Accountability Overcomes Impunity

Wangechi N., 60, was raped by men she did not know in December 2007. She and her family were evicted from their home in Eldoret. She is pictured here in her vegetable garden in an area where some families expelled from their homes during the post-election violence bought land and rebuilt homes with the support of government and Kenya’s development partners. The Kenyan government’s efforts to compensate victims of the violence have been limited, and have effectively excluded many victims of sexual violence. (Photo via Human Rights Watch: © 2015 Samer Muscati/Human Rights Watch).

Impunity for crimes against women has for centuries been a means through which patriarchy entraps men, often seemingly ordinary men, or honored men, warriors and leaders, into being instruments of domination and abuse of the vulnerable. Nothing has made this tragic entrapment more starkly evident than the recognition that sexual violence against women has been an accepted, even expected strategy commonly deployed in the conduct of political violence and armed conflict.

That recognition has come about as the world-wide women’s movements have mobilized to replace impunity with accountability; and, where possible, legal accountability of the perpetrators. The recent court decision in Kenya (see below) is the latest in these efforts, now changing public attitudes toward these crimes, and establishing legal precedent for legal accountability. The decision holding the Kenyan government accountable for failure to provide justice for those who suffered sexual violence in post-election violence, while it came 7 years after the crimes were committed, was a “testament to the impact civil society organizations efforts can have on the pursuit of justice for victims and survivors of conflict-related [sexual] violence…” (See Physicians for Human Rights account posted below.)

In some cases, proceedings initiated and conducted by civil society have achieved groundbreaking outcomes that have been integrated into formal legal precedents. Paramount among these is the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery held in Tokyo, December 8 – 10, 2000. It is fitting that the Kenyan court handed down its decision in the same week that the 20th anniversary of this groundbreaking Women’s Tribunal, the findings of which held the highest levels of Japanese government accountable for the sexual enslavement of the “Comfort Women.”  (Multiple films on the “Comfort Women” are to be found on the web.) “Breaking the History of Silence” is an excellent documentary of the Tribunal (details of the film can be found here or watched below).

Peace Education on Impunity and Accountability

The problematic of impunity and citizen responsibility to confront it, is one that should be included in all studies of and inquiries into gender and peace and the substitution of law and jurisprudence for war and armed conflict.  In preparation for the recommended studies and inquiries, a useful beginning is a review of the Objectives and Approaches circulated by the organizers in the first public announcement that the Tribunal was to be convened.

Objectives

In order to make the Japanese government take legal responsibility for the “comfort women” issue, the Tribunal must:

  1. Clarify that Japan’s military sexual slavery constitutes a war crime against women and a crime against humanity
  2. Identify those responsible for the crime; both individuals and the state
  3. Record the complete findings and proceedings of the Tribunal History

Approach

  1. As a women’s initiative
  2. In international solidarity
  3. In partnership with experts
  4. As a grassroots movement
  5. From the perspective of “women’s human rights”
  6. Setting a precedent for the prosecution of war crimes against women
  7. With a vision for a violence free 21st century

A Reflective Inquiry on Sexual Violence in War and Conflict

The Tribunal met these objectives and made a considerable contribution to the wide-spread use of its approaches. While the specific acts of violence were committed by individual military, they were made possible by governmental policy and committed with the knowledge of military and civil officials at all levels. Drafting a chart of accountability, from the actual crimes to the initial facilitating governmental decision, will provide a comprehensive view of all who are responsible.  Should all be held accountable? Given what has transpired since its findings were announced, and the continuation of war crimes against women, what responsibilities and opportunities do these issues present to peace educators and policymakers, particularly “with a vision for a violence free 21st century” of which the first two decades have been inordinately violent? What international precedents and norms should citizens call upon in seeking justice in these cases? What needs to be done to eliminate them?

BAR, 12/15/20


Court Delivers Justice for Several Survivors of Post-Election Sexual Violence in Kenya

(Reposted from: Physicians for Human Rights. December 10, 2020)

High Court in Nairobi finds Government of Kenya responsible for failure to investigate and prosecute 2007-2008 post-election sexual violence; Four of eight survivor-petitioners awarded compensation.

NAIROBI — In a landmark judgement, the High Court in Nairobi today ruled in favor of four survivors of post-election sexual violence in Kenya. In Constitutional Petition No. 122 of 2013, the Court found that the Government of Kenya was responsible for a “failure to conduct independent and effective investigations and prosecutions of SGBV [sexual and gender-based violence]-related crimes during the post-election violence.”

Four of the eight survivor-petitioners in the case were each awarded compensation of  KES 4 Million (approximately USD 35,000) “for the violation of their constitutional rights.” The High Court in Nairobi found a “violation of the Kenyan state to investigate and prosecute violations of the rights to life, the prevention of torture, inhuman, and degrading treatment, and the security of person.”

The judgement marks the first time ever in Kenya that post-election sexual violence has been legitimately recognised by the government and survivors have been offered compensation for harm suffered. The judgement was announced on December 10, which is International Human Rights Day.

“After more than seven years of litigation and delays, some justice has finally been served,” said Naitore Nyamu, head of the Kenya office of Physicians for Human Rights, one of the co-petitioners that brought the case in 2013. “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 decision is marred by the fact that the court recognized the harms endured by only four out of the eight survivor-petitioners.

“We are happy that the court has finally recognised the harm that we suffered as victims. It has been a long journey,” said one of the female survivors of sexual violence who the court has ordered shall receive compensation from the Government of Kenya. “However, we do not understand why the court separated us (victims) and did not offer compensation for the other 4 victims. We have been walking this journey together. We will continue the journey until the other 4 victims get justice.”

In 2013, eight survivors (six women and two men) of the post-election sexual violence joined with the international NGO Physicians for Human Rights and three Kenyan civil society organizations (Coalition on Violence Against Women (COVAW); International Commission of Jurists – Kenya; and Independent Medico-Legal Unit) to file this first-of-its-kind lawsuit against six state actors. The survivors detailed a range of harrowing accounts from the 2007-2008 post-election violence: incidents of individual and gang rape, forced circumcision, and other forms of sexual violence, which resulted in severe physical injuries, psychological and socio-economic suffering, and other serious health complications.

For the survivor-petitioners, today’s judgement comes after more than seven years of bureaucratic delays and barriers to having their case resolved in the courts of law.

The respondents in the case included Kenya’s Attorney General, Director of Public Prosecutions, Inspector General of the National Police Service, Minister for Health (formerly represented in two separated ministries, the Ministry of Medical Services and the Minister for Public Health and Sanitation), and the Independent Policing Oversight Authority. Constitutional Petition No. 122 of 2013 sought to hold these authorities accountable for the state’s failure to prevent or mitigate the post-election sexual violence in 2007-2008, investigate and prosecute the perpetrators of these crimes, and provide redress to the survivors.

“Today’s judgment is a testament to the impact civil society organisations efforts can have in the pursuit of justice for victims and survivors of conflict-related SGBV cases,” said Abdul Noormohamed, executive director of International Commission of Jurists Kenya. “It reasserts that accountability for crimes committed in violation of international human rights and humanitarian law is possible in domestic courts. Delivering justice to victims of SGBV requires a robust policy and legal framework that jealously protects human rights and ensures effective redress mechanisms in the administration of justice. What remains now is a full implementation of the judgment and replication of civil society efforts in other jurisdictions”

“One of COVAW’s biggest aspirations is that the women of Kenya will never have to exercise their right to vote in an environment marked with violence, sexual and gender-based violence.  This paradox has hopefully been broken today, the 10th of December, 2020,” said Wairimu Munyinyi-Wahome, executive director of the Coalition on Violence Against Women (COVAW), a co-petitioner. “We celebrate a judgment that inspires faith and trust in our Constitution and in the rule of law in the midst of proposed reforms conversations. It has boosted our confidence in the practice of constitutionalism, especially for the survivors, and that their long wait for justice can finally pave the way for their healing, and the country’s healing.  What a win for the women of Kenya!”

“We find that the judgement is a progressive step towards the realization of justice for victims of the 2007-2008 Post-Election Violence by pointing out the negligence of the State to investigate and prosecute perpetrators of sexual violence,” said Kevin Mwangi, programme officer at the Independent Medico-Legal Unit (IMLU), a co-petitioner in the case. “Since similar human rights violations have happened in subsequent general elections, we hope the State will conduct investigations and prosecute the perpetrators even as we head to another general election in 2022.”

“This is indeed a momentous day for the survivors in this case and beyond, a milestone for justice and accountability in Kenya and globally. The Government of Kenya must now ensure that the survivors actually obtain the reparations awarded by the court, which are an essential precursor for redress and healing,” said Karen Naimer, PHR director of programs. “We hope the spirit of the judgment will inform how the courts in Kenya and beyond will treat survivors and sexual violence cases going forward by affirming that it is indeed the state’s obligation to protect the right to life and security of the person and to prevent and respond to sexual violence.”

“This case also marks a lesson for others that, where criminal cases have failed – as they did with the International Criminal Court concerning the situation in Kenya– civil suits at the national level may offer one last hope for holding the government accountable for election-related sexual violence,” said Naimer.

The post-election violence that swept Kenya in 2007-2008 led to looting, destruction of property, and death. Sexual and gender-based violence was committed in six out of eight provinces in the country where the post-election violence occurred. At least 900 people suffered sexual or gender-based violence, which was largely perpetrated by Kenyan security forces as well as by gangs. Women and girls were disproportionately affected, but men and boys were also attacked. In many instances, people were raped and abused in the presence of their children and spouses. Many survivors of violence were afraid to report violations to the authorities due to stigma and fear of retaliation; others who tried to report these crimes were turned away.

“We salute the survivors of the 2007-2008 post-election violence who tirelessly continue to seek recognition, justice, accountability and reparations for the harm that they suffered almost thirteen years ago. We thank and honour them for their never-ending resolve which has undoubtedly influenced today’s positive outcome in the court. Further, through today’s judgment, the Government of Kenya has opened a crucial avenue for access to reparations for harm suffered by sexual violence survivors of the 2007-2008 post-election violence, and vindicated the government’s ability, capacity, and willingness to engage on investigation and prosecution of post-election violence crimes and the provision of adequate, transformative, and effective reparations to survivors,” said Lydia Muthiani, human rights lawyer and expert on prevention and response to gender-based violence.

Today’s victory for survivors of post-election sexual violence in Kenya was the product of years of tireless work and advocacy by a community of courageous survivors, advocates, medical and legal professionals, and supporters. A core consortium of organizations has supported this campaign, including: Coalition on Violence Against Women, Constitution and Reform Education Consortium, Independent Medico-Legal Unit, International Commission of Jurists – Kenya, Kenya Human Rights Commission, Katiba Institute, Kenya National Commission on Human Rights, Physicians for Human Rights, and REDRESS. Willis Otieno was the lead counsel. Expert witnesses who testified in court brought invaluable perspectives and expertise to the case, including Saida Ali, Betty Murungi, Patricia Nyaundi and Rashida Manjoo. Other organizations, entities, and individuals who were vital to Constitutional Petition 122 of 2013 include the staff of Kenyatta National Hospital, and Mbagathi Hospital; Open Society Initiative East Africa and Open Society Justice Initiative; Christine Alai, Lydia Muthiani, and Nelly Warega.

More information about Constitutional Petition No. 122 of 2013 is available here.

EDITOR’S NOTES:

The scale of the sexual and gender-based violence (SGBV) during the 2007-2008 post-election violence is not fully known, but the Kenyan Commission of Inquiry into Post-Election Violence (the Waki Commission) reported that it documented more than 900 cases of sexual violence committed during that period alone. Women and girls were subjected to rape, defilement (sexual assault of a minor), gang rape, forced pregnancy, and other forms of sexual and gender-based violence. Men and boys were subjected to sodomy, forced circumcision, and amputation of their penises, among other forms of SGBV.

Despite the fact that 13 years have passed since the events took place, only a handful of individuals have been convicted for crimes of sexual violence related to the post-election violence, and cases before the Constitutional Court have been marred by delays.

The limited number of convictions for sexual violence crimes mirrors the broader context, in which the Kenyan authorities have shown apathy and reluctance to initiate genuine, credible, independent, and effective measures to investigate, prosecute, and punish perpetrators of the post-election violence and provide meaningful reparations to victims.

Due to lack of cooperation from the Kenyan government and allegations of witness interference, the cases brought before the International Criminal Court (ICC) against Kenyan senior government officials, including the president and deputy president, were either withdrawn by the ICC prosecutor or terminated by the court and none has been determined on the merits.

Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.

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