Rape, mob justice, police killings and the Draft

Amnesty International released a chilling report last week on crime and insecurity in Nairobi’s low-income areas.

It focused on what, once pointed out, clearly should have been obvious – women’s vulnerability to sexual violence when living in crowded conditions and sharing communal bathing facilities and toilets.

Heartrending examples were given, one after the other, of women raped, gang-raped and nearly raped simply when trying to stay clean or to relieve themselves.

And equally heartrending examples were given of how they try to manage their insecurity.

One mother, for instance, only bathes while her sons keep watch outside.

Others simply do not bother to leave their 'houses' (if their living conditions qualify as houses) when they need the toilet at night.

They urinate and defecate in plastic bags, which they throw out the following morning.

Why do they have to manage on their own in this way?

They cannot afford even the Ksh5 (6 US cents) to use what toilets do exist as part of the rehabilitation efforts in the low-income areas.

There are no police stations in a number of these areas.

And even where they do exist, many women neither expect security to be provided, nor justice.

Most do not report assaults, fearing retaliation (for they tend to know their assailants).

And those that do report have, for the most part, been let down – reporting rarely leads to speedy arrests, charges or successful convictions.

The report is a terrible indictment of how normalised crime and insecurity have become, and how ineffective our responses to them are. It should not be so.

In many places, it is not so. I spent the week before last in a northern seaside town in Spain.

Above the beaches was a promenade, stretching along the entire bay and up into the hills.

I ran on it every morning, early to avoid the heat, passing other runners, swimmers, walkers, some with their dogs, even some older men fishing.

The runners all acknowledged each other.

It was entirely safe. And it was full in the evenings too, late into the long summer nights – I saw many women alone, of all ages, strolling or going places with intent, dressed for the occasion, all apparently utterly unconcerned about their safety.

This is, actually, how it is meant to be. But this is only how it can be where two conditions exist.

First, that the majority of (young) people (especially young men) have livelihood possibilities.

And second, that states take seriously their raison d’être – to assure citizens of the safety and security of their persons and property, regardless of their economic or other status.

States do so not just from an ethical, human rights or moral perspective, but from an eminently practical one.

They understand that if they fail in this respect, ultimately, citizens will take the law into their own hands, as they have done and continue to do in Kenya, whether we are talking about individual acts of so-called mob justice, the emergence of 'mafias' that start as private-protection rackets but mutate into armed groups and militia such as the Mungiki or the collective arming efforts on both sides of the divide created by the post-election violence.

Citizens taking the law into their own hands is one thing.

The phenomenon can be contained when the state recognises the threat and acts.

The phenomenon spirals out of control when state security agencies themselves begin to take the law into their own hands.

Frustrated by their lack of equipment and resources, or by the failure of the judiciary to act on what they do bring forward, they assume the right of arbitration for themselves.

And extrajudicial executions start to mount. The combination of the two can only, eventually, push states into civil war.

Let us not delude ourselves – the rise of armed groups and militias and the criminalisation of state security agencies with an overall breakdown in law and order are what have led to civil war in every African country that has undergone it.

We have ongoing processes of police and judicial reform.

The reports from the two task forces are ready, with the one on police reform being slowly implemented.

Conditions of work and remuneration of the Kenya police force are being improved – the salary increases announced last week are something that no citizen would have a problem with, unlike the proposal to increase the already outrageous salaries of our parliamentarians.

A bill to establish an accountability and oversight body for the Kenya police force is also ready.

Most important, however, is what the Draft Constitution proposes to strengthen within the criminal justice and human rights system.

The administration police and the Kenya police force will come under one command, enhancing accountability.

They will be prohibited from taking orders of a partisan or political nature from outside that command.

Their recruitment patterns will equitably reflect Kenya’s ethnic diversity.

And, like all state organs, they will be compelled to act in line with the constitution and all the rights outlined therein.

So much for enforcement. On arbitration, the chief justice will be appointed by the president, with parliamentary approval.

All other members of the bench will be appointed by an expanded Judicial Service Commission (with citizen representation), subject to vetting and parliamentary approval – all moves to enhance competence and increase independence.

The Office of the Attorney General will be clearly separated from that of the public prosecutor, with the powers of nolle prosequi removed from the discretion of the attorney general and subjected to the courts’ determination – moves intended to ensure that criminal prosecutions proceed not on a political basis, but rather on the basis of the evidence at hand.

Importantly, standing before the courts has been expanded – not only will survivors/victims of criminality and human rights violations be able to file constitutional references or private prosecutions, but also those representing classes of survivors/victims, as well as those acting in the public interest.

What this all should mean is that the possibilities for following the law in addressing crime and insecurity will be enhanced.

We will no longer have the excuse that remedies do not exist in law.

And state-security agencies will no longer have that excuse either – and passing the buck and the game of 'catch' that our current constitution allows, between the security agencies on the one hand and the attorney general, the director of public prosecutions and the bench on the other, will stop.

And the current losers of this game – ordinary citizens like the terrorised women who spoke through the Amnesty International report – can only be the winners.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission.
* Please send comments to [email protected] or comment online at Pambazuka News.