London, 17 June 2013
On 27 May 2013, the Kenyan High Court (the Court) handed down its judgment in the case of C.K. et al v the Commissioner of Police/Inspector General of the National Police Service et al. The Court held that failings by the Commissioner of Police, Director of Public Prosecutions and Minister for Justice in Kenya amounted to violations of the fundamental rights of eleven girls who had been subjected to sexual violence.
In this crucial precedent, which looks set to be used by organisations elsewhere in Africa to uphold the rights of women and girls, the Court found that the police’s failure to investigate allegations of rape and other sexual violence, and to prosecute the perpetrators, amounted to gender discrimination and helped to develop a “climate of impunity” for perpetrators of sexual violence.
The case was brought by a Kenyan NGO, Ripples International, and eleven Kenyan girls through a petition dated 11 October 2011, as part of the “160 Girls Project”, a programme coordinated by a Canadian NGO, The Equality Effect, that aims to achieve justice and protection against rape for all girls in Kenya through strategic human rights litigation. ERT partner, Federation of Women Lawyers (FIDA- Kenya), enjoined the case as an interested party in December 2012.
The case related to allegations that state authorities had breached the fundamental rights of eleven girls by failing to take appropriate action in response to the girls’ reports to the police that they had been victims of sexual offences. The claimants alleged that they had, on various separate occasions between 2008 and 2012, been subjected to rape and other forms of sexual abuse by members of their family or community. Each stated that she had reported the incidents to the police who had failed to investigate the allegations or pursue the perpetrators. Specifically, the claimants asserted that these failures amounted to a serious violation of their constitutionally and internationally protected rights including their constitutional rights to equal protection of the law (Article 27 of the Constitution of Kenya), special protection as members of a vulnerable group (Article 21(3)) and to protection from abuse (Article 53(1)(d)) among others; and international rights enshrined, inter alia, in the UN Convention on the Rights of the Child forming part of Kenyan law (under Article 2(5) and (6) of the Constitution of Kenya).
The Director of Public Prosecutions argued that he had done what was required of him by directing that an investigation take place. The Commissioner of the Police and Minister for Justice both argued that the claim was “incompetent” and “bad in law”, that the victims had not identified the perpetrators and that the victims had not exhausted all available avenues for resolution.
The court rejected the respondents’ arguments and found the facts as alleged by the claimants to be true. It noted that the state has a duty to observe, respect, protect, promote and fulfil the claimants' fundamental rights and freedoms under Article 21 of the Constitution of Kenya, including the rights identified by the claimants to equal protection of the law and protection from abuse. In finding violations of these and other rights, the court stated that, although the perpetrators were directly responsible for the harms to the claimants, the respondents could not escape blame and responsibility. The failure to investigate amounted to gender discrimination and the failure to effectively enforce the law against the perpetrators infringed the claimants’ rights to equal protection and benefit of the law, both of which were contrary to Article 27 of the Constitution. Noting that the state’s duty to protect the fundamental rights of individuals is heightened in the case of vulnerable groups such as girl-children, the court went on to hold the authorities directly responsible for physical and psychological harms inflicted on the girls by the perpetrators.
In a particularly damning indictment, the court held the state authorities responsible for contributing to the development of a “culture of tolerance for pervasive sexual violence against girl children and impunity” in Kenya.
The Equal Rights Trust welcomes this decision, which follows other international jurisprudence in holding the state responsible for a failure to discharge its positive obligations to protect women and girls from sexual violence. It particularly welcomes both the Court’s recognition of the fact that this failure amounts to gender discrimination and the Court’s acknowledgment of the state’s specific responsibility to provide special protection to members of vulnerable groups, such as girl-children.
To read ERT’s case summary click here
To read the judgment click here
