Political and election-related violence continues to be characterized by sexual violence. In Kenya’s contested political processes, sexual violence has long been used to intimidate and punish political opponents, their families, and female human rights defenders. In Kenya, sexual violence is a serious public health and human rights concern. The survivor suffers adverse physical and psychosocial effects, affecting both men and women. Outbreaks of sexual violence have plagued elections since the 1990s. The post-election violence in 2008 following the disputed election of 2007, which saw a wave of sexual abuse against women and girls, may have been one of the most evident manifestations of the gravity of sexual violence in Kenya.

 

The Commission for Inquiry for Post-Election Violence (CIPEV) was established in February 2008 by the Kenyan government to investigate disputed presidential elections in Kenya. It examined 900 cases of sexual violence perpetrated by security agents, militia groups, and civilians in the aftermath of the 2007/2008 election violence, which led to mass displacement and more than 1,000 deaths.  Similar trends were reported in the 2013 and 2017 elections. In 2017, the Kenya National Commission on Human Rights (KNCHR) noted similar patterns of sexual violence to those witnessed during the 2008/07 postelection violence. CIPEV found that sexual and gender based violence (SGBV) was perpetrated by various actors, including security force personnel (police and general service units), members of gang groups, neighbors, relatives, individuals working in Internally Displaced Person (IDP) camps, and friends. The number of cases may well be understated. Approximately 80% of sexual violence victims in Nairobi, Nakuru, and Eldoret did not report the crimes to the police, either because they did not trust the police or because they did not know who was responsible.

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Sexual and Gender-Based Violence (SGBV) is any sexual act perpetrated against someone’s will and based on gender norms and unequal power relationships. The violence can be physical, emotional, psychological, or sexual, as well as the denial of resources or services. Sexual violence against women, girls, men, and boys violates several key human rights. Kenya is a signatory to the key international women’s human rights agreements, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Beijing Declaration and Platform for Action (BPFA), and the Sustainable Development Goals (SDG). Human rights law, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), protects against sexual and genderbased violence. Through innovative jurisprudence, ad hoc tribunals, the Special Court for Sierra Leone, and the International Criminal Court have contributed to developing legal and normative frameworks for such crimes. In today’s world, sexual violence can constitute a war crime, a crime against humanity, or genocide.

 

Over the last 30 years, feminist activism and scholarship have made women’s experiences increasingly visible, including through descriptions and analyses of SGBV. Womens’ studies of SGBV recognize it not as an aberration but rather as a system designed to perpetuate male dominance. In Kenya, SGBV is not simply the result of political transition but rather of a long history of violence. As a result of colonial oppression and ethnic alienation, Kenya has inherited legacies from brutal regimes. History has shaped gendered identities and unequal power relations differently due to its violence. It is not uncommon for forms of violence that first appeared years ago to resurface.  Elections in Kenya have been marred by deadly violence, unrest, and serious human rights abuses and violations, including sexual violence. The violence and inequality faced by women in a crisis are not isolated events but reflect and result from violence, discrimination, and marginalization experienced by women during times of peace. The issue of sexual violence in transition does, however, raise specific concerns.  

 

In this essay, I first describe the state’s obligations and existing gaps to prevent, protect and respond to SGBV. Then I show how SGBV has undermined the democratic gains of Kenya. Finally, I discuss how to break cycles of SGBV during political transitions. The

 

State’s Obligations on SGBV

A historic decision by the High Court of Kenya was delivered on December 10th, 2020, in favor of four female survivors of sexual and gender-based violence (SGBV) committed during the 2007-2008 post-election violence (PEV). Kenya witnessed the most despicable forms of sexual and genderbased violence of its post-independence history during this time. Consequently, women have been caught in a vicious cycle of violence due to a failed state and incompetent government. In a case that lasted almost eight years, the Court found that the Government of Kenya was responsible for its failure to conduct independent and effective investigations and prosecutions of allegations of sexual abuse committed by state agents and awarded compensation of KES 4 million per survivor.

 

In the Court’s decision, only four out of the eight survivor-petitioners were recognized as having suffered harm as a result of the post-election violence because the Government of Kenya failed to conduct independent and effective investigations and prosecutions. In this case, the Court ruled that the State is responsible for investigating and prosecuting SGBV committed by its own agents. The Court challenged the unconvincing State narrative, which claims survivors are responsible for investigating and proving crimes. Even though the High Court’s original ruling recognized the trauma experienced by four of the eight survivors, I believe that it was not sufficiently comprehensive in acknowledging the legal obligation of Kenya in preventing and responding to sexual violence after elections. Still, in Kenya, the ruling marks the first time the government has recognized and compensated survivors of post-election sexual violence.

 

Kenya’s presidential elections have played a central role in transforming its political landscape and, by extension, in the outbreak of political violence. There has also been considerable violence during parliamentary and local elections. Violence against women and girls during these elections has a grave, multiple, and specific consequences for survivors. In the absence of action, these issues worsen over time and can affect women’s participation in follow-up elections. The reconstruction process is hampered by the lack of access to justice for women survivors of sexual violence during conflict periods. After failing to receive support, like security, from the government institutions during their time of need, the survivors clearly have very little confidence in the legitimacy of the government institutions. Accordingly, improving access to justice for vulnerable groups such as women and children is a fundamental need.  

 

Despite the scale and gravity of the crimes and the continuing consequences for survivors, no meaningful action has been taken by the authorities to genuinely investigate election-related SGB. SGBV that occurs during elections is not solely due to impunity but rather to Kenya’s abrogation of its national and international human rights obligations and commitments. The ability of perpetrators of sexual violence - particularly those who are part of security forces - to escape justice discredits political power and further intensifies divisions in society between those in power and those without.  

 

Gender, Violence, and Democracy

Kenya is increasingly plagued with sexual violence, which is a grave human rights violation.  In this section, I highlight how women and girls face significant economic and social limitations as a result of SGBV, which grossly violates their human rights. SGBV has undermined democratic gains during Kenya’s political transitions. Capitalist interests and the imperative to exploit laboring women have largely contributed to the contradictory relationship between democracy and gendered violence. Democracy is based on freedom, respect for human rights, and periodic and genuine elections by universal suffrage. Democracies provide an environment in which human rights can be protected and effectively realized. As citizens make their way to the polls, many hope that political transitions will lead to major socio-political changes, establishing a more democratic system of government and greater respect for the law. In spite of this, the state remains patriarchal: violence against women in the home has become a norm, and sexual violence, and in particular rape, has been used to punish and control women. Women remain extremely vulnerable to violence despite relatively progressive legal frameworks.

 

I argue that, despite notable advances in international law, democratic transitions do not adequately address the needs of gender-based violence victims. Beyond moments of democratic transition, sexual violence reinforces discriminatory attitudes and gender inequality because of its gendered nature and its ongoing economic, social, and psychological impacts. The effects of SGBVon political processes are felt in democracies and countries undergoing democratic transition. The holding of elections does not cause election-related SGBV. A patriarchal system perpetuates where hegemonic men control governmental, social, economic, religious, and cultural institutions to exercise power and dominate women and other men. Violence directed against women in Kenyan politics reflects deeper efforts to deny women access to traditionally male-dominated political spaces, and this type of violence is becoming increasingly normalized. Additionally, the violence symbolizes patriarchal efforts to maintain control over women’s bodies and rights. As patriarchy manifests itself most visibly and violently when women are victimized, women’s marginalization must be addressed alongside efforts to dismantle patriarchal structures in their everyday lives, including their subordinate position in the family, education, and economic systems. 

 

There’s still a disproportionate impact of SGBV on women and children. In the criminal justice system, data indicates that cases of SGBV often take a long time to prosecute, and most of the time they are prosecuted without incorporating a gender lens. The lack of accountability for survivors of SGBV means that justice is delayed or denied, which violates the rights enshrined in legislation and policies both locally and globally, as articulated by the various laws and policies. Studies show that democratic institutions and gender equality are mutually reinforcing, with liberal democracy being necessary but not enough for women to be equal and safe. A nation’s relative peace and domestic security positively correlate with gender equality. Strategies for strengthening democracy and human rights should emphasize women’s empowerment and accountability for violence against women and girls.

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Breaking Cycles of SGBV during Political Transitions in Kenya

The Government of Kenya is responsible for preventing, mitigating, or addressing the risk of sexual violence known to the authorities. The state should do this by collecting, analyzing, and publishing data disaggregated by type of violence so that preventative measures can be further developed. In so doing, they are also obliged to establish and implement national awareness-raising programs. In order to adequately prevent and address violence, law enforcement officers need recurrent, mandatory, and effective training.  CEDAW reiterates this by urging states ‘to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.’

 

Kenya held its general elections on August 9th, 2022. There was serious concern that there would be an escalation of violence in the leadup to and during the elections due to existing political tensions. Mild protests arose in different parts of the country after the declaration of the presidential results by the Independent Electoral and Boundaries Commission (IEBC); however, so far, no SGBV-related cases have been reported. In order to prevent future incidents of violence against women during elections, it is important to focus on the gender dimensions of such violence.

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Election-related SGBV remains problematic due to a number of shortcomings, which contribute to its normalization and impunity. In cases where police officers are alleged to be responsible for crimes, the measures taken to support survivors, investigate and prosecute them, and institute internal investigations and disciplinary measures are insufficient. By addressing misogyny and patriarchy within the political realm, the Kenyan government could address the root causes of election-related SGBV. 

 

In order to establish effective protection, SGBV must be prevented, identified, and responded to using a coordinated, multi-sectoral approach. Many challenges and opportunities in Kenya’s current protection environment should be considered carefully when devising responses. Even though the Kenyan legal framework addresses SGBV, the extent to which such frameworks address the plight of survivors is questionable. Law and policy mostly focus on bringing the accused to ‘justice’ without a corresponding obligation to alleviate the SGBV survivors’ conditions. Because the criminal justice system perceives the offense as an offense against the state rather than against the individual survivor of the SGBV, the survivor of SGBV is more alien to the justice system. 

 

Law enforcement during elections should respect human rights, and guidelines should be issued on the protection of women and girls. The National Police Service (NPS) – comprised of the Kenya Police Service (KPS), Administrative Police Service (AP), and Directorate of Criminal Investigations (DCI) – should also adopt the Africa Commission on Human and Peoples Rights (ACHPR) Guidelines on Combating Sexual Violence and its Consequences in Africa into its standing orders and procedures. The guidelines are intended to guide and support African Union Member States in preventing, protecting, investigating, and prosecuting sexual violence and ensuring reparation for survivors. Each of the constituent services should fulfil its mandate. AP Service functions include maintaining law and order, maintaining peace, protecting life and property, and providing specialized stock theft prevention services. The KPS is responsible for maintaining law and order, preventing and detecting crimes, apprehending offenders, and enforcing laws and regulations. Investigations, intelligence collection, crime detection, and crime prevention are all responsibilities of the DCI. 

 

The Kenyan government should investigate election-related sexual violence cases without delay to bring the alleged perpetrators to justice and ensure victims’ rights to reparation.  Through the provision of medical, psychosocial, legal, and social services, the Kenyan government should provide an extensive rehabilitation program for electionrelated SGBV survivors and their families and allocate a budget to support them. SGBV must be addressed by the Kenyan government, including through public apologies, acknowledgment of the facts, and accepting responsibility.   More broadly, the country urgently needs comprehensive and fundamental constitutional reforms which should reflect the interests of women which have thus far been neglected.