Case Comment – Victory for 160 Girls in Defilement Constitutional Challenge

Case Comment – Victory for 160 Girls in Defilement Constitutional Challenge

Petition No. 8 of 2012, High Court of Meru, C.K. (A Child) & 11 Others v. Commissioner of Police/Inspector-General of the National Police Service & 2 Others [2012] eKLR

Dr. Winifred Kamau*

Kieya Kamau**

INTRODUCTION

On 27th May, 2013, the High Court in Meru delivered a landmark constitutional decision where a group of young girls successfully challenged the Kenya government on its inaction regarding sexual abuse of children, known as defilement. The petition, which was symbolically filed on 11th October, 2012 the first International Day of the Girl Child, was brought with the support of Equality Effect, an international collaborative research group under the auspices of the “160 Girls’ Project”.¹ The action was filed in the context of a high prevalence of sexual violence against children in Meru County and indeed in the whole country.² At the time, Kenya already had adequate legislation in the form of the Sexual Offences Act, 2006 which imposes stiff penalties for defilement and other sexual offences.³ However, the law’s effectiveness has been marred by poor enforcement due to failure of the police to investigate complaints of sexual violence or arrest the perpetrators.

The petition took its impetus from the new Constitution of Kenya 2010 which contains an expansive bill of rights with guarantees of equality and non-discrimination as well as protections against violence and abuse. A constitutional claim was seen as the most effective strategy for achieving systemic impact, and also enabled reliance on international law norms and provisions of international instruments in accordance with Article 2 (5) and (6).⁴

The court found the respondents responsible for the physical, emotional and psychological harms caused to the petitioners by reason of their failure to conduct prompt, effective, proper and professional investigations into the petitioners’ complaints of defilement inaction. Significantly, the court accepted the government’s culpability for systemic violence, namely that failure to ensure proper and effective investigation and prosecution of sexual offences had created a "climate of impunity" for commission of such offences. The decision is momentous as it was the first time that the Kenya Government had been sued for inaction and failure to protect rights in relation to sexual violence, particularly defilement, and has important implications for future police handling of sexual violence cases. While the decision was passed quietly with scant media coverage in Kenya⁵, it received a lot of international attention, with reportage in the major world newspapers.⁶ This paper discusses the main features of the constitutional claim, and thereafter considers its implications in Kenya and beyond.

THE PARTIES

The first 11 petitioners were girls aged between 5 and 15 years from Meru County who were all victims of defilement. The 12th petitioner was Ripples International, a charitable NGO that shelters vulnerable children in the County, who brought the proceedings in the public interest.⁷ Both FIDA-Kenya and the Kenya National Commission on Human Rights (KNCHR) were granted party status in the matter (with KNCHR appearing as amicus curiae) in a bid to ensure broad systemic impact for all girls and women in Kenya. The three respondents were the Commissioner of Police/Inspector-General of Police, the Director of Public Prosecutions and the Minister for Justice, National Cohesion and Constitutional Affairs.

The 11 petitioners had all experienced sexual abuse at the hands of family members, caregivers, neighbours, employers, and in the case of one girl, a police officer. As a result of the abuse, some of girls became pregnant, some contracted sexually transmitted diseases, while others sustained physical injuries requiring surgery. Most of them had to drop out of school, and all had to seek refuge from the 12^th petitioner after being chased away from home or experiencing threats from the perpetrators. Each of the girls had reported or attempted to report the defilement to the police. However, the police response in all cases was inadequate, ranging from failure to record the complaints in the police Occurrence Book, demanding money for fuel, interrogating the victims in a humiliating manner, failure to arrest the perpetrators or to interview witnesses. The police also failed to collect and preserve evidence or bring the evidence to court or visit the crime scenes. This resulted in further psychological and physical harm to the girls, including delays in receiving medical treatment, while the alleged perpetrators, who were known, roamed free and continued to make threats against the girls and their families

THE CLAIM

The petition alleged that by failing to conduct prompt, effective, proper and professional investigations into the first 11 petitioners' complaints of defilement the respondents had violated the petitioners’ rights under the Constitution of Kenya 2010, specifically the rights to equality and freedom from discrimination on the grounds of sex and age; rights to human dignity, security of the person and protection from all forms of violence and cruel, inhuman or degrading treatment; right of access to justice; the right of children to be protected from abuse, violence or inhuman treatment.⁸

The petition also alleged that the police failures violated international human rights norms, including those in the Universal Declaration of Human Rights,^, the United Nations Convention on the Rights of the Child,⁹ the African Charter on the Rights and Welfare of the Child,¹⁰ and the African Charter on Human and People's Rights.¹¹ On a systemic level, the petitioners argued that police inaction had created a climate of tolerance and impunity that allowed perpetrators to continue to commit acts of violence without fear of legal consequences, contrary to the petitioners’ rights under the Constitution and international law. Thus the petition sought to establish the State’s liability on two levels, first for the direct (primary) harms caused to the girls by the police inaction and secondly for indirect (secondary) harms caused by the perpetrators.

The petitioners relied on authorities from international and regional human rights bodies, such as the Inter-American Commission on Human Rights and the European Court of Human Rights to support their arguments. They also cited decisions from the Constitutional Court of South Africa. By anchoring the claim not only on the Constitution but also on international and regional instruments and by relying on international authorities, the petition sought to test the provisions of Article 2 (5) and (6) of the Constitution. These provisions recognize international law as part of Kenya’s law, thereby marking a shift from the country’s previous dualist approach to international law to a monist one.

Evidence of the police failure to conduct proper investigations was documented by social workers from the shelter run by the 12^th petitioner. In addition to providing affidavit evidence about the girls’ individual cases, the petitioners also presented expert opinions on local and international experts on policing standards. The petition sought various reliefs by way of declarations and orders of mandamus. The petition did not claim damages as the legal team felt that a monetary claim for the individual girls was likely to distract from the systemic impact of the case.

The respondents did not put up a substantive defence to the claim. Despite several adjournments, the 1^st and 3^rd respondents did not file any replying affidavits but rather filed grounds of opposition alleging that the petition was incompetent and bad in law, and that the court lacked jurisdiction to grant the prayers sought. They further contended that the petitioners had not demonstrated how the respondents were involved in the orders sought and that the petition amounted to trivialization of constitutional remedies as the petitioners had not exhausted all available avenues before filing their petition. The 2^nd respondent filed a replying affidavit averring that the Director of Public Prosecution had directed the Inspector-General of the National Police Service to investigate the complaints in accordance with Article 157 (4) of the Constitution. The 2^nd respondent also alleged that the girls had not reported their complaints of defilement to the police, and argued that it was wrongfully enjoined to the petition.

THE JUDGMENT

In his judgment, Justice Makau began by rejecting the arguments of all 3 respondents. On the issue of jurisdiction, he dismissed the 1^st and 2^nd respondents’ argument as lacking merit on the basis of Article 23(1) which confers on the High court jurisdiction, in accordance with Article 165, to hear and determine applications for redress of violations of fundamental rights and freedom in the Bill of Rights. Further, the petitioners were entitled to bring the claim under Article 22(1)of the Constitution. As the 1st and 3rd respondents did not file any affidavit to controvert the matters raised by the petitioners, the court took these as unchallenged and therefore truthful. The argument that the perpetrators had not been identified by name was also rejected as the court found that their names had clearly been given and their whereabouts disclosed.

With regard to the 2^nd respondent, the court noted that the Director of Public Prosecution’s direction only dealt with two of the petitioners, and had not been followed up. There was no evidence that any action had been taken on any of the petitioners’ claim, and the allegation that the petitioners had not actually reported the defilements to the police was, “strange enough”, not supported by affidavit. The court therefore found no basis for the 2nd respondent’s assertion that the petitioners’ complaints were not reported to the police. Accordingly, the 2nd respondent's contention that it was wrongfully enjoined to the petition was found to be without any basis as it was clear – under Article 157(6) of the Constitution - that the Director of Public Prosecution has the duty to institute and undertake criminal proceedings.

The main issue for determination was whether failure on the part of the police to conduct prompt, effective, proper and professional investigation into the petitioners' complaints of defilement and other forms of sexual violence infringes on the petitioners' fundamental rights and freedoms under Articles 21(1),(3),27,28,29,48,50(1) and 53(1)(d) of the Constitution of Kenya, 2010.

Justice Makau found as facts that the girls had been victims of defilement and other forms of sexual violence, that they had reported their complaints to the police, and that the police had “unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints.” He further found that the petitioners had, as a result of the defilement, suffered “horrible, unspeakable and immeasurable” physical harm in the form of internal and external wounds and the consequences of unwanted pregnancies vested on children not physically mature enough to bear children, as well as psychological harm aggravated by the fear and reality of contracting HIV/AIDS and other sexually transmitted diseases or infections. He noted that after the defilement, the petitioners had become “self-doubtful, self-loathing, self-blam[ing], and had low self-esteem”.

Justice Makau accepted the petitioners’ argument that while the perpetrators were directly responsible for many of the harms suffered by the girls, the respondents could not escape responsibility as their inaction had created a "climate of impunity"in which the perpetrators knew they could commit crimes against innocent children without fear of apprehension and prosecution, thus rendering the respondents indirectly responsible for the harms inflicted by the perpetrators. The respondents were also directly responsible for psychological harms arising from mistreatment by the police. The court recognized that “the petitioners had to flee and seek protection and safety from the 12^th petitioner” and that the police inaction “led to psychological damage arising from their alienation from family, schools and their own communities”.

The court concluded that these harms amounted to violations of the petitioners' fundamental rights and freedoms under the Constitution. The respondents had failed in their fundamental duty as under Article 21 to “observe, respect, protect, promote and fulfill the rights and fundamental freedoms guaranteed in the Constitution”, in particular the rights and freedoms relating to special protection as members of a vulnerable group (Article 21(3), equality and freedom from non-discrimination(Article 27), human dignity(Article 29), access to justice (Article 48 and 50) and protection from abuse, neglect, all forms of violence and inhuman treatment(Article 53(1),(d). The court also held that the respondents were in breach of provisions of international conventions which Kenya had ratified, and which were found applicable to the petitioners’ claim, s cited in the petition.

In support of his finding that the police inaction was in violation of Article 21 of the Constitution, Justice Makau cited Van Eeden v. Minister of Safety and Security¹², where the Supreme Court of Appeal of South Africa held the State responsible for failing to prevent the escape of a serial rapist from their custody. Similarly in Jessica Lenahan (Gonzales)et al v. United States the Inter-American Commission on Human Rights found the US Government to be in breach of a duty of due diligence to protect children from the harms of domestic violence. The Commission noted that there was "broad international consensus" that States may incur responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations for acts of violence…." In applying this decision, Justice Makau stated that the State's duty to protect is heightened in the case of vulnerable groups such as girl-children and that the failure to protect need not be intentional to constitute a breach of the State’s obligation (p. 23).

Justice Makau also cited the Kenyan case of R v Commissioner of Police & 3 Others ex-parte Phylis Temwai Kipteyo ¹³ which emphasized the State’s responsibility for security of its citizens and found that the State has a clear duty to investigate crime. He stated that “once a report or complaint is made it is the duty of the police to move with speed and promptly, commence investigation and apprehend and interrogate the perpetrators of the offence and the investigation must be conducted effectively, properly and professionally.” Anything short of this amounts to violation of fundamental rights of the complainant.

As stated by the European Court of Human Rights in MC Bulgaria v Bulgaria,¹⁴ the State’s positive obligations to protect must be viewed in light of relevant modern standards to establish and apply effectively a criminal law system punishing all forms of rape and sexual abuse. Also cited was Cas Romania v Romania,¹⁵ where it was held that an ineffective investigation of sexual assault charges violates the European Human Rights Convention.

The court agreed with the petitioners’ argument that sexual violence amounts to discrimination against women under CEDAW, Article 1 of which defines discrimination against women to include "acts that inflict sexual harm". The court found that the conduct of the police in failing to take appropriate action to ensure justice to the petitioners amounted to discrimination contrary to Article 27 which provides for equality before the law and the right to equal protection and equal benefit of the law and Article 21(4) which prohibits any discrimination by the State either directly or indirectly against any person on any ground, including sex and age. This was validated by Gonzalez & Others(Cotton Field) v. Mexico¹⁶ where the Inter-American Court of Human rights held that State of Mexico the state’s delays in investigating claims of sexual violence amounted to sex discrimination,

Justice Makau also held that by failing to effectively enforce Kenyan laws, including the Sexual Offences Act, 2006 and the Police Act (repealed and replaced by Act No. 11A of 2011), the police had deprived the petitioners of equal protection and benefit of the law, contrary to Article 27(1). On sexual violence, freedom and security of a person court have held that State has an obligation to protect all citizens from violence and ensure their security of person. This is enshrined in Article 29 of our Constitution.

Further, the State was obligated under Articles 48 and 50 “to ensure access to courts is not unreasonably or unjustifiably impeded and in particular where there is legitimate complaint, dispute or wrong that can be resolved by the courts or tribunals.” (p. 30). Justice Makau held that “the police failure to conduct prompt, effective, proper, corrupt free and professional investigations into the petitioners’ complainants, and demanding payments as preconditions for assistance … violated petitioners right to access of justice and right to have disputes that can be resolved by the application of law decided in a fair and in public hearing before court of law”. (p. 31) Citing section 24 of the National Police Service Act¹⁷ which sets out the functions of the police, the court recognized the critical role played by the police in the criminal justice and that abdication of that role would deprive a claimant's access to courts and lead to miscarriage of justice or denial of justice altogether.

The court relied on opinions of two experts on Kenyan and international police standards for establishing the standards to be applied to police treatment of defilement. The expert on Kenya policing standards concluded that in all the cases the investigations were inadequate and the police failed in such basic investigation steps as visiting crime scenes, interviewing of witnesses or victims, or taking samples (which even where produced where never forwarded to the Government analysts’ for examination). The expert on international policing standards concluded that:

“The investigations of these eleven cases fall short of international policing standards. The very basic steps required to investigate crimes of this nature have been overlooked and ignored. There seems to be a prevailing attitude that crimes of this nature are not taken seriously. These failures are significant in that there not only is an urgent need to re-assess how these cases are investigated but there is also an immediate need to adjust the attitude of the Police handling them.”

The failure to meet local and international policing standards was held to be in violation of Article 244 of the Constitution which requires the National Police Service to: strive for the highest standards of professionalism and discipline among its members, prevent corruption and promote and practice transparency and accountability”, and “comply with constitutional standards of human rights and fundamental freedom”, “train staff to the highest possible standards of competence and integrity, respect human rights and fundamental freedoms and dignity” and “ foster and promote relationships with the broader society."

The court further held that the police failure to act on petitioners’ complaints of defilement violated their rights under Article 53 of the Constitution which provides children the right to be protected from abuse and violence. The constitutional requirement to protect the best interests of the child requires not only the establishment of relevant laws but also their proper enforcement by state agencies, and failure to implement such laws amounts to infringement of Constitutional rights. The obligation of the State to ensure proper investigations of such abuse was supported by the U.N. Committee on Rights of the Child (as stated in Director of Public Prosecutions, Transvaal V Minister of Justice and Constitutional Development, and others (2009) ZACC 8, 2009(4) SA 222(cc) 2009 (7) BCLR 637(CC) at para 200).

THE REMEDIES

The court found the petition to be of merit and granted various remedies to the petitioners. The first was a declaration to the effect that their constitutional rights as enshrined in the above-cited articles of the Constitution of Kenya, 2010 as well as their rights under the international and regional human rights instruments indicated above. The court also granted an order of mandamus directing the 1st respondent together with his agents, delegates and/or subordinates “to conduct prompt, effective, proper and professional investigations into the 1^st to 11^thpetitioners' complaints of defilement and other forms of sexual violence” and a second order of mandamus directing the 1st respondent together with his agents, delegates and/or subordinates “to implement Article 244 of the Constitution in as far as it is relevant to the matters raised in this petition”. The petitioners were granted costs against the 1st and 2 respondents jointly and severally.

However, the court declined to grant three other orders sought by the respondents, namely: two orders of mandamus directing the 3rd respondent to formulate a National Policy Framework envisioned by Section 46 of the Sexual Offences Act, 2006 and to implement the guidelines provided in the Reference Manual on the Sexual Offences Act, and a third order directing the respondents to regularly appear before the court to report on its compliance with the implementation of the orders. No reasons were given for declining to make these orders. It should be noted that, apart from the order as to costs, the only substantive orders granted by the court were against the 1^st respondent. This means that the 2^nd and 3^rd respondents came away from the petition with nothing required to be done by them. The first two of these declined orders are sometimes called “structural injunctions” which require the respondents to take policy and institutional action. The denial of these orders seems to reflect the judiciary’s reluctance to engage in policy action which, in their view, is better suited to the executive and legislative arms of government.¹⁸ The third order would have required active supervision by the court, and perhaps the judge felt that this would be difficult or impracticable to enforce.

CONCLUSION

The decision is an important legal victory for the individual girl petitioners and is a vindication of their courage and tenacity in the face of egregious human rights violations. After release of the decision, Mercy Chidi, director of Ripples International and the girls at Tumaini Centre were ecstatic and declared that they “now know what justice looks like”. The decision makes legal history in Kenya as it recognizes the obligation on the Kenyan police to conduct proper investigations in cases of sexual abuse and holds the police accountable for their treatment of defilement victims. The acknowledgment by the court that police inaction creates a climate of impunity that allows gender violence to continue reinforces the message to police that their duties cannot be disregarded in cases involving violence against women and girls. An important aspect of the decision is the court’s recognition of the access to justice implications of police failures, namely that failure to investigate and prosecute sexual offences deprives victims of their right to have disputes decided in fair court hearing.

The court’s judgment breathes life into the Kenya Constitution by purposively interpreting the bill of rights for the protection of a vulnerable group of people, namely girl victims of sexual violence. This is in line with Article 20 (3) (b) and echoes Justice Ringera’s proclamation in Njoya & Others v Attorney-General & Others¹⁹ that the Constitution « is a living instrument with a soul and a consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles», which include the enjoyment of fundamental rights and freedoms. The petition was also a test case for the application of Article 2 (5) and (6) of the Constitution which declares international law to be part of the law of Kenya. The petition appealed to international human rights norms contained in international and regional instruments to underpin the claim. This orientation was also reflected in the petition’s reliance on international authorities, which were approvingly cited by the court.

The decision constitutes an important precedent and could easily be extended to other forms of sexual and gender-based violence. This has significant implications for human rights litigation in Kenya and farther afield. Beyond Kenya, the decision joins a growing body of international case law, including Lenahan and others (specify) from the Inter-American system, European Court of Human Rights and domestic courts such as the Constitutional Court of South Africa which recognize state obligations to use due diligence to investigate and prosecute gender based violence, failing which the state will be in breach of domestic and international protections of women’s and girl’s rights to equality and security of the person.

The main challenge now is implementation of the decision to ensure that it results in meaningful change for all women and girls in Kenya.²⁰ Much work remains to be done towards this, which includes engaging with Kenyan authorities, advocacy and awareness raising of the decision and mobilizing of stakeholders in support of its implementation.²¹ This is a long term engagement but will be well worth the effort.