No respite for SGBV survivors in search of elusive justice

We walk quietly into the room, cautious not to disrupt the young ones.

They sit attentively, their minds immersed into their colourful beadwork. Predictably, our presence unsettles them. It is not easy, however, to tell from the expressionless faces of the nine teenage girls whether our distraction has upset them.

Momentarily, they stop the work. While a few turn their attention to us, the rest turn to the babies some of whom are in their arms, others sitting on floor mats, while one lies on her back in a stuffed washing basin. One teenager looks away, gazing hard at the wall in deep thought.

The girls are aged between 13 and18, while the seven babies are aged between three weeks and two years. Two of the kids’ mothers are in school, and are expected to reunite with their little ones shortly.

The “intruders” include two guests visiting for the first time to assess the nature of assistance they may offer the girls. The third one is their host, who breaks the tension with a hearty greeting. And as if on cue, three of the teenagers turn to their small chests and shyly begin to breastfeed their babies. The sight of minors struggling to breastfeed babies can get unnerving.

The silence is shortly broken by noise from the parking lot. A bus has just dropped a group of excited girls from school. It is a Friday and clearly the girls are looking forward to enjoying their weekend break. They carry heavy school bags towards their respective hostels, each pausing for a minute for a word with a caregiver. One 13-year old dashes to hug an equally excited two-year old boy. She is the child’s mother. She holds his tiny hand and walks towards Nelly, the caregiver, for a brief heart talk.

As the other girls disappear into the dorms, Nelly pulls Esther, the institution’s head, aside as she gestures towards a 12-year old girl.

“The court has directed that she be taken back home,’’ she informs a clearly stunned Esther.

The girls at this rescue shelter are all survivors of sexual and gender-based violence (SGBV), including incest. About 30 others who also live here are in boarding schools across the country. Each has a story on how they ended up at a rescue shelter. The shelter’s management too, has heart-breaking tales on them. But it also has inspiring stories of many who have risen above the damage.

“They come here all affected differently by the nasty experience  and so we have to be innovative with solutions that will ensure they heal, develop and live a normal life,’’ remarks Esther.

Individuals who work with SGBV female survivors say lack of access to justice is not only a huge set back to the success in the fight against SGBV, but also a barrier to women leading normal lives.

Outright corruption

Complex and muddled investigations, windy court processes that are often marked by undue delays and unending and tiring “technical issues” and outright corruption and impunity instigated by perpetrators are some of the frustrations that deny justice to SGBV survivors. Consequently, Kenyan courts are weighed down with tens of such cases, as survivors hope for the elusive justice. Many give up due to fatigue.

The teen girl we found staring hard at the wall in the beadwork room is one such case. Defiled by a neighbour, the 16-year-old was rescued after the perpetrator and some investigators compromised close family members. In the face of intimidation and threats, she dropped out of school.

The other girl, the 12-year-old that a court has directed that she be taken back home, has lived at the rescue for three years. Her mother’s lover defiled her when she was eight years old. The mother has reportedly stuck by the perpetrator and is behind the push to have her return home and drop the case.

Coalition on Violence Against Women (Covaw) Executive Director Wairimu Munyinyi-Wahome, cites poor knowledge by law enforcement and health facilities, pressure to settle cases out of court and exorbitant legal fees as some of the limitations to access to justice. On violence against women with intellectual disabilities, she says, abusers take advantage of their vulnerability. The community, families and even the system think it is not serious when they are violated, translating into poor support.

Covaw and two other organisations have filed a petition at the High Court challenging the constitutionality of section 146 of the Penal Code and section 125 (2) of the Evidence Act, which refer to people with intellectual disability as “idiots”, “imbeciles” and “lunatics”. The two sections, the petitioners argue, “use discriminatory, demeaning and offensive language against persons living with intellectual disabilities and impede equal protect”.

Lack of accountability

While cases of SGBV take unjustifiable long, those prosecuted are mostly through “a gendered lens of judges and other actors within the Judiciary,’’ Centre for Rights, Education and Awareness for Women (Creaw) Executive Director Leah Wangechi.

“This lack of accountability to survivors of SGBV means there is not only delayed justice, but the discriminatory practices and violations of women rights continue to be the order of the day,’’ Ms Wangechi observes. As such, survivors are held to ransom since they fear rebuilding their lives when their security is not assured.

Ms Munyinyi-Wahome says mutual accountability by the system and citizens on SGBV, provision of timely and affordable services and raising awareness at early education levels will help mitigate incidences and check against “an overburdened” judicial system.

Her counterpart Edith Murogo at the Centre for Domestic Training and Development, which runs a rescue centre for abused girls in the outskirts of Nairobi, says having been frustrated in terms of  access to justice, the organisation has opted to prioritise safeguarding the survivor’s emotional, physical and medical well-being.

“We concentrate on direct assistance, especially where we find complex and windy court processes. While this becomes traumatising for the minors, it also exposes the human rights defenders who usually have no form of protection,’’ Ms Murogo explains.

She is a witness to tens of cases of sexually abused young women denied justice, courtesy of impunity in the judicial system.

Ms Murogo suggests establishment of special courts to deal with SGBV matters to expedite justice, and development of a directory of offenders and perpetrators of SGBV akin to what has been done in Rwanda and South Africa.

A comprehensive awareness programme for communities on the importance of upholding, protection and safeguarding survivors would be important. “It is time for Kenya to emulate best practices,” Ms Murogo said. 

Access to justice

Meanwhile, Chief Justice Martha Koome has signalled her intention to deal decisively with the issue of access to justice for GBV victims.

The CJ’s office has outlined actions to actualise this commitment. These include a gender mainstreaming policy launched following an audit of the Judiciary’s handling of gender matters, and the directive to have courts clear their backlog of cases within three years.

“In specifically addressing the need for a specialised court to handle cases of SGBV, the Small Claims Court has been structured in a manner that it will have a chamber/court dedicated to such cases,’’ the office told the Nation.

Implementation of the CJ’s vision, Social Transformation through Access to Justice, in which she has undertaken to enhance justice for vulnerable groups, digitisation and adoption of technology is key to addressing access to justice for SGBV victims.

Justice Koome’s office, quoting the State of the Judiciary Annual Report 2020/2021, cites trainings, activities and approaches that have been undertaken and focused on prevention and response to GBV management within the justice sector.