December 3, 2023

BY Lisa Owino

Description provided by author: The front door of a feminist activist living in Nairobi, on it there are the words “This house is out of bounds for patriarchs”

Gender-based violence (GBV) is a prevalent social problem worldwide. The Kenya Demographic Health Survey 2022 reports that 34% of women and 27% of men in Kenya have experienced physical violence, while 13% of women and 7% of men have experienced sexual violence. It is difficult to know whether this accurately reflects the magnitude of GBV, as it is universally underreported especially to formal authorities. Beyond Criminalization perspectives note that addressing rights violations through legal proclamations is a popular solution adopted by States – a signal by governments to society that the former refuses those acts. This is true for GBV where criminal provisions are internationally recognized as a critical legislative measure to eliminate GBV as well as codify the right to live free from violence. However, despite legal protections in many countries, GBV remains pervasive. States deprioritize addressing its root causes for quantitative measures such as prosecution and conviction rates. 

One of the purposes of criminal law is general deterrence from acts that the State has dictated as ‘crimes’ due to the perceived certainty of punishment. However, the certainty that ‘everyone who commits a crime would be caught, convicted and detained’ is critical for deterrence. Where crimes are noted on paper yet rarely prosecuted in practice, then there is a lower perception of certainty of punishment. GBV in Kenya, while criminalized in theory, is generally lowly prosecuted in practice. GBV particularly in the home, for instance in intimate partner or parent-child relationships, are seen as family matters – moral rather than legal. Anecdotally, no matter how open the abuse is in a family situation, people may hesitate to intervene directly or indirectly through involving the authorities.

In a documentary on Gender Violence Survivors on Citizen TV Kenya, one of the survivors, Hope*, noted that the neighbours were all aware that her husband was abusive but they never intervened. In fact, she was actively shunned – people refused to talk to her at the market and her children were isolated from play groups. The violence meted out a stain on her and her children despite being the victim. She was unable to leave the relationship as she lacked the resources, and any attempts to leave were met with extreme threats and violence against her children. In a deterrence focused legal regime where criminal law is constantly touted as the solution, she went to the police who told her that this was a matter to be sorted at home. Disappointing but not unexpected – police after all are raised in the very same society that barely recognizes the harm of interpersonal violence inside the home. She was eventually connected to a shelter, but remains fearful about what will happen after she leaves the shelter. In this situation, the criminalization of GBV is almost theoretical – an idea on paper that the government can use to pat itself on the back as a measure to end GBV yet having little to no effect in preventing or even responding to actual violent situations in Kenyan society. This is a prime example of the challenge of pedestalizing criminal law and its deterrent effect – the State’s role is reduced from a holistic protector and promoter of all rights to a punisher. And where the State is uninterested in investing actual resources to address the underlying socio-economic causes that drive GBV or even provide more holistic support to survivors, then it can point to endless lists of laws, policies and proclamations that remain unknown and unenforced. 

The documentary highlighted the demand for emergency shelters in the country. In Kenya, there are only two government-run safe houses and victims need to report to the police and make a request through the investigating officer.   The National Police Service is also piloting a one-stop center where victims can access medical, legal and social services known as Policare (short for Police Cares) that is more focused on equipping police to facilitate holistic service provision for GBV victims. There is currently one operational center in the country. Theoretically, Policare represents an expansion of police’s role beyond enforcing criminalization – particularly in facilitating access to holistic services and, interestingly, working with Kenya Prisons to rehabilitate and reintegrate SGBV offenders into communities. On the flip side, its objectives are still focused on enhancing prosecution and increasing convictions. Moreover, it expressly pawns the responsibility of provision of safe houses and economic support to non-state actors who at best provide temporary transitional housing. This is unsustainable as non-state actors depend on volunteer labour and/or donor funding. An organization dedicated to ending GBV, Usikimye, had to close its helpline and call center due to lack of resources. Policare also missed an opportunity to embed resourcing of safe houses in the national agenda. 

In my experience, donors and therefore organizations’ measures for success lie in engaging with government structures (especially the legal system); pushing for more or better implementation of existing legal frameworks; and providing education to GBV victims on how to use the legal system to get justice. There is less focus on setting up infrastructure where GBV victims can get immediate or short-term support that actually facilitates exit from violent situations. And the logic is sound – if you can convince the biggest service provider (the Government) then efforts are more likely sustained. But I’m also disheartened at the thought of educating victims ‘not to shower after rape’ to preserve forensic evidence until the Government decides it truly cares.

The Government also makes little effort to actually challenge the very prevalent social attitudes normalizing GBV through public education. This is not due to a lack of knowledge as the Government has undertaken deep and impactful campaigns around social issues in the past. In seeking to destigmatize HIV and promote safe sex, the Government worked with PEPFAR and MTV to create a TV series around this topic called MTV’s Shuga that ran Kenya-specific stories in 2009 and 2011. There were additional campaigns around promoting condom use and you’d be hard pressed to find a Kenyan of a certain age who does not know the  ‘maisha iko sawa na trust mfukoni’ line, or to ‘just chill’, which was promoting abstinence in youth. 

Ending GBV at a societal level is undeniably complex and likely something that cannot be achieved through government intervention alone. In order to even make strides towards this, we must imagine the Government beyond a proverbial whip that punishes offenders – rarely and inconsistently at that – but a welfare State that prioritizes supporting victims in violent situations. As Summer Walker asks in Hardlife, ‘When will we get what we need?