• Cases filed in 2017 are still in the judicial system and will be carried forward to 2022.
• One case began in 2016 and ended in 2019. By the time some witnesses testify, their memory is foggy and the court is not able to get finer details
A lobby says lack of timelines on sexual offence cases is the major cause of delays to justice.
The Coalition on Violence Against Women said too much time is spent on these cases.
In a report on the legal and administrative bottlenecks to justice for sexual and gender-based violence survivors, COVAW said the delay contributes to major backlogs in the judicial system.
“The Sexual Offences Act, 2006 does not provide for a cap on the timelines for the conclusion of SGBV cases. This means sensitive matters are left to compete with other offences within the same court diary,” the report said.
It further said in cases where minors and persons with intellectual disabilities are witnesses, delays have dire consequences.
Majority of the advocates and judicial officers interviewed as respondents favoured putting a time cap, especially where minors and persons with mental illness are concerned.
“One such case began in 2016 and ended in 2019. By the time some of the witnesses are testifying, their memory is foggy and the court is not able to get the finer details or the proper picture of what transpired,” a lawyer said.
COVAW analysed raw data obtained from Sexual Offences Case Registers in Makadara, Kibera, Kiambu and Thika law courts.
They found that cases filed in 2017 were still in the system. In four out of seven court stations, the percentage of sexual offence cases from 2017 that were concluded was below 50 per cent. This was as of the end of October to early November 2021.
“At Makadara law courts, 1,195 cases of sexual violence were filed between 2017 and 2020. As of early November 2021, only 263 cases had been closed,” they said.
At Kibera law courts, 443 cases had been filed during that period while 161 were concluded and at the Kiambu courts, 255 had been filed and 92 concluded.
At the Thika law courts, 310 cases had been closed, out of 555 filed between 2017 and 2020.
“This means five years on, more than half of the caseload for 2017 sexual offence cases are still clogging the criminal justice system. They will be carried forward and ploughed back into the system in 2022, for the sixth year,” the report said.
Out of these sexual offences, defilement cases form the bulk, standing at an average of 75.7 per cent from 2017 to 2020.
“Rape comes a distant second at 13 per cent, incest at 3.8 per cent, sexual assault and indecent acts with a child at 3.7 and 3.4 per cent respectively,” the report said.
The toll these cases take on survivors and their families are also insurmountable, prolonging their mental torture.
“I have to take time off work to go to and from court for all these sessions and nothing substantive is happening. Having to take time off work severally is problematic. On the other side if you don’t appear in court, the staff say you appear not committed,” a caregiver to a survivor said.
The report said delays encouraged compromise of cases due to frustrations and increased withdrawal of matters, making people lose faith in the judicial system.
“This further encourages under-reporting, which ultimately perpetuates a culture of impunity by fostering an environment where sexual violence is tolerated,” it said.
COVAW recommended that amendments be made to the Sexual Offences Act of 2006 to provide for a time period within which sexual offences, especially involving vulnerable witnesses, should be concluded.
“Clear standard guidelines on the treatment of witnesses with intellectual disabilities should also be provided and accompanied by enlarged human resources and number of courtrooms,” they said.
They said case mentions should be confined to the minimum necessary for a just and fair trial.
(Edited by Bilha Makokha)