Why justice remains elusive for SGBV victims

In October last year, the country woke up to devastating news of the death of Agnes Tirop, the 2015 World Cross Country champion, who was brutally murdered in a suspected incident of gender-based violence (GBV).

Although the prime suspect, her fiancé, was arrested, her family has yet to get justice. Research shows that many victims of GBV have no information on where to get help because of lack of awareness and loss of faith in the justice and law enforcement systems.

But why is justice elusive for victims and their families?

Superintendent of Police Zipporah Nderitu, currently assisting in coordinating ‘Policare’, says because of the shame associated with sexual and gender-based violence (SGBV), victims feel more violated when they start seeking justice.

“When a person is sexually violated, they go through a trance and getting them to report the matter to the police traumatises them more. Once they get the support from family and friends, they get to the police station, they obtain an OB, then they have to be sent to hospital to get a P3 form after a medical examination is done, before they go back to the police station for the arrest process to begin,” says Ms Nderitu.

Burden of proof

For many victims, this loads them with the burden of proof. The social stigma and societal labelling directed at them often force them to retreat, indirectly setting the perpetrator free.

Zaina Kombo, an advocate of the High Court, says before a SGBV matter is petitioned in court, several procedures must be taken given that the offences are criminal. Citing research, she says 90 per cent of GBV, including rape and defilement, is perpetrated by people known to victims, either a relative, family friend or neighbour. It is, therefore, frustrating when the victim is forced to withdraw a case for fear of shaming the family or community.

“Miscarriage of justice starts when the person violated is uninformed and does not know where to get help. Victims undergo psychosocial stress and rely on people around them to report and pursue the matter. Sometimes those they trust to help them may be the ones destroying evidence and, in the process, unknowingly hindering access to justice for the victim,” says Ms Kombo.

According to the World Health Organisation (WHO), globally, one in three women has experienced either physical or sexual violence perpetrated by an intimate partner. Closer home, women and girls are living in an emergency, with almost half of them reporting to have experienced violence in their lifetime. The advent of Covid-19 notably aggravated women’s vulnerability to violence, with the first year of the pandemic seeing a 92 per cent increase in cases of violence against women and girls.

Gruelling process

The rise in cases has further exposed the injustice endured in pursuit of justice. GBV against women and girls remains one of the most pressing challenges and the most widespread violation of women’s human rights. Yet, justice for women survivors of GBV remains elusive in most cases. In Kenya, for instance, GBV survivors are subjected to a long and gruelling process that often leads to withdrawal of the case because of the slow wheels of justice, exposure to danger, humiliation, cost implication and ridicule that often comes from personnel not trained to handle victims.

Caroline Chagaya, 32, a multiple-survivor of SGBV, had no idea how to get justice for violations she underwent. At the age of 13, she was defiled and two years later, married off as a second wife. Her husband was a habitual batterer and one day in 2014, she was beaten unconscious. A good Samaritan came to her rescue, but the matter was never reported to the police.

“I had reported the abuse many times before, but no action was taken. The pastor who came to my rescue did not want the police involved again because like before, there was no guarantee I would get help,” says Ms Chagaya.

Restoring dignity

Policare, which is anchored on National Police Service reforms, seeks to restore victims’ dignity by simplifying the search for justice that has so for been complex. Ms Nderitu says the concept brings together the police, legal experts, psychosocial experts, medics and counsellors under one room to provide the care and support needed to serve justice.

“There was the realisation that process of pursuing justice for these victims is tedious and humiliating because the victim has to encounter many people along the way and keep recounting the story. This stigmatises them further and many are forced to abandon the pursuit of justice. Under ‘Policare’, the victim deals with a maximum of four people who provide professional care to reduce re-victimisation,” says Ms Nderitu, adding that the goal is to transform victims to survivors.

“The pursuit of justice is also hindered by poor preservation of forensic evidence. Our institutions, including the police, lack the capacity to preserve forensic evidence to be produced in a court of law during hearing of the case.”

Ms Gladys Chania, a child and adult psychologist, has walked the journey with many GBV victims in pursuit of justice and her experience has been nothing short of frustrating, traumatising and lead to a miscarriage of justice.

For instance, she says, when a rape victim arrives at the police station to report assault, the victim is sent to hospital to acquire a P3 form, after which she is expected to take it back to the police station to start investigations.  The process is even more frustrating because in most health facilities, only one doctor is assigned to fill the P3 form, as doing so automatically makes him/her a witness to the case.

Ms Chania notes that some victims also give up because of the cost implications. In a case where a pro bono lawyer has been provided, she explains, some victims lack resources as mundane as bus fare to attend court hearings because the process can take months, if not years. Therefore, the barriers to legal redress for GBV survivors are multi-fold and disadvantage them. What this does, therefore, sustains a breeding ground for offenders and perpetrators to walk scot-free. 

Survivor-centred measures

While preventing and responding to GBV has moved to the top of the global agenda, it is imperative that deliberate actions are taken to fast-track access to justice. This includes the urgent adoption and full implementation of effective survivor-centred measures and the Judiciary establishing special courts, expediting GBV cases and making offences non bail-able.

In June last year, during the Generation Equality Forum (GEF) in Paris, Kenya renewed its commitment to accelerating investment and efforts towards ending violence against women and girls by 2026. Top among them was the idea of a one-stop-shop for survivors and a policy to spearhead the enforcement of the national police service integrated response to sexual and gender-based violence – Policare. As alluded to by Ms Chania, access to justice for GBV survivors can be realised through a holistic approach that brings under one roof police, medical, psycho-social, legal and health services.

Although the government seems to be dragging its feet in rolling out Policare centres, it should set up gender desks that are more humanising, to restore the dignity for survivors who are reporting violations.

Further, the government has a role to ensure Parliament fast-tracks the implementation of the Legal Aid Act, the Witness Protection Act, the Protection against Domestic Violence Act, 2015, the Victim Protection Act and establish the legal aid fund to support free legal aid to survivors of violence.