The system is broken from head to toe; why defilement cases die

Residents of Busia County match on the streets of Busia town to the county commissioners' office where they presented a worldwide petition signatures against rape, defilement, abuse of women rights. They also demanded the arrest of Liz's* defilers. 

Photo credit: File | Nation Media Group

What you need to know:

  • Ten years ago, in Busia County,  a 16-year-old girl was left with double obstetric fistula and spinal injury after she was gang-defiled by six men. 
  • Her story drew local and global outrage that the three sex offenders were arrested and prosecuted.
  • Until September 26, 2023, Mary Makokha,  an anti-SGBV advocate in Busia County, had handled 13,857 sexual violence cases of which 98 per cent were of defilement and incest.

When we visited Busia on Tuesday, September 26, 2023, a Member of the County Assembly (MCA) was appearing before Chief Magistrate Edna Nyaloti to take plea on a charge of defiling a girl, aged 14. He pleaded not guilty and was detained until Thursday, September 28, 2023, when his application for bail and bond would be heard.

On the previous day, women had protested on the streets of Busia town carrying placards with messages "Don't protect perpetrators of sexual and gender-based violence (SGBV), Komesha ubakaji wa watoto (Stop defilement) and let's break the silence," among others.

The women were afraid the MCA would be let free due to his political status. Their protest was to demand for his arraignment in court, having been arrested on Friday, September 22, 2023. By law, he should have been presented in court on Monday, since he was taken into custody on the eve of the weekend.

In this same county, 10 years ago, a 16-year-old girl was left with double obstetric fistula and spinal injury after she was gang-defiled by six men as she returned from her grandfather's funeral in Tingolo, Butula Sub-County on the night of June 16, 2023. She knew the perpetrators.

When locals arrested three of the criminals and presented them to Tingolo Administration Police Camp, the officers opted to punish them by ordering them to cut grass in the compound, even when such a horrible act against a child of 16 years, is punishable by up to 15 years behind bars under the Sexual Offences Act (2006). Then, they also punished the girl for "venturing out in the night," by instructing her to clean an office in the camp.

Gang defiling

Three months later, highlighted her predicament identifying her as Liz. Her story drew local and global outrage that the three sex offenders were arrested and prosecuted.

In 2015, then Busia Chief Magistrate Margaret Wambani, sent them to jail for 15 years for gang-defiling Liz, and an additional seven for causing her grievous bodily harm.

The latest women's protest is an indication of little change in finding justice for violated children.

"What makes it so hard to get justice for violated children," I ask Mary Makokha. She led the women in the Monday protest. She also firmly fought for Liz to get justice. She is the founder of Rural Education and Economic Enhancement Programme, an organisation she started in 1999, to primarily advocate for end of sexual violence in Busia County.

Until September 26, 2023, she had handled 13,857 sexual violence cases of which 98 per cent were of defilement and incest.

Mary Makokha from Busia County, makes her remarks during a workshop at Safari Park Hotel, Nairobi, on September 14, 2023. She led the women in the Monday protest, in Busia County, against defilement. 

Photo credit: Francis Nderitu | Nation Media Group

She does not only protest; she has arrested perpetrators when the police drag their feet. For instance, in 2021, she arrested an 82-year-old man who had defiled a 16-year-old girl. When he was brought to court, he pleaded guilty and sought for forgiveness, but the court slapped him with a 20-year-jail term for his crime.

"The system is broken from head to toe," was her response.

"You'll go to the police and be told give us Sh200,000 to arrest the suspect but make sure Mary doesn't know. She will make noise. Why can't they do the right thing? I don't want them to act out of fear, I want them to do what is right," she says.

Many times, perpetrators and their families have sought to buy her silence fronting up to Sh2 million, but she chases them away. With her firmness, she has drawn much respect from duty bearers that when she gets to her feet, things move.

Like in a case of David who had almost given up seeking justice for his daughter married at 13 years, gang-defiled, stabbed to death and dumped into a pond within a marketing centre in the county. His name has been changed to protect him from harm.

"I went to the police station six times and they repeatedly told me to accept a financial settlement from the perpetrator," says David who uses crutches as both his legs are disabled.

He shared his distress with a local woman who linked him up with Mary. She took up the case and the main perpetrator- the man who had married his daughter- was arrested and last month, he was jailed for 25 years.

Last Monday, Busia Governor Paul Otuoma, said sexual violence is a serious problem bedevilling his county. He said rooting it out would take concerted efforts from all stakeholders.

While appearing on NTV's live show Kigoda Chako, Mr Otuoma vowed to continue the fight of zeroing the prevalence, noting that no one would be spared.

Busia is among the counties with the highest prevalence of sexual violence. The 2022 Kenya Demographic and Health Survey found that in the last 12 months, women and girls aged 15-49 had been victims of sexual violence. And overall, 14.7 per cent of them had experienced the violence in their lifetime.

During a September 14-15, 2023 conference held in Nairobi to take stock of the progress made in implementation 12 anti-gender-based violence commitments made by President Uhuru Kenyatta in June, 2021, activists took to task government officials present.

Little gains

In attendance were senior representatives from the National Police Service, Office of Director of Public Prosecution, State Department of Gender and the counties.

They accused the government of creating a rosy picture including creating gender desks, training police officers and collaborating with the civil society in sensitising the locals, yet the reality on the ground is totally the opposite.

In their defence, they said while they "have not reached the ideal situation, it is important to celebrate the little gains made and appreciate the good officers who do their work diligently."

Busia County Commissioner, Kipchumba Rutto, admitted to allegations of corruption and bribery among the administration and security officers.

He, however, said those who demand bribes do so “kichini chini (in secrecy),” that they cannot tell when money has changed hands.

“Locals should report any officer who asks for money at our office or Ethics and Anti-Corruption Commission (EACC),” he said via phone on Wednesday, September 27, 2023.

He explained that all the officers have been trained to end sexual violence in the county by arresting the perpetrators, advising the locals against localised resolutions mechanisms, popularly known as kangaroo courts, and encouraging them to report the incidents.

Busia director for gender Brenda Maketso, similarly highlighted training of chiefs in efforts to discourage them from allowing kangaroo courts in the villages.

“We’ve rolled out ward based programs to sensitise the communities on the importance of reporting the cases to the relevant authorities, and not withdrawing the case afterwards,” she said through the county’s communication director.

“‘We’re coming up with the County specific SGBV policy to help address the menace in the county. The policy is at an advanced stage, at the County Assembly,” she added.