Africa, Gender, Headlines, Human Rights

RIGHTS-KENYA: Commission To Challenge Silence on Sexual Crimes

Najum Mushtaq

NAIROBI, Jul 15 2008 (IPS) - No sooner did Kenya's Commission of Inquiry into Post-election Violence begin public hearings last week than it was overwhelmed by the enormity of the task at hand.

Beyond the sheer scale of the violence – more than a thousand people killed and 350,000 displaced in two months of turmoil sparked by electoral disputes – the commission's job is further complicated by its resolve to address the large number of sexual crimes committed during the violent crisis.

At its maiden hearing on July 9 the chairman of the Commission, Justice Philip Waki, told journalists at the Kenyatta Conference Centre that one of the core mandates of the commission is to investigate sexual offences which he described as "silent crimes in conflict situations… much ignored and underreported."

He said it was not possible for the commission to complete the task within the time stated in their terms of reference, which ends on August 22. The commission has requested an extension of tenure.

Investigating sexual crimes in normal times is difficult enough; sifting evidence and collecting stories from the rubble of ethnic violence and riots will be one of the biggest challenges facing the Waki Commission.

The five-member commission, constituted on May 23 and sworn in on June 3, is one of three bodies probing the post-election crisis (the other two, also formed as part of the national peace accord brokered by former UN chief Kofi Annan at the end of February are the Independent Review Committee headed by South African Justice Kriegler and the Truth, Justice and Reconciliation Commission).

The Waki commission took a month to lay down its rules of conduct, outline its mandate and now begin public hearings. It will document as many cases of violence as it can and recommend legal and administrative measures to address the causes and bring the perpetrators and planners of the violence to justice.

However, as Kenya tries to come to terms with its recent past, the scale and scope of sexual offences during the few months of madness after the December 2007 elections may never be fully documented. Local media reported about 600 cases of rape in Nairobi alone after the cities' slums were engulfed in ethnic riots for two months after the elections.

According to Teresa Omondi of the Gender Violence Recovery Centre (GVRC) in the Nairobi Women's Hospital, a nongovernmental charitable organization, only a fraction of cases have been reported in the media and registered by police, and even fewer will ever make it to a court of law.

GVRC has compiled a report on the extent and types of post-election sexual crimes, which documents 653 cases with evidence gathered by 450 volunteer counselors in hospital, camps and communities in eight cities. Every survivor has a harrowing story of abuse and humiliation to tell.

The offences range from rape, domestic violence in violence-hit communities and in IDP camps, and physical and sexual assaults in the first three months of 2008. Other than the 653 who received medical attention and psychological counselling at GVRC, the centre also reached a total of 2812 survivors in camps.

The GVRC report, coupled with a follow-up on the documented cases due to be released next week, will be submitted to the Waki Commission.

Omondi qualifies these numbers by saying that most of these people were either reached by the centre or referred to it by police or other hospitals after the elections; many more must have suffered in silence without having access to any medical or psychological help or even the opportunity to report the crime to police. The fact that displacement and rioting prevented many survivors from contacting either the police or hospitals also suggests that more sexual crimes remain hidden than have been recorded or registered.

"During the eviction campaigns after the election dispute, threat of rape was usually the first warning and then it was used to humiliate rival communities and to force them to leave," says Omondi whose team has documented cases in camps in Mombasa, Eldoret, Nakuru, Kakamega, Kisumu, Naivasha, Nairobi and their environs.

Rape and other forms of sexual assault were used as a "weapon of ethnic and political violence" even before the elections, observes Omindi. Hundreds, if not thousands, will remain traumatised by their experiences.

Both men and women were subjected to sexual humiliation and Omondi says that the psychological and physical consequences are equally dangerous in both cases. "There is no one-time remedy for these victims. Recovery and rehabilitation, if at all, requires a combination of medical treatments and psychological therapies." she says. "The GVRC still receives patients suffering from trauma, physical disabilities or pregnancies as a result of the election-related violence.

Crime without remedy

Physical wounds and scars may disappear, says Omondi, but the stigma of losing one's dignity stays on. The emotional trauma, risk of sexually transmitted diseases and, in many cases, the complication of pregnancy destroy lives forever.

"The stigma attached to rape victims ostracizes them socially and often leads to divorce and excommunication from the community," says Omondi explaining why few people come forward to report these cases to police.

Other than those who approach the GVRC directly, the centre receives survivors of sexual assaults from other hospitals in Nairobi and elsewhere in the country as it provides free laboratory tests for HIV/AIDS, high vaginal swab, hepatitis, pregnancy, syphilis, urinalysis, haemogram, and liver malfunction. The centre also prescribes drugs and conducts therapies.

But encouraging people to seek legal redress has proved much harder. "Although the centre works with a number of lawyers groups to help the victims get legal aid, only 20 of the 653 victims medically managed and counselled by the centre have decided to seek legal remedy."

The Federation of Women Lawyers (Fida) in Nairobi received four cases referred by GVRC. However, a lawyer at Fida told IPS that given the lapse of time and stringent requirements of law, cases of sexual assaults rarely go beyond preliminary stages of investigations. Those that do reach the prosecution stage can remain in judicial proceedings for years.

"Embarrassment is the biggest reason why most victims do not want to take the legal recourse. But there are other realities as well: the identity of the attackers is unknown in most cases; evidence is hard to collect and it is even harder to prove a case in court," says Hillary Mutehui, noting that there is only one DNA testing facility in Kenya and even this lab relies on another in South Africa for its final results.

The lack of testing facilities is compounded by the police attitude and judicial capacity. The GVRC has a close working relationship with the police and Omondi notes an improvement in attitude towards sexual crimes as many of the victims who had reported to police first were referred to the centre for treatment and counselling. But she observes that much more needs to be done to sensitize the force to the gravity of such offences.

GVRC workers recorded statements of many victims in Rift valley towns who, when they went to report a rape, were told by police they should be relieved to be alive and were advised not to pursue cases as it would be a waste of time.

Omondi also points to the capacity of the judiciary which, compared with the number of cases, is quite limited. "It is not that the laws are not there to deal with sexual offences but it is the implementation of those laws and prosecution that has proved difficult," she says.

The amnesty ruse

While most individual cases of rape and assault may remain unreported and therefore without legal redress, the Waki commission seems determined to identify and pursue the planners of the post-election violence.

The head of the Commission of Inquiry into Post-election Violence has dismissed the debate on amnesty for those responsible for inciting and unleashing the wave of ethnic. Members of the two principal parties in the grand coalition, President Kibaki's Party of National Unity (PNU) and Prime Minister Odinga's Orange Democratic Movement (ODM), have taken up divergent positions on the question of amnesty.

ODM leaders argue that the people currently in jail are the small fry, the pawns in a larger game, and that the police and security services have questions to answer too. The PNU wants to prosecute those already under arrest, even as it may mean holding people without charge or for extended period of times without hearings.

However, the commission wants this debate to end. A press release issued last week by the commission's secretary, George Kegoro, said in addition to making recommendations on measures to prevent a repetition of the electoral violence, they probe intends to bring those responsible for criminal acts to justice and to eradicate impunity.

"In doing so, we shall keep a balance between all the legitimate interests that this (amnesty) debate represents, while helping the country to move forward on the basis of stability and justice," said Justice Waki whose team includes commissioners Gavin Alistair McFadden from New Zealand, Pascal Kalume Kambale from the Democratic Republic of Congo, chief of the Kenya chapter of International Commission of Jurists George Kegoro, and human rights lawyer David Majanja.

U.S.-based Human Rights Watch has also voiced its concern over the debate on amnesty in Kenya. A policy brief published last month states that "crimes against humanity, war crimes, genocide, torture, and sexual violence should not be amnestied. Justice is for both the victims and the accused."

Kenya has had its fair share of probe commissions and tribunals over the years with little or no results. For instance, the Akiwumi Commission of Inquiry constituted in 1998 to probe the election violence of 1992 remained controversial. It came six years after the event and it took the commission another year to compile findings which were quickly disputed by civil society organisations.

The Waki Commission, on the other hand, is working under a different, internationally-sanctioned mandate and at a time when Kenya's political culture is changing. It has also got the support of citizens' groups and non-governmental organisations.

"Even if justice is not done in most cases, it will be an achievement for official bodies like the Waki Commission and private charities like GVRC if our work made the country question its mindset of looking down upon sex-crime victims.

"Above all, we need to educate people to change family and community attitudes towards sexual crimes. Branding victims with stigma and urging silence to avoid humiliation and police and courts is the biggest hurdle in controlling and countering gender-based violence," concludes Omondi.