The formal Justice System Has Failed Survivors of Violence

Gender based violence continues unabated in many countries, Kenya is no exception.

Women and girls remain the most vulnerable targets to different forms of gender violence, which include physical, emotional, economic and sexual abuse. These violations are in most cases perpetrated by strangers and non-strangers.

Gender violence and legal frameworks

Given that sexual and gender based violence is a gross violation of an individuals’ basic rights, it is expected that all governments put in place protective measures against violence.

What is worrying is that while Kenya has legal measures to address the occurrences of any form of violation against its citizenry, there still exist many hurdles towards its implementation.

Some of these hurdles include:

  • Lack of budgetary provisions to support the setting up of gender desks in police stations which will go a long way in securing protection of women who choose to report to the police
  • Lack of equipped facilities with trained personnel to effectively offer quality and confidential services to all victims of violence
  • The high cost of justice incurred by victims of violence.

The formal criminal justice system has failed victims of gender violence

A recent article by Leigh Goodmark shows how the criminal justice system continues to fail women,

“The criminal justice system undoubtedly meets the needs of some women; successful prosecutions do happen. Some abusers are sent to jail, and some stop their abuse, particularly when they are closely monitored following their release. But for women, the costs of engagement with the criminal justice system can be high: exposure to increased danger at the hands of abusers and, more problematic, the potential for violence from the state. Women who express reluctance to testify against their abusers are sometimes threatened with arrest if they fail to participate in prosecution; some are even told that the state will remove their children if they fail to appear for trial. Some women of color are understandably reluctant to increase the reach of the criminal justice system into their families and communities. Undocumented immigrant women who reach out to the criminal justice system for assistance have sometimes found themselves targeted for deportation instead.

Criminal justice system reform could solve some of these problems. But the time has come to broaden our thinking about how best to address domestic violence. For too long, the legal system has been the default response to domestic violence in the United States. Such a narrowly crafted response denies justice to women who are unable or unwilling to engage that system. Criminal prosecution cannot heal the injuries that some women experience. A small but growing voice is coalescing around the idea that criminal justice intervention is not the best way to prevent and respond to domestic violence.” Read full article here

Kenya situation: Gender violence

The above is also true in Kenya given that despite several media reports of occurrences of violence, few of these cases report to the police for the following reasons:

  • Lack of privacy at the police stations, where  all survivors of gender violence are made to report their complaints in the hearing of several police officers and other members of the public also present at the police stations
  • Delays in investigating cases of sexual violence. This is even true in cases where the perpetrator is known to both the woman and the community.
  • High cost of seeking justice: Victims of violence are forced to make several trips to the police or court whenever their case is brought up for mention. There are cases when victims are required to cater for the transport expenses of people who are to testify in their favour.
  • Lack of functional shelters: This would come in handy in cases where women are to testify in favour of their children who have been raped by their fathers, or male relatives

The above situation has thus seen a rise in number of cases that get reported to the village elders and “kangaroo” courts. Reasons for this include:

  • The speedy manner in which these traditional courts make rulings in such cases
  • Low cost involved given that the perpetrator will be required to make some material compensation to the victim. This can be paid up over a period of time
  • The proceedings in these courts are easy to understand and language is never a barrier

Why the formal criminal justice system has failed women?

While the traditional justice system may seem a better option for most women, the types of punishment meted out to perpetrators do not serve as a deterrent for future violations.

In some instances, there are certain cases of gender violence that are not recognized as crimes based on the prevailing cultural practices in different communities.

For example, in most Kenyan communities, rape cannot occur within a marriage. As such women who are coerced into sex by their husbands cannot benefit in any way by reporting to the police or traditional courts.

Women who choose to report their husbands for raping them have in some instances been ostracized by their in-laws. To avoid this, many women choose to suffer in silence.

I therefore do concur with Goodmark that the criminal justice system has and continues to fail many victims of domestic violence

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