Kenya’s sexual violence survivors get justice, though imperfect

 The women gathered around the table as they had done so many times before, united by their shared trauma and wounds. But this time, it was different. This was the moment these survivors of sexual violence had waited for, a wait of 13 years. Two bowed their heads and clasped their hands in prayer.

Moments later, a judge from Kenya’s High Court appeared on the screen of their shared laptop to deliver his judgement in a landmark case seeking to hold the Kenyan government accountable for sexual assaults that occurred during widespread violence following the contested 2007 presidential election. As the judge read the decision aloud, the survivors sat in disbelief; some cried, others were stunned into silence. They could hardly believe that their pain and suffering had finally been acknowledged.

“This has been a great day for us, the court has heard us,” one survivor exulted. “The wait has been very long but worth it. We have been recognised as survivors of SGBV [sexual and gender-based violence]. No one can ever say that our experiences were not real. We feel vindicated.”

The judgement in favour of four of the survivors was a watershed moment for justice in Kenya, the first time that the government has been held responsible for its failure to investigate crimes of sexual violence that took place during the 2007-2008 post-election violence period. It also marked the first time ever that the government was ordered to compensate survivors for the harms they suffered.

“It has been a very long and difficult journey,” said another survivor. “But we have stuck together and today we are happy that the judgement was issued. The court has heard us today.”

The decision – fittingly delivered on December 10, International Human Rights Day – is momentous not only for the four women who have waited so long for the case to be adjudicated, but also for its implications for future prosecutions of these heinous crimes in Kenya and globally.

The case was brought in 2013 by (eight survivors – six women and two men), three Kenyan NGOs, and the international nonprofit, Physicians for Human Rights (PHR), where I lead the Kenya office. It was the legal end of the road for the survivors: all other efforts to secure justice – including through the International Criminal Court – had failed.

But what the judgement made abundantly clear is that local mechanisms can hear and deliver judgements in cases of sexual and gender-based violence. Like the ground-breaking 2017 case in which a Congolese mobile court sentenced 11 men to life for crimes against humanity for the rape of dozens of small children, the case in Kenya is emblematic of the growing recognition of domestic processes as a venue for pursuing and securing justice.

As international justice mechanisms falter, we may be seeing the emergence of a novel legal approach focused on domestic, civil lawsuits to seek accountability for atrocities.

Make no mistake: The process was extremely difficult and excruciatingly long, especially for the survivors – who endured unthinkable violence in 2007-2008, filed this case in 2013, and were then subjected to more than seven years of bureaucratic delays, frequent judge changes and countless setbacks. This month, their persistence finally yielded justice.

Despite this important decision, however, justice was imperfectly served in Kenya. Three of the women survivors whom the court awarded were violated by police officers and members of the state security system. The other survivor who was awarded was violated by a non-state actor, but she had reported the case to the police. The four other survivor-petitioners – two women and two men – were attacked by members of gangs, but because they did not report their cases to the police, the court did not acknowledge the state’s responsibility nor award them compensation. This is a profound tragedy.

Identifying the state’s responsibility for crimes committed by state agents is an important and long overdue first step. But we must go further. The state has a clear responsibility to protect civilians and investigate violence from all actors.

For PHR and our co-petitioners, the struggle for accountability and justice continues. As one survivor said: “We all started this journey together as survivors of SGBV. Sticking together has helped us get this judgement. We will continue supporting the rest of the survivors who did not get any compensation from the court because we know they, too, were violated.”

It is critical to persevere not only for the four survivor-petitioners whom the High Court failed to serve, but also for the hundreds and hundreds of Kenyans still suffering, 13 years later, from the unrecognised horror that was inflicted on them in the 2007-8 post-election chaos, and for the survivors all over the world who endure the lasting trauma of sexual violence and dare to hope for justice.