Irrational reluctance to charge post poll rapists

The prosecutor’s office has failed to follow-up on cases of rape and sexual assault during the 2007/8 post-election violence, including cases reported to the Commission of Inquiry into Post-Election Violence (CIPEV). And the Assistant Director of Public Prosecutions Jacinta Nyamosi recently talked of how the Kenyan government has handled investigations into these attacks on thousands of women. Her comments contradict the government’s official position that it has been impossible to prosecute sexual crimes due to lack of evidence.

Nyamosi, who also heads the Sexual and Gender-based Violence Division at the Directorate of Public Prosecutions, testified last week in a case before the High Court filed by four civil society organisations and eight sexual violence survivors. They are challenging the government’s lack of response to sexual offences committed during the 2007/2008 election violence.

In 2016, I interviewed dozens of survivors of post-election sexual violence and documented the many barriers they faced in reporting rape and getting help from the authorities. Survivors who overcame stigma, insecurity, and other risks to obtain help reported that police refused to take statements from women, and never followed up on or investigated complaints, often telling the victims to produce witnesses. Some survivors alleged that police colluded with attackers who had paid them to drop cases against them. The police themselves and members of the General Service Unit are among those alleged to have committed rape.

Failed to protect

The petitioners contend that the authorities failed to protect civilians during the post-election violence, and that authorities have subsequently failed to investigate and prosecute attackers and provide compensation to the victims. The victims and the groups that support them are seeking a public acknowledgement and apology from the government for these failures, reparations for victims, including medical assistance, and adequate investigations and prosecution of offenders.

Two years ago, President Uhuru Kenyatta announced the establishment of a fund of Sh10 billion (nearly $96.6 million) for restorative justice. He said the fund had been set up following a report by the Director of Public Prosecutions recommending that post-election crimes be dealt with using “restorative approaches” because of the challenges of achieving successful prosecutions.

The problems include “inadequate evidence, inability to identity perpetrators, witnesses’ fear of reprisals, and the general lack of technical and forensic capacity at the time,” he said. Implicit in these conclusions is that the government did all it could to investigate and prosecute post-election crimes, including widespread allegations of rape and sexual assault.

The facts show this is far from the truth. Kenyan authorities have displayed a lack of will to thoroughly investigate and prosecute election-related sexual violence. A 2008 task force formed by the police to investigate post-election sexual and gender-based offences, including police involvement, has still not published a final report. Neither has a multi-agency taskforce established by the DPP in February 2012.

The government has yet to conduct proper investigations into reported cases or develop a comprehensive investigation and prosecutions strategy to help with this process.

The women I interviewed said, in addition to lack of cooperation from the police, they received only sporadic help from medical facilities. Some told me when they sought treatment for injuries and post-rape care, healthcare workers ridiculed them or doctors turned them away without treatment, apparently based on their ethnicity — the 2007 election violence took an ethnic dimension and rape was directed at women not only because of their gender, but also their ethnicity. Other women said government hospitals refused to issue them post-rape care forms, an important document completed by health providers that forms part of medical-legal evidence.

These failures by law enforcement officials and health workers exacerbated the limited collection of vital evidence by the government to pursue investigations and prosecute offenders. They also demonstrate the pre-existing and ongoing gaps in response to gender-based violence in Kenya.

Forensic evidence

Undoubtedly, it will be difficult to prosecute post-election rape 10 years down the line without forensic evidence, especially in cases where many survivors do not know their attackers. But it is not impossible and the government has a legal obligation to answer to rape victims for its failures to protect and help them during the post-election upheaval. This includes putting in place measures to ensure the adequate investigation, prosecution and punishment both for the sexual crimes in 2008 and for similar crimes in any future mass violence or conflict.

Concerns about renewed violence around the August 2017 elections make a commitment to improve the government’s response even more important. The government also needs to address the social and economic challenges that deter women and girls from reporting abuse and getting protection and justice; and the critical gaps around forensic evidence collection, documentation and storage. Nyamosi’s revelations may have surprised some, but the victims have harrowing stories to tell. They deserve justice.

- Agnes Odhiambo is a senior women’s rights researcher in Nairobi for Human Rights Watch