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Unfiltered, uninhibited…just the gruesome truth
National Summit on Gender Based Violence and Peace
ISSUE 090, September 17-30, 2013
Legal systems leave victims vulnerable By NANCY WAFULA
Rowdy mobs who inflicted injuries on Kenyans in the post election violence. Inset: Hulda Ouma, National Gender and Equality Commission (NGEC) gender advisor. NGEC is charged with protecting human rights. Pictures: AWC and IRC
Commission on equality seeks to protect Kenyans against violence By HENRY OWINO The National Gender and Equality Commission (NGEC) was established as the successor to the Kenya National Human Rights and Equality Commission to advocate for human rights, discrimination and fight against gender based violence. According to Article 249 (1) of the Constitution, the objectives of the Commission are; to protect the sovereignty of the people; to secure the observance by all state organs of democratic values and principles and to promote constitutionalism. In addition, Article 249 (2) stipulates the independence of the Commission though subject to Constitution and the law; it is not subject to direction or control by any person or authority. The National Assembly (Parliament) is obligated by law to allocate adequate funds to enable the Commission perform its functions. Citizens should therefore ensure that County Assemblies allocate sufficient funds for GBV cases in their respective budgets. According to Hulda Ouma, Gender advisor at the Commission, the functions of the Commission include; conducting investigations on the basis of complaints, mediation, and negotiation and any other functions and powers prescribed by legislation as stipulated in articles 252 and 253. “A complaint to the Commission may be made by any person and/or any person entitled to institute court proceedings under Article 22 (1) and (2) of the Constitution where a right has been denied, violated, infringed, or is threatened,” says Ouma. She adds: “The Commission also has powers to issue summons to a witness to assist it in its investigations. In addition, each Commission is a corporate body; and is capable of suing and being sued in its corporate name.”
Compliance
Other roles are; to promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution; monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private in-
stitutions. The Commission also acts as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to issues of equality and freedom from discrimination and relating to special interest groups such as the minorities and marginalised persons, women, persons with disabilities and children. According to Ouma, Gender and Equality Commission co-ordinates and facilitates mainstreaming of gender issues, persons with disability and other marginalised groups in national development and advises the Government on all aspects. She explains that it monitors, facilitates and advises on the development of affirmative action implementation policies as contemplated in the Constitution. “The Commission investigates on its own initiative or on the basis of complaints, any matter in respect of any violations of the principles of equality and freedom from discrimination and make recommendations for the improvement of the functioning of the institutions concerned,” Ouma notes. Ouma, explained functions of the Commission during the National Summit on GBV and Peace. She noted that the Commission is mandated to co-ordinate and advice on public education programmes for the creation of a culture of respect for the principles of equality and freedom from discrimination. “It also conducts and co-ordinates research activities on matters relating to equality and freedom from discrimination as contemplated under Article 27 of the Constitution,” Ouma explained. It receives and evaluates annual reports on progress made by public institutions and other sectors on compliance with constitutional and statutory requirements on the implementation of the principles of equality and freedom from discrimination. Ouma explained that the Commission also works with the National Commission on Human Rights (NCHR), the Commission on Administrative Justice (CAJ) and other related institutions to ensure efficiency, effectiveness and complementarily in their activities and to establish mechanisms for referrals and collaboration in the protection and promotion of rights related to the
principle of equality and freedom from discrimination. The Commission also conducts audits on the status of special interest groups; minorities, marginalised groups, persons with disability, women, youth and children. “It may perform other functions considered necessary for the promotion of the principle of equality and freedom from discrimination. Such other functions are in line with the UN Convention on Elimination of all forms of Discrimination against Women (CEDAW),” Ouma explained. The convention is a gender-specific human rights treaty that protects women from all forms of discrimination including violence. The general recommendations number 12 of Convention, Articles 2, 5, 11, 12 and 16 of CEDAW require the States parties to act to protect women against violence within the family, work place or in any other area of social life. The recommendations to the States parties are that they should include in their periodic reports to the Committee information about; the legislation in force to protect women against the incidence of all kinds of violence in everyday life. These include sexual violence, abuses in the family, sexual harassment at the work place among others. Among other things are measures adopted to eradicate this violence; support services for survivors and statistical data on the incidence of violence. The GR 19 (1992) Violence against Women: Gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. It emphasised the connection between discrimination against women, gender-based violence, violations of human rights and fundamental freedoms among other human violations. “UN CEDAW Convention is the central or key international instrument for the elimination of discrimination and violence against women. Adoption of the CEDAW Convention in 1979 seen as a landmark achievement that added a gender perspective to the international human rights law and integrated women rights in human rights,” Ouma says.
Cases of Gender Based Violence in the country are on the rise. Statistics indicate that out of every ten women, three have suffered one form of GBV or the other. Police reports indicate that cases of rape increased from 322 in 2012 and 297 in 2011 between January and May to 383 within the same period in May 2013. According to Betty Murungi, a gender and peace expert, the cost implications are enormous with injuries and deaths accounting for 28.9 per cent, financial problems standing at 26.3 per cent, separation and divorce translating to 21.1 per cent, sexual abuse at 15.8 per cent and emotional depression at 7.9 per cent. Murungi noted that GBV accounts for the highest number of reproductive health challenges and cites abdominal pain, fibromyalgia and mental problems. The lawyer further said that GBV has undermined the realization of Millennium Development Goal number three on promoting gender equality and empowering women. “Gender based violence also directly diminishes the goals espoused in Vision 2030 when the lives of women, men and children are disoriented away from the vision to focus on managing crisis,” Murungi noted. She blamed poor investigations and a weak legal framework which she said continues to discriminate against victims who are not protected from the perpetrators. “Gender based violence is on the increase since victims who are mainly women and girls do not speak out or report the violence for fear of reprisals,” she explained. She noted that many victims are afraid to speak out because of stigmatization and rejection by the community and that is why many women and young girls suffer silently. Murungi said that lack of proper legal and policy frameworks have further led to poor response to gender based violence cases. “Gender Based Violence is becoming a crisis in Kenya because of the poor legal and policy frameworks which are not able to meet the standards of addressing this issue,” Murungi said. She added: “Lawmakers and implementers should review and formulate gender laws in the country including Acts and Bills with the aim of reducing factors that may lead to GBV.”
Coordination
She noted the need for coordination among key stakeholders to put in place workable procedures for exchange of information and referrals across different service action points including the health, law enforcement and social services. According to United Nations Annual Report 2012, about 39 per cent of women have experienced violence since they were 15 years old. The main perpetrators are husbands and to a lesser extent, teachers, mothers, fathers and brothers. The report also states that 30 per cent of married women have experienced emotional violence by husbands and 37 per cent physical violence and 17 per cent sexual violence. The number of women and girls who have experienced gender based violence is higher than men, since men are mostly the perpetrators of this violence. The Kenya Demographic Health Survey (KDHS) 2008-2009, reveals that the most vulnerable women are in the category of unemployed and those whose spouses drink heavily or show controlling traits. On the other hand, women who are more involved in decision making at their homes experience less violence, while women and girls who are voiceless are less informed and may not have the strength to counter assault. These are at a high risk of suffering one or more forms of gender based violence. According to the report, women who are unemployed suffer most in their marriage especially if their spouses are violent because most of them rely on their spouses for financial support and if they walk out they may lose the support they are getting hence choosing to be quiet about it and suffer silently. The Government, therefore, should ensure that structures are well placed to attend to the victims of gender based violence which include GBV centres and special offices like a GBV response unit at the police station to deal with violence cases.