Landmark ruling: Court awards Sh4 million to post-poll SGBV survivors

The High Court on Thursday made a historic ruling awarding four survivors of 2007/8 post-election sexual and gender-based violence (SGBV) Sh4 million each for violation of their constitutional rights.

The judgement of its kind comes after seven years since the survivors - six women and two men - petitioned the High Court to declare that the State had violated many of their rights including right to life, equality and freedom from discrimination by failing to act on SGBV crimes committed during the time. The court, however, awarded only four women in petition 122  filed in 2013.

The survivors had in 2013, alongside Coalition on Violence against Women

(Covaw), Independent Medico-Legal Unit (IMLU), International Commission of Jurists (ICJ-Kenya) and Physicians for Human Rights (PHR) filed the petition, which faulted the State for not classifying SGBV-related crimes committed during the chaos as crimes against humanity.

Positive obligation

In making the virtual ruling, Judge Weldon Korir found the State at fault in failure to conduct independent and effective investigations and prosecutions of SGBV-related crimes committed at the time.

This, he said “is a violation of the positive obligation on the Kenyan State to investigate and prosecute violations of the rights to life, the prohibition of torture, inhuman and degrading treatment, and the security of the person.”

By failing to investigate and prosecute the cases, the government not only violated the eight and other SGBV survivors’ right to remedy, but also the right to security, protection of the law, equality and freedom from discrimination as well as right to information.

The Attorney General, Director of Public Prosecutions, Inspector General of the National Police Service, Minister for Health (formerly represented in two separated ministries, the Ministry of Medical Services and the Minister for Public Health and Sanitation), and the Independent Policing Oversight Authority were looped in as  respondents in the case.

Win for the women

“We are happy that the court has finally recognised the harm that we suffered as victims. It has been a long journey,” one of the female survivors who filed the petition is quoted in a joint December 10, statement of the civil societies who co-petitioned.

Covaw executive director, Ms Wairimu Munyinyi-Wahome, said the judgment inspired hope among Kenya's SGBV survivors in the rule of law.

"What a win for the women of Kenya!" she said in the statement.

"It (the judgement) has boosted our confidence in the practice of constitutionalism, especially for the survivors, and that their long wait for justice can finally pave the way for their healing, and the country’s healing," she added.

On her part, PHR director of programs, Ms Karen Naimer called on the government to honour the ruling and give each of the survivors the Sh4 million awarded.

Prosecute perpetrators

“The Government of Kenya must now ensure the survivors actually obtain the reparations awarded by the court, which are an essential precursor for redress and healing,” she said 

IMLU Programme Officer Mr Kevin Mwangi, said the judgement is a progressive step towards the realisation of justice for victims of the 2007/8 post-poll chaos.

“Since similar human rights violations have happened in subsequent general elections, we hope the State will conduct investigations and prosecute the perpetrators even as we head to another general election in 2022," he said.

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