Facets of ju­di­cial anom­alies in gen­der-based vi­o­lence

Nairobi Law Monthly - - Analysis -

LANJI OUKO

Ar­ti­cle 10 of the Con­sti­tu­tion, un­der clause (3) stip­u­lates that “All state or­gans and all pub­lic of­fi­cers have the duty to ad­dress the needs of vul­ner­a­ble groups within so­ci­ety, in­clud­ing women, older mem­bers of so­ci­ety, per­sons with dis­abil­i­ties, chil­dren, youth, mem­bers of mi­nor­ity or marginalised com­mu­ni­ties, and mem­bers of par­tic­u­lar eth­nic, and religious com­mu­ni­ties.”

In at­tempts to gauge in­di­vid­ual and in­sti­tu­tional re­sponses to gen­der-based vi­o­lence, a num­ber of stud­ies have fo­cused on the ac­tion of re­port­ing by the vic­tim, the ser­vices the vic­tim re­ceives, the role of the health staff and the in­sti­tu­tions the vic­tim re­ported to, and ac­tions taken by those re­ported to. Each study high­lights a num­ber of ob­sta­cles over­come by the le­gal en­force­ment in­sti­tu­tions.

De­spite th­ese in­sti­tu­tions’ at­tempts to ad­dress the chal­lenges of gen­der-based vi­o­lence, through a wide spec­trum of poli­cies and laws, its mag­ni­tude con­tin­ues to reach alarm­ing heights. The in­sti­tu­tions in­volved need to change, not only the way in which gen­der-based vi­o­lence is per­ceived and un­der­stood, but also in the man­ner in which the in­sti­tu­tions such as the se­cu­rity and ju­di­cial sys­tems re­spond to re­ported cases.

The var­i­ous de­bates cen­tred on the prin­ci­ple of due dili­gence by the in­sti­tu­tions later raised the ques­tion on the role of judges in en­sur­ing vi­o­lence against women is re­duced if not elim­i­nated.

In July 1993, the Kenyan Women Judges As­so­ci­a­tion was founded and reg­is­tered un­der the So­ci­eties Act. The as­so­ci­a­tion is a non-profit, non-par­ti­san and non-gov­ern­men­tal or­gan­i­sa­tion. The KWJA ideals and vi­sion for ex­is­tence are an­chored on the val­ues of gen­der equity and equal­ity, so­cial jus­tice and fair rep­re­sen­ta­tion, to be at­tained by cre­at­ing an en­abling en­vi­ron­ment for ac­cess­ing the courts and re­spon­sive jus­tice for all, through skills and knowl­edge en­hance­ment for ju­di­cial of­fi­cers on hu­man rights and gen­der.

Hot­bed of un­tapped po­ten­tial

With all due re­spect, the women judges as­so­ci­a­tion is sit­ting on its own hot­bed of un­tapped po­ten­tial. The judges may use their role to con­trib­ute in the cre­ation of pol­icy and abol­ish im­ped­i­ments to jus­tice, such as the re­quire­ment that ev­i­dence of vi­o­lence against women be cor­rob­o­rated. An ex­am­ple is the es­tab­lish­ment of poli­cies based on hu­man rights is­sues to solve other im­ped­i­ments to jus­tice, for in­stance, the­p­o­lice re­forms, specif­i­cally in re­gard to sen­si­tiv­ity and pri­vacy dur­ing the in­ves­ti­ga­tion and pros­e­cu­tion of cases of this na­ture. Ad­di­tion­ally, an of­fi­cer may over­look the re­quire­ment to ac­cu­rately record the case and pre­serves the ev­i­dence. Poorly col­lected ev­i­dence, and poorly recorded cases, leads to a num­ber of im­ped­i­ments to ac­cess­ing jus­tice in cases of vi­o­lence. Other bar­ri­ers, which may be solved through pol­i­cy­mak­ing, in­clude de­lays in court pro­ce­dures, hours of op­er­a­tion and lo­ca­tions of courts, as well as dif­fi­culty in ac­quir­ing cer­ti­fi­ca­tion from med­i­cal doc­tors.

The cre­ation of aware­ness through cam­paigns and open days, in­volv­ing both men and women of the com­mu­nity, would go a long way in erod­ing the cul­tural prac­tises of fe­male sub­or­di­na­tion. Like­wise, education and train­ing of spe­cialised groups in or­der to up­hold in­tegrity, re­spect of hu­man right and fun­da­men­tal free­doms would be an­other mit­i­gat­ing fac­tor. Ju­di­cial of­fi­cers need to be sen­si­tised on the pro­vi­sion of the law and im­ple­men­ta­tion of the repa­ra­tion of vic­tims. The repa­ra­tion may be in form of mon­e­tary com­pen­sa­tion and free treat­ment in govern­ment hospi­tals, coun­selling and any re­quired af­ter care. The cur­rent ju­di­cial sys­tem puts em­pha­sis solely on the pun­ish­ment of the of­fender; how­ever by uti­liz­ing pro­vi­sions of law such repa­ra­tion, it would serve as a mech­a­nism to de­ter of­fend­ers.

Ev­ery other day, re­sources are al­lo­cated for sex­ual and gen­der-based vi­o­lence pro­grammes, but which is of no use if the in­sti­tu­tions lack the pre­cise tools re­quired to drive the agenda. Th­ese in­sti­tu­tions re­quire more than just re­sources, knowl­edge, anal­y­sis and in­for­ma­tion. The in­sti­tu­tions re­quire to be self-driven in or­der to main­tain the ini­tial mo­men­tum gained at the be­gin­ning. Im­ple­men­ta­tion speaks louder than any num­ber of work­shops and con­fer­ences.^

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