Facets of judicial anomalies in gender-based violence

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Lanji Ouko

Article 10 of the Constitution, under clause (3) stipulates that “All state organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, and religious communities.”

In attempts to gauge individual and institutional responses to gender-based violence, a number of studies have focused on the action of reporting by the victim, the services the victim receives, the role of the health staff and the institutions the victim reported to, and actions taken by those reported to. Each study highlights a number of obstacles overcome by the legal enforcement institutions.

Despite these institutions’ attempts to address the challenges of gender-based violence, through a wide spectrum of policies and laws, its magnitude continues to reach alarming heights. The institutions involved need to change, not only the way in which gender-based violence is perceived and understood, but also in the manner in which the institutions such as the security and judicial systems respond to reported cases.

The various debates centred on the principle of due diligence by the institutions later raised the question on the role of judges in ensuring violence against women is reduced if not eliminated.

In July 1993, the Kenyan Women Judges Association was founded and registered under the Societies Act. The association is a non-profit, non-partisan and non-governmental organisation. The KWJA ideals and vision for existence are anchored on the values of gender equity and equality, social justice and fair representation, to be attained by creating an enabling environment for accessing the courts and responsive justice for all, through skills and knowledge enhancement for judicial officers on human rights and gender.

Hotbed of untapped potential

With all due respect, the women judges association is sitting on its own hotbed of untapped potential. The judges may use their role to contribute in the creation of policy and abolish impediments to justice, such as the requirement that evidence of violence against women be corroborated. An example is the establishment of policies based on human rights issues to solve other impediments to justice, for instance, thepolice reforms, specifically in regard to sensitivity and privacy during the investigation and prosecution of cases of this nature.

Additionally, an officer may overlook the requirement to accurately record the case and preserves the evidence. Poorly collected evidence, and poorly recorded cases, leads to a number of impediments to accessing justice in cases of violence. Other barriers, which may be solved through policy-making, include delays in court procedures, hours of operation and locations of courts, as well as difficulty in acquiring certification from medical doctors.

The creation of awareness through campaigns and open days, involving both men and women of the community, would go a long way in eroding the cultural practises of female subordination. Likewise, education and training of specialised groups in order to uphold integrity, respect of human right and fundamental freedoms would be another mitigating factor. Judicial officers need to be sensitised on the provision of the law and implementation of the reparation of victims. The reparation may be in form of monetary compensation and free treatment in government hospitals, counselling and any required after care. The current judicial system puts emphasis solely on the punishment of the offender; however by utilizing provisions of law such reparation, it would serve as a mechanism to deter offenders.

Every other day, resources are allocated for sexual and gender-based violence programmes, but which is of no use if the institutions lack the precise tools required to drive the agenda. These institutions require more than just resources, knowledge, analysis and information. The institutions require to be self-driven in order to maintain the initial momentum gained at the beginning. Implementation speaks louder than any number of workshops and conferences.

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