The African Commission on Human and Peoples' Rights is currently in its 77th ordinary session in Arusha, Tanzania, where delegates from across the continent are meeting to deliberate and reflect on the status of human rights in Africa.
One key theme noted during the opening session was the need to ensure accountability for conflict-related sexual violence, including holding perpetrators accountable and the provision of reparations to victims and survivors.
Kenya is a State Party to the African Charter on Human and Peoples' Rights and the Maputo Protocol. The Protocol, adopted in Maputo 20 years ago, provides comprehensive human rights for women, including civil, political, economic, social, cultural and environmental rights.
Articles 3(4) and 11 clearly outline the state's responsibility to protect women from sexual violence, including in conflict, and secures in Article 25 the right to a remedy for violating their rights as defined within the Protocol.
A recent study by the Global Survivor Fund highlights that in Kenya, conflict-related sexual violence dates as far back as the colonial period and the struggle for independence. Presently, sexual violence is commonly used as a tool to intimidate, degrade and control communities.
Perceived to be on the "wrong side" of the political divide during ethnic, political and election-related violence, both men and women experience sexual violence during conflict, including rape, defilement, sodomy, gang rape and sexual mutilation.
According to statistics, women and girls bear the brunt of conflict-related sexual violence. Still, an increasing number of men and boys are also victims of sexual violence and mutilation.
The year 2007 was a watershed moment in the history of Kenya when, due to a hotly contested election, violence erupted, resulting in injuries, loss of life and property, and internal displacement.
The Commission of Inquiry on Post-Election Violence highlighted, for the first time on official public record, the gendered nature of conflict in Kenya and detailed the prevalence and nature of sexual violence during that period.
In 2013, a consortium of civil society organisations, on behalf of eight victims, filed a petition to hold the state accountable for the sexual violence of the 2007 post-election period. They argued that the state had a duty to prevent, protect, investigate, prosecute and provide remedies for human rights violations by virtue of its international (human rights) law obligations.
In 2020, seven years after filing the case, judgment was handed down in favour of four of the petitioners who experienced sexual violence by state actors and excluded the other four who experienced violence by non-state actors.
While we applaud the court for affirming the right to be free from violence directly perpetrated by state actors, it was a missed opportunity to ensure that the state acts diligently to prevent and respond to violence even where its agents are not responsible.
We are currently under partial appeal and are waiting for a date two years after filing the documents.
The failure to properly investigate and prosecute has led to a culture of impunity, with perpetrators emboldened by the lack of accountability. This is exemplified by further widespread sexual violence reported in the 2017 election, for which there have been no signs of redress, and continued sexual violence and harassment, including during the recent "maandamano" protests, by state and non-state actors.
Further, there has been no reparations for victims and survivors of sexual violence, and 16 years after the 2007-08 post-election violence, conversations around reparation remain a disenfranchising process.
Survivors demand reparations related to their very existence, survival, and that of their children. Reparation is considered necessary to start again and to make them whole: reparation is closure.
During this commemorative year, as we reflect on the gains made in women's protection under the Protocol, we must take further action to ensure the full enjoyment of their human rights. Persistent challenges hinder women and girls from attaining their rights, including freedom from sexual violence and access to justice and reparations when violations occur.
To make the Protocol a reality for African women and girls, we must actively test and utilise it, reminding the state of its obligations. This involves supporting state reporting to the African Commission, submitting alternative reports, raising awareness and advocating the Protocol's potential to safeguard against violence and secure reparations for violations.
Executive director, Utu Wetu Trust
