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OYIEKE & NYAMU: Let's not forget victims of post-election violence

Under international law, ensuring the dignity of victims and survivors requires prioritising timely access to justice and remedy.

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by YVONNE OYIEKE

Opinion24 March 2024 - 14:55
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In Summary


  • Unfortunately, the delays faced by survivors of the 2007-2008 election violence are not unique.
  • We also note the delays in the Baby Pendo case) where 12 police officers were charged under the International Crimes Act for post-election violence in 2017.
Illustration of sexual and gender-based violence.

“Hatuna jina madam. Hatuna jina” – survivor of sexual violence during 2007 post-election violence.

Each year, on March 24, the International Day for the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims is observed.

On this important day, we renew our commitment to lifting the veil on gross human rights violations to help societies heal divisions, reconcile in peace and gather as one to support and protect the health, safety, dignity and opportunity of every person.

Under international law, ensuring the dignity of victims and survivors requires, at a minimum, prioritising timely access to justice and remedy.

However, 17 years have now elapsed since the widespread election-related sexual violence (ERSV) in the 2007-08 election period.

Victims and survivors are still waiting for justice after all these years.

Survivors felt a glimmer of hope in 2019 when the High Court ordered compensation be paid to four of eight survivors who had petitioned the court for its failure to prevent and remedy ERSV.

However, since that decision, the Office of the Attorney General has failed to facilitate the compensation owed to these survivors.

The other four survivor-petitioners have been left without any remedy, despite a partial appeal filed in 2021.

The appeal seeks reconsideration of the High Court’s decision to only award compensation to those who experienced violence at the hands of the state.

International human rights law principles show that the state can be liable for violence by private citizens where the state failed to protect and prevent in the face of reasonable knowledge that such violation would occur.

We question the lack of urgency in resolving this matter as a three-year wait for a court date, despite all documents being submitted, suggests governmental neglect towards sexual violence survivors, especially during unrest.

It is perplexing that while election petitions and major corruption cases are expedited, a crucial appeal for these survivors’ redress remains unaddressed, highlighting a concerning disparity in judicial prioritisation and disregard for their dignity.

Unfortunately, the delays faced by survivors of the 2007-2008 election violence are not unique.

We also note with concern the delays in Milimani H.C.C.R Case No 74 of 2022 (the Baby Pendo case) where 12 police officers were charged under the International Crimes Act for post-election violence in 2017.

To date the accused are yet to take plea and the victims of murder, rape and torture continue to be denied their day in court.

We live in a constitutional democracy that entrenches the right to equality for all its citizens and goes further to ensure access to justice where ones rights are infringed.

Access to justice is a basic principle of the rule of law, which allows all people to have their voices heard, exercise their rights, challenge discrimination and hold decision-makers accountable.

“Are we not all Kenyan that 17 years after the fact, justice remains an elusive concept for the sexual violence experienced during 2007 and subsequent election periods?"

Survivors of sexual violence during the 2007 and subsequent election violence periods continue to live with the material impact thereof in their lives.

Stigma and discrimination from their own families, the communities they live in and even in their attempts to access services from state institutions are common.

The slow turn of the wheels of justice for survivors of sexual violence prolong and compound this suffering.

Survivors of ERSV have waited seven years for any judgment in their case, and now another three for a simple hearing on their appeal.

Requiring survivors to wait for more than a decade for justice blatantly disregards their dignity. We implore that the state take the suffering of its people seriously and allow them their day in court.

It is time for the state, through the Judiciary, to do the right thing and let truth and justice be served by allowing the survivors of sexual violence during election periods their day in court.

We must heed the words of Monsignor Oscar Romero, the Salvadorian archbishop and activist who was assassinated on this day in 1980 in whose honour we commemorate the day of the right to truth, who reminded us that “the ones who have a voice must speak for those who are voiceless.”

May his courageous fight for truth illuminate our own efforts to promote and protect human rights all around the world and in Kenya.

Oyieke is the Utu Wetu executive director and Nyamu is head of Physicians for Human Rights-Kenya

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