Why we must fix legal loopholes that inhibit the fight against GBV

We have ended this year’s observance of the 16 Days of Activism to end gender-based violence (GBV). The international community came together from November 25 to last Friday to escalate awareness, share information and innovate on ways to accelerate and promote advocacy on this worst form of human rights violations against women and girls.

As expected, the campaign, which hit 30 years since it first kicked off in 1991, brought along new information, experience, inspiration and advancement.

Various groups and even countries struggle with ways to eliminate SGBV, which statistics and reports demonstrate to have increased since the Covid-19 pandemic struck in March last year.

In Kenya, sadly, it’s clear that even with the vibrant advocacy, SGBV does not appear to relent, especially in the case of domestic violence, in all its forms. In fact, this is evident in media reports within the campaign period. And those were just a handful of the extreme cases that were reported by journalists.

However, there are also indications that society is becoming more aware of the horrendous violations that is SGBV, and thus, the intensity in reporting all forms of the crime from within communities. The progress may be slow, but the fact that it’s happening, is encouraging, because in it, lives are saved particularly in cases where victims of such abuse are rescued and taken to safe houses.

It’s encouraging that Kenya has made commitments to end violence against women and girls, integrated the UN Sustainable Development Goals (SDGs), adopted policies and strategies in addition to using the law to combat SGBV and gender inequality.

Intellectually challenged

However, yawning legal gaps remain in the statutes, raising questions on how genuine this commitment to end and prevent SGBV against women and girls by fighting it in earnest, is. Aware that the penal code contains glaring discriminative clauses, it should be the point from which the government’s legal advisers should start.

It’s unacceptable that the government has, over the years, joined partners and other interest groups in committing to battle all forms of violence against women and girls, yet overlook provisions in the law that are discriminative to the female gender and other sections of society.

For instance, women and girls with mental health conditions that render them intellectually challenged face some of the worst forms of sexual abuse within their communities and even families. Criminals, abusers, rapists, defilers and perpetrators of all forms of sexual violence take advantage of the vulnerability of women and girls in this category, and sadly, get away with it, in most cases.

Stigma, attitudes and socio-cultural customs within communities and even within the judicial system, unite to allow violence against women and girls with this form of mental disability.

Worse, the silence around that violence is disconcerting even when community members know who the rapists and defilers are, never mind even in cases where babies result out of the violations.

But, what is worse is the fact that the victims—of mental disability—most often hit a wall in situations where attempts are made to seek legal redress. A casual glance of Section 146 of the Penal Code, as well as Section 125 (2) of the Evidence Act, is an example of provisions that are discriminatory against people with mental disability in the manner they are described.

In addition, the provisions for sentencing, which principally affect intellectually challenged women and girls as they seek justice after being sexually attacked are not only discriminatory, but also unconstitutional ( as per Articles 25 and 27 (4) of the Constitution).

To continue to retain outright discriminative provisions in any of our laws that not only serve to perpetuate discrimination, indignity, stigma and worse violence against, especially women and girls, who are intellectually challenged, does not tell the story of a nation that is committed to protect and ensure rights of all citizens, equally.

Perpetuate discrimination

Why, in this day and age, does the country retain in its laws provisions that describe those with intellectual disabilities in disparaging and offensive terms as “imbecile”, “idiot” and ‘’lunatic”?

With such provisions intact, it means that defilement and sexual violations of women and girls with intellectual challenges will continue unabated given that they are exposed by the discriminative sections of law, as the few abusers who get caught and prosecuted, are charged and convicted under the sections, are handed lesser sentences as opposed to what is prescribed in the Sexual Offences Act.

As Kenya moves to implement the plans and commitment to end sexual and gender based violence by 2026, it will be necessary to have a look at the laws and policies that allow for and perpetuate discrimination, stigmatisation along gender and disability among others.

The first in the list of commitments is full implementation of GBV laws and policies by next year—and expunging of those that impede equal protection of all—should fall within this category. As we head to a new year, we must move the conversation and focus on action #Ending SGBV.