EKRA ADOW[1]
ABSTRACT
Femicide has been a persistent and a never- ending issue in Kenya, with women being historically targeted based on their gender. 0ne of the most egregious forms of femicide is the intimate partner femicide where women are killed by their former or current intimate partners. For years women in Kenya have taken to the streets to protest yet their cries have largely gone unheard. Despite their efforts victims and their families often fail to find justice due to the absence of comprehensive legal framework addressing femicide. This research addresses the current legal mechanism in place, assessing their short comings and failure to protect women adequately. Furthermore, it explores the potential use of Alternative Dispute Resolution [ADR] in addressing such femicide and argues that ADR is inappropriate for cases of such heinous crimes. Given the severe human rights violation involved more robust legal intervention is required. The research also investigates the shifting blame narrative which often places responsibility on the victim or societal structure rather than addressing the systemic violence that enables these tragedies. Additionally, the research examines the issue of forced marriage which often leads to femicide. By assessing legal gaps and societal attitudes, this research advocates for stronger legal framework and accountability mechanism to combat femicide effectively.
Keywords: Kenya, femicide, legal framework, Alternative Dispute Resolution, forced marriage.
INTRODUCTION
Femicide is defined as the systemic killing of women based on their gender, often as part of the broader pattern of violence directed against women.[2] It has also been referred to as the killing of women and girls based on their gender.[3] These definitions distinguish femicide from other forms of homicide and targets women due to their sex, frequently rooted in deep-seated social and cultural inequality.
According to UN Women, at least 500 women and girls have been murdered in Kenya despite the ongoing effort to curb gender-based violence. Experts warn that the true number is likely higher.[4] In 2024 Kenya recorded 170 femicide cases; the highest annual toll to date doubling the average from previous years. Research also shows that intimate partners or family members are responsible for 55% of all femicide cases globally and in Kenya, 41% of married women have experienced physical violence compared to 20% of unmarried women.[5]
Protests erupted in Nairobi and other major cities where thousands of women and men called for an end to femicide and violence against women. Protesters carried placards with messages like “we are human being,” yet despite these protests women continue to face systemic violence with few avenues for justice. This highlights a significant failure in the Kenyan legal system to protect women from gender- based violence.
Courts have made several attempts to address Femicide through the legal system particularly under the Sexual Offences Act of 2006. However, these legal instruments have proven inadequate in ensuring justice for victims. In R v Stephen Mwangi,[6] Stephen was convicted of murder of his wife. The prosecution argued that Mwangi had premeditated murder. Although the court convicted Mwangi of murder and sentenced him to death this sentence was later commuted following the 2017 Supreme Court ruling on the constitutionality of death penalty.[7]
This case shows that while the courts are willing to prosecute femicide as murder, they still face challenges in fully addressing the societal factors that contribute to intimate partner violence. This research Advocates for stronger legal framework, rejects the use of ADR in femicide cases and calls for legal and social reforms to address forced marriages and gender-based violence.
THE INADEQUACY OF LEGAL FRAMEWORK IN ADDRESSING FEMICIDE
Femicide in Kenya is prosecuted under general homicide laws, failing to recognize its gendered nature. The Penal Code Cap 63 criminalizes murder under section 202 and 203. Section 202 defines manslaughter as any unlawful act or omission which unintentionally causes death of another person.[8] Murder on the other hand has been defined as “Any person who with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”[9]However it does not define femicide separately, making it difficult to collect specific data or apply targeted legal measures tailored to protect women from gender-based killings. These legal gaps make it difficult to collect reliable data on femicide, let alone prosecute it effectively.
The Sexual Offences Act (2006), though an important piece of legislation addressing sexual violence, does not specifically address femicide either. It criminalizes a wide range of sexual offences but only mentions gender-based violence in passing. It defines sexual offences and sets out the punishment for offences such as rape, defilement and assault but it does not establish femicide as distinct category of crime.
The Protection Against Domestic Violence Act (2015): Provide protection for individuals suffering from domestic abuse but fails to address femicide explicitly. It focuses on creating safety for victims of domestic violence through the provision of protection orders and intern orders. However, these provisions are often underutilized and the act does not provide adequate preventive measures to address escalating violence that may result in femicide. Section 3 of the Protection Against Domestic Violence Act (2015) defines domestic violence as; Any act, omission or commission that causes harm to the health, safety or welfare of a person whether emotional, physical, sexual, or economic.[10] Kenya has ratified international treaties like CEDAW and the Maputo protocol which require stronger protection against gender-based violence.
The Convention on Elimination of All forms of Discrimination against Women (CEDAW): CEDAW has clearly defined discrimination as any distinction, exclusion or restriction made on the basis of sex which has effect of impairing or nullifying the recognition or enjoyment by women, of human rights and fundamental freedoms in the political, social, economic, cultural or spheres.[11] This aligns with femicide as women are highly discriminated in the patriarchal societies. However, the lack of domestic femicide law reflects the gap between Kenya’s international obligations and its domestic laws, leaving women unprotected in practice.
THE ROLE OF ADR IN FEMICIDE CASES
There has been a push to resolve cases of domestic violence and gender – based dispute through alternative dispute resolution (ADR). While ADR can be useful in civil matters, applying it to femicide cases is dangerous. Femicide is not a simple disagreement but a serious human right violation that demand criminal prosecution.
ADR methods like mediation create space for power imbalances especially when victims or their families face immense societal pressure to forgive perpetrators, particularly when the accused is a respected community member or a person of influence. This pressure does not stem from a genuine desire for reconciliation but rather from cultural expectation that prioritize social harmony over justice.
In Republic v Mohammed Abdow[12] where Mohammed Abdow was charged with the murder of Osman Ali Abdi, the trial was commenced to on march 26th 2012. However, before the trial began the families of the accused and the deceased reached a settlement through traditional ADR mechanisms. The accused’s family paid compensation in form of camels, goats and other items to the deceased’s family, in line with customs. Following this, the prosecution requested to withdraw the case and the high court acknowledging the agreement discharged the accused, effectively ending the criminal proceedings.[13]
Femicide must be addressed through robust legal prosecution rather than informal settlement mechanisms that may expose the victim to coercion and injustice.
FORCED MARRIAGE AS A FORM OF FEMICIDE
In many parts of Kenya, forced marriages put women and girls at extreme risk of violence and even death. When girls are married off against their will, they often find themselves trapped in abusive relationship, with little power to escape. In some cases, those who resist or attempt to leave their marriage are killed.
The case of Gaala Aden Abdi, a 17-year-old girl from Dadaab Refugee camp, exemplifies this link. Gaala was forcibly married to a 55-year-old man and later murdered for rejecting the union.[14] Her case is one of many that highlights the failure of the legal system to protect vulnerable girls from these harmful cultural practices.[15]
Kenya’s Marriage act Section 4(2), 2014 states that “A marriage may only be registered if the parties have attained the age of 18 years.”[16] Section 11(a) also declares that a marriage is void if at the time of the marriage either party was below the minimum age of marriage.[17] Despite these clear provisions, forced marriages especially involving minors continue to occur and the perpetrators often walk free due to social acceptance and inadequate legal action. The law must not only criminalize forced marriage but also recognize it as a direct contributor to femicide.
SHIFTING THE BLAME: SOCIETAL AND LEGAL CHELLENGES
One of the biggest obstacles to addressing femicide in Kenya is the way the society often shifts the blame onto the victims rather than holding the perpetrators accountable. This is seen in several ways:
• Victim-blaming narrative: Women who are murdered by their partners are often accused of having “provoked” their deaths; whether through alleged infidelity, disobedience, or other reasons that do not justify violence.
• Lenient sentencing: Some killers receive reduced sentences based on arguments like “provocation” rather than being held fully accountable.
• Lack of police action: Many women report threats and violence to the police only to be ignored until it is too late. Reports indicate that 40% of intimate partner femicide cases, victims had sought police protection before their deaths.
Addressing femicide requires shifting the narrative from victim- blaming to systemic accountability. The legal system must prioritize gender sensitive Investigations and stricter sentencing for perpetrators.
CONCLUSION
Femicide in Kenya is not just simply a series of isolated incidents but a systemic issue rooted in weak legal frameworks, cultural attitudes and Inadequate enforcement. To address this crisis, the Kenyan legal systems must undergo significant reforms including;
1. Enacting a specific femicide law: the legal system must recognize femicide as a distinct crime with clear definitions and harsher penalties for those convicted of gender- based killings.
2. Prohibiting the use of ADR in femicide cases: ADR must not be used in cases involving femicide or severe domestic violence. These crimes require judicial intervention not compromise or reconciliation.
3. Strengthening the enforcement of domestic violence: Laws must be better enforced to intervene before domestic violence escalates into femicide. This include ensuring that protection orders are granted and follow through.
4. Criminalizing forced marriages: Forced marriages must be criminalized as a direct pathway to femicide, with strict penalties for those who force young girls into this union.
5. Training law enforcement and judicial officers: There must be comprehensive training to handle femicide cases with zero- tolerance approach to victim blaming and cultural bias.
Without these reforms femicide will continue to claim the lives of women in Kenya and justice will remain elusive.
[1] Adow is a second-year law student and certified professional mediator, with a strong focus on justice and Alternative Dispute Resolution. She is dedicated to addressing pressing social and legal issues, particularly in the areas of gender-based violence and the effectiveness of mediation in Kenya.
[2] Bryan A Garner (ed), Black’s Law Dictionary (11th edn, Thomson Reuters 2019).
[3]United Nations Office on Drugs and Crime and UN Women, Femicides in 2023: Global Estimates of Intimate Partner/Family Member Femicides (2023) <https://www.google.com/search?q=UN+women&oq=un+women&gs_lcrp=EgZjaHJvbWUqBggAEEUYOzIGCAAQRRg7MgYIARBFGDsyBggCEEUYPDIGCAMQRRg8MgYIBBBFGDzSAQkzOTM5ajBqMTWoAgiwAgHxBdraAUo85xnm> accessed 4 April 2025.
[4] Ibid.
[5] Ibid.
[6] [2014] eKLR.
[7] Republic v Stephen Mwangi Maina [2014] eKLR.
[8] Penal Code Chapter 63, Laws of Kenya, s 202.
[9] Penal Code Chapter 63, Laws of Kenya, s 203.
[10] Protection Against Domestic Violence Act 2015, s 3.
[11] Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981), art 1.
[12] [2013] eKLR.
[13] Republic v Mohamed Abdow Mohamed [2013] eKLR.
[14] Okumba Miruka, ‘Gaala Aden Abdi’s 27-Day Torture before Murder Exposes Our Hollow Child Protection Promises’ Nation (4 April 2025) <https://nation.africa/kenya/news/gender/gaala-aden-abdi-s-27-day-torture-before-murder-exposes-our-hollow-child-protection-promises-4986444#google_vignette> accessed 2 April 2025.
[15] Ibid.
[16] Marriage Act 2014, s4(2).
[17] Marriage Act 2014, s11(a).