Abstract

The 160 Girls’ decision highlights key challenges in the protection of women and girls from sexual violence through legal provisions. It is argued here that the development as freedom and capabilities approach would help in eliminating the constraints which limit the law from effectively protecting women and girls from sexual violence.

Introduction

The 160 Girls’ decision is no doubt a landmark case in Kenya. The court held that it is the responsibility of the state to ensure access to justice for girls who have experienced sexual abuse. The court found that the police in Meru county had failed in three key areas: firstly, they failed to investigate claims of sexual abuse which were brought by young girls; secondly, they failed to arrest sexual offenders; and thirdly, where they arrested the offenders, they handled the prosecution so poorly that the offenders would be released. The court found that the state was responsible for the violation of the rights of the girls in this case because of omissions and inaction on the part of the police, the Director of Public Prosecutions and the Minister, Justice, national Cohesion and Constitutional Affairs. Insofar as human rights litigation is concerned, this case is also novel because it found the state responsible for the violation of fundamental rights through acts of omission, rather than acts of commission.  

The Limits of the Law

However, this case also highlights the fact that while there exists an elaborate set of legal provisions aimed at protecting the rights of women and girls with regard to sexual violence, these rights continue to be violated with impunity. This position is disheartening, given that it was only in 2006 when that the Sexual Offences Act was passed, giving hope to women and girls throughout the country that their right to be free from sexual violence would be protected. Further, article 2(5) of the 2010 Constitution of Kenya provides that the general rules of International Law form part of the law of Kenya, while article 2(6) provides that any treaty or convention ratified by Kenya forms part of the law of Kenya. Consequently, the rules of International Law which provide for the protection of women’s human rights are currently part of Kenya’s national law. The 160 Girls’ decision has now shown that all these legal provisions have not been sufficient in ensuring that women and girls in Kenya are free from sexual violence. In particular, it is evident that the state has failed to take seriously its constitutional and International Law obligations in protecting and safeguarding the rights of women and girls. 

It should also be noted that even the court in this current case fell short of rendering a decision that would ensure that the state takes the necessary action to ensure that women and girls enjoy the freedom from sexual violence. Firstly, the court issued two declarations to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the petitioners’ respective complaints violated the petitioners’ fundamental rights under the Constitution of Kenya 2010 as well as under various International and Regional Human Rights Instruments. The court also issued an order directing the Commissioner of Police, together with his agents, delegates or subordinates to conduct prompt, effective, proper and professional investigations into the petitioners’ complaints of defilement and other forms of sexual violence. 

On the other hand, the court declined to issue orders compelling the Minister for Justice, National Cohesion and Constitutional Affairs to formulate the National Policy Framework to guide the implementation and administration of the Sexual Offences Act as envisioned under section 46 of the Act, and to cause that Policy to be a mandatory part of police training. The court further declined to issue order directing the Minister to implement the guidelines provided in the Reference Manual on the Sexual Offences Act for police prosecutors. Finally, the court declined to issue order directing the Commissioner of Police, the Director of Public Prosecutions and the Minister for Justice, National Cohesion and Constitutional Affairs to regularly account to the court on compliance and/or implementation the orders issued by the court. In short, the court simply issued declarations to the effect that the petitioners in this case have the right to be free from sexual violence, and to access justice should this right be violated. The court failed to issue orders that would ensure that this is not simply a right written in the law, but a real and true right, which the girls are capable of enjoying. 

Making the Law Work: Understanding Development as the Freedom from Sexual Violence

Considering the glaring inefficiency of the law on sexual violence, and the shortcomings of the decision which the court issued with regard to that inefficiency, it is clear that there is a limit to how far the law can go in protecting women and girls from sexual violence. If law is to effectively protect and guarantee the rights of girls and women, it must be understood within the context in which it operates. There are economic, political as well as social challenges which limit the efficient operation of the law on sexual violence. From the facts of this case, whereby the police demanded from the 7th petitioner Kshs. 1,000 to fuel their vehicles it is evident that there are economic constraints facing the police force. Indeed, cases of police demanding money for fuel in order to go to crime scenes and conduct investigations are widespread in Kenya. 

Police attitudes towards the victims of sexual violence in this case also highlight problematic social attitudes. This is evident from the way in which the police treated the petitioners in this case; that is without any sympathy, empathy or care, as in the case of the 2nd petitioner who was interviewed loudly, within the hearing of all those present and then eventually denied any assistance until the birth of the child who was conceived out of the sexual abuse she suffered. The police seem aloof and uncaring of the trauma that the victims in this case suffered, thereby subjecting them to further humiliation and degrading treatment. These police attitudes reflect deeper seated cultural issues within the wider society, whereby Kenyan culture seems to support, condone and even promote the sexual objectification of women and girls. 

There are also political concerns arising out of this case, because the court refused to issue orders that would compel concerned state agencies, including the Director of Public Prosecutions and the Minister for Justice, National Cohesion and Constitutional Affairs, to take seriously sexual violence against women and girls. Indeed, the court simply refused to grant the prayers sought with regard to these agencies, but it failed to explain the rationale for this refusal. It may therefore be deduced that there are political issues at play here, whereby the court is reluctant to be seen to interfere in the working of these state agencies.

This case shows that the human rights based approach on its own, is limited in addressing the forgoing challenges.  Indeed, the court relied extensively on human rights argument in reaching its decision. I argue that he development as freedom and capabilities framework, as espoused by Sen  and developed by Nussbaum  would supplement the human rights based approach and go further in ensuring that women and girls are able to enjoy the freedom from sexual violence. In this sense, development is the freedom from sexual violence. The lack of development is therefore the inability to achieve this freedom. The constraints which limit the attainment of this freedom become the concern of the court; the concern of state agencies such as the inspector general of police and the director of public prosecution. This means that greater economic investment in the police force, cannot on its own ensure that the police properly enforce the law on sexual violence. Such economic investment must be accompanied with programmed aimed at cultural transformation of the current police attitudes towards sexual violence.