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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