The Constitutional petition filed against the government of Kenya in 2013 came up for further hearing on the 23rd and 25th of May 2016 before Justice Isaac Lenaola at the High Court. The petition seeks to have the government held liable for failing to prevent and protect survivors from sexual violence during Post-Election Violence, failing to investigate and prosecute perpetrators, and finally failing to provide effective remedies to victims.
Two of the Petitioner’s expert witnesses addressed the court on States’ obligations to protect and prevent violence against women and in the event this does not happen, their obligation to investigate and prosecute sexual violence. This was the testimony of international experts Professor Rashida Manjoo, immediate former United Nations Special Rapporteur on Violence Against Women and Maxine Marcus, International Criminal prosecutor and investigator.
“The responsibility to protect women and girls from violence and discrimination is primarily the responsibility of the State, as the ultimate duty bearer.” said Ms. Rashida Manjoo, a Professor and former convener of the Human Rights Program in the Department of Public Law, University of Cape Town, South Africa. Until July 2015, she held the position of United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, a post she was appointed to in 2009 by the United Nations Human Rights Council. Her role as the special rapporteur included monitoring and reporting on States’ compliance in responding to and preventing violence against women, its causes and consequences, both generally and in different country contexts.
In her testimony, Ms. Rashida reiterated that States need to exercise due diligence to “prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons. Further, she said that States’ efforts to comply with their due diligence obligation should not only focus on legislative reform, access to justice and the provision of services for victims, but must also address issues of prevention, especially in terms of attacking the structural causes that lead to violence against women.
Professor Manjoo went ahead and explained to the court the different levels of due diligence that lie with the state. Individual due diligence and systemic due diligence. Individual due diligence refers to the obligations States owe to particular individuals, or groups of individuals, to prevent, protect, punish and provide effective remedies on a specific basis. Individual due diligence places an obligation on the State to assist victims in rebuilding their lives and moving forward, and can include monetary compensation, as well as assistance in relocating or in finding a job. It also requires States to punish not just the perpetrators, but also those who fail in their duty to respond to the violation. Systemic due diligence on the other hand refers to the obligations States must take to ensure a holistic and sustained model of prevention, protection, punishment and reparations for acts of violence against women. It isthe responsibility of States to create good and effective systems and structures that address the root causes and consequences of violence against women. At a systemic level, States can meet their responsibility to protect, prevent and punish perpetrators of violence against women.
It is the Government of Kenya’s defence that it was and still is impossible to exercise this dual due diligence of investigating and prosecuting sexual violence claims during post-election violence without victims coming out to report their cases to the police. An argument which International Criminal Prosecutor and investigator, Maxine Marcus, does not agree with.
“It is the state’s responsibility to ensure that mechanisms that create a safe environment are put in place to ensure survivors have the courage and belief to report cases with the faith that they will be handled with the respect and sensitivity that they deserve. Where such systems are not in place, very few victims report the sexual violations experienced. This however does not exonerate the state from its obligation to investigate the crimes more so where the occurrence is well known and in the public domain. The burden to investigate crimes of whatever nature will always lie with the state” said Maxine. She added, “If carried out with care and respect, with security and consistency, investigators will be effectively able to document these violations. If they are not gathering this evidence, it is because the methods are flawed; not because the evidence does not exist. With effective methods, this evidence will emerge and justice can be brought.”
Maxine emphasized that where victims come out to report cases, their testimony is and should be sufficient evidence of the crime committed and so lack of supporting medical records or witnesses should not be used as an excuse by investigators and prosecutors to renounce their duties and responsibilities.
Maxine Marcus is an international criminal prosecutor and investigator who has worked for more than eighteen years in the International Criminal Law field. She has served as a prosecuting attorney at the International Criminal Tribunal for the Former Yugoslavia. She also served as an investigating attorney for the Civil Defence Forces prosecution team in the Special Court for Sierra Leone.
Further hearing of the case has been scheduled for 20th of July 2016.