Sexual violence as a political tool during the Kenyan elections.
Executive summary
With Kenya's next general elections scheduled for 9 August 2022, existing political tensions are raising
political tensions are raising serious concerns about a possible escalation of violence in the run-up to
in the run-up to and during the elections. In this joint report, the
the International Federation for Human Rights (FIDH) and the Kenya Human Rights Commission (KHRC) warn of the
the risk of a repeat of sexual and gender-based violence (SGBV) in the absence of urgent state action.
sexual and gender-based violence (SGBV) that characterised past election-related abuses.
The Kenyan political scene is marked by recurrent episodes of election-related violence: murder, grievous bodily harm, destruction of property, intimidation, harassment and threats. A comparative analysis of the acts of violence perpetrated during the general elections of 2007, 2013 (to a much lesser extent) and 2017 general elections indicates that SGBV is one of the main election-related violence in Kenya. The Commission of Inquiry into Post-Election Violence (CIPEV) has documented 900 cases of sexual violence perpetrated during the 2007-2008 electoral period, stressing that the actual figure was probably much higher. The violence recorded included rape - in particular gang rape - mutilation and sexual violence. genital mutilation and forced male circumcision. In 2013, although electoral violence did not reach the scale and severity of 2007-2008, verbal and physical violence physical violence, threats and intimidation against several female politicians were reported. were reported. In the context of the 2017 election period, the Kenya National Commission on Commission (KNCHR) recorded at least 201 cases of sexual violence, in particular gang rapes, concluding concluding that sexual violence was the second most significant form of election-related violence, after form of election-related violence, after physical injury. Following the electoral violence in 2017, FIDH and KHRC carried out a series of fact-finding missions to document the extent and nature of the violence. to document cases of sexual violence in Kisumu, Migori and Vihiga counties. Vihiga counties. This report highlights the findings of these missions - including testimonies from survivors -, presents an analysis in the context of SGBV committed during previous elections and makes recommendations and makes recommendations for 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 marked by recurrent episodes of election-related violence: murder, grievous bodily harm, destruction of property, intimidation, harassment and threats. A comparative analysis of the acts of violence perpetrated during the general elections of 2007, 2013 (to a much lesser extent) and 2017 general elections indicates that SGBV is one of the main election-related violence in Kenya. The Commission of Inquiry into Post-Election Violence (CIPEV) has documented 900 cases of sexual violence perpetrated during the 2007-2008 electoral period, stressing that the actual figure was probably much higher. The violence recorded included rape - in particular gang rape - mutilation and sexual violence. genital mutilation and forced male circumcision. In 2013, although electoral violence did not reach the scale and severity of 2007-2008, verbal and physical violence physical violence, threats and intimidation against several female politicians were reported. were reported. In the context of the 2017 election period, the Kenya National Commission on Commission (KNCHR) recorded at least 201 cases of sexual violence, in particular gang rapes, concluding concluding that sexual violence was the second most significant form of election-related violence, after form of election-related violence, after physical injury. Following the electoral violence in 2017, FIDH and KHRC carried out a series of fact-finding missions to document the extent and nature of the violence. to document cases of sexual violence in Kisumu, Migori and Vihiga counties. Vihiga counties. This report highlights the findings of these missions - including testimonies from survivors -, presents an analysis in the context of SGBV committed during previous elections and makes recommendations and makes recommendations for 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 SGBV during the forthcoming
elections. Firstly, previous elections have shown that, when high political tensions lead to violence
violence, this violence often includes SGBV. Latent tensions and
tensions and disagreements, particularly around the Building Bridges Initiative (BBI), are likely to erupt into acts of violence, as they have in the past.
violence, as has recently been observed in certain localities (such as the counties of Kisii and
counties of Kisii and Murang'a). However, at the time of writing, neither the political figures nor the bodies
organisations responsible for organising the elections, in particular the Independent Electoral and
the Independent Electoral and Boundaries Commission (IEBC), appear to have considered the
considered election-related SGBV as a security risk to be taken into account and dealt with.
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 judiciary, have had a negative impact on the judiciary. their independence - as well as obstacles to the work of the KNCHR, are a cause for concern. KNCHR, are a cause for concern. Our organisations fear that in the event of an outbreak of violence, particularly sexual violence, these institutions will be hampered in their ability to investigate these acts and bring justice to the victims. and bring justice to the victims. This report shows how, in recent years, a solid impunity how, in recent years, entrenched impunity has created a climate conducive to the perpetration of election-related SGBV. related to the elections. It describes how police forces have, to date, failed in their duty to to conduct effective and credible investigations into sexual violence committed in connection with the 2017 and previous elections, leaving the vast majority of survivors without access to justice. access to justice. It is therefore essential to preserve the capacity of institutions such as the KNCHR, to investigate sexual violence, as well as guaranteeing the independence of the judiciary and its ability to try those responsible. and its ability to judge those responsible for acts of sexual violence.
Thirdly, in the context of the Covid-19 pandemic, studies have demonstrated its disproportionate impact on women, particularly those from economically poor backgrounds. disproportionate impact on women, particularly those from economically poor backgrounds. The pandemic has not only increased their economic vulnerability, but has also made it more difficult for them to access health services. access to health services, including sexual and reproductive health care. It has also contributed to greater difficulties in accessing legal aid. Our report shows that in 2017, as in previous elections, most election-related victims of election-related SGBV were from economically poor backgrounds, and this economic vulnerability impacted on their ability to receive adequate medical care and to obtain redress through legal redress through legal proceedings. Yet rapid and effective access to health services and legal aid will be essential for women and men who may suffer election-related violence, particularly election-related violence, including SGBV, during the upcoming vote.
More generally, FIDH and KHRC consider that, as long as misogyny and patriarchy are not considered to be major risk factors associated with the perpetration of election-related SGBV, measures aimed at prevention measures aimed at prevention, sanctions and redress will not have a lasting impact. lasting consequences. Election-related SGBV is not caused by the holding of elections. The FIDH and KHRC demonstrate in this report how, in the Kenyan context, the maintenance of men's hegemonic control over the political process is not an end in itself. control over the political system appears to be the basis for the continuation of election-related SGBV in Kenya. election-related SGBV against women, and men, with a view to the exercise of political power and domination and political power over certain individuals and communities. This report the link between gender and the retention of, or access to, power, resources and authority. access to them. It reveals that in the general elections of 2007, 2013 and 2017, political violence and discrimination had a gender dimension, with women specifically and disproportionately targeted. disproportionately targeted. FIDH and KHRC seek to establish that any action to prevent and combat election-related political violence must take into account the gender dimension of the violence in order to be effective. 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
SGBV can have multiple consequences, including physical, psychological, economic and social, economic and social. Such consequences can also be political, affecting in particular women's women's participation in electoral processes and political life. In this report, we review some of these repercussions and assess how they can undermine the credibility of electoral processes.
Since the Sexual Offences Act was passed in Kenya in 2006, the Kenyan authorities' efforts to combat SGBV have been contradictory. to combat SGBV have been contradictory. Signs of a strong commitment commitment on the part of the authorities (for example, with the adoption of the Constitution in 2010, the law on the National Commission for Gender Equality in 2006 and the law on sexual offences in 2007) are contradictory. Commission for Gender Equality in 2011, the Sexual Offences (Medical Treatment) Regulations in (medical treatment) in 2012, the national policy on preventing and responding to gender-based violence in in 2014, the Prevention of Torture Act in 2017, etc.) have been followed by major setbacks. setbacks. In particular, the lack of will on the part of the authorities to genuinely carry out The lack of will on the part of the authorities to carry out proper investigations into the responsibility of the security forces for the SGBV committed, as established by the CIPEV, the Truth, Justice and Reconciliation Commission (TJRC) and KNCHR and documented during the documented during the FIDH and KHRC fact-finding missions, has been a major obstacle to their their legal commitments and obligations.
In anticipation of the 2022 general elections, FIDH and KHRC call on the Kenyan government, the IEBC and the political parties to anticipate the risk of political violence taking the form of SGBV and to adopt urgent and appropriate measures to prevent such violence. Such prevention, protection, investigation, prosecution and redress. and reparations. Our organisations also call on the international community, in particular the East African and the East African Community and the African Union, to publicly warn of the risks of election-related SGBV Kenyan authorities to respect their regional and international obligations in this regard. obligations in this regard. In particular, these calls should encourage the authorities to implement the Guidelines of the African Commission on Human and Peoples' Rights. African Commission on Human and Peoples' Rights (ACHPR) to combat sexual violence and its consequences. 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 judiciary, have had a negative impact on the judiciary. their independence - as well as obstacles to the work of the KNCHR, are a cause for concern. KNCHR, are a cause for concern. Our organisations fear that in the event of an outbreak of violence, particularly sexual violence, these institutions will be hampered in their ability to investigate these acts and bring justice to the victims. and bring justice to the victims. This report shows how, in recent years, a solid impunity how, in recent years, entrenched impunity has created a climate conducive to the perpetration of election-related SGBV. related to the elections. It describes how police forces have, to date, failed in their duty to to conduct effective and credible investigations into sexual violence committed in connection with the 2017 and previous elections, leaving the vast majority of survivors without access to justice. access to justice. It is therefore essential to preserve the capacity of institutions such as the KNCHR, to investigate sexual violence, as well as guaranteeing the independence of the judiciary and its ability to try those responsible. and its ability to judge those responsible for acts of sexual violence.
Thirdly, in the context of the Covid-19 pandemic, studies have demonstrated its disproportionate impact on women, particularly those from economically poor backgrounds. disproportionate impact on women, particularly those from economically poor backgrounds. The pandemic has not only increased their economic vulnerability, but has also made it more difficult for them to access health services. access to health services, including sexual and reproductive health care. It has also contributed to greater difficulties in accessing legal aid. Our report shows that in 2017, as in previous elections, most election-related victims of election-related SGBV were from economically poor backgrounds, and this economic vulnerability impacted on their ability to receive adequate medical care and to obtain redress through legal redress through legal proceedings. Yet rapid and effective access to health services and legal aid will be essential for women and men who may suffer election-related violence, particularly election-related violence, including SGBV, during the upcoming vote.
More generally, FIDH and KHRC consider that, as long as misogyny and patriarchy are not considered to be major risk factors associated with the perpetration of election-related SGBV, measures aimed at prevention measures aimed at prevention, sanctions and redress will not have a lasting impact. lasting consequences. Election-related SGBV is not caused by the holding of elections. The FIDH and KHRC demonstrate in this report how, in the Kenyan context, the maintenance of men's hegemonic control over the political process is not an end in itself. control over the political system appears to be the basis for the continuation of election-related SGBV in Kenya. election-related SGBV against women, and men, with a view to the exercise of political power and domination and political power over certain individuals and communities. This report the link between gender and the retention of, or access to, power, resources and authority. access to them. It reveals that in the general elections of 2007, 2013 and 2017, political violence and discrimination had a gender dimension, with women specifically and disproportionately targeted. disproportionately targeted. FIDH and KHRC seek to establish that any action to prevent and combat election-related political violence must take into account the gender dimension of the violence in order to be effective. 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
SGBV can have multiple consequences, including physical, psychological, economic and social, economic and social. Such consequences can also be political, affecting in particular women's women's participation in electoral processes and political life. In this report, we review some of these repercussions and assess how they can undermine the credibility of electoral processes.
Since the Sexual Offences Act was passed in Kenya in 2006, the Kenyan authorities' efforts to combat SGBV have been contradictory. to combat SGBV have been contradictory. Signs of a strong commitment commitment on the part of the authorities (for example, with the adoption of the Constitution in 2010, the law on the National Commission for Gender Equality in 2006 and the law on sexual offences in 2007) are contradictory. Commission for Gender Equality in 2011, the Sexual Offences (Medical Treatment) Regulations in (medical treatment) in 2012, the national policy on preventing and responding to gender-based violence in in 2014, the Prevention of Torture Act in 2017, etc.) have been followed by major setbacks. setbacks. In particular, the lack of will on the part of the authorities to genuinely carry out The lack of will on the part of the authorities to carry out proper investigations into the responsibility of the security forces for the SGBV committed, as established by the CIPEV, the Truth, Justice and Reconciliation Commission (TJRC) and KNCHR and documented during the documented during the FIDH and KHRC fact-finding missions, has been a major obstacle to their their legal commitments and obligations.
In anticipation of the 2022 general elections, FIDH and KHRC call on the Kenyan government, the IEBC and the political parties to anticipate the risk of political violence taking the form of SGBV and to adopt urgent and appropriate measures to prevent such violence. Such prevention, protection, investigation, prosecution and redress. and reparations. Our organisations also call on the international community, in particular the East African and the East African Community and the African Union, to publicly warn of the risks of election-related SGBV Kenyan authorities to respect their regional and international obligations in this regard. obligations in this regard. In particular, these calls should encourage the authorities to implement the Guidelines of the African Commission on Human and Peoples' Rights. African Commission on Human and Peoples' Rights (ACHPR) to combat sexual violence and its consequences. sexual violence and its consequences in Africa.
Recommendations
FIDH and KHRC make the following recommendations:
Prevention
- The Kenyan government should introduce amendments to the Sexual Offences Act
recognise and take into account the unique circumstances of sexual violence committed during
committed during crisis or conflict situations1
in particular to amend the
necessary to prosecute these offences.
1. These include the systemic nature of the violations, the presumed responsibility of state security agents
and, where sexual violence is used as a weapon, the question of command responsibility, a general situation of
institutions responsible for maintaining law and order, which prevents survivors of sexual violence from promptly
survivors of sexual violence to report the incident promptly, and the difficulty of gaining immediate access to medical facilities, which under normal circumstances would make it possible to treat survivors of sexual violence.
which would normally be used to obtain vital evidence in crimes of sexual violence.
FIDH/KHRC - Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022 4
- The Kenyan government should ensure greater coordination between national and county levels
county level on the elimination of SGBV to ensure that interventions are localised and have a
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
county-wide policy on SGBV, 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 SGBV, including by focusing on
the extent of misogyny and patriarchy in the political sphere.
- County governments should strengthen prevention mechanisms, activating and coordinating key
and coordinating key services to ensure that they are able to prevent election-related SGBV
and deal with cases.
- The National Council for the Administration of Justice (NCAJ) should consider sexual violence as a thematic
violence as a thematic issue and set up a multi-agency working group to respond to sexual
to respond to sexual offences that occur in the context of conflict and crisis situations, as
conflict and crisis situations, as seen during the 2017 general election and those that preceded it.
This response mechanism should be devolved to county level through the Court Users' Committees (CUCs) of the County Council.
Committees (CUCs) of the NCAJ and publish regular reports to assess the extent to which the needs of survivors are being met.
the needs of survivors of sexual violence are being met.
- The KNCHR, the Independent Police Oversight Authority (IPOA) and the National Commission
Gender Equality Commission (NGEC) should, in collaboration with civil society, strengthen public
public awareness of election-related SGBV with a view to setting up local early warning systems, as well as
early warning systems, as well as monitoring and documenting cases when they occur.
- The KNCHR, in collaboration with civil society, should disseminate the
the ACHPR Guidelines for combating sexual violence and its consequences in Africa, and advocate for their
their implementation.
Protection
- The Kenyan government should guarantee the working capacity of the KNCHR, the NGEC, the IPOA, the Internal Police Affairs Unit (IAU), the National Police Service (NPS) and the National Police Service (NPS).
IPOA, the Internal Affairs Unit (IAU), the National Police Service (NPS) and the Office of the Director of Public Prosecutions (ODPP), and ensure that they have the capacity to carry out their functions.
(NPS) and the Office of the Director of Public Prosecutions (ODPP), and ensure that they are adequately
adequately resourced as key institutions for providing effective redress to survivors of SGBV.
survivors of SGBV. In addition, in collaboration with civil society organisations, these institutions should
institutions should establish an independent, multi-stakeholder monitoring and reporting
and reporting mechanism on election-related SGBV in order to coordinate effective responses that
ensure that survivors receive immediate assistance and comprehensive redress, including psychosocial
including psychosocial support, legal aid and reparations.
- The Kenyan government should ensure that it adopts a human rights-based approach to policing.
policing during elections and establish guidelines for the protection of women and girls during elections.
of women and girls during election periods, including in educational institutions
(in line with the recommendations of the Committee of the Convention on the Elimination of All Forms of Discrimination against Women).
Discrimination Against Women (CEDAW), 2017). In addition, we encourage the
NPS to align the relevant provisions of its standing orders and procedures with the ACHPR's
Guidelines to combat 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 before 2022
- The Kenyan government should comply with its national, regional and international obligations
protection and promotion of women's political rights, in particular by implementing the recommendations
CEDAW Committee, the relevant decisions of the ACHPR and the Protocol to the
ACHPR and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol).
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 police forces and services.
of security and defence forces and services (including the chain of command) with the
KNCHR and other relevant actors to ensure transparency and accountability.
- The Kenyan government should ensure a process of periodic vetting of law enforcement officers, and
law enforcement officials and other security forces and services to ensure that those convicted of
sexual violence and other human rights violations are prosecuted and removed from office.
are prosecuted and removed from office.
- The Kenyan government should create a national database of sex offenders
(including within the security and defence forces) in order to ensure that sex offenders are not
deployed in emergency response situations.
- The Kenyan government should provide support for police officers deployed in the field during
period (psychosocial support, but also adequate allowances and rations).
Investigations and prosecutions
- The Kenyan government should strengthen resources and improve gender-based violence
(GVRC) at national and county level, and set up gender desks in all police stations across the country.
gender desks in all police stations across the country.
- In line with the ACHPR's Guidelines for combating sexual violence and its consequences in
consequences in Africa, the Kenyan government should repeal the rules and abolish the practices
abolish the practice of mandatory medical examinations in cases of sexual violence committed during
committed during conflict and crisis situations, so that a victim is exempted from the obligation
from the obligation to provide evidence other than their own testimony; and promote other alternative
alternative acts of investigation, paying particular attention to any risk factors or contextual
contextual elements.
- The Kenyan government should, without further delay, ensure that investigations are carried out into
cases of sexual violence in 2017 in order to bring the alleged perpetrators to justice and to
victims' right to compensation.
- The Kenyan government should conduct an independent investigation into the issue of election-related SGBV in order to
to :
- review the findings of the CIPEV and determine the level of progress, or lack thereof,
recommendations to address election-related SGBV;
- consolidate existing reports and invite submissions on SGBV cases during the
2017 election period;
- Produce a report as an official record of events during the 2017 election period and make
2017 election period and make recommendations for investigation, prosecution and redress.
FIDH/KHRC - Sexual violence as a political tool during elections in Kenya. Measures to be taken by the State before 2022 6
- The Kenyan government should strengthen the capacity of the police to investigate cases of SGBV,
including election-related violence.
Recourse and compensation
Restitution and compensation for survivors and victims of sexual violence during the elections
elections
- The Kenyan government should give priority to the decision in COVAW et al. v. A.G. et al.
Others v. A.G. and Others, High Court Application No. 122 of 2013, with full and immediate
and undertake to put in place a broader reparations programme for victims of sexual
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 Remedial Action Fund (NGAAF) and civil society organisations
civil society organisations (CSOs) working with survivors of sexual violence should
develop programmes and activities for immediate livelihood recovery interventions for survivors of sexual violence.
short-term livelihood interventions, including support groups and income-generating activities.
income-generating activities.
- The Kenyan government should develop a comprehensive rehabilitation programme for SGBV survivors.
The Kenyan government should develop a comprehensive rehabilitation programme for election-related SGBV survivors and their households, providing them with medical, psychosocial, legal and social services,
psychosocial, legal and social services, and should allocate a budget to support survivors at county and national levels.
county and national levels.
- The Kenyan government should implement its obligations in terms of guarantees of non
guarantees of non-repetition and satisfaction, including by issuing a public apology, acknowledging
and accepting responsibility for SGBV.
FIDH and KHRC further call on the international community, in particular the African Union,
to publicly warn of the risks of election-related SGBV during the general elections in
2022 general elections and to urge the Kenyan authorities to respect their regional and international
international obligations. In particular, these calls should encourage the authorities to implement the
ACHPR Guidelines on Combating Sexual Violence and its Consequences in Africa.
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