Betrayed by the system: Asumptah's five-year fight for disabled daughter

In 2019, Asumptah*, 44, embarked on a five-year journey to seek justice for her daughter, who she suspected was sexually assaulted. This came after she received a chilling phone call from her cousin, whom she had left to care for her three children, including her 23-year-old daughter, Rita*, who has an intellectual disability.

"I had gone upcountry to attend a burial when I was informed my daughter had been raped. I always take Rita everywhere because people abuse her when I am not around. Some beat her heavily for minor mistakes or sexually assault her," she says.

However, for that particular trip, she did not have enough money to bring her along.

Asumptah cut her trip short and rushed back to Nairobi to take Rita to the hospital and report the matter to the police.

However, the reception was not what she expected.

Neighbours

“This was the second time I was reporting an assault against my daughter. The first time, I reported a man who had beaten her because she had gone into his shamba and picked vegetables without permission. She was beaten so badly I could only recognise her from the clothes she was wearing," she recounts.

So, the police had grown weary of her complaints, accusing her of fabricating lies to implicate her neighbours.

After reporting, she was given an Occurrence Book (OB) number and advised to go to the hospital for tests.

"The doctor found that Rita was not only moderately intellectually challenged but also seven weeks pregnant. We wanted to get an abortion, but the hospital asked us to get a letter from a lawyer explaining the reason for the abortion. By the time we got the letter, the pregnancy was seven months old, and the doctor refused to perform it, citing health risks," Asumptah explains.

At the police station, Asumptah tried to get the perpetrator, who was their neighbour arrested, but the officers asked for ‘facilitation fees’.

"They would say they don't have a car to make the arrest, so I should find a taxi or fuel a car for them. Sometimes they would say that since there are four people making the arrest, they need to be ‘motivated’. If you don't facilitate these requests, they will keep telling you they don't have a car to make the arrest," she said.

Asumptah, a fishmonger who occasionally does tailoring, struggled financially due to these demands as she is a single mother who also had to support her family. She often had to part with Sh1,500 for “facilitation”.

Rape case

When the perpetrator was finally arrested, the case took a long time to get to a hearing and was constantly being mentioned in court. The prosecutor assigned to the case did not communicate with Asumptah, so she relied on the investigating police officer for updates.

Asumptah was also asked to provide witnesses for her case, which she found challenging in a rape case.

"How could I find witnesses to my daughter’s rape case? Such things are done in secrecy," she questioned then.

After a year, the perpetrator was released on bond and even tried to persuade her to drop the case. Court documents perused by nation.africa showed that the perpetrator claimed that Asumptah forced Rita to lodge a sexual assault case against him because she bore a grudge against him.

In September 2023, the court rendered its verdict, acquitting the accused due to insufficient evidence. This was almost five years after Asumptah reported the matter to the police.

“I would spend about Sh600 for every visit to Ngong’ Law Courts. For almost a year, the case was just being mentioned. Other times, the accused person was not in court. It was very frustrating," she says.

During that time, her neighbours ostracised her for taking the case to court, saying that they brought the abuse onto themselves. She had hoped the community would rally behind them and bring the perpetrator to justice.

Eventually, she was asked to leave the apartment where she lived with her three children because she was causing "conflict" in the community.

Sexual violence

Rita’s case is an example of what survivors of sexual abuse undergo when trying to get their day in court.

According to the report Delayed & Denied: Legal and Administrative Bottlenecks to Effective Delivery of Justice for Survivors of SGBV, more than 50 per cent of sexual and gender-based violence (SGBV)  cases take more than four years to be concluded.

The study also found that while non-disabled people experienced delays, persons with intellectual disabilities were more affected. It went further to enumerate other factors that delayed justice for survivors of sexual violence.

“Transfer of magistrates, prosecutors, and investigating officers, as well as non-appearance of medical doctors, are listed as a major cause of delay," part of the report reads.

Kenya has ratified a number of international and regional frameworks meant to assure access to justice to survivors of sexual abuse, including women living with intellectual disabilities.

The Protocol to the African Charter on Human and Peoples Rights (Maputo Protocol) is perhaps the most significant regional human rights instrument that specifically mentions access to justice as a right. Article eight of the Maputo Protocol provides that men and women are equal before the law and have the right to equal protection and benefit of the law.

The Constitution of Kenya, under Article 48, also guarantees the same, while the Persons with Disabilities Act 2003 obligates the Chief Justice to ensure cases involving persons with disabilities are handled without delay.

In the same vein, the Sexual Offences Act 2006, under section two, identifies a person with mental disabilities as a vulnerable person and directs that they can provide evidence through an intermediary.

However, in Rita’s case, these provisions were not adhered to. Nyokabi Njogu, an advocate with Kelin, told nation.africa that she had to intervene in the survivor’s case after finding out that the case was being mentioned in court for over a year with very little progress.

“Considering that the complainant was mentally challenged, the court should have taken measures to ensure she was treated as a vulnerable person. However, the court did not take this into account," Nyokabi says.

According to the judgement, medical reports presented showed that Rita had low intellectual capacity, which the court ruled does not mean a lack of capacity to consent to sex.

Even though they lost the case, Asumptah says that as a mother to a child with intellectual disability, she would like the judicial system, from the police station onwards, to be more sensitive to survivors of sexual abuse. This includes installing and running effective gender desks and training officers who are aware of and sensitive to the needs of persons living with intellectual disabilities.

There are currently three specialised SGBV courts in Kenya. This has been lauded by many, however, caregivers like Asumptah wish for more of these courts to be opened in all major court stations in Kenya.

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*name changed to protect the privacy of the survivor and caregiver.