The definition has since been expanded to include economic deprivation and isolation which may cause eminent harm to safety, health and well-being.
Broader definitions include harmful cultural practices such as early child marriages, forced marriages, widow inheritance, disinheritance, infanticide, virginity testing, ritual and honour killings. Emotional and psychological violence as well as human trafficking also fall within the purview of GBV.
Kenya has a number of laws that address this vice.
The Constitution of Kenya (2010): It guarantees equality and freedom from discrimination, human dignity, the right to freedom and security of the person, protection from slavery, servitude and forced labour, and the rights of children. It further provides that fundamental rights and freedoms may not be limited. These rights underpin the commitment to nurturing and protecting the well-being of the individual, the family, communities and the nation as indicated in the preamble of the Constitution and the national values in Article 10.
The Sexual Offences Act (2006): It defines sexual offences and makes provision for the investigation and prosecution of offences with particular regard to offences against children, persons with disabilities as well as offences perpetrated by persons in authority or in positions of trust.
The Penal Code: It provides for offences such as assault and offences against liberty which are offences punishable by imprisonment.
The Prohibition of Female Genital Mutilation Act (2011): It prohibits the practice of female genital mutilation. Under this act, a person who fails to report an offence of FGM, whether before or after, commits an offence. It also prohibits the use of derogatory or abusive language intended to ridicule, embarrass or otherwise harm a woman for having not undergone female genital mutilation, or a man for marrying or otherwise supporting a woman who has not undergone female genital mutilation.
The National Policy for Prevention and Response to gender-based violence (2014): It was written with the principal objective of accelerating the implementation of legislation, policies and programmes for prevention and response to GBV by state and non – state actors for the realization of a society where men, women, boys and girls are free from all forms violence. Notably, the policy removed gender specific definitions of victims/survivors and perpetrators of GBV in a vital move geared towards reducing stigma and encouraging male victims to seek help.
Protection against Domestic Violence Act (2015): This Act is the only legislation in Kenya that solely addresses violence within the family set-up and seeks to protect persons in a domestic relationship including relatives and children. It creates prosecutable offenses including economic violence, emotional abuse, stalking, interference from in laws as well as virginity testing and sexual violence in marriage. Remarkably, a person can report abuse on behalf of a victim. The Act also creates protection measures against victims such protection orders, court ordered counseling services and compensation to the victims.
The Victim Protection Act (2014): It was enacted with the aim of giving effect to the rights and protecting the dignity of victims of crime. The Act intends to achieve this through provision of better information, support services, reparations and compensation from the offender and establishment of programs to assist vulnerable victims. This is crucial in prosecution of GBV offences where victims are mostly disadvantaged and often undergo re-victimization in the justice process.
In June 2021, the Government of Kenya unveiled a policy brief titled “Kenya’s Roadmap to advancing gender equality, ending all forms of gender-based violence and female genital mutilation by 2026.” The country made commitments that would remove the systemic barriers that allow GBV to thrive. While this is commendable, Kenya has seen a steady rise in GBV violations during humanitarian crises occasioned by the COVID-19 pandemic. The situation is likely to be aggravated as the country heads into the electoral period where sexual and GBV violations have historically been a major component of election related violence in Kenya.
While the existing policy and legislative framework makes provision for prosecution of perpetrators and protection victims of GBV, existing challenges include inadequate shelters and safe houses, limited coordination of stakeholders, limited capacity of the health, security and justice sectors, inadequate enforcement, the misconception that GBV unduly focuses on girls and women, the legal dilemma of sex between minors, weak chain of custody of forensic evidence resulting in acquittals and lack of comprehensive prevention mechanisms.
Adoption of prevention and response programmes that have been successful in other jurisdictions including psycho-social support for survivors of violence, economic and social empowerment programmes, cash transfers, and community mobilization interventions to change unequal gender norms, among others, would go a long way towards eradicating GBV in Kenya.
Annemary Opola is an Advocate of the High Court
