Kenyan high court rules in favor of survivors of sexual violence

On December 10, 2020, International Human Rights Day, the Constitutional and Human Rights Division of the High Court in Kenya ruled in favor of survivors of sexual and gender-based violence who had fought for years to hold the Kenyan government accountable for its failure to prevent and respond to cases of sexual violence following the disputed 2007 presidential election.

Trust grantee Physicians for Human Rights (PHR) worked with eight survivors of sexual violence and three Kenyan civil society organizations (Coalition on Violence Against Women (COVAW); International Commission of Jurists – Kenya (ICJ); and Independent Medico-Legal Unit (IMLU)) in this landmark case against the Kenyan government. The ruling represents a measure of acknowledgment and justice for the thousands of women, men, and children who were raped or subjected to other forms of sexual violence in the months of post-election violence in 2007-2008.

After years of delays, the court found that the Government of Kenya was responsible for a “failure to conduct independent and effective investigations and prosecutions of sexual and gender-based violence related crimes during the post-election violence” and that the Kenyan state violated its responsibility “to investigate and prosecute violations of the rights to life, the prevention of torture, inhuman, and degrading treatment, and the security of person.” Four of the eight survivor-petitioners in the case were each awarded compensation of KES four million (approximately USD 35,000) “for the violation of their constitutional rights.” Unfortunately, the court did not recognize the harm endured by the other four survivor-petitioners, but PHR will continue its work to seek justice for all whose rights were violated.

This historic decision marks the first time post-election sexual violence in Kenya has been legitimately recognized by the government and follows years of work in pursuit of justice and accountability. In 2013, PHR joined with the survivors and the three Kenyan civil society organizations in this first-of-its-kind lawsuit against six high-profile state actors. The case sought to hold these parties — including Kenya’s Attorney General, Director of Public Prosecutions, Inspector General of the National Police Service, Ministry of Health (formerly represented in two separated ministries, the Ministry of Medical Services and the Ministry for Public Health and Sanitation), and the Independent Policing Oversight Authority– accountable for the state’s failures to prevent or mitigate the post-election sexual violence, failures to investigate and prosecute the perpetrators of those crimes, and failures to provide meaningful redress to the survivors. In the more than seven years since the petition was filed, the case has endured a series of procedural setbacks, but the survivor-petitioners have never wavered in their pursuit of justice.

In the words of Naitore Nyamu, head of PHR’s Kenya office: “This is a historic day for survivors of the rampant sexual violence perpetrated in the aftermath of the 2007 election, who have waited for accountability for far too long. The court’s decision will reverberate widely for the prevention, investigation, and prosecution of sexual and gender-based violence in Kenya and around the world.”

The judgment marks an important victory for the country and strengthens PHR’s resolve to ensure that the Kenyan government provides the reparations ordered by the court and justice for the other four survivor-petitioners. PHR says the ruling also has “the potential to spur policy reforms that would improve the prevention of and medical-legal response to sexual violence, including better care for survivors and forensic documentation to support justice and reparations.” Kenyan partners also hope the decision will help mitigate any recurrence of violence leading up to and during the country’s 2022 presidential election.