Why sexual violence victims face delayed justice

Alice Achieng’ (not her real name) was optimistic that she would get swift access to justice for her four-year-old relative who was defiled by a farmhand in 2017.

She was happy that finally the suspect was arrested and subsequently arraigned.

However, Achieng’ was later to learn the hard way that access to justice for victims and survivors of sexual and gender-based violence (SGBV) was a Herculean task.

Since the suspect was charged with defilement in 2018, the case has never taken off. It has been mired in endless adjournments.

“We have so far had at least seven adjournments. No witness has ever testified. Sometimes the file misses, other times we are taken to the wrong court and other times the suspect says he had not been issued with witness statements. It is such a frustrating process,” says Achieng’.

Frustrations

She reveals that it reached a point where she decided to stop following up the case as a result of frustrations.

“The frustrations from the court were just so many I decided enough was enough. I had reached the edge as no one seemed to care. I was using so much money to travel to the court, only to be met with adjournments, which have been very demoralising,” she says.

It took the intervention of some friends to convince her to continue following up the matter.

Achieng’s tiring quest for justice for her relative is just but the tip of the iceberg of the agony victims and survivors of sexual violence undergo.

A new study released last month has lifted the lid off how SGBV victims and survivors suffer in their protracted bids to get justice as their cases drag for years in court.

Grim picture

The study, Delayed & Denied: Legal and Administrative Bottlenecks to Effective and Efficient Delivery of Justice for Survivors of SGBV, shows that more than 50 per cent of SGBV cases take more than four years to be concluded.

It also indicates that between 2017 and 2020, the number of concluded cases was below 50 per cent, with more than half of all closed cases being withdrawn by the end of 2021.

The study was conducted by the Coalition on Violence against Women (Covaw) and the Open Society Initiative East Africa (Osiea), which interviewed 20 stakeholders, including court staff, advocates, survivors and caregivers from Makadara, Kibera, Kiambu, Thika, Ruiru, Kitui, Narok and Nyahururu.

While non-disabled persons also experienced delays, persons with intellectual disabilities were more affected. Defilement cases formed the bulk of reported cases, averaging 75.7 per cent of the cases filed under the Sexual Offences Act.

Rape was named a distant second at 13 per cent, with incest standing at 3.8 per cent, followed closely by sexual assault and indecent act with a child at 3.7 and 3.4 per cent respectively.

Trauma

The study indicates the delays prolong psychological trauma for survivors as they repeatedly appear in court to meet the accused.

“Having to go to court and seeing this person is not pleasant at all. And then the fact that it is taking too long, you have to keep reliving this process all over again... It is like a raw wound and you have to keep reopening it,” a mother of a defiled child stated in the report.

The study has enumerated some of the factors contributing to delayed justice, with perennial adjournments topping the list. The study also cites judicial calendars as another problem, saying some cases are adjourned on account of the absence of judicial officers. This has been attributed to lack of synchronisation of the court diary.

Transfer of magistrates, prosecutors, and investigating officers is also listed as a major cause, as is non-appearance of medical doctors and investigating officers. An advocate interviewed said most of the time getting a doctor, as an expert witness, is an uphill task that may lead to five or more adjournments.

The evidence of a medical doctor who examines a survivor/victim is a crucial piece of evidence in the trial and conviction of sexual offenders.

Missing files, shoddy probes

Advocates and judicial officers also gave missing files, scant investigations, unavailability and compromise of witnesses as some of the other causes of delayed justice.

Covaw Executive Director Wairimu Munyinyi-Wahome, in an interview with Nation.africa, emphasized the need to recognise the gaps undermining the quest for justice.

“It is very important that these gaps in law and policy hindering the victims and survivors of sexual violence to have a faster access to justice are sealed,” said Ms Munyinyi-Wahome.

Of the court stations sampled in the study, Makadara had the highest sexual offences caseload with 1,195 cases between 2017 and 2020.

Narok reported the highest number of defilement cases in proportion to the number of sexual offences filed at the station at 90 per cent, out of which 72.2 per cent were defilement matters.

Kiambu had the least number of sexual offences at 255 cases, out of which 69.8 per cent were defilement.

The newly established Ruiru Law Courts showed a similar trend, with the total number of cases for 2019 and 2020 standing at 93 per cent, of which 70.9 per cent were defilement cases.

The study is recommending the amendment of the Sexual Offences Act, 2006, to provide for a time limit for determination of sexual offences cases, particularly in cases where minors and persons with intellectual disabilities are involved.

Most advocates and judicial officers interviewed favoured capping the time within which these cases are concluded.

Need for timelines

“The Judiciary should put timelines in these cases, especially where minors and persons with mental illness are concerned. When cases take long, by the time some of the witnesses are testifying, the memory is foggy and the court is not able to get the finer details of the proper picture of what transpired. These cases should not take more than six months,” one of the advocates stated.

One magistrate was, however, indifferent to the proposal of the time caps, arguing that such provisions should also be matched with requisite expansion of resources as it would also inspire other litigants to demand similar treatment.

SGBV victims and survivors could, however, have a reason to smile following the recent directives by Chief Justice Martha Koome barring the Judiciary from adjourning their cases.

Koome spoke as she launched Kenya’s first-ever specialised SGBV Court at the Shanzu Law Courts in Mombasa last month.

“When it comes to SGBV cases, courts are hereby directed to implement the 'no adjournment policy',” she said.

She said the Judiciary’s data suggests that 56 per cent of adjournments are occasioned by external parties, the reason being that witnesses or parties were not present.

The Chief Justice expect the courts to adhere to best practice to ensure expeditious trials through stakeholder engagement and collaboration through the Court User Committees.

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