Enforcement of the Sexual Offences Act in Kenya

The Office of the Attorney General has formulated a Reference Manual [1] that expounds the Act as well as setting standards and recommendations on best practices to various key service providers. The target is not only the police investigator and prosecutor, but also medical practitioners, civil society, gender activists and general consumers of criminal justice services.

If used well, the manual can become an important tool in achieving the objectives set out in the preamble of the Act as well as sensitizing communities through outreach programs.

This discussion paper is going to examine the shortcomings encountered by women who seek redress within the criminal justice sector as well as making recommendations to counter them. The right to development, to peace and to justice cannot be overemphasized [2].

Violence against women denies women peace of mind, bodily integrity and a sense of development, curtailing their contribution to development.

INADEQUACIES WITHIN THE NATIONAL LEGAL FRAMEWORK

According to international practice, it is the duty of states to promote and protect human rights at the national level. In its 85th Plenary Meeting held on 20th December 1993, the General Assembly of the United Nations passed the

PRACTICAL PROBLEMS ENCOUNTERED WHILE ACCESSING PROTECTION UNDER THE SEXUAL OFFENCES ACT

Even for those women who have a ‘legitimate’ right not to be raped; (because their experience of rape fall under the legislative mandate) their road to legal redress is not smooth sailing. Apart from the high cost of accessing justice, ignorance and technicality of the court process, they risk falling foul to rogue police officers who may take advantage of their vulnerability to extract the ‘extra pound’ of flesh before they receive services.

It is unfortunate that although section 24 of SOA prohibits law enforcement officers extracting sexual favors from people who seek their services, there is no enforcing and monitoring mechanism in place to ensure compliance.

Women who seek services at the police station have get sexually attacked; harassed or simply forced to give bribes in order to receive services. Take the case on Sarah, a woman who had complained against her estranged husband for assault. Every time the case came for hearing it got adjourned. When she made inquiries from the prosecutor, she learnt that the magistrate was waiting to be ‘seen’. The prosecutor asked for her mobile number and she began to receive very seductive messages from the trial magistrate. He wanted to have sexual relations with her and at one time told her that her case would not ‘go’ anywhere unless she complies. Although the matter was referred to police for investigations, nothing happened. They alerted the rogue magistrate who stopped sending the offensive messages. They also claimed that they did not have the technical know-how to extract the previous messages from Sarah’s phone. In the end, the matter fizzled to oblivion after the case got transferred to another court. The trial magistrate later got disciplined by getting a transfer to a remote area, where it is feared, he may be continuing his wayward ways against defenseless, disempowered and ignorant women.

At the worst, a woman who is a victim of violence also risks being victimized under section 38 of the SOA which criminalizes the offence of making false allegations. Many police investigators and prosecutors are categorical that they would not hesitate to charge complainants in sexual offences case if the trial magistrate failed to place an accused on his defense. To them failure of a prosecution case at this stage showed that the complainant had given false allegations. The police need to be disabused from this hackneyed interpretation of section 38. They should know that a criminal prosecution can flounder for other reasons. Sometimes a crucial witness such as a doctor can fail to appear in court and exhibits can get misplaced.

Another problem facing women in Kenya in their quest for justice is lack of specialization and sensitization of police investigators and prosecutors. Police prosecutors carry out most prosecutions before subordinate courts where most sexual offences are prosecuted. State counsels who are trained lawyers handle the more serious crimes like murder and treason in High court.

Many factors contribute to the high rate of acquittals in sexual offences. In a system where access to justice is based on dichotomies of whether one is rich or poor, man or woman, health or sick; with the first variable almost always getting the upper hand, women are bound to suffer.

This makes nonsense the doctrine of equality and non-discrimination in justice, which is the cornerstone of international, regional and national jurisprudence.

Also heavy work loads on the part of prosecutors lead to shoddy prosecutions. In a day, a prosecutor may handle 25 cases, so he is not able to give focused attention on any particular case. Logistics deny him research facilities, which put him at a disadvantage when compared with sharp defense lawyers who have all the time and facilities to prepare for their cases. There is no opportunity for holding pre-trial interviews with witnesses or even visiting the scene of crime in preparation for the hearing. Most prosecutors’ offices are one room affairs tucked in a corner of the court premises and sometimes it is shared between two to five prosecutors. This makes it impossible to comply with the good practices recommended to services providers in cases of violence against women [4].

DORMANT ‘WHITE ELEPHANT’ PROVISIONS

It is laudable that the Attorney General has appointed a multi-sectoral task force that is now in the process of developing a National Policy Framework to guide in the implementation and enforcement of the SOA. Once the policy is formulated, the Attorney General will have complied with the provisions of section 46 of the Sexual Offences Act.

Unfortunately, there are many sections existing in our current legal framework, which are not yet operational for lack of regulations to make them effective. Designated officers who are mandated to formulate rules and guidance to trigger their operation have failed to do their duty.

I have in mind section 39 of SOA, which places the onus of keeping a register and a data bank of convicted sexual offenders on the registrar of the high court. Section 47 likewise gives the implementing minister power to prescribe regulations on what is to be contained in this data bank. I am not sure such regulations have been formulated so far. Perhaps they will be included in the National Policy Framework.

Another glaring example is section 329 (A) which was introduced by a 2003 amendment of the Criminal Procedure Code. The Chief Justice is required to make rules and regulations to guide the manner in which Victim Impact Statements can be received and their use by courts. Such statements are intended to guide the court in its exercise of sentencing discretion as well as assessing damages that can be ordered against convicted accused person. Attempts by prosecutors to produce such statements in spousal battering cases get rejected because courts are of the opinion that ground rules have not been legally defined.

THE PROBLEM WITH CIVIL SOCIETY, NGOS AND GENDER ACTIVISTS

Agitators for equality and justice among the justice system are ignorant about the law, the legal process and the court procedure.

Many members of civil society do not appear to know that the office of the Attorney General can help in cases where victims feel they have been short charged by first line service providers.

A good example is a recommendation appearing in COVAW report entitled; [email protected] or comment online at http://www.pambazuka.org/

Notes:

1. The Reference Manual on the Sexual Offences Act, 2006 for Prosecutors which a product of joint collaboration between the Office of the Attorney General, in particular the Department of Public Prosecutions and Women in Law and Development in Africa (WILDAF).

2. Koffi Annan; in Larger Freedom 2005 available at www.un.org

3. An article entitled ‘South Africa: Justice for survivors of marital rape, how far has SADC come?’ by Pamela Mhlanga Reported in www.un.org/womenwatch/daw/egm/vaw-gp-2005/doc/finaldoc/goodpractices.pdf last accessed on 26-1-08