KITUO CHA SHERIA BLOG

‘All human beings are born free and equal in dignity and rights’. Every day cases of gender based violence increase globally despite all the efforts put in place to combat them. Truth is no one is supposed to face any form of violence whatsoever. No one should be hit just because they are of a ‘weaker sex’. No one should be killed just to honor anyone. Every human being-Kenyan should enjoy all basic rights and fundamental freedoms.

Gender refers to social attributes and opportunities associated with being male or female.  Gender roles entail a set of perceived behavioral norms associated particularly with males or females in a given social group or system. On the other hand sex or sexuality is defined in the context of biological and genetic differences between male and female.

Gender based violence is defined as violence that occurs based on gender roles, expectations, limitations, etc. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.  The case of Prosecutor v. Akayesu. In Akayesu, a local official was found guilty on the basis of his acts and omissions in relation to – but not on the basis of physically engaging in – mass rape, forced public nudity and sexual mutilation of Tutsi women perpetrated by Hutu men.

Categories of Gender based violence

There are four categories of gender based violence physical, sexual, emotional (mental and social), economic and harmful traditional practices. However it is important to note that some scholars have categorized gender based violence to be in three levels. These are home/ family level, community level and state level.

Physical gender based violence is defined as the intentional use of physical force with the potential to cause death, disability, injury or harm. Physical violence is the easiest form of violence to identify because usually there are physical findings to match it. It includes assault, domestic violence and harmful cultural practices.

Sexual gender based violence is defined as use of physical force to compel a person to engage in a sexual act against his/her will whether or not the act is completed. There are many types of such violence which include Harassment, Rape, Sodomy and Attempted Rape amongst others. The Rome statute of the International criminal court lists sexual violence as one of the crimes against humanity and as a war crime. It even further gives procedures for investigating and prosecuting sexual violence offenses.

Emotional violence entails trauma to the victim caused by acts, threats of acts, coercive tactics when there has also been prior physical or sexual violence, or prior threat of physical or sexual violence. It involves aspects like Verbal, emotional abuse, humiliation and discrimination amongst others. Scholars have noted that this form of violence co exists with the other forms of violence.  For example 1 out of 3 women is beaten, coerced into sex or otherwise abused in her lifetime.

Harmful traditional practices comprises of ways of life of people that are harmful to others. For example this could include female genital mutilation, early childhood marriages and honor killings. Female Genital cutting (FGC) is a traditional practice that involves cutting or altering the female genitalia as a rite of passage or for other socio-cultural reasons. Female Genital Cutting according to Population Reference Bureau, (2000) is practiced in 28 African countries and in about 20 Middle Eastern and Asian nations.

Causes of gender based violence

Financial insecurity in cases where a man cannot establish his authority intellectually or economically, he would tend to do so physically.  Another cause is the image created by the society which portrays a man to be viewed as being strong, educated, creative, and clever while a woman is the opposite of all these traits.

Alcohol and drug abuse has been a related cause of gender based violence. For example an alcoholic person can beat up their partner while under the influence of alcohol or any drug. There have been many reported cases of spouses who have lost their lives because of a violent partner who was on drugs or alcohol.

Personality and psychiatric problems is also a cause of gender based violence. Research has shown that unless such persons get help they will always blame their partners hence resorting to a violent marriage. The author notes, ‘…People with these disorders very rarely seek help, and instead blame everyone around them for their behavior. They’ll idealize you one minute and criticize you the next. They’re impulsive and lack empathy, manipulate and take advantage of you, and disregard your rights. How do you know you’re with someone who has a personality disorder? You’re constantly walking on eggshells to avoid setting off a conflict. The whole relationship feels weird. And you’re probably convinced it’s your entire fault…’

Societal disorders which include issues such as war. It’s during war that aspects like sexual violence are prevalent. Take the example during the Rwandan genocide where people like Jean Paul Akayesu got involved in acts of sexual violence and finally were charges by the International Criminal Tribunal for Rwanda (ICTR) and found guilty.

Legal Regime

The legal framework on gender based violence cuts across international and national regimes. International regime binds on Kenya by dint of Article 2(5) and 2(6) of the Constitution of Kenya. It includes legislations like Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child and the African Charter on Human and People’s Rights amongst others.

The national regime is governed by the Constitution of Kenya, Sexual Offenders Act and Penal Code amongst others.

The law is clear on the procedure and the rights of the victim and the perpetrator. The basic procedure is such that the survivor is to be taken to the hospital to receive medical attention. The next important step is to report the case to the police. The report must be entered into the Occurrence Book (OB) in order for it to be an official complaint. The person reporting should be given an OB number to enable them track and or follow up with the case.

The survivor and any potential witnesses then record their statements with the police, these are written down and the persons making the statements sign them. The medical report from medical personnel who gave initial treatment should be taken to the police (it is important to keep a copy of the same for safety) and a P3 form should then be issued. The P3 form is issued free of charge

The perpetrator is arraigned in court. The first time he/she is taken to court only to plead to the charges i.e. to state whether or not they are guilty or not guilty of the offence he/she is charged with. If the perpetrator pleads guilty he/she will be convicted accordingly. If he/she pleads not guilty the court will set a hearing date for the case and also set mention dates that cover the period between tat time and the hearing date set. On the hearing date the survivor gives their testimony. If it is a child they testify in camera (i.e. In private and not in open court) either the court is cleared of members of the public or, as is usually the case, the child gives his/her testimony in the magistrate’s chambers. Meanwhile during this whole period the witnesses are bonded so that they can attend court. The perpetrator also has a right to bail but with the discretion of the court.

Emerging trends and Conclusion

There is a global acceptance of gender based violence. The latest developments are developments like GBVIMS which is a database used to record and follow up cases of gender based violence for refugees. This database is developed by the UN Population Fund (UNFPA), the International Rescue Committee (IRC), and the UN High Commissioner for Refugees (UNHCR) have developed a new GBV classification tool strictly for the purposes of standardizing GBV data collection across GBV service providers.

Countries like South Africa have sexual offences act that deal with sexual gender based violence claims. Furthermore Rwanda practices positive masculinity as a move to end gender based violence. This is majorly spearheaded by men.

By:-

Julie Matoke

Kituo Cha Sheria

Forced Migration Program, Advocacy Department.