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Court Filing Fees in Kenya

2013 Tina Hlimi 100x150A hypothetical scenario:

In order to be married in Kianyaga, Kenya, a couple must obtain a marriage license from the Office of Registrar of Marriages by paying a Kshs 200 licence fee. The marriage license fees will not the waived even if the couple applying for the licence cannot afford to pay it. Assume then there is a couple in Kianyaga who desire to marry but simply cannot afford the license fee, what happens?

The couple will not be able to get married legally. This is because licence fees, even part of court proceedings, (e.g. land title deeds; 520 Ksh) must be paid out-of-pocket by all individuals regardless of socio-economic status.

Thus, the delineation between proceeding fees and licence fees is important. In the case of indigents or individuals with access to legal aid, the cost of the former may be alleviated (in civil and criminal matters), whereas licence fees are generally mandatory and consistent across the board.

The inability to pay filing and advocate fees within the matrimonial, family and property law realm is a serious problem for marginalized litigants in Kenya. According to the Pittsburgh Jurist legal website and the US Department of Justice:

Court fees for filing and hearing cases are high for ordinary citizens. The daily rate of at least $25 (2,000 shillings) for arguing a case before a judge is beyond the reach of most citizens.[1]

Further, Kituo Cha Sheria, a Nairobi-based legal organization, which we have been in close partnership with, has reiterated:

Filing and legal fees are too high for a good number of Kenyans. Time, cost and transport keep many away. Women, children and poor men are the ones most affected by this. There is no dependable or practical state provided legal aid scheme. NGOs and Faith Based Organisations have stepped in to provide legal aid and advice the poor and women but they are only able to reach a very small percentage […].[2]

Each week we hear complaints from clients stating that they are still unable to access the judiciary. With our legal aid program we have alleviated the first impediment: namely the costs of hiring an advocate; this is paid for by the organization in aid of the client. The second barrier, consisting of court proceeding and licence fees, is still more difficult to overcome. Given our limited resources, it is fiscally impossible for the organization to cover all of the litigant’s costs.

The complaint is nevertheless valid. The GDP per capita in Kenya is roughly $ 1800 per year (2012 figure; $ 900 per month)[3] or Kshs 156,240 (Kshs13,020 per month). In consideration of amassing legal costs (see table 1), it is clear that legal fees can form a significant portion of an individual’s salary. In these circumstances the principle of proportionality is imperative. If the costs of filing and litigation are more than the amount owed to the client by the defendant (e.g. for a property dispute or land gracing case) then perhaps the case is not worth litigating.  It is of course difficult to explain the idea of proportionality to the client as some simply want retribution.

.Table 1: An example of legal costs in the Kenyan judiciary; much of these costs accumulate to form a significant amount which many individuals will not be able to pay thus delaying proceedings and acting as a deterrent to the judiciary.

Description Cost in Ksh $ CDN
Depositing a will of a living person 500 6
Withdrawing from deposit or inspecting a will of a living person 300 3.59
Depositing a will or certified copy of  a will of a deceased 300 3.59
Particulars of a plaint 100 1.20
Hearing fee in the High court 2000 per day! 23.93
Judicial review 6000 71.80
Order of mandamus 6000 71.80
Prohibition certiorari 6000 71.80
Decree or order 150 1.80
Origination summons Minimum of 1500 17.95
Issue of witness summons 50 0.60
Issue of execution (e.g. warrant of attachment or a sale of property) 50 0.60
Bill of costs for taxation 250 2.99
Affidavit/declaration 50 0.60
For each exhibit or affidavit declaration 10 0.12
communication with a court or tribunal outside of Kenya 250 2.99
Execution of civil warrants 100-200 1.20-2.39

Despite the inability of countless individuals to pay court filing fees, access to justice is an enshrined legal right guaranteed to Kenyans through the International Covenant on Civil and Political rights (ICCPR), which the government ratified in 1972.[4] The Covenant states that an accused offender (in criminal cases) is allowed “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it” (art. 14(3)). [5] In addition to this criminal clause, the Committee on Economic, Social and Cultural Rights has established that under the International Covenant on Economic, Social and Cultural Rights (ICESCR), State-governments should likewise grant legal aid to individuals who are facing evictions (civil cases). The Human Rights Committee has also encouraged states to provide indigents with free legal aid in civil cases and if interpreted purposely States may even have to provide civil legal aid as per s. 14 of the ICCPR.[6] As a result, some State parties to the ICCPR have consistently reported on their efforts to provide counsel in civil matters.[7] It is nevertheless important to stress that the civil legal aid is not obligatory and that there is no legal right to civil legal aid despite the attention afforded to the issue by some States. This has been reiterated by countries like the United States (e.g. Lassiter v. Department of Social Services).[8]  The same rings true in Kenya, where state-funded legal aid is only available for murder suspects thereby excluding marginalized members of society.[9]

At first blush, it seems that civil legal aid is excluded from federal legal assistance in Kenya. This is partially true; Order 33 of the 2010 Kenyan Civil Procedure Rules includes a section on paupers or indigents. The section guarantees legal assistance (upon proof) to indigent individuals seeking to access the judiciary. In essence, the pauper’s advocate/ filing costs will be covered. However, if the pauper or plaintiff wins his/her case the court will then deduct the costs that the pauper would have paid devoid his/her pauperism (clause 10). If a pauper loses his/her case s/he will have to pay the outstanding court fees as though the suit has not been filed under the pauper designation (clause 11). The latter is an evident disincentive for indigent individuals to pursue their case.

Order 33 clause 10 states:

10. Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

11. Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

12. The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.

It is also difficult to prove to the judiciary that one is deserving of indigent status. Kituo Cha Sheria states the courts often requires proof of indigent status, necessitating a chief’s letter and his/her presence which is expensive (e.g. transport costs) and complicated; chiefs often refuse to attend court to provide evidence. Further, proof of income is not easy, particularly due to lack of documentation among rural laborers or those working in the non-formal sector.[10] It is ultimately the court’s discretion as to whether they are willing to accept a suit by a pauper. The 2013 Kenyan Supreme Court decision, John Mbugua and another v. the Attorney General, elucidated the requirements for pauperism:

“The threshold of proving that an applicant deserves the leave of the Court to be pronounced as one capable of filing in forma paupers is extremely high […]The onus in pauper briefs lay squarely on the applicant to candidly and in extreme openness reveal all about his status to the Court. Failure to provide disclosure in its strict sense would knock out the matter and would render a matter as uncreditworthy […]The court must be satisfied on the application of an applicant that he lacks the means to pay the required fees or to deposit the security for costs and that the matter is not without reasonable possibility of success […]A court [is] entitled to reject such an application where the court [is] satisfied that the applicant [may] not recover more than nominal damages [idea of proportionality], the court might well be justified in refusing permission because it would be unjust to the other party who [may] have to incur substantial costs which might not be recoverable.”[11]

Akin to legal aid in Canada the question then arises: what about lower income individuals (non-paupers) who are classified as making too much money (or own assets) in order to qualify for legal assistance (income is too high to access legal aid and too low to afford standard legal fees)? This is the case for many individuals living in Kianyaga. Many of our clients own land and assets but still find court filing fees pricey. This is why they protest. Without our aid (seeing an advocate) they would literally have no access to the judiciary.[12]We try to alleviate some of the filing fiscal issues by first asking the client to exhaust all of their potential economic resources (e.g. friends, family, church etc.). If the client has thoroughly searched and exhausted their network and is still unable to siphon together the required money, our research organization is willing to step in and grant the necessary funding. This is, however, only a temporary solution. I believe that the larger issue is systemic and needs to be corrected at both an international and domestic level in order to ensure access to justice (lawyers, court fees and licence fees) for lower-income individuals.


[1] Victor Mosoti, “Constitution, Government & Legislation” online: The Jurist <http://jurist.law.pitt.edu/world/kenya.htm>.

[2] Kituo Cha Sheria, “Kituo Newsletter April 2010”, online: <http://www.kituochasheria.or.ke/index2.php?option=com_docman&task=doc_view&gid=71&Itemid=44>.

[3]The Central Intelligence Agency, “The World Factbook: Kenya,” online: CIA   <https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html>.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 15 July 2013]

[5] Ibid.

[6] Zachary Zarnow,  “Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States is Doing Instead,  and How Legal Empowerment Can Help” Journal of Gender Journal of Gender, Social Policy & the Law, Vol. 20, (1) [2011] at p. 4.

[7]  Ibid at page 5.

[8] Ibid.

[9] Supra note 2.

[10] Andrew Novak, “The globalization of the student lawyer: a

Law student practice rule for indigent Criminal defense in Sub-Saharan Africa” 3 Hum. Rts. & Globalization L. Rev 33 2009-2010

[11] John Mbugua and another v. the Attorney General online: <http://www.kenyalaw.org/newsletter1/supreme/Issue072013.php>.

[12] Supra note 10.

The Provision of Legal Assistance in Kenya

2013 Tina Hlimi 100x150I arrived in Kianyaga, Kenya almost a month ago. The experience to date has been incredible. I am working with a great team of McGill interns and Kenyan paralegals in the rural town of Kianyaga located on the foothills of Mt. Kenya.

The encompassing region of Kirinyaga (in Kikuyu “the bright big hill” referring to Mt. Kenya) is especially mountainous with long, winding, red dirt roads. The striking red clay soils are indicative of iron oxide and porous soils often found in temperate and tropical regions. Another geological feature of the region is the mounds of dispersed volcanic rock, a reminder of the once-active stratovolcano, Mt. Kenya. The flora of this elevated region is lush and tropical, as one would expect of an equatorial environment. Banana trees are omnipresent, along with papaya, avocado, sugarcane and passion fruit.

In addition to the native vegetation, there is also an abundance of non-native species including Australian eucalyptus trees, which are chiefly used for building material as they repel parasitic termites and grow at exceptional rates. The surrounding landscape is littered with tea and coffee plantations. Many of the farms (“shamba” in Swahili), which I have visited for land disputes claims, cultivate large plots of coffee. Despite the abundance of coffee beans, Kirinyaga is a tea-drinking district (recipe: ½ milk, ½ water and black tea leaves) as much of the coffee is exported.

Local farmers constitute 80% of Kianyaga’s local economy coinciding with an elevated number of land conflicts. The city centre is relatively small and consists of numerous small shops selling everyday items, such as: soap, egg, bread, baked goods, newspapers, brooms and so forth. The city centre can be traversed on foot within a half hour.

On the periphery there is a bustling market, where one can find a wide assortment of beans (80 varieties of which 6 are mainly consumed: rosecoco, mwezimwoja, mwitemania, surambaya, githeri etc.), rice (there are numerous rice paddies in the vicinity), pineapples, mangoes, avocados, onions and tomatoes, passion fruits, carrots, zucchinis, pumpkins, squash, white maize, and so forth. My daily meals often consist of cooked “githeri” beans (mixture of maize and beans) and fruit salads.

Nearly all of the land conflict respondents are farmers residing in agrarian areas, kilometers away. In order to reach them, I frequently take a motorbike, or a “piki-piki”, as they are called in Swahili.  Piki-pikis are nerve wracking, as the dirt roads are unlevelled and occasionally slippery following heavy downpours. These bikes often fit 2-3 people, in addition to the driver. When travelling longer distances (e.g. for land registration in nearby towns or Nairobi) I use a “mutatu”, a large van with 16 seats. The mutatu environment is unparalleled. The van is always packed with commuters and the drivers are incessantly playing Jamaican reggae, while peddlers loop the vehicle selling all sorts of knick-knacks.

Kianyaga’s inhabitants are chiefly Kikuyu, the predominant ethnicity of 42 ethnic groups in the country. The Kikuyu of Mt. Kenya speak Kikuyu, Swahili and English. When conducting land conflict interviews and gathering narratives (e.g. land grabbing, theft, border disputes, land title claims, etc.) close to 80% of the meetings transpire in Kikuyu and are subsequently translated into English for me. This is regrettably one of the barriers to conducting legal research and providing legal aid in a foreign country; I often only hear a brief synopsis of the dialogue between the respondent and the paralegal.

Another challenge is the corruption of the judiciary at the local level. Many of the respondents’ files, although filed correctly, are simply irresolvable as judges, block leaders and local chiefs are bribed by the opposing party. In addition to corruption, the administrative workers at the local court are sometimes reluctant to assist us with respondents’ files. We have had respondents seeking documents and assistance at the court, only to be turned away for trivial reasons. When they return with a paralegal or when I am present, the employees are more willing to assist with file preparation and to provide guidance.

Corruption combined with financial restraints prevents respondents from seeking advocates. This fact alone makes it simple for perpetrators to grab land, coax respondents into entering shady, ambiguous or fraudulent contracts or simply bribe the local chief or block leaders, who are responsible for mediation.

Hence, providing marginalized individuals who are often unaware of their legal rights with an alternative economical route (e.g. legal aid) to the judiciary makes a difference or at least offers individuals hope when all hope may have otherwise dissipated.

To facilitate the project, I work with a Nairobi advocate who visits the office each week and provides legal aid to 6-10 respondents. Each subsequent week, the respondents’ cases are incrementally resolved through: court filings, land cautions, appeals and so forth. I recognize that many of the cases which I am currently working on will not be resolved, or be close to resolution by the time I leave. I nevertheless hope to make a difference with my current files and in the lives of the respondents that I am presently working with.

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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