Rape and Domestic Violence: The law criminalizes rape, defilement, and sex tourism; however, enforcement remained limited, and civil society groups indicated that victims did not report as much as 92 percent of sexual offenses to police. The law does not specifically prohibit spousal rape. In July the “Protection Against Domestic Violence” bill was tabled in parliament.
In November women were publicly assaulted and stripped in Nairobi and Mombasa by gangs of men claiming they were “indecently” dressed. Seven men, including one police officer, were arraigned in court on assault charges for the incidents. The cases continued at year’s end. A public campaign, “My Dress My Choice,” was launched to protest the assaults, and a public demonstration against assaults was staged on November 17 in Nairobi, receiving widespread media coverage and support from political leaders. On November 26, President Kenyatta issued a statement condemning the assaults against women and reminding Kenyans of their responsibility not to tolerate such behavior.
A 2013 report by the then minister for gender, children, and social development indicated that one in five women experience sexual violence in their lifetime. Furthermore, an estimated 45 percent of girls and women ages 15 to 49 experienced physical or sexual violence.
The law provides a maximum penalty of life imprisonment for rape, although sentences were at the discretion of the judge and usually no longer than the minimum of 10 years. In October 2013 citizens gathered more than one million international signatures for a petition protesting government mishandling of a gang rape of a 16-year-old girl in Busia, for which police officers reportedly ordered several perpetrators to cut grass as punishment. Following sustained NGO-led public pressure, authorities arrested one suspect; his trial for rape began in June and continued at year’s end, as did investigations into the other five suspects. The IPOA also announced that it would conduct an investigation into police handling of the initial complaint. Following the attention garnered by the Busia case, NGOs submitted 70 other unresolved rape cases to the ODPP and reported that it had reopened many of the cases at year’s end. NGOs provided the majority of support to survivors, seeking medical documentation and pursuing arrest orders against suspected offenders.
Citizens frequently used traditional dispute mechanisms to address sexual offenses in rural areas, with village elders assessing financial compensation for the survivors’ families. They also used traditional dispute mechanisms occasionally in urban areas. NGOs reported difficulties in obtaining evidence and the unwillingness of witnesses to testify in sexual assault cases in areas where traditional dispute mechanisms were employed. Domestic staff were at particular risk. For example, in another case in Busia, an underage girl employed as domestic staff was raped, infected with HIV, and impregnated twice, allegedly by a prominent local teacher. The teacher was transferred but not investigated.
Police statistics for 2011 indicated 4,517 reported cases of gender-based violence, including 934 rapes, compared with 4,551 cases of gender-based violence, including 922 rapes, in 2010. Human rights groups, however, estimated the actual number of rapes and other cases of gender-based violence was much higher. A study released during the year by the Usalama Reform Forum estimated that victims reported only 40 percent of rape cases to police. A study by the NGO Peace Initiative Kenya identified 383 cases of rape reported in the media between January and May, noting a 15 percent increase from that same period in 2012. The study stated that Nairobi’s women’s hospital reported receiving an average of 18 cases of rape and incest daily. The Coalition on Violence Against Women estimated 16,500 rapes occurred per year. Several NGOs working to end gender-based violence stated in November that unofficial reports of rape during the year had already exceeded that number.
The rate of reporting and prosecution of rape remained low in part because a police physician was required to examine victims. Rural areas generally had no police physician, but even in Nairobi there were only two police physicians. Human rights groups reported the addition of one police physician during the year significantly improved the speed and frequency of investigations into sexual crimes, but they also noted the physicians sometimes were unavailable to conduct exams, failed to appear in court, or issued examination reports that conflicted with the findings of other medical professionals.
Other factors for the low reporting and prosecution rates included a cultural inhibition against publicly discussing sex, particularly sexual violence; stigma attached to rape survivors; survivors’ fear of retribution; police reluctance to intervene, especially in cases where the victim accused family members, friends, or acquaintances of committing the rape; and poor training of prosecutors. Reporting also remained low due to traditional attitudes toward sexual violence. A 2010 baseline survey by the National Commission on Gender and Development reported that 72 percent of respondents did not consider gender-based physical violence, including rape, to be “serious” crimes.
Implementation of national guidelines on the management of sexual violence, including the handling of forensic evidence, postrape care, and victim support, remained weak. For example, in 2012 police approved a change in procedure to allow clinical officers, in addition to police physicians, to examine survivors of sexual violence, but NGOs continued to report that police officers would only consider the reports of police physicians as the basis for opening a case.
As a result of this and many other failings in the law enforcement and judicial systems, police did not investigate numerous alleged cases of sexual violence, and numerous cases were dismissed from court due to lack of evidence.
The 2009 report of the Commission of Inquiry on Postelection Violence included a chapter on the widespread sexual and gender-based violence following the disputed election in 2007-08. There was no government effort to prosecute anyone in connection with the reported abuses, and in February the director of public prosecutions announced the ODPP would bring no cases related to the 2007-08 postelection violence. In March, eight victims of 2007-08 sexual and gender-based violence brought a class action lawsuit against the government for failing to discharge its duty to protect them or to investigate criminal complaints. The case continued at year’s end (see section 1.e.).
Domestic violence against women was widespread, but often condoned by society and seldom addressed in the courts. The UN Population Fund’s 2012 annual report indicated 39 percent of women experienced gender-based violence after age 15, primarily perpetrated by husbands. The penal code does not contain specific provisions against domestic violence but treats it as assault. Police generally refrained from investigating domestic violence, which they considered a private family matter. NGOs, including the Law Society of Kenya and FIDA, provided free legal assistance to some survivors of domestic violence. In 2010 FIDA reported that 83 percent of women and girls in the country reported one or more episodes of physical abuse.
Female Genital Mutilation/Cutting (FGM/C): See section 6, Children, Female Genital Mutilation/Cutting.
Other Harmful Traditional Practices: Certain communities commonly practiced wife inheritance, in which a man inherits the widow of his brother or other close relative, regardless of her wishes. Economically disadvantaged women with limited access to education living outside major cities were more likely to be inherited. Other forced marriages were also common. New legislation codified the right of men to marry multiple women without securing their consent.
Sexual Harassment: The law prohibits sexual harassment; however, it was a problem. It was often not reported and rarely resulted in charges being filed. The IPOA reported in 2013 that police officers frequently solicited sexual favors from junior officers to influence transfers and promotions; the IPOA pledged to investigate cases that had been brought to the oversight body.
Reproductive Rights: The constitution recognizes the right of couples and individuals to decide freely and responsibly the number, spacing, and timing of their children; to have the information and means to do so; and to attain the highest standard of reproductive health, free from discrimination, coercion, and violence. Subsidized contraception options, including condoms, birth control pills, and long-acting or permanent methods, were widely available to both men and women throughout the country, although access was more difficult in rural areas. An estimated 39 percent of girls and women between the ages of 15 and 49 used a modern method of contraception. Skilled obstetric, prenatal, and postpartum care was available in major hospitals, but many women were unable to access or afford these services. In 2009 skilled health personnel attended an estimated 44 percent of births. Twenty percent of maternal deaths were estimated to be AIDS-related. Access to family planning and reproductive health services was impeded by sociocultural beliefs and practices, lack of female empowerment, lack of male involvement, poverty, and poor health management systems. First Lady Margaret Kenyatta launched “Beyond Zero,” a government campaign to improve maternal health and reduce maternal mortality.
At the 2014 AIDS Conference, FIDA reported police officers in Mombasa and Nairobi routinely followed social workers distributing condoms to sex workers in order to seize the condoms as evidence of immoral intent, with a view to either demanding sex or a bribe. Police and prosecutors regularly cited condom possession as evidence of engagement in sex work. Condom possession is also generally prohibited in secondary schools.
Discrimination: The law provides equal rights to men and women and specifically prohibits discrimination on grounds of gender. Nonetheless, women experienced a wide range of discrimination in marriage, property ownership, inheritance, employment, and access to credit. Women held only 6 percent of land titles, of which the majority were joint titles, and accessed only 7 percent of formal credit. Under traditional law women in many ethnic groups could not own land. Societal discrimination was most apparent in rural areas. The justice system, particularly customary law, often discriminated against women, limiting their political and economic rights and relegating them to second-class citizenship.
The 2010 constitution eliminates gender discrimination in relation to land and property ownership and gives women equal rights to inheritance and access to land. The constitution also provides for the enactment of legislation for the protection of the wife’s rights to matrimonial property during and upon the termination of the marriage, and it affirms that parties to a marriage are entitled to equal rights at the time of marriage, during the marriage, and at its dissolution.
In April the National Assembly adopted a new Marriage Act including provisions to strengthen property rights for wives. The act retains a man’s right to enter into multiple marriages and does not require consultation with or the consent of the existing spouse(s). The act contains a proviso protecting the entitlements and interest of the first wife in matrimonial property. The bill received presidential assent and went into force during the year.
Also during the year, a separate Matrimonial Property Act went into force that dictates that ownership of jointly held property depends on how much each spouse could prove he or she had contributed monetarily to that property. Many women’s rights groups and female members of parliament argued this provision was discriminatory and regressive.
Under the new government structure, the former Ministry of Gender, Children, and Social Development was subsumed into other ministries. The Ministry for Devolution and Planning is now the lead ministry for implementation of laws protecting the rights of women, although the Ministry of Labor, Social Security, and Services also has a role.