What the state should do to better protect survivors of sexual violence

By CREAW, supported by ForumCiv

As the 16 Days of Activism against Gender-Based Violence come to a close, we, as the civil society, have stepped up our demand to the state to effectively fulfil its obligation of protecting survivors of sexual violence.

The recent rulings by several judges declaring minimum mandatory sentencing for sexual offences as constitutional not only failed to take a survivor-centred approach, but also granted judicial officers unfettered discretion to issue sentences for sexual offences.

This has resulted in numerous applications in courts countrywide by convicts, for resentencing. It rolls back the gains made by women's rights movements over the years to ensure that gender-based violence is treated with the urgency and seriousness it deserves. The scenario will also embolden perpetrators who will no longer be deterred by the law.

Under Article 29(c) of the Constitution of Kenya, every person has the right to freedom and security, which includes the right not to be subjected to any form of violence from either public or private sources. The Judiciary has an obligation to protect survivors, punish perpetrators of sexual violence, and ensure that survivors obtain their right to remedy that is effective and commensurate with the gravity of the sexual offence committed.

In this regard, we are demanding that the Judiciary of the Republic of Kenya take appropriate measures to adequately fulfil its obligations to survivors of sexual and gender-based violence, as follows:

Preventive Measures

• Take preventative measures such as ensuring the Judiciary is fully equipped to effectively interpret and enforce gender equality rights as well as provide appropriate and accessible protective mechanisms to prevent further violence against victims with ongoing court cases.
• Provide adequate budgetary resources for the implementation and monitoring of activities aimed at preventing and eradicating sexual and gender-based violence.
• Reform existing discriminatory laws and practices in order to promote and protect the rights of women and girls.

Protective Measures

• Recognise that sexual and gender-based violence are a form of discrimination that disproportionately affects women and girls and inhibits their ability to enjoy rights and freedoms on a basis of equality with men.
• Integrate a gender-sensitive and survivor-centred approach in hearing and determining cases concerning sexual and gender-based violence.
• Protect the privacy and safety of victims of gender-based violence through gender-sensitive court procedures and measures, bearing in mind the rights of victims/survivors, witnesses, and defendants.

Prosecution, Penal and Remedial measures

• Provide effective complaints procedures and ensure victims are granted good access to courts/tribunals, and that the authorities adequately respond to all cases of gender-based violence.
• Punish the perpetrators of violence against women and ensure that such punishment is commensurate with the offence committed.
• Provide just and effective remedies to victims of gender-based violence.
• Ensure that any reparations accorded to victims of sexual and gender-based violence are adequate, promptly attributed, holistic, and proportionate to the gravity of the harm suffered.