BY SAIDA ALI
We have recently witnessed a national outcry by top national leaders in regards to traffic accidents in the country. True, there is a crisis in the country as regards careless driving. In fact, if you want to understand the extent of impunity in this country just watch how we drive on the roads. In order to curb accidents, there is going to be high premiums charged on careless drivers.
I just have to ask, what would it take for the top leadership in this county to recognise and respond to the fact that everyday sexual and gender crimes happen? I am at a loss as to why we still do not have a gender crimes unit. Sexual and gender crimes are treated as lesser crimes by the police which explains the statement the Inspector General gave on Saturday in his response to the need to arrest the Tingolo rapists.
Last Thursday, a number of us marched in the streets and presented a petition to the office of the Inspector General of Police. Our main concern was and still is the lack of accountability and delayed action on the part of the police in regards to the case of Liz, a 16 year old who was defiled by six men in Tongolo. The Tingolo rapists are still out at large while Liz is confined to a wheel chair.
The police response has turned this matter around to blame Liz and her family. The Inspector General in his statement emphasises that “Liz’s mother and the medical persons who saw her first as well as the AP officers whom the incident was reported all confirm that she did not mention of her having been raped”.
The Liz case is a representation of numerous cases where police have acted with impunity. What makes the Inspector General’s statement even more ridiculous is the fact that he says that the incident was reported much later as if that justifies the crime. It is immaterial whether or not the witness statements speak to the rape incident.
In the absence of supportive reporting measures, a victim is likely to be intimidated and fear to speak.The law recognises the nature of sexual violence is such that it happens in secrecy. The stigma associated with it obviously make is difficult for the victim to report.
In terms of the evidence required for this case, section 124 of the evidence Act is very clear. In defilement cases, the evidence of the child is sufficient to convict the accused person. Thus the court can receive the evidence of the alleged victim and proceed to convict the accused person if satisfied that the child is telling the truth. The available medical reports linking and collating all the previous medical reports, showing that what Liz suffered including the fistula, is as a result of sexual violence proves that defilement indeed happened.
Section 40 of the Sexual offences Act clearly states that “The decision as to whether the prosecution or investigation by any police officer of a complaint that a sexual offence has been committed should be discontinued shall rest with the Attorney General.”
The Inspector General has no legal right or basis to draw any conclusions on the investigations of sexual violence against Liz. Pre-empting that this violation only amounts to assault causing grievous bodily harm is in essence closing investigations on the sexual violence case.
He should instead do the best investigations possible noting that the Limitations of Actions Act Cap 22does not give a limit for reporting a crime meaning criminal offences can be reported at any time and when reported they should be reported and due process of law should be followed. I have read and re-read the Inspector General’s statement and each time I wonder why he thinks he can mislead Kenyans.
It is not possible to blame the victim for not immediately indicating that she had been raped and to ignore the matter when it is reported later. It is almost laughable to expect that there would always be a witness to a rape incident. Rapes does not happen on restaurant tables and in open air markets. It is a crime that thrives on violations in the private targeting the very core of a woman’s bodily integrity.
Rape can turn any powerful woman into a mute. In the absence of supportive reporting measures a victim is likely to be intimated and fear to speak.
Senior police in a closed door meeting with representatives of civil society acknowledged that the manner in which the case of Liz was handled was indeed not right according to the procedures set in handling cases of rape. It is obvious we were hoodwinked to think that the National Police Service is ready to address impunity on violence against women. The point the office of the Inspector General’s office made was that lack of accountability on the part of the police was as a result of individual behaviour and not a reflection on the standards they had set in the National Police Service.
The focus now turns to the Chief Justice and the National Council on Administration of Justice to investigate the conduct of the Administrative Police officers and the Kenya Police Service for unfair treatment, manifest injustice and unresponsive official conduct.
The opportunity presented here is that the Council will set precedence in addressing impunity on sexual and gender based violence. Is there value in setting up special courts to address all gender crimes and especially to speed up cases of sexual and gender based violence? Isn’t it time that such a special court would have its own independent investigative police unit? Prosecution of cases heavily relies on police investigations and with the attitudes of the police and their impunity on violence against women we shall continue to go round musical chairs.
(Saida Ali is the Executive Director, Coalition on Violence Against Women – Kenya)