Abstract
SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of international agreements including the 1993 Declaration on the Elimination of Violence against Women, among others. This article uses the due diligence standard, as elaborated on by the UN Special Rapporteur on Violence against Women, to interrogate Kenya's domestic accountability efforts with regard to sexual violence in the 2007/2008 post-election violence. It finds that Kenya suffered from a number of structural and systemic shortcomings that resulted in its failure to meet its obligation to prevent, investigate, prosecute and compensate for such acts of sexual violence perpetrated by both state and non-state actors. Key among them are a lack of well-coordinated multi-sectoral approaches to address sexual violence; human capacity gaps in the provision of medico-legal services to survivors; and systemic failures in the investigation and prosecution of sexual violence cases. The article further highlights the hope for future accountability inherent in the recent ruling in Constitutional Petition 112 of 2013 which held the state accountable for all gaps and shortcomings in responding to sexual violence during the post-election violence. The article concludes by advocating community-based multi-sectoral approaches in prevention and response to sexual violence in the Kenyan context with an emphasis on improving both human and technical capacities for provision of medico-legal services to survivors. Key words: sexual violence; human rights; Kenya 2007-2008 postelection violence; medico-legal responses to sexual violence
Highlights
Since the restoration of multiparty politics in 1992, violence and displacements are a recurring feature of Kenyan elections.[1]
A national population-based assessment of the 2007-2008 post-election violence revealed, among other things, that 68 per cent of Kenyans were unaware of the Sexual Offences Act; survivors lacked access to the formal justice system in many areas that substitute it with traditional court systems that do not recognise sexual violence as a crime; and that police had limited training in the documentation of sexual violence.[49]
It can be concluded that the state failed to meet all four elements (AAAQ) of the right to health in the context of the 2007-2008 post-election violence. Both state and non-state actors working on sexual violence should have cooperated to map out medico-legal service providers across the country
Summary
Since the restoration of multiparty politics in 1992, violence and displacements are a recurring feature of Kenyan elections.[1]. Based on the foregoing, the article subsequently uses the lens of the due diligence standard as elaborated on by the Special Rapporteur to interrogate Kenya’s domestic accountability efforts regarding survivors of sexual violence in the 2007-2008 post-election violence. It utilises such interrogation to determine whether Kenya fulfilled its international human rights obligations with specific regard to prevention and response to election-related sexual violence in the post-election violence. The third part concludes by highlighting priority gaps in the mechanisms deployed as identified in the critical analysis and proposing some concrete measures to prevent their recurrence in future elections
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