More than five years after Kenya was gripped by widespread violence following the December 2007 national elections, the Kenyan government has not prosecuted any perpetrators of the widespread rapes, sexual assaults, and other gender based violence that occurred. In response to the government’s failure to act, a group of Kenyan civil society organizations and victims of sexual and gender-based violence have brought a class action constitutional case to the Nairobi High Court against six Kenyan government officials demanding accountability for the crimes, including investigations and prosecutions of the perpetrators, and wide-ranging reparations for all victims of sexual and gender based violence during Kenya’s post-election violence.
Kenya’s national elections on December 27, 2007, were marked by significant ethnic violence. Immediately following the announcement of election results on December 30, 2007, large areas of the country erupted into violence. Violence continued from late December 2007 until March 2008, and eventually affected up to 136 constituencies in six of Kenya’s eight provinces.
Women and children often were targeted for attack. They were sexually assaulted in their homes and while seeking refuge in informal camps in schools, police stations and other public sites.
Many victims of sexual violence did not report the crimes committed against them because they feared that nothing would be done to assist them or that the police would protect state-actor perpetrators. When victims sought to report the attacks, the police were often unwilling to document their complaint or initiate an investigation.
Many victims of sexual violence were also unable to access medical services after their attack, due in part to the deterioration of order during the post-election violence and because they were sometimes turned away by hospitals and medical facilities.
The scope and scale of sexual and gender based violence during post-election violence is not fully known, but substantial information has been collected and reported from some hospitals and by civil society organizations.
For example, data from Nairobi Women’s Hospital show that more than 600 women were treated within the first 72 hours of their attack. Eighty percent of the victims had been raped, approximately half of whom were children. Victim studies show widespread incidents of rape, gang rape, and forced pregnancy.
Some men were also victims of gender based violence, particularly Luo men who were forcibly ‘circumcised,’ mutilated, or had their penises forcibly amputated.
While many of the perpetrators were non-state actors including members of organized gangs, some crimes were also committed by the police and other security forces.
To date, the government has not conducted credible investigations, and no one has been prosecuted for sexual offenses committed during the post-election violence. In one study, nearly 40 percent of rape victims (over 200 victims) could identify their attacker, but even these victims had not been interviewed as part of a criminal investigation.
Four Kenyans face trial at the International Criminal Court (ICC) in the Hague for orchestrating crimes against humanity committed during the post-election violence (see the Open Society Justice Initiative ICC trial monitor website for further details). The charges at the ICC include the crimes against humanity of rape and other forms of sexual violence, but only in relation to two locations (in and around Nakuru town and Naivasha town), whereas the crimes were committed in numerous locations during the post-election violence.
With the support of Coalition of Violence against Women, Independent Medico-Legal Unit, the Kenyan Section of the International Commission of Jurists, and Physicians for Human Rights, victims of sexual and gender based violence claim that the failure to protect them from attack, the failure to investigate and punish the perpetrators, and the failure to make reparations to the victims violated their rights under the Constitution and international human rights law.
The victims ask the Court to order the government to establish an internationalized, independent body for the investigation and prosecution of the crimes, which they contend amount to crimes against humanity.
The Justice Initiative is acting as advisors to the Kenyan lawyers.
Sexual and gender based violence during Kenya’s 2007/2008 post-election violence and the failure to punish perpetrators and provide reparations to the victims violate numerous provisions of Kenyan and international law.
The right to life, prohibition against torture, and right to security of the person. The Kenyan authorities failed to take adequate security measures, including training police and planning and preparing law enforcement operations to ensure that such operations were conducted lawfully and protected civilians from sexual and gender based violence, failed to issue lawful orders on the use of force, and failed to adequately supervise the police, in violation of the Constitution and international law.
Failure to investigate and prosecute. By failing to conduct prompt, independent and effective investigations into police shootings, Kenya violated its duty to investigate violations of the fundamental rights of the victims as protected by the Constitution and international law.
The right to effective remedies. For five years the Kenyan government has denied justice, compensation, and rehabilitation to the victims of police shootings during the post-election violence. Kenya must provide compensation for general damages, medical and psychosocial care, social services, provide access to the relevant information concerning the violations and reparations mechanisms, and issue a public apology that acknowledges the facts of sexual and gender based violence during post-election violence and accepts the government’s responsibility for the suffering of the victims.
December 27, 2007. Kenyans vote in national elections.
December 30, 2007. Demonstrations and violence break out immediately after contested elections results are announced.
February 28, 2008. Rival candidates, Kibaki and Odinga, signed power-sharing agreement creating a coalition government.
October 15, 2008. The Commission of Inquiry on Post-Election Violence, aka the “Waki Commission” issued its report including a chapter dedicated to sexual offenses and calling for the establishment of a special tribunal for the prosecution of these crimes.
February 12, 2009. The Kenyan parliament votes against the establishment of the proposed tribunal made up of Kenyan and international judges to address the post-election violence.
March 31, 2010. The International Criminal Court finds a reasonable basis to investigate Kenya’s post-election violence as crimes against humanity.
January 23, 2012. Charges against four Kenyan officials for crimes against humanity are confirmed at the ICC.
February 20, 2013. Four Kenyan NGOs and eight victims of sexual and gender based violence file a case in the Nairobi High Court against six Kenyan government officials for failing to investigate and prosecute the perpetrators of crimes.