GETTING JUSTICE FOR GBV CASES IN KENYA

Gender Based Violence (GBV) is still a big issue in Kenya especially with COVD19. How can a victim get justice? Do we have a legal framework ? Is it effective? As a legal practitioner Gender Based Violence claims are the hardest to successfully get justice for in the court system. The combination of legal bottlenecks, community stigma, and psychological impact on the victims makes it difficult to get justice for the victim. There are several laws that outlaw GBV and protect victims however their operationalization is not optimum. The Sexual Offences Act, Penal Code and Victims Protection Act to name a few.

The main cause of GBV and SGBV is the inequality between the perpetrator and victim. Whether it is economical, age or power. It should be noted that GBV victims are not only women but also children, boys and men. The best way to deal with GBV is to prevent the same form happening.

When an incident of GBV occurs the first step is to report to the police, get and OB number and go through a medical examination to get the P3 Form filled out in a government medical facility. These are free services. A victim needs to somehow get the courage to go to the police station, make the complaint and thereafter proceed for the medical exam. This initial step is very difficult for most victims. Many factors discourage the victims including ignorance, shame, fear of police, family pressure, distance to police station, distance to health facility.

After the initial report, the victim is required to record a statement with the police. Thereafter the police will investigate and get statements from the perpetrator and witnesses. What does this do to the victim, firstly it is humiliating giving the details, scary to accuse the abuser and not to mention reliving the horrid experience. Sometimes, the police are not sensitive to the victims and actually make them feel worse for reporting.

Thereafter, the matter will be in the court system. It should be noted that GBV offences are bailable. This means, the perpetrator will be back in the community or neighborhood awaiting the trial. It should be noted that most GBV is by people known to the victim. Let’s look at the practicality of this, where will the victim live, what will the community/family say about the victim’s action to report? The victim will then be required to testify in court mostly in camera. This is a relief to the victim. Now imagine the perpetrator’s lawyer cross examining to discredit the victim and tearing into the evidence. What an ordeal for the victim.

The judgment may come months or years later. The court sends the perpetrator to jail and more often than not probation.  Understandably, many victims withdraw the case before completion because of embarrassment, social pressure,pressure from perpetrator, costs and time attending court or need to move on.

The justice system in Kenya has really advanced to make it possible and practical for GBV matters to be prosecuted. The introduction of Gender desks, sensitization training of the police, health workers and court staff. However, many times the end result may not be worth the process and emotional turmoil experienced by the victim.

Kenya legal framework provides on paper, a system for justice. However, the implementation and end results does not give promised outcome. The GBV victim needs justice i.e. restoration of their right to dignity, right to be safe, right to life, protection form violence, right to a home and compensation for their loss.   In the current system even after going through a successful prosecution the victim gets a guilty verdict but no justice.

What is the way forward? Community and all stakeholders should work together to prevent and stop GBV. Co-ordinated efforts by government, NGO’s, CSO’s and community as a whole is required. The government and stakeholders should also invest in Special courts that expedite GBV cases, safe houses where victims can seek refuge while the matter is going on. Victims to have access to funds to help them rebuild their lives. Counselling support easily available. Stern action to be taken against perpetrators especially repeat offenders. A register of all GBV perpetrators accessible to public.  Civil action for damages by victims to help them restart life.

In conclusion, prevention of GBV is the best bet to give justice to victims. All victims have a right to be protected by the law. While a guilty verdict vindicates the victim it does not restore their rights. A civil claim for damages and register of GBV offenders might go a longer way to help restore and/or compensate the victims’ rights and deter further GBV. 

Janet Katisya

Advocate, Consultant, Trainer

katisya@jkadvocate.com

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