Well-resourced GBV courts key to expediting cases

Way back in 2020, female judges proposed that special courts be established to try gender-based violence (GBV) cases following indications that incidents of the same had risen by 92.2 per cent at the height of the Covid pandemic.

On March 10, 2022, Chief Justice Martha Koome opened the first such court in Shanzu, Mombasa County. It has been one year since this was done. Justice Koome observed that the clearance rate for GBV cases was 71 per cent and emphasised the need to expedite them.

Delays deny both the accused and complainant justice, and translate into direct and indirect costs. Moreover, they create opportunities to compromise the cases and lose evidence.

Justice Koome decreed a ‘no adjournment policy’ to ensure cases proceed without deliberate delays. She hoped that the court would showcase best practice that could be replicated in subsequent ones to be established in other counties.

The courts add to earlier initiatives to address GBV, namely gender desks in police stations and Policare, the one-stop centre where survivors can receive services from duty-bearers.

The United Nations Handbook for Legislation on Violence against Women notes that when such courts have adequate resources, they are more responsive and effective in enforcing laws on GBV.

It observes that such courts need “professional prosecutors, social workers, investigating officers, magistrates, health professionals and police” as practised in South Africa, to ensure the emerging needs of survivors are addressed in situ.

It further observes that having these specialist courts eradicates contradictory orders, re-traumatisation of survivors through repeat testimonies and intimidation.

Through their databases, the courts are also able to trace habitual offenders and mete out commensurate punishment.

In Africa, such courts exist in South Africa, South Sudan and Botswana. In South Sudan, the courts do not insist on the survivor’s evidence if other incriminating information exists and eliminate face-to-face contact with the accused during trial, through use of video-conferencing facilities.

Commentators on the special courts have observed that they give GBV the serious attention it deserves and ease the financial and logistical burdens on those seeking justice. However, literature shows that the specialist courts may be limited by a number of factors.

First, they are likely to over-depend on a few judicial officers. If the attitudes, knowledge and skills of these officers are deficient, the courts will be counter-productive. This underscores the need for (re)training for adequate expertise and meaningful impact.

Second, the courts may be ostracised and even stigmatised, alongside their staff and users. Third, there is a danger of feminising the courts by populating them with only female magistrates hence creating the impression that GBV is purely a women’s issue.

Fourth, if these courts are over-zealous, they may become automatic guillotines for the accused regardless of culpability, hence subverting justice. Of course such zeal can be checked through the appeals process.

The next hurdle thus, is whether the Judiciary will also establish special GBV appeal courts. Fifth, the courts may experience an avalanche of cases that result in fatigue for the officers and recreate the same problem of delays that they seek to solve.

It must be remembered that some of the factors that frustrate justice for GBV survivors have nothing to do with lack of courts or judicial officers. One major one is the habit of survivors to withdraw cases being prosecuted.

Withdrawal is tantamount to a waste of time and resources for the officers that have investigated and prepared the cases as well as apprehended the alleged perpetrators.

Such officers get discouraged and may develop apathy towards future cases, leading to casual treatment. Perpetrators may also be emboldened and become recidivists. Moreover, survivors who withdraw the cases may shy off from seeking courts’ interventions in the future and perpetually tolerate subsequent violations without reporting.

A precedent was set on this way back on December 30, 1994, when then Nairobi Chief Magistrate Pamela Uniter Kidullah declined a request by a woman to terminate a case of battery against her husband who had knocked off her teeth.

Ms Kidullah maintained that forgiveness notwithstanding, the accused had to plead to the charge and go on trial to establish his guilt. In essence, her point was that cases of crime pit the state, not the complainant, against the offender.

Will the GBV courts follow this precedent?

Hopefully, Justice Koome’s promise to establish more GBV courts in other counties will be fulfilled sooner rather than later. In addition, the courts should be monitored to identify and address teething challenges so that they are not normalised and embedded.

The courts should also be beacons for interrogating existing legislation on GBV and providing feedback that can be used to improve them, including by eliminating inherent contradictions in different statutes.

The writer is an international gender and development consultant and scholar. ([email protected])