It was a record one year, the time it took from when the defilement case was referred to Covaw by one of our community paralegals from the Kiandutu informal settlement until when judgment was made.
Early this year, Covaw launched a study, Delayed. Denied, informed by research on legal and administrative bottlenecks to effective and efficient delivery of justice in Kenya. The study established that there was an inordinate delay in the determination of cases under the Sexual Offences Act of 2006.
As of the end of November 2021, SOA cases reported in 2017 and concluded were below 50 per cent, 4-5 years on clogging the criminal justice system as this meant that the cases would be carried forward into the system in 2022.
In January 2022, the Thika Magistrate’s Court delivered a judgment sentencing the perpetrator of a minor aged 17 at the time of the incident to 25-year imprisonment. The dynamics of this case are sad, as always. The minor at hand had intellectual challenges. When she started bleeding one day, her mother rushed her to hospital where it was established that she was having a miscarriage.
Her mother was shocked. Upon interrogation, she identified her violator as a close neighbour back home. The medical tests also established that the minor had been infected with HIV. It was after the hospital visit that the case was reported to the police and the case taken up by one of Covaw’s pro-bono lawyers after the referral by a community paralegal.
Mixed bag of emotions
It was a mixed bag of emotions. The securing of a judgment in favour of a sexual violence survivor is always a cause for celebrations, especially when this happened within a year. Most cases drag on for years, wearing down the survivor, their family or support system and the organisation handling the case.
We were, however, alive to the fact that despite the 25-year jail term, the minor, who was an adult at the time the case was concluded, would have to live with HIV as a result of the defilement. No amount of years in prison for perpetrators can ever cancel out the trauma and impact of sexual violence physically and psychologically.
Contrary to what many people assume, justice is multi-dimensional and while some of it can be secured in a court of law, especially with timely delivery, it can never be secured for subsequent conditions and trauma that survivors struggle with for the rest of their lives.
Back to the record one year it took to conclude this particular case. Covaw compiled a timeline from the onset to the end of the case and revealing issues that had been raised in the Delayed. Denied report and called for that urgent action to mitigate delayed justice.
In February 2021 the matter was referred to Covaw for legal support. The survivor’s family could not afford legal representation and approached Covaw for support. In its access to justice work, Covaw provides pro bono legal services to survivors of sexual and gender-based violence. During the pre-trial on March 3, 2021, the court noted that the charge sheet indicated that the survivor was a minor at the time of the incident, whereas a clinical note indicated she had since attained the age of 18 and was now an adult.
The court allowed for amendment of the charge sheet and provided the date of March 16, 2021, for a hearing. On this day, the trial magistrate was unavailable and a new hearing date of April 12, 2021, was given. The matter was again not heard on this date because courts were closed as part of the Covid-19 precautions. Parties were informed that the court registry would communicate new hearing dates after a notice for dates issuance had been circulated.
Determination
On June 15, 2021, the matter came up for mention but did not proceed because of poor internet connectivity within the court precincts. This led to the hearing being adjourned to June 24, 2021. Again, the matter did not proceed on June 24 and a new date of July 22 was given. On this day, the matter came up for defence after which the court gave a date for when the judgment would be delivered.
On January 27, 2022, the accused was found guilty of two charges of defilement and knowingly infecting the survivor with HIV and sentenced to 25 years for both counts. In just under one year, a sexual violence case that involved emotional aspects of intellectual disability, an unplanned pregnancy, a miscarriage and HIV infection of a minor from one of the poorest informal settlements in this country came to an end.
The survivor’s mother said that even though they would have to live with the pain of knowing that their daughter had been violated, she was happy that justice had been served relatively fast and they would not have to live in fear of interacting with the perpetrator again. She was hopeful that before the end of the 25 years, the family would have moved away from that neighbourhood.
Despite the delays in between caused by poor internet connectivity in the court and the absence of the magistrate that was not communicated in good time, the duration it took to conclude this case was laudable and presented hope that it is possible to deliver justice in a timely manner for SGBV cases.
It also, on the other hand, presented the realities of sexual violence and the multiple vulnerabilities that exist prior to and after the violation, for many women and girls who are at risk, strengthening the case for why a multi-sectoral approach to SGBV that invests heavily in mitigation is so important.
If this violation had been prevented, we would not have to deal with a minor with intellectual challenges who was not only robbed of her innocence but also, as a result, has to bear the burden of living with HIV for the rest of her life.
While there are consequences of SGBV that we cannot change, we surely can unite during this time of 16 Days of Activism and beyond and purpose to do better in terms of providing some closure for survivors and their families through timely delivery of justice.
The writer is the executive director, Coalition on Violence Against Women(Covaw)-Kenya.
