend) & 11 others v. Commissioner of Police/Inspector General of the National Police Service & 3 others [2013] eKLR High Court at Meru, May 27th, 2013; Available online: http://theequalityeffect.org/160girlshighcourt2013.html at p.6.

Terrorism, Ethnic Divisions and a National Day of Protests

2014-ODell-AnnieAnnie O’Dell

It’s now week 6 in Meru, Kenya. Since we have arrived, Kenya has made the international news on several occasions.

  • May 3, 2014: two bombings in Mombasa.
  • May 4, 2014: two buses bombed in Nairobi, four killed.
  • May 10, 2014: I arrived in Nairobi.
  • May 15, 2014: travel advisories for most Western countries increased to include a high threat of terrorism. British nationals are evacuated from Mombasa and the coast.
  • May 16, 2014: a bombing in a market in Nairobi killing 12, wounding 70.
  • June 10, 2014: a Muslim cleric was shot in Mombasa, followed by more clerics killed and some rioting.
  • June 15, 2014: 48 people killed in a small town on the coast and near the border of Somalia, only non-Muslim men were targeted, though apparently 12 women were abducted.
  • June 16, 2014: near the town attacked the day before, ten more killed while watching the World Cup.

This follows a history that includes the Westgate mall shooting (killing 74) only last September. It also includes an attack on the international airport in Nairobi in January. As well as many other smaller-scale attacks that I did not bother listing above because they happened more than a week before my arrival.

In 2011, Kenyan troops entered Somalia. This move has increased terror attacks by the terrorist group linked to Al-Qaeda, Al-Shabaab.

However, the situation is more complex than Somali terrorism. Last year, President Kenyatta (racially a Kikuyu) won a much-disputed election against Prime Minister Odinga (who is Luo). Odinga claimed the elections were rigged, but the Supreme Court disagreed. The election results caused riots but pales in comparison to the violence that erupted after the elections in 2007. President Kenyatta has been charged by the ICC for inciting and financing parts of that 2007 violence.

Odinga, is currently calling for a day of protests on July 7th, the Saba Saba day. Saba Saba (meaning “seven seven”) is the anniversary of a revolution overthrowing an apparent dictatorship in 1990. This day is expected to be filled with riots and roadblocks.

Al-Shabaab has apparently taken responsibility for the two most recent attacks. But the President is claiming they are part of a political ploy to divide the country among the ethnic lines of Kikuyu and Luo. This conflict is increasing tension and distrust among the population, particularly those near the Somali border who are now arming themselves.

Where we are stationed has never been affected by any violence, terrorist or political. The violence and upsets are not affecting our work in the region but it is affecting our ability to travel on weekends and our parents’ sense of security. We booked a trip to Nairobi this weekend. We haven’t had running water for four weeks now, and this is practically our only opportunity to bathe. We are also looking forward to some Western comforts, such as burgers and movie theatres. But now, though Nairobi hasn’t been attacked in a few weeks, we have had to seriously evaluate whether we should cancel our trip. It’s kind of an odd feeling to weigh options like showering and burgers against the relatively remote, but not unlikely, threat of terrorism.

Kenyan Courthouses: Handwriting, Missing Witnesses and Wrong Numbers

2014-ODell-AnnieAnnie O’Dell

This is my fourth week in Kenya for my internship with the Equality Effect. I am working in Meru, with a student from the University of Toronto. We have been placed with a partner organization, who does almost everything. It has an orphanage, a health clinic, it provides micro-loans, there’s a school, and most importantly, a rescue centre. The rescue centre currently houses about 25 children, most of whom have been defiled (sexual assault of a minor). They offer them counselling, legal support, medical support, and aid during the transition into motherhood for the girls who become pregnant. Only those girls who either have nowhere to go or are in danger within the community are admitted, others are treated at home.

 Our job is to comb through the files since the 160 Girls decision was made last year to document how police treatment has changed, if at all. The decision clearly stated that the police must diligently fulfil their obligations to all children who bring a complaint of defilement to them. The belief is that, as Meru was ground zero for 160 Girls, the police here are the most likely to be compliant (the decision was binding across the country).

The most interesting part of our job is going to court. We’ve so far seen been to two trials… sort of. The Kenyan legal system is slow and delays happen regularly, mostly for reasons that would not fly in Canada.

Our first court date was at the courthouse in the city. Most of the Courthouse is outdoors, while the courtrooms are indoors. We checked a typed list posted on a notice board to see in what order our case would come. It was supposed to be a mention for an elderly man who had allegedly defiled a girl of 14. (I’m still not entirely certain what a mention is, but in this case, it meant the accused had a chance to accept or deny the evidence placed against him). We waited outdoors, on three long benches under a corrugated roof, for the accused’s name to be called. We sat at one end of the bench with the social worker and the mother of the victim. At the other end of the bench, probably no more than 20 metres away, awaited the accused who was out on bail. While I am not so familiar with Canadian courthouses, I was upset by the casual nearness the accused and the victim were expected to endure. Particularly in such a sensitive case.

Eventually, the accused’s name was called and we followed him into a magistrate’s chambers. The Courts are undergoing a transition, and the magistrates are currently hearing cases in their chambers. The room was barely big enough for the magistrate’s large desk, a desk for a bailiff/secretary, a bench crowded with the accused and his lawyer, and us four standing partially out in the hallway. Kenyans are very soft-spoken people, so I unfortunately did not hear anything. But we were in out and out of that room within a few minutes.

Apparently, a new magistrate was assigned to the case. When this happens, the accused is asked if he wished to re-start the trial or continue. I am unsure what the accused chose, but I believe he did choose to continue. The mention never came though, because the case notes were not typed. The magistrate then adjourned for another month or so, even though the case has been on-going for over a year already. This sort of delay is a frequent occurrence.

Another, even more frequent type of delay, is the absence of witnesses at trial. The second day we spent at a different courthouse. Once again, we checked for our accused’s name on a bulletin board and saw that it would take place in Courtroom 1. We waited for the courtroom to open (about an hour later than it was supposed to) and entered. We, and many others, squeezed into a tiny courtroom on three very uncomfortable wooden benches. A female magistrate eventually walked in. They called one accused at a time to begin their mention or hearing. While it took place in Kiswahili, it was easy to understand that many witnesses and some accused were missing. It was finally our accused’s turn. He was accused of defiling his tutee, his defence was that he thought she was over 18. He stood up. Some questions were asked in Kiswahili. One name was called. Silence. Another name called. More silence. Neither the doctor nor the police appeared to testify. Case adjourned for another month.

We then headed to the police station to enquire why the officer never showed up. We waited on the compound for over an hour to get an answer. The officer was back in the city (about 90 minutes away). But the officer who was helping us went above and beyond. He dug through handwritten files to discover we had with us the wrong court file number. He found us the right one (one digit off). That case has been closed for several months. The accused had been sentenced to 15 years imprisonment! Great news! Though we still have no idea whose trial we witnessed…

The Precariousness of academics in Malawi and adventures in legal research

2013 Silvia Neagu 100x150By Silvia Neagu

Muli Bwanji ! Greetings from Malawi!

I’ve been in Malawi for over a month now.  My host organization, the equality effect, is a Toronto-based organization which uses the law to enforce the rights of African women and girls. The organization is starting a new project in Malawi, focusing on the legal treatment of defilement, the legal term for rape of girl children. The organization sent a University of Toronto intern and I to the University of Malawi in Zomba for the first half of our internship.  Zomba was previously the capital city under Malawi’s first president, but is now best described as simply a “big village”.  It is now surpassed in size and importance by the capital, Lilongwe, and the business capital, Blantyre. The town is overlooked by the mountainous area of the Zomba plateau, which makes the town breathtakingly beautiful.

Background on Malawi

In case you do not know much about Malawi, here are some quick facts about “the warm heart of Africa”: the landlocked country sits at the crossroads between East Africa and Southern Africa and was formerly a British protectorate called “Nyasaland.” The country became independent in 1964, and elected its first president, Hastings Banda, whose dictatorial “one-party” reign endured until 1994. Malawi is one of the poorest and least developed countries in the world.  As one of the professors we met observed, “this country is run by development agencies.”

65% of Malawi’s population lives on less than 1$ a day. To put things in perspective, the head waiter at my hostel told me it took him 5 years to find his current job after being let go from a job at a bank.  The prevalence of HIV in Malawi is among the world’s highest ; 11% of the population currently lives with HIV. Malawi’s population is also very young ; 58.8% of the population is 19 and under.[1]

Working at “Chanco” during a sit-in

Our supervisor, Professor Ngeyi Kanyongolo, a legal expert in women’s rights  in Malawi, wanted us to come to Chancellor College (“Chanco”) in order to interact with students and attend some classes. Unfortunately, for the first three weeks of our stay the students were on “sit-in” (strike).  The university was pretty deserted, although we were lucky to meet some of Dr. Kanyongolo’s research assistants, who were extremely helpful in introducing us to the university and Zomba. As we soon discovered, it is not uncommon for students’ academic year to be disrupted in Malawi. When we asked students when their academic year usually begins and ends, they gave us varying dates and said it depended on the dates announced by the government.

The accounts we were given of the “sit in” were, perhaps, a good introduction to the situation of political rights in Malawi, particularly when financial aspects are at play. The students were demanding higher allowances from the government. When the sit-in was announced, the government decided to close the school, giving students only 8 hours to vacate the university (including those living in the university residences). After several weeks, the government gave the students the “choice” of returning to school if they signed a form stating that they “agreed” to the previous conditions. As any student in the world can imagine, being given the “choice” to finish a degree that you’ve almost completed is not much of a choice at all.

We were also informed that the university professors also recently protested, demanding academic freedom, after a professor’s comments in class led to him being summoned by the Inspector General for questioning. The professor had compared the precursor events of the “Arab Spring” to the fuel shortage in Malawi at the time, during a political science class. So, one of my first lessons at Chanco was that when a university is entirely government sponsored, students’ education is easily disrupted, and professors’ ability to speak their minds can be extremely fragile.

Entrance to Chanco

Banner proclaiming Academic Freedom at the entrance to Chanco

Adventures in legal research in Malawi

Doing legal research in Malawi definitely falls under the category of “Things they never teach you in law school.” Firstly, power outages can happen at any time of day and their frequency and duration are completely random. During our first week in Zomba we experienced power outages nearly every day (sometimes for almost the entire day).  In the past couple of weeks, we have been lucky to only have one or two a week. I have learned to ensure that my computer is well-charged.

Secondly, the availability and reliability of internet imposes another challenge. We are lucky that the law faculty has wifi (restricted to staff use only), but it is often slow and does not work during a power outage. We also bought “dongles” – portable internet modems- but these also often had signal problems and limit the amount of downloading/uploading you can do. Therefore, we often save our downloading and uploading for the days when the university wifi is functioning well.

Thirdly, Malawian jurisprudence is extremely hard to locate. While there is a “MalawiLii”, it currently has very few cases. There is no search engine that allows you to search for the leading cases on specific topics. Students tell us that they rely on their course reading lists and photocopies of cases passed down from upper-years to learn the main cases in a specific area of the law. My co-intern and I therefore have been relying on secondary sources to point us to some of the leading cases. We are also lucky that Edge Kanyongolo, the Malawian constitutional expert, had an office steps from us and was helpful in pointing us in the right direction.  Another challenge is that, once we do locate a case, the judge’s reasoning is often very fact-specific and lacks in critical analysis of the rights at play. This makes it difficult to anticipate how a court would interpret a right in a novel factual context.

Lastly, a large number of cases in Malawi are unreported, leaving the current realities of the Malawi justice system largely outside our reach.  For instance, all defilement cases are decided at the magistrate court level (lowest level of courts), where cases are not reported. Because the Department of Public Prosecutions essentially never appeals decisions from the magistrate courts, many acquittals are not only inaccessible to legal researchers like us, but are also shielded from revision by other courts.

University greens

View from the law faculty at the University of Malawi’s Chancellor College

 


[1] “Malawi Demographic and Health Study, 2010”, Malawi National Statistics Office, 2011.

A few on-the-job lessons

2012-Priya-MorleyBy Shantha Priya Morley

I am writing this update from the ‘meeting room’ at our host organization, which has been transformed for the past two months into the interns’ ‘office’ (along with our evening and weekend offices – the one café in town with real coffee and our living room).  I am bundled in a woollen sweater, with leggings and socks under my black skirt; outside the office window, the view beyond the immediate foliage is obscured by mist and drizzling rain.

Lesson number one: July is winter in the Central Highlands, and Kenya gets cold!  While I was finishing the term in Montreal and preparing to spend my (Canadian) summer in Kenya, and despite the warnings of travel books and my wiser friends, I can’t say that I ever really believed that my in-case-of-emergency sweater would be as necessary as it has become.  However, having grown up on the West Coast of Canada, even in Kenya I’m always prepared for rain.  My weather realization is but one of many lessons learned over the past two months.

Although I attend court every week with and for the girls, I have to date had only one very “legal” meeting for which I thought my well-travelled suit would be necessary.  Early one morning, a few weeks into the internship, my co-worker and I received an unexpected call from the Nairobi-based lawyer leading our case.  He explained that he was in Meru (his home area) for a few days, and would like to meet up with “his law students”.  On Monday, we donned our suits, put on our best shoes, ensured we were altogether presentable, and met with the lawyer at a local café.  After he explained in more depth the assignment we had been given, he mentioned some legal briefs we should use as precedent.  We hopped into his car and headed out to his parents’ place to both see the briefs on his laptop and check out the house he is building near his parents’ property.  After driving on a few paved roads, and then a few more dirt roads, we arrived.  He took us to the unfinished house and walked right up the rickety ramp and inside onto the mud floor.  The dozen male builders stopped, stared, and then laughed outright at my co-intern and I following the lawyer through the house (with no roof or finished walls) and ducking through the doorways and under wires as he explained the floor-plan to us.  The lawyer, true to form, repeatedly warned us: “you are entering at your own risk; there is no insurance here!”

After we sufficiently amused the builders, he took us next door to his parents’ property.  Instead of going inside, we walked past the farmhands, past the chicken pen, and descended through the farm.  The lawyer trudged ahead, determined to show us his innovative water source, while my co-intern and I lifted up the hemlines of our skirts and folded up the sleeves of our blazers, trying our best to avoid the acacia bushes’ spear-like thorns.  After observing and complementing the farm and the water source, we ascended back to the house.  There we resumed our ‘legal meeting’ and looked through the necessary legal briefs, before heading back into town with a bagful of farm-fresh oranges.  When considering our attire, my co-intern and I have often referred back to this adventure and have erred on the side of expecting unpredictability.  Lesson number two: even legal meetings may not be strictly legal, and only wear blazers when absolutely necessary!

A couple of Saturdays ago, I had another experience which affirmed the unpredictability of much of my work here.  Arriving at work expecting a day of legal research and writing, my co-intern and I were informed that we could accompany the head social worker to the hospital to pick up one of the girls and her six-day-old baby.  We left the shelter and walked up the hill to meet the car.  As we passed one house, we heard a baby crying.  As this is well within the prerogative of babies, we were unfazed and kept walking.  The head social worker heard another sort of cry and, looking back, saw a young boy cowering on the ground with a grown man looming over him.  She stormed into the compound, with us in tow, and was joined by three male passers-by who also heard the boy crying.  The four of them interrogated the boy’s father about the physical abuse he was inflicting on his son, and the head social worker pulled the boy away and behind us for protection.

She proceeded to put the boy’s father to shame by fiercely explaining to him exactly how children are supposed to be treated and how terrible his actions were.  The mere presence of the three (large) men added emphasis to her words and enabled us to easily keep the boy to one side.  By a stroke of luck, the pick-up truck that was intended to take us to the hospital arrived.  The boy and the boy’s father, who was suitably ashamed of his own actions, entered the pick-up with us.  We drove into town and stopped to wait for another social worker to come and meet us.  While waiting, the boy’s father exclaimed over his cell-phone “I’ve been arrested!!!” (by the head social worker).  Indeed, when the other social worker arrived, he took the boy and his father to the police station, followed up on this incident of abuse by the father (and the much more serious pattern of abuse by the step-mother that was uncovered).  [The boy is currently staying with a family friend until he is sent to boarding school in his aunt’s village, and he is doing very well!]  After this exchange, we continued to the hospital and met the latest addition to the shelter’s family.  All in a day’s work, as they say.  The third lesson, exemplified by this incident, is quite obvious to anyone spending time in the shelter: there are always children in need of protection, and the social workers here are never off the clock.

While my co-intern and I have spent a substantial amount of time in court and completing our legal assignment, we have had many other adventures in the field.  I have gone with a social worker to a girl’s parent-teacher conference; have received fresh sugar cane and heard stories of the Kenyan independence movement from the grandfather of a defilement victim while on a home visit; and have acted as a sort of human protective shield for a girl while her large, aggressive, and unsupportive family attended her court hearing – to name a few.  These experiences have been informative, have complemented the legal work extremely well, and have ensured that my internship remains very busy, unpredictable, and fulfilling.  I look forward to seeing what the next month will bring!

Reflections on a Week in Meru, Kenya

By Shantha Priya Morley

After ten days in Kenya, it feels at once that I have been here for months and that I arrived yesterday. This is largely a product of the sensory overload that I have been experiencing since my arrival. After flying for two days across the world, I arrived in muggy Nairobi. Some hours later, after a quick sleep, the other Canadian intern and I met up with a social worker from my host organization and drove up to Meru, in the Central Highlands of Kenya.

The ride was somewhat exhilarating, as the driver was new to the road and to each of the numerous potholes that met our path – they were certainly successful in slowing us down, and it took quite a few hours longer than expected to reach Meru. Early the following morning, we started work.

My host organization’s initial focus was HIV-Aids, and one of the programs that is still ongoing is to ‘sponsor’ children living with HIV – paying for their food, health care, school fees, and education to ensure their basic needs are met. It has since expanded to meet the pervasive problem of girl child “defilement” (the term used for rape in the Kenyan Constitution).

My work for the Equality Effect is based out of the organization’s rescue shelter, where girls who have been defiled or abused are kept safe when there has been no action to arrest the perpetrator, when the court case is ongoing, and/or when the girls’ families are unwilling or unable to protect them from further harm.  It is a great experience to be working in close proximity with the girls and to already be going so frequently ‘into the field.’

One of my first tasks was accompanying a social worker to the Meru Court to observe and document a defilement trial. This visit made tangible the inadequacies of the Kenyan court and police systems and the resultant access to justice issues that I had read about in preparation for the internship.  Defilement cases – if they even make it to court – proceed over many months and in bits and pieces. One court date might be set with the purpose of hearing less than an hour’s statement from a witness or two, and the judge will set the next date weeks or months in the future.

When the girl testifies, the physical limitations of the courtroom can result in the perpetrator being just metres from where she is sitting as she speaks.  Even worse, because few have legal representation, the perpetrator has a right to cross-examine the girl himself. Finally, the prosecutors in Meru are all police officers and not lawyers, which begs questions not only of their capabilities but also of the impartiality of prosecution when police misconduct plays a role in any given case. Seemingly, when the perpetrator has a criminal defence lawyer, and the girl’s only advocate in the court is a police officer/prosecutor, the pre-existing power imbalance is unduly exacerbated.

These brief observations highlight how even when a “defiled” girl overcomes the many obstacles she faces bringing a claim – the great stigma attached to defilement; her family’s impoverishment, lack of resources, and isolation in rural areas; the trauma she experiences; and police indifference or complicity – she must overcome further obstacles in court. I look forward to sharing more details of my legal work here soon!


Police (in)action as an access to justice barrier for “defilement” victims

By Sasha Hart

None of the names used in this blog entry are the real names of the individuals.

After completing my placement at the TJRC in Nairobi, I started to do work more directly related to the Equality Effect’s “160 Girls Project.” This project is a test case litigation initiative aimed at holding the Kenyan government accountable for its failure to protect girl children from rape (which is referred to as “defilement” under Kenyan law). While Kenya has a solid Sexual Offences Act, the reality on the ground is that in many cases police officers fail to take these offences seriously and to conduct an adequate investigation. This lack of action results in far too many perpetrators going unpunished. The claimants in the ‘160 Girls’ litigation will argue that the constitutional rights of Kenyan girls are violated by this police failure.

My first assignment was to conduct research and write a legal memo on questions related to the submission of evidence in Kenyan human rights cases, particularly in constitutional cases and cases involving children. Another intern from the University of Toronto joined me for this part of the internship and we conducted the research together at the University of Nairobi’s law library. We also interviewed a brilliant constitutional lawyer in Nairobi who provided invaluable insights into how constitutional cases unfold in practice.

After conducting this research, we went to Meru (a town in Kenya’s Eastern Province) where we began working with staff of a shelter for girls who have been “defiled” (raped). The shelter provides psychosocial support, medical care, and legal advice/support to these girls. We shadowed the staff for 2 weeks in order to gain exposure to how the legal treatment of defilement works in practice. We made sure to keep detailed notes of our work and are currently compiling a report on the process of the legal treatment of defilement, highlighting any practices/procedures that may place defilement victims at a disadvantage in terms of their right to equal treatment under the law and their right to access to justice.

When Rachel’s case was referred to the shelter by the District Children’s Officer (DCO) of Maua, we accompanied one of the social workers to the DCO’s office in order to get more information about her case, as well as to meet with Rachel and assess whether she should be admitted to the shelter. Rachel is 13 years old.  She is now pregnant after having been raped by a police officer in her community. Despite the fact that Rachel has filed a report with the police, and that there is a written admission by the officer himself that he impregnated her, the police have laid no charges against him. Instead, there are efforts being made to have him transferred to another district.

Joyce, a 14-year-old girl, was raped by an elderly man in her neighbourhood while she was on her way to run an errand for her mother. As a result, she is now HIV positive. While the perpetrator has been charged, he was released on bail and is back in the community. We met with Joyce and her mother, who told us that they are doubtful there will be justice in Joyce’s case because the perpetrator is rich and can afford to bribe the police and prosecutor. Indeed, it is suspicious that only a charge of attempted rape has been laid and that the police have not had the man tested for HIV/AIDS, which would provide corroborating evidence for Joyce’s story.

We were working at the shelter one day when 6-year-old Margaret was admitted. Margaret was raped by her next-door neighbour and because he has not been arrested, the organization felt it was unsafe for her to continue living at home. Margaret has not been able to record a statement with police because of psychological trauma following her assault. As a result, the police have not taken any action in her case.

Last week, I accompanied a social worker to the police station in order to have Abigail record a statement. Abigail is 13 years old and lives alone with her dad. Her mom died when she was 2 years old and her dad has been living with her “as husband and wife” (having regular sexual relations with her since she was about 5 yrs old).  At the police station, we were told that we could not file a record of the abuse because of the lack of (eye witness) evidence of the sexual abuse.  We were told that at most this is a case of parental negligence; and that ,in any case, by admitting the child to the shelter, the abuse would no longer continue.

While these stories illustrate the role of police in preventing access to justice for defilement victims, what I’ve grasped from this “on-the-ground” experience is how multi-layered the problem is and the extent to which police (in)action certainly isn’t the only access to justice barrier. For example, the social stigma attached to rape in Kenyan society is perhaps an even greater access to justice obstacle because it perpetuates a culture of silence in regards to this crime. Rape/defilement is likely the most underreported crime in the country. As one police chief in the community explained to us, while there are numerous incidents of rape in his district, very few are reported to police because family members tend to be embarrassed by the incident and fear that their daughter will have no marriage prospects if it is discovered that she has been “defiled”. (Note how even the legal term for the rape of a child in Kenya, “defilement,” is loaded with shameful connotations).

In addition, many families prefer to settle the matter privately instead of through the legal system–often through a monetary settlement. The sense I got was that the girls themselves have limited say in these arrangements and this kind of settlement may be arrived at despite their wishes to take legal action. For example, although Rachel wants her perpetrator jailed, her parents and the perpetrator (a police officer) entered into a written contractual agreement stipulating that the perpetrator would provide regular financial assistance to Rachel until she turns 18 years old. It was only when the terms of the agreement were breached that Rachel’s family decided to bring the matter to police.

Wealthy perpetrators can often buy their way out of facing the criminal justice system, especially when the victim’s family is poor. I initially had a very hard time understanding how a victim’s parents could accept this type of monetary settlement in lieu of pressing criminal charges. Looking at the issue from behind the lens of my own Canadian  perspectives and assumptions, I vilified these parents, questioning their sense of justice and morality.  It wasn’t until I visited Joyce’s home (the 14 year old infected with HIV after being raped) that I began to understand how loving parents could choose to accept this type of settlement. Joyce’s family lives in abject poverty. The perpetrator has offered a sum of money that likely exceeds the amount of income her parents could expect to make in the next 10 years. While her parents have not accepted the offer, the organization has intervened in the case out of concern that they may eventually give in to the temptation and withdraw the case as many others have done.

In short, our observations in the course of shadowing the shelter’s staff revealed that police failures, as well as other contextual factors such as stigma, poverty, and limited agency of defilement victims due to their age, can all intersect to prevent access to justice.

After 2 weeks of shadowing staff and making note of all these observations, two  Canadian lawyers on the 160 Girls litigation team joined us in Meru to collect more evidence for the case. We accompanied them to interviews with police officers, a lawyer, and staff of the shelter , in which we sought to gain these individuals’ perspectives on the legal treatment of defilement. The other Canadian student intern and I also worked on creating a template for the staff to use when recording interactions they have with police. These records will be used in drafting affidavits for the litigation.

We then went to Nairobi for a meeting with the entire 160 Girls legal team, which includes lawyers from the dynamic women’s rights organization, FIDA Kenya. The purpose of the meeting was to strategize and come to a consensus on important details of the case such as who the applicants should be (i.e.: a group of girls from the shelter and/or the organization itself); whether there should be interveners in the case; and what kind of remedies to ask for. I’m grateful to have been able to participate in this meeting because I found it to be a really interesting look into the behind-the-scenes work of public interest litigation.

For my remaining 2 weeks in Kenya I’ll be tackling a number of further research questions that came out of this meeting.

Truth, Justice and Reconciliation Commission in Kenya

Sasha HartBy Sasha Hart

I spent my first four weeks in Kenya interning at the Truth, Justice, and Reconciliation Commission (TJRC) in Nairobi. The TJRC was established in 2008, with a mandate to investigate and establish an accurate record of “gross human rights violations” that have occurred in the country between 2 December 1963 (when the country gained independence) and 28 February 2008 (which marked the end of the nationwide violence sparked by the disputed December 2007 elections). The TJRC is also mandated to make recommendations as to the prosecution of perpetrators and appropriate reparations for victims.

My experience at the TJRC was interesting and rewarding. As an intern with the research team, I spent most of my time working on a research assignment on sexual and gender-based violence (SGBV) that would contribute to the final report as well as serving as background briefs for the Commissioners. I also had the opportunity to attend a number of hearings in Nairobi in which the Commissioners heard from several high profile former government ministers and army officials suspected of having been implicated in the infamous 1984 “Wagalla Massacre” (a massacre of ethnic Somalis in the Wajir District of the country’s North Eastern province). In addition, I also spent a few days in the field (in Kisumu) with the TJRC’s investigation team, where I helped to collect and summarize statements from individuals who had suffered various human rights abuses during the recent post election violence period.

As for my main research assignment, I was assigned the task of researching and writing background briefs on SGBV as it occurred in the post-election violence period, as well as in other historical contexts within the country. I was asked to focus my research by region, which was challenging because of the lack of geographically disaggregated research pertaining to SGBV. Also, because rape is perhaps the most underreported crime in the country (due to social stigma and the culture of impunity associated with this crime), accurate indicators of the true prevalence of this type of violence are difficult to come by.

From the literature and documentary material I was able to find, it is evident that SGBV has constituted a significant part of Kenyan women’s experiences during various periods of conflict within the country. For example, incidents of women being raped by security forces during the 2008 military operation in the Mandera region of North Eastern province, and by gang members seeking to punish members of opposing ethnic groups for their political affiliations in the most recent post-election violence are well documented.

While incidents of SGBV have been relatively well documented in times of conflict, and these incidents will/are indeed being investigated by the TJRC, I am left wondering to what extent a process like the TJRC can (or should even seek to) encompass the “typical”, everyday acts of rape which too many Kenyan women have and will endure. According to the 2008-2009 Kenyan Demographic and Health Survey, 1 in 5 Kenyan women have experienced sexual violence. Most of this violence has happened in the context of everyday life. These victims and their perpetrators are many and varied. As a result, the most common experiences of sexual violence cannot necessarily be associated with a particular ethnic/election-related conflict, or a military operation, or any other specific period of time in which women in an identifiable community were targeted by an identifiable group of men.

Pursuant to the Truth, Justice and Reconciliation Act, the TJRC’s mandate is limited to looking into “gross human rights violations”. This is defined under the Act as violations of fundamental rights (including “rape or any other form of sexual violence”). Thus far, the TJRC has focused on sexual violence having occurred in an identifiable, neatly framed context–mainly within the context of conflict (i.e.: the Wagalla Massacre and the 2007 post election violence). Thus far, it has identified the most pressing “gross violations of human rights” as those having involved torture and extra-judicial killings, and in setting up hearings on these atrocities, have also heard from women in regards to the SGBV they suffered in these particular contexts. Typical everyday incidents of sexual violence (perpetuated by discriminatory views of women and systemic failures by state agents to adequately respond to these acts of violence) are effectively left out of the “gross human rights violations” identified and investigated. Given the limited time frame and resources the TJRC has to complete a massive mandate perhaps it makes sense that this would be the case. Also, only an estimated 2% of victim statements submitted to the TJRC constituted direct complaints of sexual violence (which is consistent with the culture of silence surrounding rape).

The TJRC is mandated to make recommendations with regard to systemic and institutional measures that should be taken to prevent the violation of human rights. I wonder if by not addressing these most common everyday forms of SGBV, it is missing out on a valuable opportunity to address SGBV in a more meaningful way by recommending systemic remedies aimed at addressing this type of violence in the contexts it most commonly takes place.

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