- The eight victims attributed their ordeals to the police, civilians and ethnic militias.
- But the High Court only sided with a half of them, particularly those who reported the crimes to the police at the time.
Image: NANCY AGUTU
Some survivors of sexual and gender-based violence in 2007/8 post-election violence filed an appeal on Thursday to have the state compelled to recognise its role in protecting them, and compensate them for their ordeals.
Through Physicians for Human Rights lobby, the survivors protest that the High Court in its December 10, 2020 ruling, erred by failing to declare that it was the duty of the state to protect civilians from sexual and gender-based violence, perpetrated by both the state agents and civilians.
The lot, consisting of eight survivors, had sued the state in 2013 to have them compensated for experiencing crimes of sexual nature ranging from rape, forced circumcision among others.
They attributed their ordeals to the police, civilians and ethnic militias.
But the High Court only sided with a half of them, particularly those who reported the crimes to the police at the time.
It ordered state to compensate only four of them Sh4 million each. However, the four say the money is yet to hit their accounts.
Those left out in the compensation have gone to the Court of Appeal, asserting that the High Court decision failed to recognise the government's responsibility to survivors previously denied redress for the state’s failure to protect them from sexual violence perpetrated by non-state actors.
The appellants also seek to hold the state accountable for failing to prevent or respond to post-election sexual violence perpetrated by ethnic militias and civilians—a risk of violence that was widely anticipated.
Naitore Nyamu-Mathenge, the country's head of office at Physicians for Human Rights said, "while it was a milestone victory for survivors of sexual violence, the court’s ruling failed to recognise the trauma experienced by four of the eight survivors, as well as the state's legal obligation to prevent and respond to post-election sexual violence."
She complain that the court erred by not recognising the difficulties that may have hampered the survivor's ability to report their ordeals to the police at the height of the violence.
"It is no surprise that some survivors of the post-election sexual violence did not report to police, as some police were perpetrating the sexual violence themselves. And even when these heinous crimes are committed by militias or civilians, the state is still obligated to prevent, protect, investigate, and provide redress.”
In Constitutional Petition No. 122 of 2013, the High Court had declared in instances where security officials sexually violated the survivor, and who in turn reported to the police but the police failed to act, the state was responsible.
In the partial appeal, the appellants urged the Court of Appeal at Nairobi to reconsider the state’s responsibility for its failure to ensure accountability for violations experienced by the remaining four survivors and to award appropriate remedies.
-Edited by SKanyara