Kenya’s Constitutional Court awarded four of the eight petitioners Ksh.16million as damages for violation of their constitutional rights during the 2007/08 post-election violence.
High Court Judge Weldon Korir on Thursday while delivering the landmark judgement, he said the government failed to investigate and prosecute the 2007-08 post-election sexual violence terming it “Violation of Constitutional rights” to the victims.
“I must emphasize that sexual violation just like any other violation of human rights and freedoms should be compensated. Sexual violence carries with it both physical and mental pain and I am surprised that the 1st, 4th, 5th and 6th respondents can casually assert that the petitioners have not established any injury,” the judge said.
Judge Weldon issued two Declaratory Orders stating that the failure to independently investigate the SGBV cases was a violation of the human rights of the 5th, 6th, 8th and 9th Petitioners and awarded Kshs. 4,000,000 each as damages.
“A declaratory order is hereby issued to the effect that the right to life; the prohibition of torture, inhuman and degrading treatment; the right to security of the person; the right to protection of the law; the right to equality and freedom from discrimination; and the right to remedy were violated in relation to the 5th, 6th, 8th and 9th petitioners during the 2007-2008 post-election violence, as a result of the failure of the Government of Kenya to protect those rights. The 5th, 6th, 8th and 9 th petitioners are each awarded Kshs. 4 million as general damages for the violation of their constitutional rights,” part of the judgement reads.
“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.”
“Four of the petitioners who were assaulted by non-State actors, I regrettably cannot find in their favour as they have failed to show that police failed to exercise reasonable diligence in the circumstances of their individual cases,” ruled Justice Korir
Naitore Nyamu Mathenge, a human rights advocate and head of Physicians for Human Rights’ Kenya office said the precedent-setting judgment was a “Great Day for Survivors of Sexual and Gender-Based Violence in Kenya. After more than seven years of litigation and delays, some justice has finally been served.”
“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,” she added.
“Such a long journey, but finally some justice for some of the SGBV victims during the Post Election Violence,” Abdul Noormohamed Executive Director ICJ Kenya.
The two, are among four civil society organizations who were enjoined as petitioners in the case filed in 2013. The other two are Coalition on Violence Against Women; Physicians for Human Rights and the Independent Medical and Legal Unit; and the Kenyan Section of the International Commission of Jurists.
The respondents in the case are the Attorney General’s Office, the Inspector General of Police, the Ministry of Medical Services, and the Ministry of Public Health.
According to Noormohamed, the judgement reasserts that accountability for crimes committed in violation of international human rights and humanitarian law is possible in domestic courts.
He noted that 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,” he said in a joint statement issued by PHR.
“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).
The case was filed against the government for its failure to protect victims of SGBV during the violence, its failure to investigate and prosecute the perpetrators, and their failure to provide reparations to the victims.
The case has been heard at the Constitutional and Human Rights Division of the High Court since February 2013.
