Kenya

Delayed. Denied: Legal and Administrative Bottlenecks to Effective and Efficient Delivery of Justice for Survivors of SGBV in Kenya

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EXECUTIVE SUMMARY

This research study was part of a 2-year project entitled “Promoting an Enabling Legal Environment for SGBV Victims” that COVAW undertook with the support of OSIEA. The overall goal of the project was to improve response to SGBV against women and girls.The study aimed to inter alia review the law, policy and administration structures within the judiciary that govern management of cases of sexual violence so as to establish the causes of delays in delivering justice to survivors of SGBV particularly those with intellectual disabilities. The study also sought to evaluate the social, legal and economic implications of delay in cases and propose appropriate legislative, policy and administrative measures to address the problem of delayed justice. The impact of COVID-19 on delivery of justice in SGBV cases was also assessed.

To achieve the study objectives, a desktop review was conducted to examine the existing policies, laws and administrative procedures in place at national level and their impact on efficiency in disposal of sexual offence matters. Sample case studies were done of courts across eight court stations: Kibera, Makadara, Thika, Ruiru, Kiambu, Nyahururu, Narok and Kitui. Data in the Sexual Offences case registers in the respective court stations was examined. In order to establish an all-rounded assessment of the subject matter of study, respondents were drawn from practising lawyers and magistrates as well as the survivors of sexual violence and/or their caregivers. Twenty (20) respondents were interviewed for the purpose of the study.

General Findings

The study established the following general findings:

  • That defilement cases form the bulk of the sexual offences reported under the Sexual Offences Act as filed in the court stations subject of this study, standing at an average of 75.7 % of the total caseload under the Sexual Offences Act, 2003 (SOA) from the year 2017 to 2020. The offence of rape comes a distant second at 13%. Incest stands at 3.8% followed closely by the offences of sexual assault and indecent act with a child at 3.7% and 3.4% respectively.

  • That there is indeed inordinate delay in the determination of cases under the SOA. An analysis of the raw data obtained from the respective Sexual Offences Case Registers reveal that in four out of seven court stations, the percentage of the 2017 SOA cases concluded was below 50% as at the end of October/early November 2021. This means that 4-5 years on, more than half of the case load for 2017 SOA cases are still clogging the criminal justice system and will thus be carried forward and ploughed back into the system in the year 2022 clocking the 5th and others 6th year.

  • The study also established, and curiously so, that more than one half of the number of closed files highlighted above were actually withdrawn, mostly under section 87(a) of the Criminal Procedure Code (CPC). Section 87(a) allows a public prosecutor to withdraw prosecution of any person at any time before judgment is delivered.

In terms of law and policy, the following were the main findings:

  • That generally, there is in place an enabling national framework that safeguards the rights of victims and that provides for expeditious disposal of cases of sexual violence. This includes the Constitution of Kenya, 2010, Section 38 (4) of the Persons with Disabilities Act, 2003, Section 31 of the Sexual Offences Act, 2006, Sexual Offences Rules of Court, 2014, Victim Protection Act, 2014 and Fair Administrative Action Act, 2015.

  • That besides the statutes, there is place internal Judicial guidelines that foster expeditious disposal of cases. These include the Judiciary Criminal Procedure Bench Book as well as the Active Case Management Guidelines.

  • That the lack of clear standard guidelines to guide the treatment of witnesses with intellectual disabilities as well as onboarding of intermediaries has occasioned uncertainties and delays in the trial of sexual violence cases.

  • The fact that the Sexual Offences Act, 2006 does not provide for a cap on the timelines for the conclusion of SGBV cases particularly where minors and persons with intellectual disabilities are witnesses means that these sensitive matters are left to compete within the same Court diary. Majority of the advocates and judicial officers interviewed favoured putting a time gap within which these cases are concluded.

  • Section 200 of the Criminal Procedure Code that allows for the retrial in case of transfer of magistrates is not only a cause for retraumatising victims but also contributes to delays in conclusion of cases and elusive justice.

  • Section 146 of the Penal Code, section 125(2) of the Evidence Act, section 18(3) of the Persons with Disabilities Act and section 166 of the Criminal Procedure Code among other statutes still retain offensive and derogatory terminologies against persons with intellectual disabilities. This serves to further perpetuate stigma, indignity and discrimination for the witnesses with intellectual and psychosocial disabilities. The offensive terminologies also implicitly set the stage on how the trial process progresses henceforth and the handling of the witness evidence during the trial process.