BY JUSTICE DAVID MARAGA
Gender-based violence (GBV) occurs in diverse forms across all socio-economic and cultural backgrounds. While it is more prevalent among women and girls, men and boys also suffer the brunt of this vice. Despite the legal and policy frameworks that have over time been established to combat it, statistics indicate an increase in both the number of cases and in the aggression by which they are committed.
GBV cases include sexual violence such as defilement, attempted defilement, rape, attempted rape, sexual exploitation and abuse; forced prostitution, domestic violence, economic abuse, psychological humiliation, frustration, human trafficking; and harmful traditional practices such as early marriage, female genital mutilation, honor killings, widow inheritance and forceful initiation for boys.
In a 2014 study on GBV in Kenya by the National Crime Research Centre, most people defined GBV as “bodily harm inflicted by man on woman” and “psychological harm inflicted by woman on man”. They also consider GBV only in relation to “adult to adult” and not “parent to child” behaviour. This study is an indicator that GBV against men continues to be trivialized by the society, abuse of children by their parents is condoned or deemed acceptable and in a nutshell, that the general populace does not understand what constitutes GBV
Gender-based violence is fueled largely by inequitable or improper socialization. It is expressed in the propagation of chauvinism and glorified cultural practices. Some societies have advanced dominance and privilege of the male gender over the female gender. For instance, beliefs such as that a man must discipline his wife still prevail and continue to contribute to GBV. This has legitimized violence against women without any repercussions. Further, culture has elevated traditional practices such as female genital mutilation and violent male circumcision to acceptable practices. Some communities secretly continue these traditions despite the fact that the law proscribes them. Indeed, there remains urgent need for public awareness on these vices.
The violence persists because in many instances, the family fails to report or later decides to withdraw the complaint against the perpetrator. It may appear as if there is some reconciliation but many times a guardian may have been paid to help kill the charges.
The criminal justice system has not been blind to these challenges. While the Judiciary leaves judicial officers to make independent determinations in GBV cases, a holist approach to address the gaps has been taken by the National Council on the Administration of Justice (NCAJ) through the formation of specific task forces or committees. These Committees include the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding the Intersex Persons; Special Taskforce on Children Matters; the Working Committee on Sexual Offences; and the National Committee on Criminal Justice Reforms (NCCJR). These are established with a view to addressing the concerns of the vulnerable groups in the light of any gaps in law, policy and administration procedures that occur in the criminal justice system.
The NCAJ has acknowledged that some vulnerable groups are especially susceptible to GBV. Intersex persons, for example, are considered incapable of integrating properly into society, as they possess sexual characteristics that do not conform to medical and social norms. They are liable to victimization not only by the society but also within our criminal justice system. The Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding the Intersex Persons in Kenya, in its report of December 2018, found that some of the challenges they face include mutilation, infanticide, abandonment and constant stigmatization. The report also found that there are large numbers of school dropouts among intersex people mainly because they do not fit into either girls’ or boys’ schools. It is apparent that there are no facilities to cater for their special needs. Within the criminal justice system, intersex persons have suffered intrusive searches and confinement with male or female inmates, therefore exposing them to further sexual harassment. As NCAJ, we intend to take the findings and recommendations of the Taskforce to the next level of legislation so as to address the existing gaps.
In regard to the Taskforce on Sexual Offences, one of the gaps that need to be addressed is the obvious trend of filling up the jails with teenage offenders. These are teenagers who get intimate with their agemates as they experiment with their adolescence.
FIDA – the International Federation of Women Lawyers – presented a memorandum on the Bill which proposed amendments to the Sexual Offences Act to the Clerk of the National Assembly two years ago. It was intended to clarify principles of law and to incorporate values and principles as enshrined in the Constitution of Kenya 2010. FIDA had noted the problematic Section 8 of the Sexual Offences Act, which criminalizes sex among teenagers and had proposed that the section be amended along the Romeo and Juliet approach so as to reduce the number of teenage boys going to jail. It was FIDA’s view that courts ought to be given discretion in sentencing where sexual offences are between minors. Unfortunately, the Bill was shot down.
This problem continues to ail our justice system and must be addressed. The reality is that the public must be sensitized about GBV. Luckily, our courts are responding appropriately, an example being the case of CWK VS AG  eKLR in which the Court of Appeal held that it is unconstitutional to criminalize sexual acts amongst teenagers. But there is another school of thought that feels it is unacceptable to lower the age of consent only with respect to sexual offences, thereby discriminating against the girls. It must not be lost that courts, through the jurisprudence they develop, shape the angle that the law takes. We shall continue developing appropriate jurisprudence in this area as we do in others.
The reality remains that boys have been victims of the criminal justice system in relation to enforcement of defilement laws when the offence is between two consenting adolescents. This is an issue that must be subjected to public discussion in an open and honest manner.
The Taskforce on Children matters is way ahead as a Bill intended to overhaul the current Children’s Act is already with the Attorney General and is expected in Parliament for debate. It is hoped that the new Act will address existing gaps.
May I also add that our courts are responding well in addressing gaps in economic disparities within the vulnerable groups and the less economically able. In a case filed by Legal Resources Foundation (LRF) (LRF VS AG & 5 OTHERS  Eklr) the High Court in Embu outlawed the levying of fees for medical examination or issuance of medical examination forms or any other forms to victims of violence. This will go a long way in ensuring that cases of GBV are addressed adequately notwithstanding the economic inability of the victim.
Last year, I launched the National Committee on Criminal Justice Reforms, which is headed by a Judge from the Criminal Division. Its mandate is to engender reforms in the criminal justice system by looking at the policy, legislative and administrative practices that impede effective delivery of justice. In addition, the Committee seeks to implement the recommendations of the Audit Report of the Criminal Justice System in Kenya: An Audit (2015) conducted by the LRF and Resources Oriented Development Initiative (RODI-Kenya) in conjunction with the NCAJ.
The Committee is a multi-agency collaboration of State and non-State actors from 29 institutions including the Judiciary, National Police Service, Kenya Prisons Service, Kenya Defence Forces, Kenya National Human Rights Commission, Law Society of Kenya, The Cradle, Council of Governors, RODI-Kenya, Legal Resource Foundation and Witness Protection Agency.
This Committee will close any gaps identified in legislation in the criminal justice sector with a view to correcting some of the maladies I have pointed above. It has so far done very well in the sensitization of the stakeholders in the criminal justice sector not only in regard to its mandate but also on the findings of the Audit Report. It has identified the laws that require amendment and commenced the formulation of a legal draft document, which will pave the way for amending the legislations.
One other area with a success story is the collaboration among Court Users. The Court Users Committees (CUCs) have become an excellent forum through which stakeholders in the criminal justice system exchange ideas on how to improve delivery of justice. They are chaired by heads of stations or divisions. The rules governing the operations of the CUCs were validated by the NCAJ Council meeting only last week. They are now all set to effect far-reaching changes in procedural and administrative processes, including those touching on GBV. Examples of this include the issuance of protective orders to victims of GBV, hearing vulnerable witnesses in GBV cases in-camera and the practice of referring traumatized victims to counseling sessions. The Judiciary has taken measures to ensure that all CUCs members participate on a regular basis.
Since the promulgation of the 2010 Constitution, Kenya has done well in effecting a raft of reforms in the criminal justice system which go a long way in ensuring that, if properly applied, cases of GBV are properly prosecuted. These include the Children’s Act Bill 2019, Protection Against Domestic Violence Act of 2015, Computer Misuse and Cyber Crimes Act of 2018, Prohibition of Female Genital Mutilation Act of 2011, Witness Protection Act of 2010 and the Victims Protection Act, 2006 (as revised in 2012).
This notwithstanding, a lot still remains to be done in order to successfully fight GBV. First, we must increase awareness about it among community members so that they are able to quickly recognise its various forms and causes and appropriate responses whenever they confront with it
Secondly, there is need for empowerment of both men and women to minimize instances of abuse. GBV is deeply rooted in the socio-economic and political context. Therefore, legislation alone cannot be used to address it. Domestic violence, which is a main form of GBV in the country, often results from poverty and resource-based conflicts.
Thirdly, the stakeholders within the criminal justice system must also purpose to prevent rather than minimize instances of abuse. We need to embrace gender mainstreaming in our policies and strategies. GBV has significant negative effects. It results in emotional depression, psychological trauma, physical injuries and perpetual deprivation of social and economic entitlements. Fourthly, the minimum mandatory sentence has not resulted in the reduction of GBV especially in defilement. Hence, stakeholders must make deliberate and concerted efforts to research and find out why cases of gender-based violence continue to increase despite the stringent penalties provided by the law.
I am concerned that domestic violence too often leads to deaths of victims these days, pointing at the normalization of GBV in our society. This is a vice we must combat from all corners as stakeholders in the criminal justice system.
Writer is Kenya’s Chief Justice, president of the Supreme Court and Chair of the Judicial Service Commission. This is an abridged version of his keynote speech during the peer-learning seminar between Spain and Kenya on criminal justice system in relation to gender-based violence