ABSTRACT
In the recent years, Kenya has seen its fair share of problems, however, the most prevalent one has been femicide. It has become quite apparent that these atrocities ensuing the country are predominantly targeting the women population. Thus, for a very long time, women have taken it to the streets to decry this human rights abuse but their cries have fallen on deaf ears. They have failed to get redress for this heinous crime due to lack of a comprehensive legal framework governing femicide in Kenya. Accordingly, it is imperative for the country to develop a well-structured legislative framework to ensure accountability for femicide perpetrators and provided avenues for redress for the victims’ families. The framework should encapsulate measures to identify and prevent the root causes of femicide such as gender based violence. Further, it should effect appropriate prosecution for the perpetrators. By implementing such a legislation, Kenya will be taking progressive steps towards combating femicide and realizing the rights to life and dignity of all its citizens, particularly its women. This paper therefore seeks to unmask the root causes of femicide, analyze the current legal framework addressing femicide in Kenya and ascertain how they fall short. Accordingly, this paper will come up with the appropriate recommendations to ameliorate the status quo of the feeble legal framework governing femicide in Kenya. Moreover, it will explore international best practices in dealing with femicide to inform the proposed legislative changes. This exploration aims to ensure comprehensive protection for women in Kenya's legal framework against femicide.
Keywords: Kenya, femicide, women, legal framework, legislative changes.
INTRODUCTION
Femicide has been defined as the intentional killings with a gender-related motivation connected to its root causes, such as, discrimination towards women and unequal power relations between women and men in society.[1]It has also been referred to femicide or gender-related killings of girls and women. Femicide represents the lethal end point of a continuum of multiple, overlapping and interconnected forms of gender-based violence. Such homicides usually follow prior experiences of physical, sexual or emotional abuse.[2]
Lately, Kenya has been grappled with a concerning surge in femicide, reflecting a deeply rooted societal issue with grace consequences to its female population. Amnesty International reported that there have been at least 10 reported cases on femicide in Kenya since 1st January 2024.[3]They further reported that over 500 women have been killed from 2016 to 2023, the majority of them were killed by their intimate partners.
Demonstrations have taken place in several cities in Kenya including Nairobi and Mombasa following a series of gruesome murders of young women. The victims included Rita Waeni and Starlet Wahu. Waeni’s dismembered remains were discovered stuffed into a plastic bag at a short-term rental property. Her decapitated head was later discovered in Kiambaa, Kiambu County. Campaigners want the authorities to expedite justice for all recent victims of sexual and gender-based violence.[4]
The courts have made attempts to condemn femicide, for instance, Lesit J in Republic v Ruth Wanjiku Kamande [2018] eKLR opined that “I want young people to know that it is not cool to kill your boy or girlfriend. Even where you feel disappointed or frustrated don’t do it. Instead it is cool to walk away and thereafter forgive.”[5]
However, despite the efforts to address gender-based violence, femicide remains a persistent and complex problem, necessitating a comprehensive examination to understand its prevalence, root causes, and the adequacy of legal responses. This paper aims to shed light on the evolving landscape of femicide in Kenya, offering insights that can inform targeted interventions and contribute to a more just and equitable society.
CAUSES OF FEMICIDE IN KENYA
Economic Disparities
The socioeconomic status of individuals is closely linked to femicide. Women facing challenges may face a risk of violence since they can’t afford leaving abusive environments or seeking help. Reliance on their abusers for support can keep women stuck, in relationships raising the likelihood of femicide occurring.
Inadequate Legal Framework
In her work, Patricia Kameri-Mbote, ‘Violence Against Women in Kenya’ , she opines that the state’s inaction and ambivalence towards violence against women exacerbate the issue.[6] Even though Kenya has scarce laws in place to protect women from violence, enforcement and implementation are often inadequate. Gaps in the existing legal framework, such as insufficient penalties for perpetrators of femicide, hinder justice for victims and fail to deter future incidents. Yet, with the full knowledge of these dire consequences, the state remains silent on femicide.
Cultural Norms
Some traditional cultural beliefs and practices in Kenya instigate femicide. These norms may include the acceptance of gender-based violence as a means of maintaining control over women. Furthermore, practices such as female genital mutilation (FGM), and expectations regarding women's subservience to men are also normal in some parts of Kenya. These cultural beliefs can normalize violence against women and breed a climate where femicide is more likely to occur.
EFFECTS OF FEMICIDE IN KENYA
Loss of life
The most immediate consequence of femicide is the loss of innocent lives. This leads to immeasurable personal tragedy to the victims and their loved ones.
Psychological trauma
Survivors of femicide attempts, as well as family members and witnesses, may experience significant psychological trauma, including depression, anxiety, post-traumatic stress disorder (PTSD).
Children left without caregivers
Femicide leaves many children orphaned or without primary caregivers, potentially leading to disruptions in their education, emotional well-being, and future prospects. These children may become susceptible to poverty, exploitation, and violence.
Community fear/insecurity
Femicide contributes to a sense of fear and insecurity within communities, particularly among women who may fear for their own safety and well-being. This fear can limit women's mobility and participation in public life, further exacerbating gender inequality and social exclusion.
THE KENYAN LEGAL FRAMEWORK ON FEMICIDE
The Constitution of Kenya, 2010
The Constitution is the supreme law of the Republic and it binds all persons and all State organs at both levels of government.[7]The Constitution of Kenya accords every person the right to life. It states that a person shall not be deprived of life intentionally, except to the extent authorised by the Constitution or other written law.[8] It further protects every person from torture or being treated in inhuman manner.[9] These rights and freedoms cannot be limited. These Articles protects women from gender-based violence/femicide.
Article 27 provides for equal protection of both women and men before the law and in all spheres of life including, political, economic, cultural and social spheres.[10] It prohibits any discrimination and obligates the State to take measures to address any disadvantage suffered by any individual or group because of past discrimination.
Article 28 posits that every person has inherent dignity and the right to have that dignity respected and protected.[11]Article 29 protects every person from any form of violence from either public or private sources.[12] Further, it protects every person from being subjected to torture in any manner, whether physical or psychological.[13]
In case any of the aforementioned rights has been violated, the State has been given a duty to ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.[14]
The Penal Code Cap.63, Laws Of Kenya
Femicide has not been expressly defined or provided for under the Penal Code, however, it prohibits every form of violence in its provisions. It is not worthy that there are some salient provisions under the Act that covers this crime, including Sections 202 and 203.These Sections provide for manslaughter and murder, respectively.
Manslaughter has been defined as any unlawful act or omission with unintentionally causes death to another person.[15] Murder on the other hand has been defined as any unlawful act or omission with malice aforethought, which causes death to another person.[16]
On a broader spectrum, I think it is safe to say that femicide might fall under the aforementioned umbrella of murder or manslaughter. However, this only goes to show that there is need to have express laws regulating femicide in order to curb its prevalence in the country.
The Protection Against Domestic Violence Act, 2015
This is an Act of Parliament that provides for the protection and relief of victims of domestic violence. Additionally, it provides for the protection of a spouse and any children or other dependent persons. Section 13 of the Act provides that the court may make a protection order if it is satisfied that, firstly, the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant's family or both.[17] Lastly, that the making of an order is necessary for the protection of the applicant or a child of the applicant's family or both.[18]
The redress offered under the miscellaneous provisions of the Act envision instances where domestic violence aggravates to femicide. Section 33(1) of the Act provides that where any offence, other than one referred to in this Act, is committed by a respondent upon an applicant during or in furtherance of the commission of any act of domestic violence, the court convicting the respondent thereof shall have regard to such circumstances as aggravating the offence committed, when assessing the sentence to be imposed.[19]Section 33(2) states that, for the avoidance of doubt, a prosecution under the Act or any other law shall not prevent the applicant from seeking protection or redress under the Act, these redresses have been envisaged under Section 32 of the Act.[20]
The Police Service Standing Orders, 2017
Chapter 14 of the Orders provides that every police arms and ammunition shall only be used in the lawful execution of duty, official training or range practices. Accordingly it prohibits any police officer from using police arms and ammunition for private purposes.[21]
Since Kenya has seen it’s fair share of femicide in the hands of police spouses, the Police Service Standing Orders aims to prevent misuse and contribute to a safer environment, ultimately assisting in the efforts to combat femicide in the country.
REGIONAL AND INTERNATIONAL FRAMEWORK ON FEMICIDE
By dint of Articles 2(5) and 2 (6) of the Constitution of Kenya, the general principles of international law form part of the law of Kenya.[22] This means that any treaty or convention that Kenya ratifies shall automatically form part of the national laws. Further, Article 21 (4) imposes on the State the obligation to enact and implement legislation to fulfil its regional and international obligations to respect, promote and protect human rights and fundamental freedoms.[23]
REGIONAL FRAMEWORK ON FEMICIDE
The African Charter on Human and People’s Rights
At the regional front, the Organisation of African Unity through the African Charter on Human and People’s Rights in Article 18 (3) makes provisions for states to ensure the elimination of every discrimination against women and to ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.[24]
INTERNATIONAL FRAMEWORK ON FEMICIDE
The International Covenant on Civil and Political Rights (ICCPR)
Article 6(1) of the Covenant protects every person’s right to life and Article 7 of the Covenant protects everyone from torture or cruel, inhuman or degrading treatment or punishment.[25] Article 9(1) protects the right to liberty and servility of person, the Covenant may be construed as covering the issue of gender-based violence such as femicide.[26]
The Convention on the 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 the effect of impairing or nullifying the recognition or enjoyment, by women, of human rights and fundamental freedom’s in the political, social, economic, cultural or spheres.[27]
Femicide has been defined as the intentional killings with a gender-related motivation connected to its root causes, such as, discrimination towards women and girls and unequal power relations between women and men in society.
Therefore femicide has been subtly encompassed in the definition of discrimination under CEDAW. Thus, State Parties are obligated not only to ensure that women are not discriminated against but also come up with preventive measures to combat the same. This may include inter alia: training, adoption, implementation and monitoring of legal provisions to investigate, prosecute and apply the necessary legal sanctions and provide for reparations in all cases of femicide.
CASE LAWS
Coalition on Violence Against Women & 11 others v Attorney General of the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party); Kenya National Commission on Human Rights &3 others(Amicus Curiae) [2020] eKLR
In this case, 2 Petitioners averred in their submissions that their rights were violated by virtue of the state’s failure to prevent the same. Those rights infringed were the right to life, prohibition of torture and security of the person. They submitted that they suffered severe impacts of gender-based violence including, loss of livelihood, posttraumatic stress disorder, HIV infections and psychological trauma due to the State’s failure to take steps to protect their lives, carry out investigations, and secure effective implementation of the national laws to protect the right to life.[28]
The court found that the right to life, the right to protection from torture and right to security of the person were guaranteed under Article 3 and 5 of the Constitution of Kenya. Further, it relied on the Human Rights Committee’s General Comment No. 31 on the ICCPR at paragraph 8 which posited that:
The Article 2, paragraph 1 of ICCPR provides that the obligations are mandatory for States [Parties] but don't apply directly between individuals under international law.[29] While the Covenant isn't a substitute for domestic law, States must protect individuals not only from state violations but also from actions by private entities that could undermine Covenant rights.[30] Failure to ensure Covenant rights as required by Article 2 could lead to violations if States fail to prevent or address harm caused by private entities.[31] From this General Comment No.31, the court inferred that the state were obligated to protect its citizens' rights from threats by the state or individuals.
The Court further relied on a persuasive precedent, Florence Amunga Omukanda & another v Attorney General & 2 others [2016] eKLR where the Court held that:
“the State has a legal duty and a positive obligation to protect each of its citizen’s rights to security of their person and their property by securing peace through the maintenance of law and order.”[32]
Consequently, the Court in Coalition on Violence Against Women case above, the court held that the state cannot escape liability and that there was a violation of the right to life, protection from torture, inhuman and degrading treatment and right to security of the person of the said Petitioners.[33]
CHALLENGES FACING THE KENYAN LEGAL FRAMEWORK CONCERNING FEMICIDE
Article 21 of the Constitution imposes and obligation on the State to enact and implement legislation to protect and promote human rights and freedoms.[34] However, the state has not legislated any law that expressly provide for femicide even though it violates a number of women’s rights and freedoms.
Secondly, The Penal Code’s provisions are not as wide as to encompass all incidences of femicide especially where they leave the definition of offences to courts that take a narrow view. The problem is that the State machinery is hesitant to prosecute cases involving femicide.[35]
Further, the Penal Code does not impose sufficient penalties for the perpetrators of femicide. Thus, the victim’s estate never get sufficient redress for the loss of their loved ones. There’s only limited machinery for making reparations to the deceased family.
As far as meeting the calls for enforcement of rights of women is concerned, the security forces have not been trained on ways of handling cases involving abused women. There are no counselling facilities or safe homes for women that have been meted with gender-based violence. In fact, even sentences handed out to the perpetrators are lenient considering the gravity of the committed crimes. Consequently, it is apt to state that in the area of violence against women very little exists in the justice system to protect the abused and other women and girls in general.
CONCLUSION
In conclusion, the pervasive issue of femicide in Kenya demands urgent attention and comprehensive legal reforms. While the existing legal framework, including the Constitution, Penal Code, Protection Against Domestic Violence Act, and Police Service Standing Orders, provides a foundation, significant gaps persist. The challenges outlined, such as the absence of specific femicide legislation, narrow definitions, inadequate penalties, and a lack of support systems, underscore the imperative for immediate action.
The regional and international frameworks, particularly the African Charter and ICCPR, offer additional avenues for addressing femicide and upholding women's rights. However, their effectiveness hinges on domestic implementation and alignment with Kenya's unique sociocultural context.
RECOMMENDATIONS
This paper proposes five recommendations:
1. The implementation of a new Act to tackle femicide in Kenya. The Act to be referred to as ‘The Prevention of Gender-based Violence Act’. The Act will start by defining violence against women and men then it will tackle femicide on a separate Section. Additionally, it will explicitly establish the right to life free from any form of violence against women regardless of their age, gender, culture or any other factor. Finally, the Act will mandate the government to formulate measures to prevent femicide in Kenya (perhaps by establishing special safe houses to attend to women who have been victimized by gender-based violence)
2. I would recommend the amendment of Part XIX of the Penal Code Cap.63 of the Laws of Kenya to include femicide as a separate crime. The title of this Chapter should also be amended to read ‘Crimes Against Life’. There will be a Section under this chapter prohibiting femicide against a woman reason being she’s of a female gender.
3. As for the sentencing of any person found guilty of committing an offence of femicide, I propose the punishment of life imprisonment and an unwavering minimum sentence of 15 years where there are compelling reasons.
4. I would further recommend the ratification of the Declaration of Elimination of All Forms of Violence Against Women which provides for a robust legal framework tackling femicide.
5. Finally, there should be affordable and accessible legal aid options for victims of domestic violence and femicide. This includes the cost, time and proximity to legal instruments and institutions. It also includes emotional and psychological care to ensure that they are not further victimised and/or further traumatised in the process of seeking justice.
REFERENCES
[1] UNODC and UN Women, Statistical framework for measuring the gender-related killing of women and girls (also referred to as “femicide/feminicide”) (Vienna, 2021) < https://www.unodc.org/documents/data-and-analysis/statistics/Statistical_framework_femicide_2022.pdf> accessed on 31st January 2024.
[2] UNODC and UN Women, Statistical framework for measuring the gender-related killing of women and girls (also referred to as “femicide/feminicide”) (Vienna, 2021) < https://www.unodc.org/documents/data-and-analysis/statistics/Statistical_framework_femicide_2022.pdf> accessed on 31st January 2024.
[3] Amnesty International, ‘Amnesty International Stands in Solidarity with Women and Girls to Condemn Femicide in Kenya’, (Nairobi, 26th January 2024) < https://www.amnestykenya.org/amnesty-kenya-condemns-femicide-in-kenya/#:~:text=Nairobi%2C%2026th%20January%202024%3A%20Amnesty,country%20since%201%20January%202024.> accessed 31st January 2024.
[4] Mercy Juma & Antony Irungu, ' Kenya femicide: Hundreds protest at violence against women’ , BBC News (Nairobi, 27th January 2024) < https://www.bbc.com/news/world-africa-68116854> accessed on 1st February 2024.
[5] Republic v Ruth Wanjiku Kamande [eKLR 2018]
[6] Patricia Kameri Mbote, ‘Violence Against Women in Kenya: An Analysis of Law, Policy and Institutions ' International Law Research Centre, Vol.32, (2000).
[7] Article 2(1), Constitution of Kenya, 2010.
[8] Article 26, Constitution of Kenya, 2010.
[9] Ibid, Article 25(a).
[10] Ibid, Article 27.
[11] Ibid, Article 28.
[12] Ibid, Article 29(c).
[13] Ibid, Article 29 (d).
[14] Ibid, Article 48.
[15] Section 202, Penal Code, CAP 63, Laws of Kenya.
[16] Ibid, Section 203.
[17] Section 13, Protection Against Domestic Violence Act, 2015.
[18] Ibid.
[19] Ibid, Section 33(1).
[20] Ibid, Section 33(2).
[21] Chapter 14, Police Service Standing Orders, 2017.
[22] Article 2, Constitution of Kenya, 2010
[23] Ibid, Article 21(4)
[24] Article 18, The African Charter on Human and People’s Rights, (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM (African Charter)
[25] Article (6) (1) and Article 7, International Covenant on Civil and Political Rights (Adopted on 16th December 1966)
[26] Ibid, article 9(1).
[27] Article 1, United Nations, “Convention on the Elimination of All Forms of Discrimination Against Women” Treaty Series, Vol.1249, 1988.
[28] Coalition on Violence Against Women & 11 others v Attorney General of the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party); Kenya National Commission on Human Rights &3 others(Amicus Curiae) [2020] eKLR.
[29] General comment no. 31 [80], ‘The nature of the general legal obligation imposed on States Parties to the Covenant’ , (adopted on 29 March 2004).
[30] Ibid.
[31] General comment no. 31 [80], ‘The nature of the general legal obligation imposed on States Parties to the Covenant’ , (adopted on 29 March 2004).
[32] Florence Amunga Omukanda & another v Attorney General & 2 others [2016] eKLR.
[33] Coalition on Violence Against Women & 11 others v Attorney General of the Republic of Kenya & 5 others; Kenya Human Rights Commission(Interested Party); Kenya National Commission on Human Rights &3 others(Amicus Curiae) [2020] eKLR.
[34] Article 21, Constitution of Kenya, 2010.
[35] Patricia Kameri Mbote, ‘Violence Against Women in Kenya: An Analysis of Law, Policy and Institutions ' International Law Research Centre, Vol.32, (2000).
