In 2006, Charlotte Campbell-Stephen was kidnapped, held hostage and gang raped by four assailants. raped in Kenya every 30 minutes. That translates into 48 women every day, 1,440 every month and a little over 17,000 every year. Sadly, Charlotte’s trial is emblematic of the entire judicial process regarding sexual offences. Her traumatic assault happened in 2006.
This was also the year that the Kenyan government enacted the Sexual Offences Act (SOA), which was meant to make it easier to prosecute crimes of sexual violence against women and children. One of the key pillars of SOA was the reclassification of sexual offences as crimes of violence as opposed to “offences of morality”. This redefinition makes sexual offences a more severe crime and increases the penalties for those found guilty. SOA also expands the definition of sexual offences to include sexual assault, gang rape, child trafficking, sex tourism and the intentional transmission of HIV.
E ven though her violators have been captured, and one of them even confessed, no one has ever been convicted of the crime. We previously told Charlotte’s story in UP 2.10 (December/January) issue. She has now been waiting six years for justice to be served, and there are many other stories like hers. According to the Federation of Women Lawyers in Kenya (FIDA), a woman is 2008/2009 21 percent of Kenyan women between 15 and 49 years of age have experienced violence of a sexual nature. 12% The same 2008/2009 survey reports that 12 percent of Kenyan women ages 15-49 had their first experience of sexual intercourse against their will.
However, like Charlotte’s trial, we have yet to see any progress from the prosecution’s side. Unfortunately, enactment doesn’t equal enforcement when it comes to the Kenyan legal system, and six years later, the law is still not properly in place. What is in place instead is the Task Force for the Implementation of the Sexual Offences Act (TFSOA), chaired by Hon. Lady Justice (Rtd.) Effie Owuor. It was established by the Attorney General’s office in 2007 as a temporary agency, but is now going into its fifth year—and counting.
TFSOA’s mandate is generally to guide the implementation of SOA, but, in practice, it is limited to the preparation of various policy documents for final approval from the Attorney General. One of the major challenges for the implementation of the SOA is getting the different institutions of government to collaborate. The administration of the laws against sexual violence cut across various government sectors, which means that the Ministry of Justice, National Cohesion and Constitutional Affairs has to work together with the ministries responsible for police, prisons, social services, health and education to be able to effectively implement the Act. So far, this is not happening. When TFSOA is approached about the lack of progress, a familiar answer arrives.
“We don’t have enough people to d the work and our budget is limited,” says Jacinta Nyamosi, Joint Secretary of TFSOA. While the implementation process is dragging out, the organization is left to focus on addressing some relevant issues of education. “The task force has carried out extensive awareness programs at the Coast, Nairobi, Western, Central, Nyanza regions,” Ms. Nyamosi says. TSFOA has also led a widespread campaign on TV and in local newspapers in English and Kiswahili, as well as conducting workshops on sexual offences with chiefs and other local leaders in various areas of the country.
This campaign is intended to mend one of the issues located outside of the courtroom. According to Kenya Demographic Health Survey (KDHS), fear of stigmatization is one of the biggest barriers for women in reporting sexual assaults. Out of the estimated 17,000 violations a year, only 5,600 cases of sexual violence are reported. The number of these cases taken to court is far less. However, this seems pointless when the proper procedures are not in place to prosecute the offenders. It is not only fear of stigmatization that is keeping victims from filing charges. It is part of the law itself. Section 38 of SOA provides that a victim or witness found to have given false testimony can receive the same sentence the accused would have received if found guilty.
Not only is this a highly arbitrary way of equating false testimony with rape, but it drives women away from the witness stand. As told by Charlotte, a woman can be forced to endure severe humiliations in court if she decides to come forward and take her perpetrators to trial. This compounds the problem of stigmatization, making it even harder for bolder victims and witnesses to come forward. 30 Rate of minutes in which a woman is raped in Kenya. That translates into 48 Kenyan women every day, 1,440 every month and more than 17,000 every year. For Charlotte, coming forward seems like a futile effort, adding insult to injury, when she is soon moving into the seventh year of her trial. And while the Attorney General’s office is waiting for more police documents to be prepared and workshops to be conducted, Charlotte is still waiting for justice.
Violating the Vows: Raping your spouse remains legal The prosecution of sexual offences is a flawed process. However, the largest percentage of perpetrators can’t be prosecuted at all, because they are exempted by the law. According to the 2008/ 2009 KDHS, 37 percent of women who have experienced sexual violence report the current husband or partner as the perpetrator. And according to the law, this is not a crime. In SOA, there is a provision in section 43 (5), which makes the definition of intentional and unlawful acts (on which the whole of the Act relies) inapplicable to those in lawful marriage, based on the implication that consent to sexual intercourse is given by the act of marriage. This issue is not being raised—neither in the hallways of parliament nor on the pages of the press. Last year, Arthur Okwemba, a Kenyan journalist, tried to push a story about marital rape to some of the major news outlets, but got shut down with the explanation that “There is nothing like marital rape, what are you trying to tell people?” The 14 percent of Kenya’s women, who were raped by their husbands within the last year, would beg to differ. While the Attorney General’s office is dragging its feet in implementing the SOA, a whole different battle has yet to be fought in parliament.
By Jakob Bo Nielsen