PEV sexual abuse victims get Sh4m
Bernice Mbugua @BerniceMuhindi
Four victims of Sexual and Gender-Based Violence (SGBV) during the 2007/08 post-election chaos have been awarded Sh4 million as general damages for violation of their constitutional rights.
Justice Weldon Korir ruled that the State owed a duty to the victims, to investigate violations of their rights, prosecute the perpetrators and provide them appropriate remedies.
Korir noted that the government fulfilled its obligations to some post-poll violence victims by investigating their claims and compensating them for their losses.
However, some of the victims, who are the petitioners, allege their claims were not investigated fully and no prosecutions were carried out.
“It is for this reason that I find that there has been discrimination towards the four because the government owes them a duty to protect and to pursue those whose acts or omissions caused them harm, and to compensate them appropriately,” ruled the Judge.
Some of the petitioners were, however, not compensated as the court found that they had failed to show that police failed to exercise reasonable diligence in the circumstances of their individual cases.
“Four of the petitioners who were assaulted by non-State actors, I regrettably cannot find in their favour as they have failed to show that police failed to exercise reasonable diligence in the circumstances of their individual cases,” ruled Justice Korir.
The Judge declared that failure to conduct independent and effective investigations and prosecutions of SGBV-related crimes during PEV is a violation of the positive obligation on the Kenyan State.
According to the Judge, failure to investigate and prosecute was a violation of the rights to life; the prohibition of torture, inhuman and degrading treatment; and the security of the person of the victims.
“A declaratory order is hereby issued to the effect that the right to life; the prohibition of torture, inhuman and degrading treatment; the right to security of the person; the right to protection of the law; the right to equality and freedom from discrimination; and the right to remedy were violated in relation to the victims during the 2007/08 post-election violence, as result of the government’s failure to protect those rights,” he ruled.
Justice Korir further noted that as regard to three of petitioners who were assaulted by State actors, their rights to life, the security of the person, and protection from torture were infringed by the actions of the State actors which, in line with national, regional and international law, are regarded as actions by the State itself.
However, Korir dismissed claims that they were unable to access medical and psychological rehabilitation.
“It is my opinion that the petitioners have failed to put forward any evidence to the effect that they were denied or precluded from accessing and benefiting from medical and psychological rehabilitative services provided by the respondents,” he ruled.
He noted that all the victim-petitioners except two, attested to seeking and receiving psychological counseling for several years and at no cost, and only ceased to continue with their therapy when they believed that they were healed
In the suit, eight survivors of sexual and gender-based violence in the post-election violence moved to court in 2013, accusing the government of failing to protect them during that period.
Four organisations were also petitioners in this case are: Coalition on Violence against Women; Physicians for Human Rights; the Independent Medical and Legal Unit; and the Kenyan Section of the International Commission of Jurists.