Sexual violence as a political tool during the elections in Kenya.
Executive Summary
With the next general election in Kenya scheduled for 9 August 2022, the current political tensions
are raising serious concerns about a possible escalation of violence
in the run-up to the election and whilst it is taking place. In this joint report, the International
Federation for Human Rights (FIDH) and the Kenya Human Rights Commission (KHRC) warn
that, in the absence of urgent action by the state, there is a risk of a repeat of the
that characterised the abuses associated with past elections.
The Kenyan political scene is characterised by recurring episodes of election-related violence: murders, serious bodily harm, destruction of property, intimidation, harassment and threats. A comparative analysis of acts of violence committed during the general elections of 2007, 2013 (to a much lesser extent) and 2017 indicates that sexual and gender-based violence (SGBV) constitutes one of the main components of election-related violence in Kenya. The Commission of Inquiry into Post-Election Violence (CIPEV) recorded 900 cases of sexual violence perpetrated during the 2007–2008 election period, emphasising that the actual figure was likely to be much higher. The violence documented includes rape – in particular gang rape – genital mutilation and forced male circumcision. In 2013, whilst electoral violence did not reach the scale and severity of that seen in 2007–2008, instances of verbal and physical abuse, threats and intimidation against several female politicians were reported. In the context of the 2017 election period, the Kenya National Commission on Human Rights (KNCHR) recorded at least 201 cases of sexual violence, in particular gang rapes, concluding that sexual violence was the second most prevalent form of election-related violence, after physical assault. Following the 2017 election-related violence, FIDH and KHRC conducted a series of fact-finding missions to document cases of sexual violence in the counties of Kisumu, Migori and Vihiga. This report highlights the findings of these missions – including testimonies from survivors – presents an analysis in the context of GBV committed during previous elections and sets out recommendations ahead of the 2022 elections. FIDH/KHRC – Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022
The Kenyan political scene is characterised by recurring episodes of election-related violence: murders, serious bodily harm, destruction of property, intimidation, harassment and threats. A comparative analysis of acts of violence committed during the general elections of 2007, 2013 (to a much lesser extent) and 2017 indicates that sexual and gender-based violence (SGBV) constitutes one of the main components of election-related violence in Kenya. The Commission of Inquiry into Post-Election Violence (CIPEV) recorded 900 cases of sexual violence perpetrated during the 2007–2008 election period, emphasising that the actual figure was likely to be much higher. The violence documented includes rape – in particular gang rape – genital mutilation and forced male circumcision. In 2013, whilst electoral violence did not reach the scale and severity of that seen in 2007–2008, instances of verbal and physical abuse, threats and intimidation against several female politicians were reported. In the context of the 2017 election period, the Kenya National Commission on Human Rights (KNCHR) recorded at least 201 cases of sexual violence, in particular gang rapes, concluding that sexual violence was the second most prevalent form of election-related violence, after physical assault. Following the 2017 election-related violence, FIDH and KHRC conducted a series of fact-finding missions to document cases of sexual violence in the counties of Kisumu, Migori and Vihiga. This report highlights the findings of these missions – including testimonies from survivors – presents an analysis in the context of GBV committed during previous elections and sets out recommendations ahead of the 2022 elections. FIDH/KHRC – Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022
At least three risk factors have led our organisations to call on the Kenyan authorities to
take urgent and concrete measures to address the risk of GBV during the forthcoming
elections. Firstly, previous elections have shown that, when high political tensions
lead to acts of violence, this violence often includes VAWG. Latent tensions and
disagreements, particularly surrounding the Building Bridges Initiative (BBI), risk escalating
into acts of violence, as has recently been observed in certain localities (such as the
counties of Kisii and Murang’a). However, at the time of writing, neither political figures
nor the bodies responsible for organising the elections, in particular the
Independent Electoral and Boundaries Commission (IEBC), appear to have
regarded election-related VAWG as a security risk that needs to be taken into account and addressed.
Secondly, the government’s repeated attacks on the judiciary – aimed at discrediting judges or undermining their independence – as well as the obstacles to the work of the KNCHR, are a cause for concern. Our organisations fear that, in the event of an upsurge in violence, particularly sexual violence, these institutions will be hampered in their ability to investigate such acts and deliver justice to the victims. This report demonstrates how, over the past few years, deeply entrenched impunity has created a climate conducive to the perpetration of election-related sexual and gender-based violence (SGBV). It describes how the police have, to date, failed in their duty to conduct effective and credible investigations into sexual violence committed during the 2017 elections and previous elections, leaving the vast majority of survivors without access to justice. It is therefore essential to safeguard the capacity of institutions, such as the KNCHR, to investigate sexual violence, as well as to guarantee the independence of the judiciary and its ability to bring those responsible for acts of sexual violence to justice.
Thirdly, in the context of the Covid-19 pandemic, studies have shown that it has had a disproportionate impact on women, particularly those from economically disadvantaged backgrounds. This pandemic has not only increased their economic vulnerability, but has also made it more difficult to access health services, including sexual and reproductive healthcare. Furthermore, it has contributed to greater difficulties in accessing legal aid. Our report reveals that in 2017, as in previous elections, most victims of election-related sexual and gender-based violence (SGBV) came from economically disadvantaged backgrounds, and this economic vulnerability affected their ability to receive adequate medical care and to obtain redress through legal proceedings. However, prompt and effective access to health services and legal aid will be essential for women and men who may suffer acts of election-related violence, including VAWG, during the forthcoming election.
More generally, the FIDH and KHRC consider that, as long as misogyny and patriarchy are not recognised as major risk factors associated with the perpetration of election-related GBV, measures aimed at prevention, punishment and redress will not have lasting effects. Election-related VAWG is not caused by the holding of elections. The FIDH and KHRC demonstrate in this report how, in the Kenyan context, the maintenance of of men over the political system appears to form the basis for the continuation of election-related GBV against women – and men – with a view to exercising domination and political power over certain individuals and communities. This report highlights the link between gender and the retention of, or access to, power, resources and authority. It reveals that during the general elections of 2007, 2013 and 2017, political violence and discrimination took on a gendered dimension, with women being specifically and disproportionately targeted. FIDH and KHRC seek to establish that any action aimed at preventing and combating election-related political violence must, to be effective, take into account the gender dimension of the violence. FIDH/KHRC – Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022
GBV can have a wide range of consequences, including physical, psychological, economic and social ones. Such consequences can also be political in nature and affect, in particular, women’s participation in electoral processes and political life. In this report, we review some of these repercussions and assess how they may undermine the credibility of electoral processes.
Since the adoption of the Sexual Offences Act in Kenya in 2006, the actions of the Kenyan authorities in combating VAWG have been inconsistent. There have been signs of a strong commitment on the part of the authorities (for example, with the adoption of the Constitution in 2010, the Act establishing the National Commission on Gender Equality in 2011, the Sexual Offences Regulations (medical treatment) in 2012, the National Policy on the Prevention of and Response to Gender-Based Violence in 2014, the Prevention of Torture Act in 2017, etc.) have been followed by significant setbacks. In particular, the authorities’ lack of willingness to carry out genuine investigations into the security forces’ responsibility for acts of GBV that have been committed, as established by the CIPEV, the Truth, Justice and Reconciliation Commission (TJRC) and by the KNCHR, and documented during fact-finding missions by the FIDH and the KHRC, has constituted a major obstacle to the fulfilment of their commitments and legal obligations.
Ahead of the 2022 general elections, the FIDH and the KHRC are calling on the Kenyan government, the IEBC and the political parties to anticipate the risk of political violence taking the form of VSBG and to adopt urgent and appropriate measures to prevent such violence. Such measures must focus on prevention, protection, investigation, prosecution and redress. Our organisations also call on the international community, in particular the East African Community and the African Union, to publicly highlight the risks of election-related sexual and gender-based violence and to urge the Kenyan authorities to fulfil their regional and international obligations in this regard. These calls should, in particular, encourage the authorities to implement the Guidelines of the African Commission on Human and Peoples’ Rights (ACHPR) to combat sexual violence and its consequences in Africa.
Secondly, the government’s repeated attacks on the judiciary – aimed at discrediting judges or undermining their independence – as well as the obstacles to the work of the KNCHR, are a cause for concern. Our organisations fear that, in the event of an upsurge in violence, particularly sexual violence, these institutions will be hampered in their ability to investigate such acts and deliver justice to the victims. This report demonstrates how, over the past few years, deeply entrenched impunity has created a climate conducive to the perpetration of election-related sexual and gender-based violence (SGBV). It describes how the police have, to date, failed in their duty to conduct effective and credible investigations into sexual violence committed during the 2017 elections and previous elections, leaving the vast majority of survivors without access to justice. It is therefore essential to safeguard the capacity of institutions, such as the KNCHR, to investigate sexual violence, as well as to guarantee the independence of the judiciary and its ability to bring those responsible for acts of sexual violence to justice.
Thirdly, in the context of the Covid-19 pandemic, studies have shown that it has had a disproportionate impact on women, particularly those from economically disadvantaged backgrounds. This pandemic has not only increased their economic vulnerability, but has also made it more difficult to access health services, including sexual and reproductive healthcare. Furthermore, it has contributed to greater difficulties in accessing legal aid. Our report reveals that in 2017, as in previous elections, most victims of election-related sexual and gender-based violence (SGBV) came from economically disadvantaged backgrounds, and this economic vulnerability affected their ability to receive adequate medical care and to obtain redress through legal proceedings. However, prompt and effective access to health services and legal aid will be essential for women and men who may suffer acts of election-related violence, including VAWG, during the forthcoming election.
More generally, the FIDH and KHRC consider that, as long as misogyny and patriarchy are not recognised as major risk factors associated with the perpetration of election-related GBV, measures aimed at prevention, punishment and redress will not have lasting effects. Election-related VAWG is not caused by the holding of elections. The FIDH and KHRC demonstrate in this report how, in the Kenyan context, the maintenance of of men over the political system appears to form the basis for the continuation of election-related GBV against women – and men – with a view to exercising domination and political power over certain individuals and communities. This report highlights the link between gender and the retention of, or access to, power, resources and authority. It reveals that during the general elections of 2007, 2013 and 2017, political violence and discrimination took on a gendered dimension, with women being specifically and disproportionately targeted. FIDH and KHRC seek to establish that any action aimed at preventing and combating election-related political violence must, to be effective, take into account the gender dimension of the violence. FIDH/KHRC – Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022
GBV can have a wide range of consequences, including physical, psychological, economic and social ones. Such consequences can also be political in nature and affect, in particular, women’s participation in electoral processes and political life. In this report, we review some of these repercussions and assess how they may undermine the credibility of electoral processes.
Since the adoption of the Sexual Offences Act in Kenya in 2006, the actions of the Kenyan authorities in combating VAWG have been inconsistent. There have been signs of a strong commitment on the part of the authorities (for example, with the adoption of the Constitution in 2010, the Act establishing the National Commission on Gender Equality in 2011, the Sexual Offences Regulations (medical treatment) in 2012, the National Policy on the Prevention of and Response to Gender-Based Violence in 2014, the Prevention of Torture Act in 2017, etc.) have been followed by significant setbacks. In particular, the authorities’ lack of willingness to carry out genuine investigations into the security forces’ responsibility for acts of GBV that have been committed, as established by the CIPEV, the Truth, Justice and Reconciliation Commission (TJRC) and by the KNCHR, and documented during fact-finding missions by the FIDH and the KHRC, has constituted a major obstacle to the fulfilment of their commitments and legal obligations.
Ahead of the 2022 general elections, the FIDH and the KHRC are calling on the Kenyan government, the IEBC and the political parties to anticipate the risk of political violence taking the form of VSBG and to adopt urgent and appropriate measures to prevent such violence. Such measures must focus on prevention, protection, investigation, prosecution and redress. Our organisations also call on the international community, in particular the East African Community and the African Union, to publicly highlight the risks of election-related sexual and gender-based violence and to urge the Kenyan authorities to fulfil their regional and international obligations in this regard. These calls should, in particular, encourage the authorities to implement the Guidelines of the African Commission on Human and Peoples’ Rights (ACHPR) to combat sexual violence and its consequences in Africa.
Recommendations
The FIDH and the KHRC make the following recommendations:
Prevention
• The Kenyan government should introduce amendments to the Sexual Offences Act
to recognise and take into account the unique circumstances of sexual violence
committed during situations of crisis or conflict1
, in particular to amend the
standard of proof required for the prosecution of such offences.
1. These include, in particular, the systemic nature of the violations, the presumed responsibility of state security personnel
and, where sexual violence is used as a weapon, the issue of the superior’s liability, a
general breakdown of law-and-order institutions which prevents survivors of sexual violence
to report the incidents promptly, and the difficulty in gaining immediate access to medical facilities, which
would, under normal circumstances, enable the collection of evidence essential in cases of sexual violence.
FIDH/KHRC – Sexual violence as a political tool during the Kenyan elections. Measures to be taken by the State before 2022 4
• The Kenyan government should ensure greater coordination between the national and
county levels in the fight against sexual and gender-based violence (SGBV) to guarantee that interventions are
localised and have a direct positive impact on survivors of sexual violence. In this regard,
FIDH and KHRC welcome the initiative taken by Migori County in 2019 to develop its
county-wide policy on VAWG, and encourage other counties to follow this example.
• The Kenyan government should take all necessary and appropriate measures to
address the root causes of election-related GBV, in particular by focusing on
the extent of misogyny and patriarchy in the political sphere.
• County administrations should strengthen prevention mechanisms by activating
and coordinating key services to ensure they are able to prevent election-related GBV
and respond to cases.
• The National Council for the Administration of Justice (NCAJ) should treat sexual violence
as a thematic issue and establish a multi-institutional working group
to address sexual offences occurring in the context of
conflict and crisis situations, as seen during the 2017 general election and previous elections.
This response mechanism should be implemented at county level through the NCAJ’s
Court Users’ Committees (CUCs) and should publish periodic reports to assess the
extent to which the needs of survivors of sexual violence are being met.
• The KNCHR, the Independent Police Oversight Authority (IPOA) and the National
Commission on Gender Equality (NGEC) should, in collaboration with civil society, strengthen
public awareness of election-related sexual and gender-based violence (SGBV) with a view to establishing, at local level,
early warning systems, as well as mechanisms for monitoring and documenting cases when they occur.
• The KNCHR, in collaboration with civil society, should disseminate the ACHPR’s
Guidelines on Combating Sexual Violence and its Consequences in Africa, and advocate for
their implementation.
Protection
• The Kenyan Government should ensure that the KNCHR, the NGEC,
the IPOA, the Police Internal Affairs Unit (IAU), the National Police Service
(NPS) and the Office of the Director of Public Prosecutions (ODPP), and ensure that they have
adequate resources, as key institutions for providing effective remedies
to survivors of VAWG. Furthermore, in collaboration with civil society organisations, these
institutions should establish an independent, multi-stakeholder mechanism for monitoring
and reporting on election-related VAWG in order to coordinate effective responses
that ensure survivors receive immediate assistance and comprehensive redress
, including psychosocial support, legal aid and reparations.
• The Kenyan government should ensure it adopts a human rights-based approach to
law enforcement during the electoral period and establish guidelines on the protection
of women and girls during the electoral period, particularly in educational institutions
(in accordance with the 2017 recommendations of the Committee on the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW)). Furthermore, we encourage the
NPS to align the relevant provisions of its standing orders and procedures with the
ACHPR Guidelines on Combating Sexual Violence and its Consequences in Africa.
5 FIDH/KHRC – Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State by 2022
• The Kenyan government should fulfil its national, regional and international obligations
regarding the protection and promotion of women’s political rights, in particular by implementing
the recommendations issued by the CEDAW Committee, the relevant decisions of the
ACHPR and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa (Maputo Protocol). The Kenyan government should also ratify
the Optional Protocol to CEDAW.
• The Kenyan government should share in advance the deployment plan/operational order
of the security and defence forces and services (including the chain of command) with the
KNCHR and other relevant stakeholders, in order to ensure transparency and accountability.
• The Kenyan government should ensure a process of regular monitoring of officers
law enforcement officers and other security forces and services, to ensure that those
found guilty of sexual violence and other human rights violations
are prosecuted and dismissed from their posts.
• The Kenyan government should establish a national database of sex offenders
(including within the security and defence forces) to ensure that they are not
deployed during emergency response operations.
• The Kenyan government should provide support to police officers deployed on the ground during
the election period (including psychosocial support, as well as adequate allowances and rations).
Investigations and prosecutions
• The Kenyan government should increase resources and improve treatment centres
for gender-based violence (GBV) at national and county level, and establish
gender desks in all police stations across the country.
• In accordance with the ACHPR Guidelines on Combating Sexual Violence and
its Consequences in Africa, the Kenyan government should repeal regulations and abolish
practices requiring compulsory medical examinations in cases of sexual violence
committed during situations of conflict and crisis, so that a victim is exempt
from the obligation to provide evidence other than their own testimony; and promote other
alternative investigative measures, paying particular attention to any risk factors or
contextual elements.
• The Kenyan government should, without further delay, ensure that investigations are carried out
into the 2017 cases of sexual violence in order to bring the alleged perpetrators to justice and to
guarantee victims’ right to redress.
• The Kenyan government should conduct an independent inquiry into election-related
SGBV in order to:
• review the findings of the CIPEV and assess the level of progress, or lack thereof,
in relation to the recommendations aimed at addressing election-related SGBV;
• consolidate existing reports and invite submissions relating to cases of election-related GBV during
the 2017 election period;
• produce a report as an official record of events during the 2017
election period and make recommendations regarding investigations, prosecutions and redress.
FIDH/KHRC – Sexual violence as a political tool during the Kenyan elections. Measures to be taken by the State before 2022 6
• The Kenyan government should strengthen the police’s capacity to investigate cases of sexual and gender-based violence,
including election-related violence, and to follow up on them.
Legal remedies and compensation
Restitution and compensation for survivors and victims of sexual violence during the
elections
• The Kenyan Government should prioritise the ruling in the case of COVAW and
others v. A.G. and others, High Court Application No. 122 of 2013, by implementing it
in full and without delay, and commit to establishing a broader reparations programme for
victims of sexual violence in the context of the elections. Such a programme
should be based on the recommendations of the 2013 TJRC report.
• The National Government’s Remedial Action Fund (NGAAF) and civil
society organisations (CSOs) working with survivors of sexual violence should
develop programmes and activities focusing on immediate interventions to
restore short-term livelihoods, including through support groups
and income-generating activities.
• The Kenyan government should develop a comprehensive rehabilitation programme for
survivors of election-related sexual and gender-based violence (SGBV) and their households, providing them with medical,
psychosocial, legal and social services, and should allocate a budget to support survivors at
county and national levels.
• The Kenyan government should fulfil its obligations regarding guarantees of non-
repetition and redress, in particular by issuing a public apology, acknowledging
the facts and accepting responsibility for election-related VAWG.
FIDH and KHRC further call on the international community, in particular the African Union,
to publicly warn of the risks of election-related VAWG during the
general election in 2022 and to urge the Kenyan authorities to respect their regional and
international obligations. These calls should, in particular, encourage the authorities to implement the
ACHPR Guidelines on Combating Sexual Violence and its Consequences in Africa.
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