The Constitution of Kenya 2010 has provided for the protection of women against violence and discrimination of all forms. Its provisions are paramount and deserve respect. Despite these constitutional provisions women still face the strongest challenges as far as domestic violence is concerned. What steps have been taken by Kenya as far as Legislation is concerned to ensure that this problem is dealt with? And how do these efforts fare in comparison to what other jurisdictions such as South Africa have done?
In Kenya domestic violence remains rampant. It remains the cause of significant death. The constitution of Kenya 2010 has recognised the family as the basic unit of society. Domestic violence therefore poses a great risk to the stability of the family. Little has been done in way of curbing it and specifically Kenya requires specific legislation with respect to the matter. The constitution of Kenya 2010 provides various safeguards with respect to this matter. It provides that every person has the right to enjoy equal protection before the law. It also prescribes that state institutions shall not discriminate on any person. The dignity of every individual is recognised and protected and it provides for freedom and security of the person. But for a state that prides itself as a constitutional one, constitutional provisions aren’t enough. There must be put in place institutions with the force of law capable of materialising these rights.
Kenya has ratified a host of international conventions and legal instruments that uphold the dignity and rights of women to be protected against domestic violence. The most comprehensive among these being the Convention on the Elimination of Discrimination Against Women (CEDAW). As a party to this convention Kenya is under obligation to accord women equal protection as men and to enact specific legislation in that regard. Being among the many conventions Kenya has ratified, it forms part of the law of Kenya. However the effect of these laws remains in limbo taking into recognition that they have to be incorporated into Kenyan law by parliament. The situation that then presents itself is that Kenya has no law that specifically meets the international standards of the protection of women against violence despite its noble efforts.
There are various statutes that could achieve this objective starting with the penal code. The Penal code provides for criminalisation of acts such as murder, manslaughter, assault and battery, rape, incest and indecent assault. However it has several shortcomings as far as curbing of domestic violence is concerned. In the first place it fails to define what domestic violence is. It is centred on punishing and deterring the offender but fails to provide relief for the victim. When it comes to the offence of murder the prosecution may face difficulties in seeing the case through. This is because they are forced to prove malice aforethought. As far as incest goes the penalty given is a maximum of five years which isn’t sufficient. Furthermore it does not define what constitutes indecent assault which may lead to a miscarriage of justice.
Another statute that is important in this area is the Sexual Offences Act. It deals with matters such as rape. But it fails to address the issue of marital rape. The law has long considered that express consent is given by the woman at the time of marriage to sexual intercourse. But English Common law which applies to Kenya has long recognised that times have changed and that during marriage consent is required at all instances for sexual intercourse.
The Evidence Act is the procedural law with regard to the collection and presentation of evidence before courts of law. It does also present difficulties with regard to the prosecution of domestic violence. For acts crimes committed against children, the requirement that the testimony of a child must be corroborated presents difficulties and may lead to a case collapsing. The prosecution is also required to prove beyond all reasonable doubt that the accused is guilty. Without which the accused person is entitled to an acquittal.
In light of the gaps in the present law Kenya has made attempts to enact specific legislation in the area of domestic violence. There is in place a bill called the Domestic Violence Bill 2012. We will consider its provisions and consider its effectiveness by comparing it to its sister legislation in South Africa the Domestic Violence Act of 1998. This bill recognises the existence of domestic violence. It provides a definition of the same. It provides relief to victims through various mechanisms such as protection orders. It obligates police officers to whom complaints are made to secure the safety of victims by helping them access shelter and medical treatment.
The act also provides for devolution of such shelters to the county level. But there are still some issues that need to be ironed out with respect to the bill before it becomes law. In comparison to the South African Domestic Violence Act there are certain things that can be done better. These include the granting of temporary protection orders where there is evidence that the offender poses danger to the victim. There is provision in South African law that the aggressor may be evicted from the matrimonial home and the surrender/seizure of arms and other dangerous weapons. The act in mandatory terms places a duty on the police to provide assistance which is in stark contrast to how our Kenyan bill is worded. Furthermore it provides for a complaints mechanism where there is an alleged failure by such an officer to perform their duties. As far as legal representation goes, victims unable to procure the services of an advocate are provided assistance by the court clerk who is directed to inform them of remedies afforded to them.
Weisiko Christopher Marwa
Law Student, University of Nairobi