As sexual violence cases swell, governments are expected to step in and eliminate the trauma resulting from the vice going forward
By Lucy Bosibori
To begin with, “hidden in the shadows” is a phrase that describes women, children and men across the globe who have had to deal with the physical and psychological trauma resulting from sexual violence emanating from conflict.
Sexual violence dates back to the 1970s and 1980s. During the 1994 genocide, Rwandan women were subjected to the vice on a massive scale, perpetrated by members of the infamous Hutu militia groups known as the Interahamwe, by other civilians, and by soldiers of the Rwandan Armed Forces (Forces Armées Rwandaises, FAR), including the Presidential Guard.
The severity of the genocide drew the attention of the United Nations and the African Union. These organizations developed policies aimed at protecting the rights of the victims of sexual violence in conflict and issuing punitive measures to perpetrators.
The UN defines conflict-related sexual violence to mean rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict. The term also encompasses trafficking in persons when committed in conflict situations for sexual violence or exploitation.
On June 19, 2015, the United Nations General Assembly proclaimed June 19 of each year as the International Day for the Elimination of Sexual Violence in Conflict to raise awareness of the need to put an end to conflict-related sexual violence, to honour the victims and survivors of sexual violence around the world and to pay tribute to all those who have courageously devoted their lives to and lost their lives in standing up for the eradication of these crimes.
The African Union adopted the Maputo Protocol, which obligates the state parties to protect civilians, including women, irrespective of the population to which they belong, in the event of armed conflict. It further obligates the state parties to adopt and implement appropriate measures to protect every woman’s right to respect the dignity and protection of women from all forms of violence, particularly sexual and verbal violence.
The ICGLR final protocol on sexual violence stipulates the punitive measures to be taken for any person who violates the sexual autonomy and bodily integrity of any woman or child by committing or aiding or abetting the commission of any of the acts of sexual violence in connection with the commission of war crimes, crimes against humanity and genocide.
The UN Security Council passed a resolution to condemn sexual violence in conflict as a tactic in war and an impediment to peacebuilding. However, it has been an uphill task for survivors of conflict-related sexual violence to fear reporting such cases due to societal stigma. Statistics show that 10 to 20 cases of sexual violence in connection with conflict go undocumented. This created gaps in the aftermath of conflict-related sexual violence and the legal strategies for prosecuting it.
The current conflict situation in South Sudan has significantly increased sexual violence, primarily against women and girls, owing to the belief that Women’s bodies have been used to achieve military or political objectives and are considered the spoils of war. The conflict involves the deliberate expulsion of local populations from their territory, often intending to change the ethnic composition and political control of the region.
These have resulted in diverse forms of oppression, including targeted killings, rape and sexual violence, slavery, forced marriage, forced procreation, forced labour, and other forms of sexual violence and inequality. Perpetrators involved include; armed men, uniformed and non-uniformed, who have been identified as part of regular or of non-State armed forces, including from different units of the South Sudan People’s Defence Forces(SSPDF) and the South (Sudan People’s Liberation Movement/Army-In Opposition) SPLM/A-IO—militias with links to influential individuals or institutions. Widespread sexual and gender-based Violence in South Sudan reflects the context of widespread insecurity and impunity for such crimes and their ethical and political dimension.
In the Democratic Republic of Congo, since the early 90s, weak governance and the presence of various armed groups have subjected Congolese civilians to widespread rape and sexual violence, massive human rights violations, and extreme poverty. The African Union (AU), United Nations (UN), and neighbouring countries have struggled to address challenges posed by rebel groups, promote development, and improve humanitarian conditions. With the UN suspending aid, violence continues to dominate Eastern DRC.
For much of its post-colonial history, Kenya has been riddled with conflict and violence. The 2007 post-election violence, however, was of a different magnitude. Marred with many deaths, rape, horrific sexual violence and brutality, survivors live with psychological trauma. While women and children typically are the primary victims of sexual violence, men also experienced horrific sexual violence during the post-election violence. Notably, most perpetrators of sexual-based violence were security enforcement officers tasked to protect the citizens.
The constitution of Kenya 2010 provides that the state shall ensure access to Justice for all persons; if any fee is required, it shall be reasonable and shall not impede access to Justice. Article 159 further states that Justice shall not be delayed. Justice delayed is Justice denied. In their quest to seek Justice, six female and two male survivors, together with four non-governmental organizations – the Coalition on Violence against Women, Physicians for Human Rights, the International Commission of Jurists-Kenya (ICJ-K), and the Independent Medico-Legal Unit filed a Constitutional Petition No 122 of 2013 . After a seven-year wait, The Court delivered a judgement on the petition in 2020, establishing that the constitutional rights of the four female petitioners, JMW, PKK, SMM, and LGS identified as state actors, violated the 5th, 6th, 8th and 9th petitioners respectively. The Court awarded them four million Kenyan shillings each as damages. The petitioners, aggrieved by the Judgement, filed a partial appeal against the Judgement at the Court of Appeal. The Appeal is still pending.
As a result of the increasing sexual-based violence cases, in March 2022, the Chief Justice, Martha Koome, launched the first gender-based violence court in Shanzu. It is worth applauding that she directed that the courts observe a no-adjournment policy to reduce the backlog of cases and ensure the speedy delivery of Justice. However, the Court will only serve the interests of victims in Shanzu and its environs. Whilst this is laudable, the Judiciary should launch and operationalize such courts countrywide.
Kenya is still lagging in safeguarding the rights and interests of survivors and victims of conflict-related sexual violence. There is a need to establish sexual violence recovery centres countrywide and advocate for the expeditious disposal of cases. Further, measures should be adopted to offer free psychological treatment for victims of sexual violence in conflict. There is an overwhelming need to create more awareness of the various forms of sexual violence in conflict through advocacy, research, and capacity building.
Ten years later, the 2007 post-election violence perpetrators have not been held accountable. I imagine the many sexual violence cases that are still pending in courts. When will they be heard and finalized? Will the survivors and victims get Justice? These questions go unanswered. Many victims and survivors will remain hidden in the shadows if Kenya does not prioritize them.
Via International Commission of Jurists, Kenyan section
