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Kenya: Recognizing and Mandating Police Duty to Investigate Sexual Violence Crimes

C.K. (A CHILD) Through Ripples International As Her Guardian And Next Friend) & 11 Others V COMMISSIONER OF POLICE/INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE & 3 Others [2013] eK

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In a recent groundbreaking decision, the High Court of Kenya has held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.” [1]

Prior to this ruling, it was common practice for the police to deliberately ignore sexual allegations and victims often went without redress, while assailants committed sexual crimes with impunity. When victims lodged complaints with the police, a typical response among police officers would be to ask the victims for payment as a precondition to assistance. [2] According to Mercy Chidi, director of the Tumaini Hope Centre for abuse victims, "The police don't take it [sexual abuse] seriously and don't investigate the offences. It was frustrating. We were tired of mopping the floor and felt we needed to go a step further, challenge the state and hold the police accountable.”[3]

Briefly, the facts of the case were that eleven petitioners, all children under the Kenyan Children’s Act of 2001, had at various times between the years 2008 and 2012 suffered sexual defilement and abuse. Even though the petitioners had reported these incidents to the police, their complaints were ignored, and the  police officers “neglected, omitted, refused, or otherwise failed to conduct prompt, effective, proper and professional investigation into the petitioners’ complaints.”

As a point of departure, the court examined Kenya’s obligations under domestic and international law, finding that Kenya’s duty to prosecute perpetrators of sexual violence and protect children from sexual abuse was grounded in the Constitution of Kenya, the United Nations Convention of the Rights of the child, the African Charter on Human and People’s Rights, the Convention on Elimination of all Forms of Discrimination against Women and the International Convention on Civil and Political rights.

The court adopted a comparative perspective, observing recent judicial developments in South Africa and citing in particular the landmark Carmichele case in which the Constitutional Court of South Africa held that "The courts are under a duty to send a clear message to the accused, and to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.” [4]

The Court held that by failing to conduct prompt, professional and corrupt free investigations into the complaints, and by demanding money as a prerequisite for assistance, the police “violated [the] petitioners right to access of justice and [their] right to have disputes resolved by the application of law in a fair and in public hearing before a court of law in accordance with Article 50(1) of the Constitution of Kenya, 2010.” The court accordingly held that “The police failure to act on petitioners complaints of defilement violated their rights under Article 53 of the Constitution of Kenya, 2010.” Moreover, “The Constitutional requirement to protect the best interest of the child requires not only the establishment of relevant laws but requires their proper enforcement by state agencies and any failure to implement laws aimed at protecting children amounts to infringement and/or violation of the Constitutional rights.”  

How far this case will go in ensuring that victims of sexual violence get the justice they deserve remains to be seen because the mammoth task of implementation still lies ahead. However in a country in which a child is raped every 30 minutes, [5] this judgment is undoubtedly an important stride in ensuring that perpetrators of these heinous violations are brought to book.  And while it may take considerable effort by activists on the ground to disseminate the judgment and its implications to various stake-holders, a positive precedent has been set and an important milestone for child and gender justice achieved. It is also hoped that this case will catapult similar impact litigation in other sub-Saharan Africa countries where impunity for sexual crimes is rife.

[1] C.K. (A CHILD) Through Ripples International As Her Guardian And Next Friend) & 11 Others V COMMISSIONER OF POLICE/INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE & 3 Others [2013] eK

[2] This practice among police officers was discussed in the case under discussion.

[3] James Reinl, Kenyan Sex Abuse Victims Awaiting Justice (23 June 2013) available at http://www.aljazeera.com/indepth/features/2013/06/2013623115942808444.html

[4] Minister of Safety and Security and Another v Carmichele (533/02) [2003] ZASCA 117; [2003] 4 All SA 565 (SCA) (14 November 2003)

[5] Ximena Ramirez, Over 300 Girls or Women Raped in Kenya Every Week, (December 13 2012) available at http://www.care2.com/causes/over-300-girls-or-women-raped-in-kenya-every-week.html

 

For additional information: James Reini, Kenyan sex abuse victims await justice, Al Jazeera (June 23, 2013).