When courts serve justice for gender violence survivors
SGBV survivors have to protect evidence to ensure a watertight case.
What you need to know:
- These cases reflect the real life examples of people being violated in society but whom the Judiciary has offered relief in the form of justice.
- According to the Administration of Justice Annual Report 2021-22 launched on Monday, 8,498 cases were resolved in magistrate’s courts between June 2021 and June 2022.
Last August, a Lamu magistrate court convicted a 40-year-old man of sexually abusing a 16-year-old boy and sentenced him to 15 years in jail.
Principal Magistrate Temba Sitati found Abubakar Shekuwe guilty of committing the crime on December 4, 2021, after enticing him to his house with a loaf of bread and tea. Three days earlier, the same court had sentenced Stephen Kombo Kikuyu, 42, to a 20-year jail term for molesting a 19-year-old boy.
In Milimani, Nairobi, Senior Principal Magistrate Esther Kimilu handed a 34-year-old woman an eight-year jail term without the option of a fine, for sexually abusing a 13-year-old boy and introducing him to porn between July 2020 and February 2021, when she was employed by the boy’s parents as a house help.
Issuing the judgment last June, Ms Kimilu was considerate of the facts presented in the pre-sentencing report indicating that the woman had equally been abused previously and had never recovered from the incident. She said the woman had been married at age 14, hence being a victim of abuse.
Watertight case
These cases reflect the real life examples of people being violated in society but whom the Judiciary has offered relief in the form of justice. According to the Administration of Justice Annual Report 2021-22 launched on Monday, 8,498 cases were resolved in magistrate’s courts between June 2021 and June 2022.
But for the survivor to get justice, there are things they must do to build up a watertight case by preserving evidence.
Getter Wasilwa, a clinical psychologist attached to the Gender-Based Violence Recovery Centre at Kenyatta National Hospital, says: “We encourage survivors to get to hospital first, not the police station. The evidence is tampered with during the back and forth movements. With the hospital, the forensic evidence is taken and safely kept. The police can come to the hospital to take the statement.”
Usually, a doctor, clinical officer, or nurse, fills a post-rape care (PRC) form upon examining a survivor from head to toe. PRC is a crucial document produced in court as evidence and a healthcare provider cannot fill out the Kenya Police Medical Examination P3 Form without it.
The P3 is filled out by a healthcare provider and a police officer as evidence that violence has occurred. It serves as a link between the health sector and the Judiciary. As per the National Guidelines on Management of Sexual Violence in Kenya, the medic who fills out the P3 form testifies in court as an expert witness and produces a PRC form as an exhibit.
Dent
The Sexual Offences Act, 2006, warrants the use of all medical records relating to treatment as evidence. But a decision in August by High Court judge John Mativo dents access to justice.
Four consolidated petitions were presented in his court praying for invalidation of mandatory sentences prescribed by different sections of the Act.
The petitioners had all been individually charged, tried and convicted of sexual offences, namely defilement, indecent act with a child or adult and incest by male persons. They were sentenced to life imprisonment, a mandatory minimum sentence prescribed in the provisions.
But in their petition, they pleaded that their mitigation be reheard and they be re-sentenced based on each petitioner’s circumstances.
Judge Mativo ruled that a minimum mandatory sentence takes away an individual’s right to fair trial. He said individuals convicted and imprisoned under the said offences are at liberty to petition the High Court for mitigation and re-sentencing.
