On January 25, 2008, during the explosion of post-election violence in Kenya, four men beat and brutally gang-raped Apiyo P., a 53-year-old mother of five. She told Human Rights Watch how the rape continues to affect her:
I am not at peace, my body is not the same. If I am pressed, urine just comes out. I feel weak. Sometimes I have a dirty-smelly discharge coming from my vagina. I feel pain in my lower abdomen. I have serious back ache…. I don’t have money to go to a big hospital. I have so much shame. I feel hopeless. I just sit and wait to die.
I have problems sleeping. Sometimes I can go to bed at 10 p.m., be up at 11:30 p.m., and not fall sleep again. I doze off a lot during the day. I think about the rape, my financial problems, and the death of my husband [in the violence]. I was running a clothes boutique business in Nakuru and I had good money. But now I have become a beggar. Sometimes I don’t have food. I don’t have any help from my family.
I came here to my father-in-law’s home after the violence and he gave me a plot of land to build. My brothers-in-law didn’t want me. The land was registered in my brother-in-law’s name and he wants the land back. I need help with land and a house for my children. I am just here in the village and I don’t know how to reach the government to ask for help.
More than eight years since violence engulfed Kenya in the aftermath of the December 2007 election, survivors of rape and other sexual violence continue to experience significant physical and psychological trauma and socioeconomic hardship, worsened by the Kenyan government’s failure to provide medical care, psychosocial support, monetary compensation, and other redress.
The longer the government takes to assist women and girls the worse their situation becomes. However, renewed momentum around developing a reparations process offers the Kenyan government an opportunity to rectify these failures and ensure justice and redress for post-election sexual violence.
The violence that erupted in Kenya between December 2007 and the end of February 2008 following a disputed presidential election included patterns of police use of excessive force against protestors as well as ethnic-based killings and reprisals by supporters aligned to both the ruling and opposition parties. It left at least 1,133 people dead and displaced more than 600,000 people. There was also widespread destruction and looting of homes and properties, expulsion of people from their homes, and maiming of individuals.
Widespread sexual violence against women and girls—and to a lesser extent, men and boys—was less visible than other abuses, but it was just as devastating. Based on testimonies, reports from human rights groups, and hospital data, an official commission of inquiry into the post-election violence estimated that at least 900 cases of sexual violence occurred, but this is likely an underestimate given the reluctance of survivors to report, the stigma attached to sexual violence in Kenya, and fears of retaliation. Perpetrators included militia groups, humanitarian workers, and members of Kenya’s security forces, according to witnesses and survivors.
This report is based on interviews conducted between November 2014 and October 2015 in different parts of Nairobi, Rift Valley, Western, Nyanza, and Coast regions with 163 female and 9 male survivors and witnesses; and with civil society actors, health workers, lawyers, government officials, and donors.
This report documents the ongoing physical, mental, social, and economic impact of sexual violence together with other human rights abuses committed against women and girls and men and boys during the post-election violence in Kenya. It describes significant obstacles to support services, including health care, and to prosecutions and reparations for these crimes. It also outlines steps for a gender-sensitive approach the Kenyan government should take in light of plans to develop a reparations process.
Human Rights Watch interviews with female and male victims documented an array of disturbing and brutal violence, including rape, gang rape, and having genitals beaten or mutilated. Most survivors interviewed by Human Rights Watch were raped by more than one perpetrator and many of the cases we documented involved more than four perpetrators and, in a few instances, more than ten. Women and girls said they were penetrated with guns, sticks, bottles, and other objects; stripped naked; sexually fondled and humiliated. Some men and boys were forcibly circumcised or castrated. Many sexual attacks were accompanied by severe physical abuse, including stabbing, kicking, cutting with machetes, throwing women on hard surfaces, and beatings with heavy objects. Victims who tried to resist often incurred additional beatings.
Men raped women old enough to be their great-grandmothers, children as young as three, pregnant women, women who had just given birth, and breastfeeding mothers. Many women were raped in the presence of other family members including young children. Some were raped together with other female family members or in groups with other women from their communities by the same perpetrators. Sometimes family members were forced to rape their own relatives.
The Kenyan authorities have convicted only a handful of individuals for sex crimes related to the post-election violence. According to the report of a Multi-Agency Task Force established by the director of public prosecutions in February 2012 to undertake a comprehensive review of the status of investigation and prosecution of cases, there have been only 23 such convictions—although these figures are questionable as the data presented in the report is inconsistent and hard to follow. The small number of convictions for sexual violence offenses mirrors the broader context in which the Kenyan authorities have shown apathy and reluctance to initiate genuine, credible, and effective measures to investigate, prosecute, and punish perpetrators of the violence, especially those who organized and financed it and members of state security forces who committed serious abuses.
Victims see the prosecution of perpetrators as both a reparative and deterrent measure, but have experienced formidable barriers in getting help from authorities and accessing justice. These include lack of confidence in the police, negative and negligent police attitudes towards victims of sexual violence, and ineffective protection of witnesses from reprisals by perpetrators. Furthermore, Kenya lacks a clear legal framework to punish conflict-related sexual violence.
Insecurity, trauma, fear of stigma, a lack of transport, and insufficient money for treatment prevented most victims from seeking medical attention in the immediate aftermath of the attacks. As a result, the absence of medical examinations limited the collection of forensic evidence for use in prosecutions and the lack of treatment immediately after the assault left survivors at risk of unwanted pregnancies and of contracting HIV and other sexually transmitted infections. Human Rights Watch spoke to some women who sought medical treatment for sexual violence but were ridiculed by health care workers or turned away without treatment by doctors who appeared to refuse treatment on the basis of ethnicity. Others were told that health care workers were too busy treating other casualties to attend to rape victims.
Many sexual violence survivors are still in urgent need of medical treatment and psychosocial support. Many of the victims whom Human Rights Watch interviewed have serious, and at times debilitating, physical injuries as a consequence of sexual attacks, severely limiting their ability to perform everyday tasks and essential job functions, throwing them into deeper poverty. Women commonly complained of pains and aches, including those that limited their ability to walk or stand for long periods, vaginal bleeding, and smelly vaginal discharges. Some were infected with HIV and other sexually transmitted infections as a consequence of rape. Others developed traumatic fistula and other damage to their reproductive organs. Others said they suffered from long-term stress-related illnesses such as hypertension and ulcers as a consequence of the sexual violence they experienced.
Women and girls told Human Rights Watch they regularly need medical attention for their health problems, including frequent infections, or they have to keep buying medication for pain relief when obtaining medical attention is not an option. None of the women we interviewed had medical insurance, placing a huge financial burden on poor families.
Many women and girls have been rejected by their husbands and families. Others experience physical violence and verbal abuse from their husbands. Some male sexual violence survivors, feeling emasculated as they are unable to provide for their families due to trauma and physical injuries from the assaults, expressed controlling behavior towards their wives, including trying to prevent them from working outside the home.
Children born from pregnancy following rape face stigma, rejection, and physical and verbal abuse from immediate family, extended family, and in the wider community. They may face discrimination in acquiring birth certificates that are necessary for access to services and benefits crucial to the enjoyment of their fundamental rights, such as education and citizenship.
The Kenyan government has not implemented programs to provide proper psychosocial support services for survivors of sexual violence and their families in spite of the profound emotional and psychological suffering experienced by survivors as well as their families and communities.
Women described profound feelings of hopelessness, self-hatred, shame, anger, and sadness. Nearly all experienced chronic symptoms such as chest pains, backache, stomach aches, and insomnia. Other survivors said they had developed a fear of men, men in uniform, sex, dark or isolated places, and public spaces. Other survivors said they contemplated suicide. Some women said they are often overwhelmed with thoughts of the rape and other violence that they witnessed, such as killings of family members and destruction of their properties. They said they found it difficult to focus on their daily work or to fall asleep. The mental anguish that some sexual violence survivors experience is compounded by the fact that they often suffer in silence and alone, without the support of family members who stigmatize and reject them.
Women and girls told Human Rights Watch that sexual violence ended or interrupted their education, limiting their employment and earning potential. Some women and girls said they could not continue with their education because of the shame of rape, pregnancy and the need to care for the babies, or that they lacked family and financial support to return to school. In other cases, women and girls suffered physical injuries and developed mental health problems that hindered them from pursuing an education.
Survivors told Human Rights Watch they experienced hunger and financial difficulties in supporting themselves and their children as a result of their physical injuries and the mental health consequences of sexual violence. Some women said they lacked adequate and decent housing, and lived in structures that were too small for their families or failed to protect them against environmental hazards. Others are housed by their children, relatives, or friends.
Following the violence, the leaders of both the Party of National Unity and the opposition Orange Democratic Movement agreed to set up the Commission of Inquiry into the Post-Election Violence (CIPEV). They also established an Independent Review Commission to look at the flaws in the election and a Truth, Justice, and Reconciliation Commission (TJRC) to help heal historical grievances from before the 2007 elections.
The CIPEV recommended wide-ranging reforms of the police as well as the creation of a special tribunal, staffed by both Kenyan and international judges and prosecutors, which was never established after members of parliament successfully defeated the initiative.
The Kenyan government has—to a limited extent—implemented measures to compensate the victims, especially internally displaced persons, in the form of resettlement, building of new homes, and providing money and land. However, the measures have effectively excluded many victims of sexual violence, who currently only qualify for compensation if they were also displaced from their homes or lost property during the violence. The sexual violence survivors we spoke with expressed a deep sense of injustice at being left out of these assistance programs.
The Kenyan government’s failure to effectively close the impunity gap for sexual violence and compensate survivors is contrary to its international human rights obligations. It continues to undermine women’s rights and their enjoyment of fundamental freedoms, as well as causing them serious harm and suffering.
Civil society groups together with government agencies have begun discussions and consultations on strategies for an effective reparations process, including the formation of an inter-agency committee to lead this process. This follows President Uhuru Kenyatta’s announcement in March 2015 of a fund of 10 billion Kenyan Shillings (approximately US $9,800,000) “over the next three years to be used for restorative justice” as recommended by the TJRC—even though the TJRC report has not been formally adopted by parliament nor an implementation plan created as is required by law.
President Kenyatta said he established this fund as a way of ensuring justice for victims of the post-election violence, after the director of public prosecutions informed him that most cases, including those of sexual violence, could not be prosecuted due to lack of evidence. However, Kenyatta’s assertion has been criticized by civil society groups as an excuse and strategy to evade accountability for the post-election violence since the government has not demonstrated that it has taken all possible steps to thoroughly investigate and prosecute perpetrators.
It is also unclear whether the TJRC’s recommendations on reparations will be implemented as long as the report has not been passed by parliament as required by law. Nonetheless, Kenyatta’s declaration of the restorative fund has reignited the discussion on reparations in Kenya.
The Kenyan government should use this process to develop a reparations policy and program that is in accordance with international standards and good practice, and be guided by the UN Principles and Guidelines on the Right to a Remedy and Reparation for Victims and the Guidance Note of the Secretary-General on Reparations for Conflict-Related Sexual Violence. It should also create a credible and transparent administrative system for the reparations program.
Reparations for conflict-related sexual violence include restitution, compensation, rehabilitation, and guarantees of non-repetition. Reparations should also deal urgently with the immediate harm affecting victims of conflict-related sexual violence, by providing, for example, access to medical assistance. The reparation program should not be contingent on successful prosecutions and should provide compensation and other services to individuals who come forward with their experiences of sexual violence. The program should also be designed and implemented in consultation with victims, including victims of sexual assault, and should respect the rights and dignity of victims, and avoid further harming or traumatizing them.
To the Government of Kenya
- Develop and implement, through a transparent and participatory process and in accordance with international standards, a reparations program for all victims of serious human rights violations committed during the post-election violence, including sexual violence.
- Provide free, quality, comprehensive, and survivor-centered rehabilitative health services for all victims of rape and other forms of sexual violence. As a matter of priority:
- Identify survivors of the post-election violence who require urgent medical assistance, including treatment for sexually transmitted infections, HIV, and surgery for those with life-threatening or debilitating conditions resulting from sexual violence;
- Develop programs to address the mental health needs of survivors, including mobile outreach, individual counseling, and support groups, based on the free and informed consent of the individual; and
- Work with various government agencies to provide survivors with access to free and voluntary medical and psychosocial services in public hospitals.
- Address impunity for election-related violence by establishing credible, special mechanisms within the judiciary, police, and prosecutorial services that enhance capacity to investigate, prosecute, and adjudicate cases from the 2007-2008 election-related violence while also providing full cooperation to the investigations and prosecutions of the International Criminal Court (ICC). In consultation with international expert investigators and prosecutors on sexual violence, mandate, within these special mechanisms, the development and implementation of a comprehensive, survivor-centered policy and strategy to investigate, prosecute, and adjudicate sexual violence crimes committed during the post-election violence in accordance with international fair trial standards. Consider whether cases against lower-level perpetrators or for less serious crimes could be dealt with through the ordinary courts, in tandem with the establishment of special mechanisms.
- Finalize, adopt, and implement, through a transparent and participatory process, the draft National Action Plan on UN Security Council Resolution 1325 to ensure the full and meaningful participation of women in all peace processes and transitional justice mechanisms on women, peace, and security; ensure sufficient resources to carry this out.
- Implement the recommendations of the Commission of Inquiry into the Post-Election Violence (CIPEV) to address post-election sexual violence and sexual violence in Kenya more generally, including gender violence recovery centers in public hospitals, gender desks at police stations, training and accountability systems, and a rapporteur on sexual violence who reports to parliament annually.
Human Rights Watch conducted research between November 2014 and October 2015 on the impact of sexual violence and other human rights abuses committed against women and girls and men and boys during the 2007-2008 post-election violence in Kenya. Follow-up interviews were also conducted by phone with some survivors to verify facts.
Field research for this report spanned different parts of Nairobi, Rift Valley, Western, Nyanza, and the Coast. These regions were the most affected by the post-election violence. The research also focused on both urban and rural areas as women in these areas were affected differently both in terms of the patterns of violence and access to services.
Human Rights Watch interviewed 163 women and girls who were survivors of or witnesses to sexual violence. We also interviewed 9 male survivors and witnesses. All survivors and witnesses were interviewed individually.
We identified survivors and witnesses with the assistance of local nongovernmental organizations (NGOs) providing services to women, and networks of internally displaced persons (IDPs). Where possible, interviews were conducted in confidential settings. In the few instances where this was not possible, care was taken to protect the confidentiality of survivors and witnesses as far as possible. We informed all participants of the purpose of the interview, its voluntary nature, and the ways the information would be used. Each participant orally consented to be interviewed.
Interviews lasted between 30 minutes and 1 hour. The Human Rights Watch researcher who led the research conducted almost all the interviews and was assisted by an activist who is a survivor with counselling experience. The interviews were conducted mostly in Swahili, with occasional support from interpreters in Luhya and Dholuo when the interviewees had difficulty understanding Swahili. We took care to minimize the risk of retraumatization when conducting interviews. Where appropriate, Human Rights Watch provided contact information for organizations offering legal, social, or counseling services. Interviewees received no material compensation for participating, but were reimbursed for the cost of public transport to and from the interview.
We also interviewed 12 Kenyan and international civil society activists, health workers, lawyers, donors, and officials from the directorate of national cohesion and national values, National Commission on Human Rights, the National Gender and Equality Commission, the Independent Policing Oversight Authority, the Internal Affairs Unit of the police service, and the Witness Protection Agency. We collected and analyzed relevant laws, policies, official government strategies, and reports by academics, national and international organizations, and United Nations agencies.
The report uses pseudonyms to protect the privacy and security of survivors and witnesses interviewed. We have also modified the exact dates of interviews, the location of interviews, as well as additional identifying details, where appropriate, to ensure that interviewees cannot be identified.
This report uses the term conflict-related sexual violence to describe the sexual violence that was committed in Kenya during the 2007-2008 post-election violence. According to United Nations Action against Sexual Violence in Conflict:
Conflict-related sexual violence includes “rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence…against women, men, girls or boys. Such incidents or patterns occur in conflict or post-conflict settings or other situations of concern (e.g. political strife). They also have a direct or indirect nexus with the conflict or political strife itself, i.e. a temporal, geographical and/or causal link.”
I. Kenya’s Post-Election Violence, including Sexual Violence
The violence that engulfed Kenya between December 2007 and the end of February 2008 following a disputed presidential election left 1,133 people dead and led to the displacement of an estimated 600,000 people. There was also widespread destruction of homes and properties, looting, expulsion of people from their homes, and maiming of individuals. In addition to these abuses, women and girls, and to a lesser extent, men and boys, were also the victims of brutal sexual violence.
Human Rights Watch has reported extensively on Kenya’s 2007-2008 post-election violence and the government’s response, including wholly inadequate efforts to investigate and prosecute perpetrators of the violence; compensate victims; and implement crucial legal and institutional reforms necessary to address the root causes of recurrent political violence in Kenya, such as historical injustice, inequality, and government corruption. This report builds upon this work.
Key Information about the 2007-2008 Post-Election Violence
Human Rights Watch’s 2008 report, Ballots to Bullets, describes the main patterns of violence that unfolded after Kenya's December 2007 general election, namely police use of excessive force against protestors as well as ethnic-based killings and reprisals by supporters aligned to both the ruling and opposition parties. It outlines the ways in which this violence was the outcome of decades of political manipulation of ethnic tensions, and of impunity intertwined with longstanding grievances over land, corruption, regional inequality, and inequitable distribution of resources among other issues.
The general election in Kenya took place on December 27, 2007. Voting proceeded smoothly with record numbers of registered voters and a record turnout. The parliamentary results were announced on December 29, resulting in major losses for the ruling Party of National Unity (PNU). Protests erupted before the announcement of the presidential results on December 30, as delays and irregularities in the count sparked rumors of rigging. The government banned public gatherings and the police confronted street protests with excessive force, killing and wounding hundreds of peaceful demonstrators with live ammunition. Meanwhile, some people took advantage of the lack of law and order to loot, rape, and riot.
The violence that broke out after the 2007 election had a very clear ethnic dimension. Political parties and alliances are formed on the basis of ethno-regional basis and not ideology. In Kenya, one’s ethnicity is often interpreted as synonymous with support for a particular political party or candidate, and during elections, politicians regularly mobilize support from voters along ethnic lines.
During the 2007 election, the main rival parties were the PNU and the Orange Democratic movement (ODM). Mwai Kibaki, a Kikuyu, was the PNU presidential candidate seeking re-election for a second term. Raila Odinga, a Luo and leader of the opposition, was the ODM candidate. The ODM built political support based on the broad perception that the Kibaki administration had entrenched tribalism and governed in the interests of the Kikuyu community. The PNU attacked the traditions of the Luo community, claiming that an uncircumcised man could not rule Kenya. Pre-election violence in parts of Rift Valley pointed to these ethnic dimensions, including the fact that violence there was not spontaneous, but planned.
Rape and other sexual violence were, to a large extent, directed at women and girls not only because of their gender, but also their ethnicity. Women and girls were raped as part of a broad pattern of violations against communities, and sexual violence was used to punish a particular ethnic group, instill terror, retaliate against them, or cause them to flee from a location. Because of the emphasis placed in every culture on women's sexual virtue, the humiliation, pain, and fear inflicted by the perpetrator was seen as not only punishing the individual woman, but also her entire ethnic community. Perpetrators regularly made verbal comments to women that indicated that they were being punished for belonging to a particular ethnic group, and the intention of the rape was to force them to leave certain locations. Some of the other women we interviewed were asked what tribe they belonged to before the rape.
Nyokabi B., 33, was living in Molo at the time of the 2007 elections. She was raped by two men she knew who told her, “We will teach you a lesson and you will return to Central [region]. We don’t care whether you will return sick or pregnant but you will return.” Forty-two-year-old Muthoni M. described to Human Rights Watch how she was gang raped on January 16, 2008 and threatened with further sexual violence by the perpetrators if she did not leave her home:
They cut the iron sheet roof and got into the house. Three men raped me and took all my household items. As they were raping me they said, “We don’t want to see a Kikuyu living in this area. After we leave, you should move out because if you don’t, other people will come and rape you again.” After they left we moved out. I have never gone back there.
Awino J. said she could not tell how many men raped her because they tied a cloth around her face. But she remembers what the aggressors told her: “They said, ‘Luos have to return to their villages. If you try to rig our elections we will take you to your homes dead. It is either we rule you or kill you.’”
Following the violence, the leaders of both the PNU and the opposition ODM agreed to set up the Commission of Inquiry into the Post-Election Violence (CIPEV, also known as the Waki commission, after its chairman, Justice Philip Waki). They also established an Independent Review Commission to look at the flaws in the election (the Kriegler commission), and the TJRC to help heal historical grievances dating from well before the 2007 elections.
The CIPEV recommended wide-ranging reforms of the police as well as the creation of a special tribunal, staffed by both Kenyan and international judges and staff, which was never established. Few of the other recommendations, such as addressing historical injustices and resettling and assisting internally displaced persons, have been adequately implemented.
The CIPEV also recommended that, if a special tribunal was not established, former UN Secretary-General Kofi Annan—the chair of the negotiations that led to the coalition government formed after the violence—hand over the names of suspects to the International Criminal Court (ICC), which he did in July 2009. The ICC opened investigations in 2010 and requested summons for six high profile political and opinion leaders in December 2010. A pre-trial chamber of the ICC confirmed charges against Deputy President William Samoei Ruto, journalist Joshua arap Sang, former Head of Public Service Francis Kirimi Muthaura, and President Uhuru Muigai Kenyatta in two separate cases in January 2012. The trial of Deputy President William Ruto began in September 2013, but the ICC prosecutor withdrew charges, including charges related to rape, against Muthaura in March 2013 and President Kenyatta in December 2014 due to a lack of evidence. The case against Deputy President Ruto and Sang does not include any charges related to sexual or gender-based crimes.
A number of factors likely contributed to the ICC prosecutor’s inability to proceed to trial in the case against Muthaura and Kenyatta. Some of the factors relate to shortcomings in the ICC’s approaches to investigations and witness protection, but ICC processes have also been hampered to a significant degree by a campaign of political obstruction and pervasive allegations of witness interference and intimidation.
There are outstanding ICC arrest warrants, issued against three Kenyans, on charges of witness tampering through bribery and attempted bribery in the case against Ruto and Sang. Judges in the case have noted an “element of systematicity of the interference of several witnesses in this case which gives rise to the impression of an attempt to methodically target witnesses of this case in order to hamper the proceedings.” In the case against Kenyatta, the ICC prosecutor has noted that, while it did not have evidence of direct intimidation, three trial witnesses withdrew due to security concerns, as did several witnesses who had agreed during pretrial proceedings to be part of the case. The ICC prosecution has also asserted that unidentified people attempted to persuade another three withdrawn witnesses in that case to recant or withdraw, including by offering bribes. The prosecution has alleged that members of the Mungiki, a criminal gang it accused Kenyatta of soliciting to carry out attacks during the post-election violence, have been killed or have disappeared. An individual claimed by the Ruto ICC defense team as its witness was murdered in early 2015; investigations into his death have yet to yield public results.
A decision regarding whether Kenya complied with its obligations as an ICC member country to assist the ICC’s investigations is pending before the court’s judges, but behind a thin veneer of cooperation with the court, since 2013, the Kenyatta administration has pursued an intense campaign to delegitimize the ICC. It has lobbied the African Union and other regional fora, the UN Security Council, and the ICC Assembly of States Parties to end or suspend the cases against President Kenyatta and Deputy President Ruto, or to secure favorable treatment for these defendants in the amendment of the court’s Rules of Procedure and Evidence. Government officials tolerated, or at times encouraged, hostility toward human rights activists standing up for justice.
The campaign against the ICC speaks to a deep climate of impunity within Kenya regarding the post-election violence which has also impaired national accountability efforts. Indeed, the failure to hold those responsible for the violence to account continues a cycle of impunity in Kenya. Those responsible for political violence in 1992 and 1997 also escaped justice.
Countrywide, very few cases have been properly investigated and taken to court. The CIPEV identified 405 fatal police shootings, but no police officers have been convicted. Many of the 562 victims of police shootings who survived tried to file complaints with authorities, but were turned away.
As of February 2013, Human Rights Watch was aware of only seven serious crimes related to the violence, which had resulted in convictions. This conclusion was based in part on extensive research conducted for a 2011 report on accountability for offenses related to the post-election violence, Turning Pebbles.In one of these cases, the two accused had their convictions overturned on appeal.In total, by that time, only 14 people appeared to have been convicted for serious election-related crimes.
A multi-agency taskforce established by Kenya’s director of public prosecutions in February 2012 to undertake a comprehensive review of the status of investigation and prosecution of cases of post-election violence–one of a series of mechanisms purportedly set up to facilitate national prosecution of these cases–transmitted its final report to President Kenyatta in March 2015. The taskforce found that of 6,081 cases reported for investigation, 366 cases were taken to court for prosecution. Of these, 10 were murder cases, but only 4 resulted in convictions. In 4,575 files returned from the taskforce to the police, the police reported that they were unable to proceed in the vast majority of cases on grounds that complainants could not be reached or were unable to identify suspects.
The taskforce appeared to report separately on offenses of sexual violence, concluding that 69 of 215 opened cases (against a total of 368 cases reported) were taken to court. These resulted in 23 convictions, of which the vast majority were for the crime of defilement. However, the reliability of the taskforce report is questionable. It is generally confusing to follow and its data is inconsistent. It, for instance, lists in the chart looking at all 6,081 reported cases of post-election violence that it reviewed only 4 rape cases and 3 of defilement. In a following table looking at only sexual and gender-based violence cases, the taskforce indicates that it reviewed 52 rape cases and 49 of defilement.
Human Rights Watch has not taken steps to verify the information contained in the task force report; we found that a March 2011 report of the Department of Public Prosecutions to the Attorney General contained a number of inaccuracies regarding the outcome of investigations of cases of post-election violence. Even taking the report at face value, however, it is clear that a vast majority of cases, including sexual offenses, have not been the subject of criminal proceedings.
Prevalence and Patterns of Sexual Violence
Although the exact number of victims may never be known, several studies and inquiries have gathered evidence of widespread sexual violence targeted at women and girls, as well as men and boys to a lesser extent, during the 2007-2008 post-election violence. Based on the testimonies of 31 women and reports from numerous human rights organizations and hospital data, the CIPEV estimated that 900 cases of individual and gang rape, defilement, and other forms of sexual assault occurred. However, this number is likely to be a low estimate considering that many cases were unreported and did not include rape victims who may have been raped and then killed during the violence.
The CIPEV concluded that “sexual violence was rampant during this period consisting mainly of rape and gang rape, defilement, genital mutilation, sodomy, forced circumcision, and sexual exploitation.” It noted that individuals, gangs, humanitarian workers, and state security officials committed rape and other sexual violence crimes. It concluded that sexual violence was used to “pressure people to leave their homes, to retaliate against them for having voted for a particular candidate or party, and to dominate, humiliate and degrade them and their communities into a pit of powerlessness.”
Research by the national human rights commission and other national and international nongovernmental organizations (NGOs) has also recognized the widespread incidence of sexual and gender-based violence during the post-election violence. In one study, Physicians for Human Rights analyzed medical records of 1,615 patients identified to have experienced sexual assault between 2007 and 2011 at 3 health care facilities in the Rift Valley. The aim was to identify whether there were systematic changes in the characteristics of sexual assault cases in Kenya during the period of post-election violence.
The study concluded that widespread sexual violence was committed during the period; and that the patterns of sexual violence, particularly gang rape, perpetrated during the period are consistent with the patterns of mass rape documented in conflict settings elsewhere.
Most survivors interviewed by Human Rights Watch were raped by more than one perpetrator and many of the cases we documented involved more than four perpetrators and, in a few instances, more than ten. Cheptoo M., 53, said she was raped by 2 men after they threatened her with death and accused her of “having been sleeping with the enemy for too long,” because her husband was from a different ethnic group.
Several survivors and witnesses described how perpetrators inserted guns, sticks, bottles, and other objects into women’s vaginas, or beat their genitals with objects. Wanjira E. from Mombasa described being raped by armed men who “inserted the head of the gun into my vagina.” Gladys M., a mother of five whose husband was killed during the post-election period, said she and other women were hiding in a bush when a gang of men attacked them. They raped her and inserted sticks in her vagina. Her uterus was so damaged it was later removed.
Many attacks were accompanied by severe physical abuse, including stabbing, kicking, cutting with machetes, throwing women on hard surfaces, and beating with heavy objects. Victims who tried to resist and prevent their rapes were subjected to additional beatings and other violations. Some women were pregnant when they were raped and others had just given birth, increasing their likelihood of injury from the rape.
The CIPEV made a number of recommendations to address post-election sexual violence and sexual violence in Kenya more generally. The recommendations to expand gender violence recovery centers to all public hospitals; create gender desks at all police stations to increase likelihood of survivors reporting cases and being attended to sensitively– coupled with training and accountability systems to ensure “a complete change of attitude” within the security forces towards gender-based violence survivors, have been inadequately implemented; while the recommendation to establish, under Kenyan law, of the office of rapporteur on sexual violence with the mandate to raise the profile of sexual violence crimes in Kenya, and to report to parliament on a yearly basis the government’s response to sexual violence offenses is outstanding.
The United Nations Secretary-General on conflict-related sexual violence addressed Kenya’s post-election sexual violence in the 2012, 2013, and 2014 reports. The 2012 report noted that, in the electoral violence in Kenya and in Guinea Conakry (in 2009), “a clear nexus existed between elections and commission of the violence in order to achieve political objectives.” This violence “… appeared to have been targeted to punish victims for their perceived political affiliation.” The subsequent reports in 2013 and 2014 continued to raise the need for investigation and peacebuilding in the aftermath of the attacks, including “continued vigilance by the Security Council, and further monitoring, analysis and preventive action, as appropriate.”
Broader Context of Impunity for Violence against Women and Girls in Kenya
Long before the 2007-2008 election, women in Kenya faced widespread gender-based violence, which continues to the present. According to the 2014 Kenya Health and Demographic Survey, 38 percent of ever-married women between 15 and 49 have experienced physical violence and another 14 percent sexual violence.
Survivors of gender-based violence in Kenya face many challenges in getting protection from the police and other authorities, accessing medical and psychological care, and justice from the courts. Challenges in preventing and responding to gender-based violence include high levels of gender inequality, gaps in laws, poor implementation of existing provisions and policies, negligent and often hostile police attitudes, police incompetence, lengthy and expensive court procedures, and discriminatory perceptions of power and cultural attitudes that condone violence against women. The same attitudes, cultural beliefs, and failures in the criminal justice system driving sexual violence against Kenyan women in times of peace are present in periods of political violence.
II. Impact of Sexual Violence on Survivors and the Need for Reparations
“I Just Sit and Wait to Die”: Profile of Apiyo P.
There was a lot of tension. Houses were being burnt and people killed. My husband had not come home and no one seemed to know where he was. I used to walk the whole night and day looking for him. I was going to look for him one Sunday and that is when I met the men who raped me.
I don’t know the rapists. They wore dirty dreadlocks and had tied their hair with cloth looking like a Kenyan flag. They had sharp knives and machetes. They asked if I had money, a phone, or wallet. I said no. They said, “You belong to [Raila] Odinga’s people.” They tore my clothes and four of them raped me. As they were raping me, some slapped me with the flat side of the machetes and others kicked me.
I was bleeding and my whole body was in pain. Later I found that urine was just coming out. I went to Nakuru Medical [clinic] after three days. Up to today, I don’t feel at peace. My body is not the same. If I am pressed, the urine just comes out. I feel weak. Sometimes I have a dirty smelling discharge coming from my vagina. I feel pain in my lower abdomen. I have serious back ache. When I do hard work the back pain and the urine is too much. There is a time I can’t even bend. My knees and ankles pain. My hips pain. I feel pain when I am urinating and sometimes I have sores there [in the vaginal area]. Sometimes pus comes out. I go to the dispensary for treatment but I am not seeing any improvement. They give me pain killers and tell me the urine will stop. I haven’t gone to a big hospital because I don’t have money. I have so much shame. I feel hopeless. I just sit and wait to die.
I have problems sleeping. Sometimes I can go to bed at 10 p.m., be up at 11:30 p.m. and not fall sleep again. I doze off a lot during the day. I think about the rape, my financial problems, and the death of my husband. Neighbors told me my husband was burned to death as he was screaming and pleading with the attackers to spare his life. I was running a clothes boutique business in Nakuru and I had good money. But now I have become a beggar. Sometimes I don’t have food. I don’t have any help from my family.
I came here to my father-in-law’s home after the violence and he gave me a plot of land to build. My brothers-in-law didn’t want me. The land was registered in my brother-in-law’s name and he wants the land back. He says IDPs [internally displaced people] were paid by the government and given land; and that I should go to the land or return to Nakuru. But I can never return to that place. I fear he will evict my children if I die, and they will be homeless. I need help with land and a house for my children. I am just here in the village and I don’t know how to reach the government to ask for help.
-Human Rights Watch interview with Apiyo P., Siaya, November 18, 2014
Physical and Mental Health Impacts
Many sexual violence survivors experienced levels of violence and trauma that have left them with serious physical injuries and illnesses, as well as debilitating mental health conditions. These have severely limited their ability to perform everyday tasks and essential job functions. The suffering of survivors of sexual violence has been compounded by the Kenya government’s failure to provide medical care, psychosocial support, monetary compensation, and other redress following the initial harm.
“I Cannot Do Hard Work”: Profile of Wamuyu G.
Three men attacked me and raped me for about two hours in December 2007 while I had gone to fetch water. They had a pipe that they used first, and then they used their body, and then they used the pipe again. It was a big pipe the size of my hand. I had just had surgery delivering my last child. I couldn’t walk; I was bleeding severely. My back was damaged, my legs were broken and I had to walk in crutches for almost three years.
I am not in good health. I have pain in my back and around the lower abdomen. Even now I use a stick for support when I walk. I cannot do hard work because of the back pain. They removed my uterus in May 2008 because it was badly damaged. I also developed ulcers and hypertension because of the stress. I am on medication, but many times I don’t have money to buy the drugs.
They burned my house and all the things I had. My husband died in the violence; he had bad head injuries. Church people counselled me and helped me with food. I need help to start a business where I don’t move a lot. I need a house, even if a grass thatched one. Right now I am staying at my son’s home.
-Human Rights Watch interview with Wamuyu G., Busia, November 19, 2014
Women commonly complained of pains and aches, including those that limited their ability to walk or stand for long periods, vaginal bleeding, and smelly vaginal discharges. Naliaka K. said:
I don’t know what they did to my left leg because it has never stopped paining from that day. I have problems walking for long distances or standing for some time. This has affected my ability to work. If I look for a washing job, I have to do it while seated and people are not very accommodating of such behavior because they think you are lazy. I cannot work.
Twenty-four-year-old Nyasiongo F. was raped together with her 12-year-old sister in December 2007. She told Human Rights Watch how the violent rape left her sister with a brain injury:
The man was so violent with my sister because she was screaming. He hit her on the head with his fists and she fainted. She was in a coma for six months. She is not okay mentally. She does not know how to use a toilet. She faints often. Sometimes she gets violent and breaks things in the house. I became pregnant following the rape and I live with her and my son. We have no relative to help us. It is very hard on me.
Several survivors also witnessed the rape and killing of others. Kariuki P. told Human Rights Watch about the brutal gang rape of his sister with bottles in December 2007 in Molo that left her with a disability:
She was attacked at home. She was raped by four men, and then they used those old coke bottles. We found her bleeding and unconscious. I fainted when I saw her. Neighbors took her to Nakuru General Hospital. They removed her uterus. She got a disability and cannot walk properly.
Joseph N., 82, said that on January 2, 2008 a group of about 50 Kalenjin youth attacked his home and raped him and his two daughters, and described their subsequent deaths:
They told me I am rich and I am taking away their wealth; living in their community. They beat me seriously with sticks and put me outside the house. They said they will teach me a lesson. They beat and raped both my daughters; so many of them. Then they told me to rape my children. I refused. They hit me with a metal bar and some teeth came off. They pulled out some of my other teeth one by one. They broke my chin. They said, “If you don’t want to do what we are telling you, you will be our wife.” Six boys took me aside and told me to undress. I refused. They beat me all over. My skull cracked a little. They did a very bad thing to me. They made me their wife; they made me a homosexual. They removed all my clothes and [left] with them. They tied my feet and put me in a ditch. One of my girls got HIV from the rape. She died in June 2014. She met one of her rapists, went into shock, and never recovered. The other one had been badly beaten and shot with a poisoned arrow. They amputated her leg but she kept ailing and died in May 2015.
HIV and Other Sexually Transmitted Infections (STIs)
Human Rights Watch interviewed 39 women who said they had contracted HIV from their rapists. UNAIDS estimates that in 2014 (the most recent statistics available) 5.3 percent of adults between 15 and 49 in Kenya were living with HIV, meaning that approximately 1.4 million people have HIV. Approximately 4.4 percent of men are living with HIV.
HIV and STIs can lead to major problems for survivors’ sexual and reproductive and maternal health, or even death when not properly treated. The risk of HIV infection increases when a woman is injured so badly in a rape incident that her genital tissues tear; the risk is even higher for younger girls. The risk is also heightened in cases of gang rape.
Some of the survivors we interviewed could not reach health care facilities in time to receive post-rape care services including post-exposure prophylaxis (PEP), an anti-retroviral drug or combination of drugs which reduces the risk of HIV infection if administered within 72 hours of exposure. Many affected women could not access hospitals due to the general breakdown in security, lack of knowledge of PEP, and fear of stigma, among other factors. In some cases women who did get to health facilities within three days found that the facilities did not have PEP drugs. They said all they were given were pain killers; others did not know what kind of drugs they had been given.
Some women with HIV we interviewed are on antiretroviral treatment (ARV), but they continue to experience many devastating health problems because of poor adherence to HIV treatment, lack of adequate HIV counselling, as well as other untreated injuries.
HIV treatment in Kenya is free and most women said they get free ARVs. However, many women could not afford the cost of transport to health facilities to get their medication. Others said they lacked food to be able to take with their medicines. Kemunto W. told Human Rights Watch, “The hospital that I go to is far. Sometimes I don’t have money for transport so I don’t go for the ARVs. I have been asking them to give me a two month’s or three month’s supply.”
Nyamisa U. was raped together with her two daughters by the same perpetrators. She said they all contracted HIV and are on ARVs. She told Human Rights Watch, “I lost so many things during the violence. My husband left me and we are suffering. Sometimes we sleep hungry. I have these ARVs, but how do you take them when you have not eaten?”
Human Rights Watch also interviewed some women who said they have not tested for HIV despite the risk of infection following rape, and the dangers of untreated HIV to their health. Some said they feared knowing their HIV status and therefore having to deal with the stigma of HIV. Cherono M. told us, “My friend was raped and got HIV. She died. She did not tell her family and she did not go for treatment. We Kalenjins are very secretive. You cannot say anything [about being raped], because after that you are not seen as a human being.”
Others said they were embarrassed to speak about the rape to health workers, or they feared that if they did disclose the rape to health care workers, they would alert their husbands. Some were afraid that if they did take ARVs, this would also alert their husbands to the rape. Women who have not been tested live each day with the anxiety that they could be HIV positive. Some women also told Human Rights Watch that their husbands refused to go for HIV testing or to take ARVs even when they knew their wives had been raped and infected with HIV.
Human Rights Watch interviewed many women who described ailments typically associated with STIs such as emitting a smelly vaginal discharge, discomfort and pain during sex and when passing urine, lower abdomen and back pain, swelling and itchiness in the vaginal area, and infertility. Some women have sought treatment, but they say the illnesses persist. Others have not gone for checkups because of fear of stigma, lack of awareness that they need treatment, and lack of money for transport and hospital fees.
Human Rights Watch interviewed some women who were so violently raped that they developed traumatic fistula, a hole between a woman’s vagina and bladder or rectum, or both, resulting in the leaking of urine and/or feces. Traumatic fistula compounds the physical and psychological trauma, fear, and stigma that accompany rape. Without surgical repair, the physical consequences of fistula are severe, and can include a fetid odor, frequent pelvic or urinary infections, painful genital sores and burning of thighs from the constant wetness, infertility, nerve damage to the legs, and sometimes early mortality. Past Human Rights Watch research in Kenya has shown how fistula survivors also experience profound mental anguish, expressing feelings of shame and hopelessness, especially because they are stigmatized and think their condition is untreatable.
Mokeria V. told Human Rights Watch that she developed fistula after rape and that although she was treated, her husband and his family rejected her. Three other women we interviewed are still living with incontinence. Njeri N. said:
I was raped by five men. They were beating me, pulling my legs apart. I got so hurt. I have a problem controlling urine. If I am pressed, the urine just comes out. I am so ashamed; sometimes I don’t want to be with people. I usually go to Nakuru Hospital for treatment. Now I go monthly, before it was weekly. I am improving although my right leg has a problem. I feel like there is a hole at the back. I get backache and I cannot do hard work.
Wangechi A. was gang raped after she had just given birth. She said she has problems controlling urine, and described how this has affected her psychologically:
It was on January 28, 2008. I was in the house with my two daughters. They escaped but I could not leave because I had just had a baby and was recovering. They raped me. I cannot tell how many raped me because I was in shock. They harassed me saying, “This is our place and Kikuyus will go to Central [region].” I went to the hospital after about three days. Since that day urine just passes out when I get pressed. Sometimes I feel the urge to urinate and before I get to the toilet the urine has already come out. Sometimes I wet my bed. It is so shameful. I avoid going to public places because you can never tell when the urine will come out. Sometimes I use a rag to absorb the urine because ordinary sanitary pads don’t help. These people hurt me badly. They raped me, and now they gave me this problem. I have not gone back to hospital because I don’t feel pain and I didn’t think there is a cure for it.
Pregnancy, Miscarriage, and Unsafe Abortion
Human Rights Watch interviewed 37 women who said they had become pregnant as a result of rape. We also interviewed 6 women who were pregnant at the time of the attack and miscarried as a result of the sexual and physical violence.
Wanjiku Z. was raped in her house by two officers of the General Service Unit (GSU), the para-military wing of the Kenyan Police Force. She told us, “After the rape I stayed in the house for three days, just thinking and crying. I was so stressed I miscarried.” Mwanaidi H., who was also raped by GSU officers, told us:
It was about 10 a.m. They came to my house and asked me about my husband. They said I show them where we had hidden the guns. They started touching me like they were searching me. They undressed me. One told me to lie down. I was seven months pregnant. They beat me so badly and the baby died inside me.
Due to the unavailability of transport during the violence, some rape survivors could not reach hospitals in time to receive emergency contraception for the prevention of pregnancy. Others did not know about the option of seeking emergency contraception. Many of the survivors who became pregnant gave birth to the babies—in part because abortion is not only illegal in Kenya but is also seen by many as immoral—and are struggling to find ways of living with the children.
Some women who became pregnant as a result of rape tried to terminate their pregnancies through so-called backstreet abortions, which often led to severe pain, bleeding, and damage to their reproductive organs. Some of the women who gave birth tried to abort their pregnancies at home without success. Some of those who had had abortions expressed feelings of shame and guilt, partly because of the stigma attached to abortion in Kenya.
Forty-three-year-old Wamai M. said she watched as her husband was cut to death during the 1997 ethnic clashes in Eldoret. The killers also raped her when she was eight months pregnant. She was raped again during the 2007-2008 post-election violence and became pregnant. Having lost her husband, her home and property, and with three children to look after, she did not want to carry the pregnancy to term. She said:
We were at the camp in Uganda. It was an open space and there was no security or lighting. Women started to complain of rape. Men attacked us one day as we were sleeping. Their accent was Ugandan. Four men raped me. Later I found out that I was pregnant. I thought of killing myself. It would have been better if only one man had raped me; that way I would say my child has a father somewhere. But they were four men. Am I a dog? I went and bought medication to abort. I took it, I got very sick, but I did not lose the pregnancy. I was in so much pain I feared I would die. I did not go to hospital because of shame. I tried to abort again but started bleeding a lot. I went to see a doctor who provides backstreet abortions. He checked me and said the medication I had taken had affected the baby and it was abnormal. He said he could help me to abort, but I didn’t have the money he asked for. A cousin of mine who is a nurse in Nairobi helped me to abort. It was very painful and I bled a lot. I feel pain in my cervix. Other times I have a white discharge.
Owuor P. told Human Rights Watch about the rape and pregnancy of his 16-year-old sister, and how he takes care of her baby after she tried to terminate the pregnancy unsuccessfully several times and eventually killed herself:
We are not sure how many raped her. She told us that she saw three men rape her and then she lost consciousness. She was just quiet most of the time after the rape. She became pregnant. She didn’t want the baby. She tried to abort three times. I used to take her to the MSF [Medecins Sans Frontiers] clinic after the abortions. They would counsel her, but she was adamant she didn’t want the baby. When she was about eight months pregnant, I was called by a neighbor saying my sister had fainted. She was taken to KNH [Kenyatta National Hospital], but she didn’t make it. She had taken some medication to kill herself and the baby.
Unsafe abortion remains a leading cause of maternal morbidity and mortality in Kenya.
A 2013 study shows that there were an estimated 464,690 induced abortions in Kenya in 2012, and that about 37 percent of the women developed severe injuries as a result. The study also noted a high mortality rate from unsafe abortions.
Kenya’s Restrictive Abortion Law
Although the government recognizes that the treatment of complications from unsafe abortion consumes significant health system resources and contributes to an already high maternal mortality rate, and despite high levels of sexual violence, Kenya’s abortion law remains restrictive. Under article 26 (4) of the 2010 Kenyan Constitution, abortion is only permitted where, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger. Kenya’s Penal Code criminalizes women who have undergone an abortion (an offence punishable by a seven-year prison term), as well as other persons who help them to procure abortion.
Although the provision in the 2010 constitution is a step forward from the previous constitution where abortion was only permitted to protect a woman’s life, it is not clear how widely this new provision is known or implemented. Health providers may also be reluctant to offer abortions for fear of prosecution. Currently, there are no guidelines on how health professionals should implement the constitutional provision on abortion. In December 2013, the Director of Medical Services arbitrarily withdrew the 2012 “Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion,” and put a ban on training in safe abortion for all health care providers.
Although a process is under way to develop new guidelines, advocates are doubtful that they will be finalized any time soon, and decry the Ministry of Health’s blatant disregard for women’s constitutionally guaranteed right to health. The Federation of Women Lawyers in Kenya has gone to court to compel the Ministry of Health to reinstate the guidelines and training of health workers, as well as to clarify when legal abortion can be provided based on the grounds set forth in the constitution. The case is pending in court.
In October 2010, Kenya ratified the Maputo Protocol and entered a reservation to article 14 (2c), which calls on states to take all measures to: “[P]rotect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus.”
Treaty body jurisprudence has elaborated that denying women access to abortion where there is a threat to the woman’s life or health, or where the pregnancy is the result of rape or incest violates the rights to health, privacy, and, in certain cases, to be free from cruel, inhumane and degrading treatment. Criminalization of health services that only women require, including abortion, is a form of discrimination against women.
Sexual violence has a huge psychological impact on survivors, sometimes leading to depression and suicide. Survivors’ families and communities also suffer. Almost all sexual violence survivors Human Rights Watch interviewed described deep feelings of hopelessness, self-hatred, shame, anger, guilt, lack of self-esteem and worthlessness, and sadness. Virtually all experienced psychosomatic pains such as chest pains, backache, stomachache, and insomnia. Other survivors said they had developed a fear of men, men in uniform, sex, dark or isolated places, and public spaces.
“It is in me and it has refused to go away”: Profile of Achieng’ Y.
It was January 5, 2008. Ten GSU [paramilitary police] officers came to our house. They asked for our names and each person gave their name. Without saying a word, they cut my dad on the neck with a machete and he fell down. They slapped us and I think I lost consciousness. When I came around, I found I had been raped.
I was 16 and in class eight and my sister was 18 years. We could not go to the police because there was a lot of fighting going on around the estate. We stayed in thehouse for three days before we managed to call for help, with my father’s dead body lying there. We left my dad’s body and all our belongings in the house. We have never gone back to that house. We have no place to live.
My sister became pregnant from the rape and has a child. We both stopped school because there was no one to pay for our education.
The rape has severely affected me. It is in me and it has refused to go away. Most times I don’t want to talk to anyone; I want to be left alone. Friends ask me what the problem is and I just give them a blank look. I don’t trust them. I fear they will tell about the rape. I usually get accommodated by friends. When a friend starts to ask me too many questions I leave them and go to live with another.
These GSU [paramilitary police officers] destroyed my life; our life. I feel pain because it was not my fault. I hate men. I don’t have a boyfriend now and I am not interested in having one. I am always thinking about how different my life could be if I hadn’t been raped and my dad killed. I take long to fall asleep because thoughts of the rape and watching my dad being killed flood my mind. I cry a lot. I have thoughts of killing myself. I feel worthless. I hate Kikuyus. They did this to me. I haven’t received any counselling and I am not in any support group. I would like counselling. This would be my priority for now.
-Human Rights Watch interview with Achieng’ Y., Nairobi, November 14, 2014
Almost all victims experience profound and sometimes uncontrollable distress if exposed to people or circumstances that remind them of their ordeal. Some survivors expressed so much anxiety and fear that they said they had to stay with their doors closed at all times; and that they easily got frightened. Some women said they are often overwhelmed with thoughts of the rape and other violence that they witnessed, such as killings of family members and destruction of their properties. They said they found it difficult to focus to do their daily work or to fall asleep as a result. The mental anguish that some sexual violence survivors experience is compounded by the fact that they often suffer in silence and alone, without the support of family members who also stigmatize and reject them.
Amondi T., a mother of four, was raped in the presence of her child. Her husband was killed during the violence and one of her children disappeared. She said she got infected with HIV from the rape. She told Human Rights Watch that she has no peace at all:
I easily get frightened. I have high blood pressure. I get bad headaches and sometimes my chest pains. At the hospital they tell me not to stress too much. But I lost my child, my husband is gone, and I have no work. How can I not stress? Sometimes I can stay the whole night without falling asleep. I am not at peace at all. I am okay when I am in a group. But when I am alone I get an overwhelming sadness.
Young girls who were raped experience nightmares, have difficulty in school, and express fearfulness. Nyakio S.’s daughter was raped in January 2008 at a camp for the internally displaced. She was only three years old. She said, “We tried to take her to school but she refused. She said she will meet the man in shorts who had hurt her. Sometimes she screams in her dreams saying, ‘The man in shorts has come to take me.’” Nasambu H. told Human Rights Watch about the rape of her niece when she was five:
I am not sure how many raped her but five men attacked our home. She was crying and bleeding when I found her. She stopped going to school for some time because she had problems walking. She has changed so much since the rape. She is not happy at all. She does not interact well with other children. Her teachers say that sometimes she just walks out of the classroom and starts to wander in the school compound. She is not doing well at school. I had to tell the teachers what happened so that they can help her. She says she is fearful. She is so afraid of boys.
Some survivors, such as Opiyo F.’s niece who was gang raped by five men when she was 12, are unable to go about their daily routines because of their mental health conditions:
It’s like she is confused. She can’t take up responsibilities at home. Sometimes she just sleeps. She can sleep the whole night and day. She got infected with HIV and is on treatment, but someone has to give her the medication otherwise she won’t take it. She talks and sings to herself. She talks strange things. Sometimes if you talk to her she says, “Don’t talk to me, I am waiting for my day to die.” She was counselled before but I feel she needs proper treatment.
Family members who witnessed the rape of their mothers, sisters, wives or other relatives were also affected psychologically. Nyawira P. told us, “My daughter despises men. She knows about the rape. Sometimes she cries when she sees my suffering. She says the rapists destroyed our lives.” Awino J. commented about her husband’s response to her rape: “My husband never wanted to talk about the rape. He asked me to go to church to pray. Whenever he tried to talk about it he would break down crying.”
One woman who said she was gang raped by members of the Kenyan police’s General Services Unit said she has developed such a fear of men in uniform that she even misses out on work opportunities. “I fear men in uniform. I cannot even go to the area chief when there are opportunities for casual jobs. I don’t like mingling with people. When I go home I just stay at my mother’s compound.”
HIV adds to the mental anguish experienced by rape survivors. HIV is highly stigmatized in Kenya, meaning rape survivors suffer double stigma. Most survivors interviewed by Human Rights Watch said that their biggest worry following rape was that they had been infected with HIV. Many HIV positive rape survivors expressed deep anxiety, shame, and grief at being HIV positive. One witness told Human Rights Watch about the mental anguish that her sister went through as a result of rape and infection with HIV, and her death:
She was raped by more than seven men in Kapsabet. She came to stay with me after the rape. We went to Moi Referral [Hospital] and they counselled her. She stopped talking on the day she was told she was HIV positive. She was admitted at the hospital for about a month. They tried counseling her to take her medication but she completely refused. She asked why the hospital was giving her drugs all the time and they were not taking away the HIV. She refused to go for checkups. She never used to sleep most of the times. She used to talk to herself at night saying, “Why did these people do these things to me? It’s better if they killed me instead of raping me.” At some point she refused to eat. She eventually died.
A pregnancy following rape and the birth of a child from rape also exacerbates survivors’ psychological and emotional suffering. Women interviewed by Human Rights Watch expressed immense pain at having to raise children born from rape whom they said were a constant reminder of the sexual assault. Some women told Human Rights Watch that they were also struggling with how to explain to the children their birth circumstances. Rape survivors have often gone to significant lengths in order to keep information of the birth situation from the child, as in the case of Kwamboka G. who told us:
She is a constant reminder of what happened. But again she is not there to be blamed. It is more painful when she asks me where her father is. What do I tell her? Should I tell her the truth? I usually tell her that her real father died. I also told my boyfriend that the father of the girl died so he agreed to be her father. But I am worried about what will happen to me and my child when he finds out the truth.
Several interviewees said they seriously considered killing themselves. Adek J., 51, said she was raped by 3 men and got infected with HIV. Her husband was beaten badly during the post-election violence and lost his desire for sex. They had a thriving retail business but the shop was burned down and they have not been compensated by the government. She said her financial situation is so bad that she could not raise 200 Kenyan Shillings (US$2) in order to be given her child’s school report. She told us: “I wanted to kill myself on October 20 this year . My life has no meaning. No one can help me.”
Awino J. and her four-year-old daughter were raped during the post-election violence. Her husband’s back was badly injured then and he now uses a wheelchair. Two of her children died from injuries they sustained in the violence. She told us, “I had planned to kill myself and my daughter and leave my husband alone.”
The majority of women interviewed said they had not received any counselling or had insufficient counselling to deal with the impact of sexual violence and other abuses. Mental health services in Kenya are provided as part of primary health care. There is some outpatient treatment conducted through hospitals, but specialist care hardly reaches into communities. Hospitals mostly treat those with severe mental disorders and substance use disorders. There is one referral psychiatrist hospital based in the capital Nairobi providing inpatient services for the whole country. According to the international organization BasicNeeds, which implements mental health programs in four regions in Kenya, each district has only one or two psychiatric nurses working in public hospitals. Experts note that Kenya has failed to invest in mental health care.
Kenya’s public mental health system is not oriented toward survivors of sexual violence or in general toward those individuals with mental-health conditions related to trauma experienced during the armed conflict. Kenya has established gender violence recovery centers providing free, comprehensive services to survivors of sexual assault, including psycho-social support, but these are not available in all hospitals and are largely limited to facilities in urban areas. Some NGOs and community based organizations also provide counselling services to survivors of rape and other sexual violence, but these are limited in reach.
Many survivors expressed a need for psychosocial support, including counselling, facilitated sharing of experiences with other survivors through community support groups, and general support in overcoming the stigma and isolation connected to having been a victim of sexual violence. The Kenyan government has not implemented programs targeted towards survivors of post-election sexual violence to provide access to confidential and quality psychosocial support services.
Human Rights Watch interviewed a few women in Nairobi who said they had received long-term counselling–over two years–at Kenyatta National Hospital following referral by civil society and religious groups. They said they had found it useful in helping them move on with their lives. Some have become peer counselors for sexual violence survivors in their communities. Some women were in HIV support groups to cope with the impact of both rape and HIV. Awino J. commented: “I go to meetings on HIV. It helps me. It gives me hope.” Others said they needed more counselling to effectively deal with the impact of rape. Chemutai C. said, “I am in a support group for survival. I have never been counselled properly. I would want to do professional counselling.”
Rape is highly stigmatized in Kenya. Instead of expressing understanding and support, families often blame and ostracize victims of sexual violence, aggravating the physical and psychological suffering they experience. Following a sexual assault, rape victims have often been rejected by their families and abandoned by their husbands. Some women also experience physical violence and verbal abuse.
“You are Useless”: Profile of Nyawira P.
It was on Friday, January 25, 2008 at around 11:30 p.m. Someone called my husband and said a neighbor had been shot, and that Kalenjin youths were burning homes belonging to Kikuyus. I took my daughter who had just given birth and her newborn to a small hut in the farm and hid them there. I returned to the house to pack a few things. As I was entering the house, some men grabbed me. They pushed me against the wall and tore my clothes. I remember the first four men raping me. They were talking in low voices in Kalenjin. I passed out and do not know how many others raped me. When I woke up I felt blood coming from my vagina. The pain was so sharp like someone had inserted sharp objects inside of me.
I continue to feel a lot of pain in my back and lower abdomen. My hips ache. I cannot lift a load, bend or carry something heavy on the back, or work on the farm for long periods. Sometimes my whole leg loses feeling. I was told by the doctor I have a cervical infection. Sometimes when I think of the experience I cry. For three years I never wanted to see a Kalenjin man. When I am walking and I see young men I avoid them and have to look away.
After the rape my husband changed and refused to sleep in the same bedroom with me. He used to beat me, telling me to go to my Kalenjin husbands. He would ridicule me: “You are useless; you better die. I cannot even touch you.” Many times he would chase me out of the house. He used to pick girls at the shopping center and bring them home. My husband told his family about the rape and now they despise me.
My husband died this year  and his brothers want to take my land. I helped my father-in-law to identify and buy this land. I borrowed 2,000 shillings [US$20] from my sister and built a house on this land. And despite all the years I have lived here, I am very anxious it can all be taken away and I could lose my home. If that happened I would have nowhere to go.
-Human Rights Watch interview with Nyawira P., Nakuru, November 17, 2014
Stigma and Abandonment
Very few of the women interviewed by Human Rights Watch reported a supportive response by their husbands and families following rape. The level of stigma women face in their families and communities was captured by Chepkemboi T. who observed that, “A raped woman is a dead woman in the Kalenjin community. You become invisible to your family and the whole community.”
Rape is more stigmatized when it is linked to other taboo conditions such as HIV. For example, Mongina W. commented: “I told my husband about the rape the following day even before I tested for HIV. He said, ‘I cannot live with you because I don’t know whether you don’t have HIV.’ He left.”
In a historic move, Kenya's citizens voted overwhelmingly in favor of accountability and reform when they supported a new constitution by a two-thirds majority in August 2010. Constitutional reform was among the steps to which the coalition government agreed after the 2007 post-election violence. It paves the way for restructuring the government, establishing a land commission, and carrying out sweeping changes to the police and judiciary. The year also saw the prosecutor of the International Criminal Court open an investigation into the post-election violence. Kenya continues to suffer the regional effects of Somalia's crisis, with a steady flow of refugees entering the country; some suffered serious abuses at the hands of Kenyan police as they tried to find safety.
A New Constitution
The new constitution, supported by 67 percent of Kenyan voters on August 4, was the culmination of four decades of effort. The new coalition government committed to a new constitution, among other reforms, after post-election violence in 2007 in which 1,300 people died and hundreds of thousands were displaced.
The new constitution addresses several longstanding concerns, namely the concentration of power in the executive, the absence of checks and balances, and the use of land as a tool of political patronage. It creates a smaller cabinet of ministers who do not have to be parliament members; reforms the legislature by creating an upper house, the Senate; and devolves considerable power to a new tier of county governments and governors. In an effort to address the judiciary's lack of independence, the new constitution creates a new judiciary service commission to nominate judges, creates a new post of director of public prosecutions, and requires parliamentary approval for appointing the attorney general. It also enshrines in law a land commission, which removes the president's ability to allocate land, review existing land holdings, and set minimum and maximum holdings of land.
Celebration of the constitution was marred by the presence of Sudanese President Omar al-Bashir, who is wanted on ICC arrest warrants for genocide, crimes against humanity, and war crimes. The government's invitation to al-Bashir and its failure to cooperate with the ICC to arrest him call into question its commitment to cooperate with the court's investigation.
Impunity and Accountability for Post-Election Violence
Impunity remains a pervasive problem in Kenya. In 2008 the coalition government promised to establish a national tribunal to investigate and prosecute those most responsible for the post-election violence, or refer the crimes to the ICC. It failed to do either, and in November 2009 the ICC prosecutor sought authority from an ICC pre-trial chamber to begin investigations in Kenya. On March 31, 2010, the chamber granted permission by a vote of two judges to one, after which the ICC prosecutor announced an ambitious agenda to bring at least two cases against four to six individuals by the end of 2010.
While a limited number of cases are being investigated by the ICC, Kenya has not credibly and effectively investigated and prosecuted other perpetrators of the post-election violence.
Witness protection emerged as a key challenge to investigations. Threats against individuals who witnessed post-election violence, including some who testified before the Commission to Investigate the Post-Election Violence, increased after the prosecutor announced that he would seek to open a Kenya investigation. In May the president signed into law amendments to the Witness Protection Act, a key step in reforming Kenya's witness protection system. The amendments create a new witness protection agency with increased independence, but resources and time are needed to implement changes.
There have been no investigations or forthcoming prosecutions for war crimes committed by the insurgent Sabaot Land Defence Force or Kenyan security forces during the 2006-2008 Mount Elgon conflict; abuses by Kenyan army and police units implicated in using excessive force in disarmament operations in Mandera and Samburu districts; or extrajudicial killings and enforced disappearances of suspected Mungiki gang members by police officers. There were no developments in finding the killers of Oscar Kamau Kingara and John Paul Oulu, human rights defenders from the Oscar Foundation Free Legal Aid Clinic who were gunned down in Nairobi in 2009.
There were two achievements in the efforts against impunity during 2010.
In a landmark ruling on February 4, 2010, the African Commission on Human and Peoples' Rights condemned Kenya's government for expelling the Endorois people from their traditional land for tourism. It ruled the eviction-with minimal compensation-violated the Endorois' right as an indigenous people to property, health, culture, religion, and natural resources. It ordered Kenya to compensate and restore them to their historic land. It was the first international tribunal ruling to find a violation of the right to development.
In another unprecedented judgment, Kenya's constitutional court awarded US$500,000 compensation to 21 political prisoners who were tortured during the government of former president Daniel Arap Moi, who left office in 2002. The court had previously ruled that the case, from the period when Moi was in office, could not be heard.
In January 2010 President Mwai Kibaki set up the Police Reforms Implementation Committee to monitor the progress of reforms. The committee included members of civil society. Key aspects of the reforms, such as establishing an independent police oversight board, are provided for in the new constitution, but other recommendations, such as merging the administration police with the regular force, are not.
Eight Kenyans were transferred illegally to Uganda following the bombings in Kampala, Uganda's capital, in July and were allegedly mistreated in detention.
The overstretched refugee camps in Dadaab, northeastern Kenya, continued to receive thousands of new arrivals during the year, including some 34,000 people between January and September.
Many of the new refugees from Somalia endured serious abuses at the hands of Kenyan police when they crossed the officially closed border. These included violence, arbitrary arrest, unlawful detention in inhuman and degrading conditions, threats of deportation, and wrongful prosecution for "unlawful presence" to extort money from the new arrivals-men, women, and children alike. In some cases, police raped women. Police also failed to diligently investigate and prosecute rapes within the refugee community.
In early 2010 hundreds, and possibly thousands, of Somalis unable to pay extortion demands were sent back to Somalia in flagrant violation of Kenyan and international law. The Kenyan government announced an internal investigation into the allegations. In October the government promised to reconstruct the screening center at Liboi on the Somali border "soon." However, Kenya continued to deny almost 400,000 camp-based refugees the right to free movement in the country, in violation of international law.
Women's and Children's Right to Health
Partly due to health care system failures, tens of thousands of Kenyan women and girls die each year in childbirth and pregnancy, while more suffer preventable injuries, serious infections, and disabilities. Maternal deaths represent 15 percent of all deaths for women of reproductive age-one in 39 women in Kenya die during childbirth according to the United Nations-while an estimated 300,000 women and girls are living with untreated fistula. Kenya's restrictive abortion laws, which criminalize abortion generally, contribute to maternal death and disability. Unsafe abortions cause about 30 percent of maternal deaths.
The Kenyan government fails to provide adequate pain treatment and palliative care for hundreds of thousands of children with diseases such as cancer or HIV/AIDS. Oral morphine, an essential medicine for pain treatment, is currently out of stock. Kenya's few palliative care services, which provide pain treatment but also counseling and support to families of chronically ill patients, lack programs for children.
Sexual Orientation and Gender Identity
Kenya continues to punish consensual adult sexual conduct with up to 14 years imprisonment. On February 11, following unsubstantiated rumors of a "gay wedding" in the coastal town of Mtwapa, influential Muslim and Christian religious leaders demanded the closure of the Mtwapa office of the Kenya Medical Research Institute (KEMRI), which conducts research on HIV/AIDS with men who have sex with men. The religious leaders issued a statement promising to "flush out gays" in Mtwapa.
On February 12, a group of over 200 individuals-armed with sticks, stones, and other makeshift weapons-surrounded KEMRI. Smaller mobs went to the homes of people suspected of being gay. The police attempted to protect the individuals targeted by the mob by taking them into custody. Another mob severely beat up a KEMRI volunteer on February 13. Two individuals were beaten up in Mombasa on suspicion of being gay, on February 13 and 16 respectively.
In Mtwapa, Mombasa, and elsewhere, lesbian, gay, bisexual, and transgender people went into hiding in fear for their lives, and HIV/AIDS outreach, testing, and treatment among men who have sex with men remains compromised by the attacks and the continuing climate of homophobia.
Key International Actors
Kenya's partners in Europe and North America are united in pushing for accountability for the election violence and an end to impunity, key conditions of the reform agenda that Kofi Annan brokered in early 2008. The United States and the European Union continued to threaten travel bans against key suspects and government members to encourage Kenya to pursue reform. The US continues to support Kenya's military and police, particularly their counterterrorism efforts, and thus has some influence over the conduct of those forces.
Kenya cited a July 2009 decision by the African Union not to cooperate with the ICC in arresting al-Bashir to justify its failure to do so during his August visit. In the face of criticism over al-Bashir's visit, including from many of Kenya's international partners, officials repeated their commitment to work with the ICC in its Kenya investigation. Kenya also concluded an agreement in September with the ICC to facilitate the court's work within its territory. Nonetheless, concerns over Kenya's willingness to fulfill its commitments to cooperate with the ICC persist in the wake of al-Bashir's visit.
Regionally, the conflict in Somalia where the al-Shabaab militia continues to strengthen and the fragility of Somalia's transitional government remain pressing security concerns for Kenya. The 2011 referendum on the status of neighboring Southern Sudan is a key issue that could have major implications for Kenya as a frontline state and host to refugees.