"160 Girls": Making legal history in the fight against sexual violence

Open Democracy 50:50

A landmark decision by the High Court in Kenya found that police inaction in dealing with rape cases brought by 160 girls had created a climate of impunity for defilement, which rendered the State indirectly responsible for the harms inflicted on the girls by their rapists.

On last year’s International Day of the Girl Child (October 11, 2012) a group of over 160 girls from Meru, Kenya sued their government for the negligent police response to their rape cases. Insisting on making it a day to remember, they marched to the Meru courthouse with their guardians, lawyer, and social workers, carrying colourful banners that declared such truths as “Girls Rights Are Human Rights!”.

When the courthouse guards saw them approaching, they slammed the gates shut in their faces, impeding the girls’ access to justice in the most literal sense. However, the girls were undeterred by this reaction—which, ironically, was not unlike the type of treatment they had received from their justice system up until that point. Instead of turning back, they erupted into spontaneous Kiswahili chants of “I demand my rights!”. Due to this persistence, as well as interventions by their advocates, the gates were eventually opened that day; and they were permitted to file their historic legal claim.

The events leading up to that filing day began many months beforehand when Ripples International, a Meru-based organization operating a rescue shelter for child rape victims,   joined forces with the equality effecta Canadian-based non-profit with an expertise in international human rights advocacy. These organizations agreed to partner together to assist the girls in accessing justice for the horrific violence they had endured. At the time that this initiative was launched, Ripples had already sheltered over 160 girls in the Meru community; and therefore the initiative became known as the “160 Girls” project. (Note that the number of child rape victims sheltered by Ripples now stands at over 260 and continues to rise weekly).

With the help of these advocates, the girls brought a constitutional challenge against the Kenyan Police Service and other relevant state actors. Their claim argued that by failing to properly respond to their rape cases, the police had violated several of the girls’ rights under the Kenyan Constitution and under other international human rights treaties. These included, for example, the rights to equality, security of the person, and access to justice.

While sexual violence is highly prevalent in Kenya, young girls are particularly vulnerable to this violence. According to police statistics, in 2010 alone there was an average of over 200 reported cases of child rape every month in the country; and the most recent national study on this issue revealed that a startling 1 in 3 Kenyan girls under the age of 18 have experienced sexual violence.

The problem is not that there are inadequate laws in place to address this violence. To the contrary, the Kenyan Sexual Offences Act, 2006 prescribes punishment as severe as life imprisonment for certain incidents of ‘defilement’ (the Kenyan legal term for child rape). Rather, the problem is the lack of enforcement of these existing laws. Police inaction in these cases has created a culture of impunity that perpetuates this violence.

According to a study exploring the experiences of those who have reported gender-based violence to Kenyan police, 52% said the police were “not helpful”; 39% said police were “reluctant to record statements”; 28% said they felt “humiliated and handled without courtesy and dignity”; and 20% said they were asked by police for bribes.

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Some of the girls and their social workers dancing in celebration of having filed their historic legal claim. Credit: Patrick Njagi

The girls’ legal claim aimed to bring evidence of this police failure before the court and to highlight the numerous harms and rights violations resulting from this failure. In preparation for filing this claim, Ripples staff spent months systematically documenting the police response to each of the girls’ rape cases. The equality effect then worked with Ripples and the girls to develop the legal arguments and to present the evidence in a way the Court could analyze.

The stories of rape and police inaction experienced by 11 of the ‘160 girls’ were specifically outlined in the court documents. For example, the Court heard the story of C.K., a 5 year old who had been raped by her uncle. When Ripples brought this to police attention, the police asked for money in order to intervene. Similarly, when 15 year old F.K became pregnant after being raped by her neighbour, police said they would have to wait until the baby was born before they would investigate or arrest the perpetrator.

The Court also heard the story of M.M., an 8 year old girl who had been gang raped by three men and contracted a sexually transmitted disease as a result. After repeated requests from the girl’s father, who is blind, the police finally agreed to issue an arrest warrant for one of the three perpetrators; but they callously gave the warrant to the father to issue it himself.

Other stories heard by the Court included the rape of 12 year old E.K.M. by a police officer; and L.W., who had to have surgery as a result of the physical injuries she sustained from her rape.

The Court took note of the documented police response in each case, which ranged from requests for money, interrogating the victims in a humiliating manner, refusing to investigate, refusing to gather and bring physical evidence to court, refusing to make arrests, and in some cases, even refusing to record the complaints at all.

On May 27, 2013, the High Court of Kenya ruled in the girls’ favour. The landmark decision found that this police inaction had created a climate of impunity for defilement, which rendered the State indirectly responsible for the harms inflicted on the girls by their rapists. Makau J.A. wrote for the Court:

“Police unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints. That failure caused grave harm to the petitioners and also created a climate of impunity for defilement as perpetrators were let free.”

The Court ordered that the National Police Service conduct “prompt, effective, proper and professional investigations” into each of the claimants’ cases, as well as to take measures to improve its response in all cases of defilement.

If implemented, the court decision could result in long-awaited access to justice for the claimants themselves, as well as increased legal protection from rape for all 10,000,000 girls in Kenya.

The case has made legal history in Kenya, and sets the high water mark for girls’ rights internationally. It makes a critical statement about the responsibility of state actors to take all necessary measures to prevent and respond adequately to violence against women and girls, failing which the state will be in breach of domestic and international human rights obligations.

Perhaps the most important result of this activism, however, is that it has empowered these 160 girls with the knowledge of the human rights they are owed, and with the knowledge that it is possible for them to hold their state accountable for these rights. As one of  the girls has put it, they now “know what justice looks like” and have seen the results that can be achieved by having the courage to demand that justice.

However, much more work remains to be done to ensure that this groundbreaking court decision actually gets implemented and leads to meaningful change for all women and girls in Kenya. The recent, now infamous case of the 16 year old girl “Liz”, in which police merely ordered the rapists to cut grass as punishment for a gang rape that left the girl confined to a wheelchair, highlights the serious and ongoing problems with police response to these cases, and the further advocacy work required to implement the “160 Girls” court decision. This work will include engaging with Kenyan authorities around the implementation of the decision and embarking on a mass public education campaign to raise awareness about the decision and to mobilize stakeholders in support of its implementation—all of which the girls and their advocates have already begun to embark on with just as much tenacity as they have displayed throughout this entire initiative.