A decade since Kenya experienced its worst post-election violence, the country’s judicial system appears to be a stumbling block for the victims who, over the years, have been waiting for justice, accountability and reparations.
Their latest attempt to seek justice was thwarted on 23 September 2019, after the judiciary announced that Justice Weldon Korir did not appear in court to give directions on the finalization of Constitutional Petition No. 122 of 2013, which seeks to hold the Kenyan government accountable for its failure to prevent post-election sexual violence, investigate the perpetrators, and provide reparations to the victims.
The survivors have no other avenues to obtain justice since the gruesomeness of the 2007-2008 post-election violence that led to the death of over 1 300 people and the displacement of over 650 000 people.
The survivors narrate a harrowing tale of long-term physical, psychological and social scars and can only heal when the Kenyan government recognizes and fulfils its basic legal and human rights duties to and grant them compensation.
The survivors in the case are six women and two men who suffered sexual and gender-based violence during this period.
The eight petitioners are not the only survivors of the widespread and brutal acts of sexual violence perpetrated during the period of post-election violence.
They are representative of more than 900 other survivors, whose testimonies and reports were submitted to the Commission of Inquiry into the violence, detailing gruesome incidents of individual and gang rape, forced circumcision, and other forms of sexual brutality.
The violations have resulted in severe physical injuries, detrimental psychological and socio-economic effects, and other serious health complications among survivors of the violence.
During the hearing last month, it was reported that Justice Korir was participating in a week-long hearing of a different case, one that was filed in 2019.
“The judiciary has chosen to prioritize a case from this year over one that has been languishing for more than six years. Survivors of post-election sexual violence will have to wait at least several more months to have their final day in court,” said United States-based, human rights organization, Physicians for Human Rights.
The co-petitioners and four Kenyan non-governmental organizations, including Physicians for Human Rights, Kenya Section of the International Commission of Jurists (ICJ-Kenya), Coalition on Violence against Women (COVAW) and Independent Medico-Legal Unit (IMLU)– say that they have experienced years of legal and bureaucratic delays and indefensible barriers to having their case resolved since filing in February 2013.
In the six years since petitioners submitted their petition, a total of five different judges have presided over the case – causing vast disruptions and discontinuity.
The current presiding judge, Justice Weldon Korir, has been nominated for promotion to the Court of Appeal and is awaiting confirmation by the President Uhuru Kenyatta, which has been delayed for unknown reasons.
The first judge, Justice Isaac Lenaola, left for a Supreme Court promotion at the tail-end of the case on November 2016, after hearing all of the petitioners’ sixteen witnesses, including each of the survivor-petitioners, who courageously and painfully shared their stories in court.
According to the human rights groups, unexpected, unexplained, and suspicious transfers of three subsequent judges from the Constitutional and Human Rights Division have greatly delayed the justice process, as each new judge must orient and familiarize himself with the contours of the case.
“It is now clear that the Kenyan justice system is either incapable or unwilling to deliver justice for the survivors of these terrible crimes,” said Christine Alai, Legal Consultant at Physicians for Human Rights, a co-petitioner in Petition No. 122 of 2013.
“Failure to provide accountability reinforces a culture of impunity surrounding future Kenyan elections, where the risk of political volatility and further sexual violence is high. We call on the judiciary to prioritize this case for an expedited completion. After five judges have transferred off this case, this is simply an outrageous miscarriage of justice,” added Alai.
One of the anonymous survivors and co-petitioner in the case told journalists in Nairobi on Wednesday, 9 October 2019, that the courts are frustrating their attempts to secure redress and fears that as each day passes, justice seems to be an elusive dream.
“I don’t think that the perpetrators will be brought to justice and the court has not been helpful so far. We have done so much, tried to reach so many people, and tried to appeal to even more. As survivors we are not a priority, the dates of our case keep being pushed, and judges keep changing – what are we supposed to think? The court heard us, and we spoke about our ordeals, do they think our lives have improved miraculously?” she posited.
“It hurts me a lot. Does the government care about our lives? And we are not the only ones, look at the freedom fighters, it has been years! Their grandchildren are still fighting for their compensation. What about the torture survivors? Whose wounds can be seen? Would the Court have reacted faster if I was physically injured, broken. Just because they cannot see my nightmares doesn’t mean I am not hurt,” she added.
However, despite the frustrations, she is unrelenting, saying her group is not willing to give up, determined to stand up for their rights, no matter how long it will take to dispense justice.
“I was young and had to leave school, what they did to me altered the course of my life – I contracted diseases, and I saw others being slaughtered. How can they sit, watch this case be delayed while our lives are at a standstill? My ambitions were killed when this happened. But their lives continue – without justice mine will not. Will I ever fulfil my destiny?” she inquired lamentably.
She pointed out that the government and judiciary’s actions have not been encouraging, noting that civil society is helping them get justice.
“The government and the judiciary’s actions have not been encouraging. Have they acknowledged us and our pain? No. It is the civil society that has thought about us – brought us to counselling. I pray for good news, but everything keeps falling apart. So close, yet so far. I am tired and I feel helpless,” she added.
According to Ms. Alai, the government failed to put in place measures to anticipate and effectively prevent or mitigate election-related violence, including sexual violence,” said Christine Alai.
“In the aftermath, the state failed to help survivors access medical and psychosocial care; the police refused to investigate or document crimes; perpetrators went unpunished; survivors did not receive reparations. The state is obligated to act on all of these fronts. The survivors should have meaningful access to justice and are being denied their basic rights: Justice delayed is justice denied,” she noted.
“Crucially, the state must put in place measures to prevent similar violations from occurring during future elections. The government of Kenya should never allow this to happen again” she said.
According to Abdul Noormohamed, Executive Director of ICJ-Kenya, another co-petitioner in the case noted that the lack of clear policies for swift and effective continuity have greatly hampered timely access to justice for the survivors.
“The justice system must now take concrete and decisive action to ensure that its administrative processes will no longer be a barrier to timely completion of this case. Action and accountability are far past due,” he said.