By Lady Justice Kalpana Rawal*

The Immediate Realisation of Women and Children’s Rights: Lessons from the Kenyan Case of C.K & 11 Others V Commissioner of Police/Inspector General of Police & 2 Others Petition No. 8 of 2012

By Lady Justice Kalpana Rawal*

1.0 Introduction

The Constitution of Kenya, 2010 encapsulates under Article 10, the national values and principles of governance which bind all state organs, state officers, public officers and all persons. These national values and principles include: the rule of law, human dignity, equity, socio justice, equality, human rights and non-discrimination. On the other hand, Article 21 enjoins the state and its organs to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. Article 21(3) specifically requires’ all state organs and public officers to address the needs of vulnerable groups within society, including women and children. Consequently, women and children have been granted specifically proclaimed declared constitutional rights to enjoy equal protection before the law and be protected from all forms of human rights violations including sexual violence.

Kenya has ratified International human rights instruments, which further enhance the obligation placed upon the state and its organs to uphold human rights. The Constitution encourages the adherence to these international instruments under Article 2 (6) which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya. Notable human rights instruments that bind the state parties to protect women and children from sexual violence are the International Covenant on the Elimination of all Forms of Discrimination against Women[1], the African Charter on Human and People’s Rights[2], the African Charter on the Rights and the Welfare of the Child[3] and the Convention on the Rights of the Child.[4] State parties are obligated by these human rights instruments to observe, respect, protect, promote and fulfill the women and children from violence through legislative and other necessary means.

This paper seeks to analyse the case of C.K (A child & 11 Others v Commissioner of Police/Inspector General of Police & 2 Others[5] (“160 Girls Case”) in the light of the remedies given therein with a view of establishing their effectiveness and sufficiency in addressing sexual violence. This will be by way of a brief background of the “160 girls’ case” in terms of the facts, the prayers sought and the orders granted by the Court. The paper further identifies the various stakeholders such as the state and the judiciary, that have been bestowed upon the obligation to observe, respect, protect, promote and fulfill the rights and fundamental freedoms enshrined in the Constitution. The paper, through a comparative analysis of the relevant jurisdictions, highlights the role of the state and the place of judiciary in upholding the Bill of Rights. The paper concludes by arguing a case for immediate realization of women and children’s rights, their dignity and violation of their inner core of existence; particularly by recognizing the different but intertwined roles of multiple stakeholders.

2.0 Overview of the “160 Girls’ Decision”

On 27th May, 2013 the High Court in Meru delivered a significant and unprecedented judgment after 11 girls, through Ripples International, an NGO that shelters vulnerable children in Meru County, successfully challenged the Commissioner of Police/Inspector General of Police on their failure to conduct prompt, effective and proper investigation to the petitioners (inclusive of a child and women) complaints of defilement and other forms of sexual violence.

The petitioners prayers were as follows: a declaration that the neglect and omission by the respondents to carry out prompt, proper and effective investigations into the petitioners complaints violated the petitioners’ rights and freedoms as enshrined in the Constitution; an order of mandamus directing the respondents to carry out proper investigations into the petitioners’ complaints; an order of mandamus directing the Minister for Justice, National Cohesion and Constitutional Affairs to formulate a National Policy Framework envisioned by Section 46 of the Sexual Offences Act, 2006 and to implement the guidelines provided in the Reference Manual on the Sexual Offences Act and an order requiring the respondents to regularly account to the Court on the extent of their compliance or implementation of those orders.

The Court, acknowledged that the petitioners’ constitutional freedom from violence and in this case the sexual violence, right to dignity, non-discrimination and to enjoy equal protection of the law were violated on account of the failure by police to carry out proper, timely and effective investigation and prosecution of the petitioners’ complaints of defilement and other acts of sexual violence.

In particular, the Court stated that the police owed the petitioners a constitutional duty to protect their rights and that duty was breached when they failed, neglected, omitted or refused to conduct prompt and proper investigations. The Court directed the Commissioner of Police/Inspector General of Police to carry out prompt, effective, proper and professional investigations into the petitioners’ respective complaints of defilement.

However, the court declined to grant the petitioners’ prayers for the respondents to formulate a National Policy Framework and to implement the guidelines provided in the reference manual on the Sexual Offences Act as well as the order directing the respondents to regularly appear before court to report on its compliance with the implementation of the orders.

I shall in this paper concentrate more on the last order.

3.0 Obligation of the State and its’ organs in relation to entrenched rights

The Constitution of Kenya, 2010 obligates the state to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. This ensures that a violation of rights is not a mere individual problem but one which the state has the obligation to address.[6] In essence, the government has been called upon to not only prevent perpetration of any human right violations but also provide the most adequate solution necessary to remedy any such violation. Japhet Biegon, has correctly summed up these duties as follows:

“The duty to respect requires the state not to do anything that infringes on the rights of the individual. The duty to protect requires the state to ensure that third parties such as other individuals do not infringe on the rights of the individual. Finally, the duty to fulfill requires the state to take positive measures to ensure that the individual enjoys all rights in practice. ...the duty to promote requires the state to ensure people are aware or educated of their rights.[7]

Consequently, the Constitution is a transformative document to the extent that it lays emphasizes on the obligation of the state to actively intervene positively in furtherance of the rights and freedoms guaranteed to all its citizens.[8]

The judiciary around the world has been at the forefront of safeguarding the rights and fundamental freedoms enshrined in the Constitution. In Colombia for example, the Constitutional Court in a landmark ruling delivered in 2004[9] declared that the humanitarian emergency caused by forced displacement constituted an “unconstitutional state of affairs”, that is, a massive human rights violation associated by systematic failures in state action. The court stated that the public policy implemented was incoherent, insufficient and not grounded adequately in human rights standards. The court, therefore, ordered the government to implement a series of measures to solve the broader structural problems faced by the internally displaced persons, and in particular to ensure their access to food, health, housing, education and land. Finally, to ensure that the government would comply with its ruling, the court implemented a monitoring system which was used to assess public policy against human rights indicators developed by the court.[10]

The courts in India too have shown tremendous willingness to issue orders requiring continuous supervision in order to ensure enforcement of the orders given.[11] This ensures that the relief granted by the court is actually made available.[12] For example, in the widely recognized South African case of Government of Republic of South Africa v Grootboom[13] the Constitutional Court issued only a declaratory relief leaving the government to determine how it would redress the right to housing. Consequently, the applicant therein died homeless without reaping the fruits of the judgment which had affirmed her right to housing.

4.0 Progressive or Immediate Realization of Socio Legal Rights

Socio-legal rights in this context has been used to refer to the rights enshrined in the Bill of Rights that do not necessarily fall within the mainstream categorization of human rights. This paper specially highlights the rights of women and children to be protected from sexual violence as examples of such socio legal rights. The “160 girls’ case” reiterated the state’s obligation in ensuring protection and preservation of the right to dignity and access to justice to women and children by laying concrete steps towards addressing sexual violence in Kenya under the new Constitutional dispensation.

The Court also brought to life the application of Article 2(6) of the Constitution by re-affirming some of the international human rights instruments that Kenya has ratified which essentially recognize and protect the human dignity of all, especially women and children. In this particular case, the Court affirmed Kenya’s international obligation in the Universal Declaration of Human Rights; the Convention on the Rights of the Child; the African Charter on the Rights and Welfare of the Child and the African Charter on Human and People’s Rights.

The Court clearly stipulated how future investigation by the police should be carried out by restating the responsibility of the police to conduct prompt, thorough and professional investigations on all cases reported to them without any form of discrimination. The Court by affirming that the rights of the children were violated, reignited the hope of thousands of children who are sexually abused every year most of them without recourse to law.[14]

However, more than a year after this judgment was delivered, it still remains unclear as to the extent of implementation of the Court’s orders by the various state organs named therein. The issue then is how similar future cases can be addressed to ensure that women and children reap the fruits of the Constitution by facing equal treatment before the law and particularly by being protected from any form of sexual abuse. Needless to say that child’s sexual abuse and violence are demonic acts and in my view the scars of those who experience it stay with the abused throughout their life.

The Constitution vests on the courts, powers to grant appropriate relief under Article 23 including declaration of rights, injunction, conservatory orders, a declaration of invalidity of any law that violates the Bill of Rights, compensation and orders of judicial review. In this case, the Court mandated the Commissioner of Police to conduct effective, proper, prompt and professional investigations into the petitioners’ respective complaints of defilement and other forms of sexual violence. However, declaration of rights on its own may not always be and was not sufficient, at least in this case. This scenario would reduce an order of the court totally ineffective and tantamount to denial of justice to the aggrieved person.

What then is the court expected to do in similar circumstances? I believe the court need to go further and where possible, stipulate the mechanism to be followed by the state or its organs in implementing such a decision. This is in line with Article 23(3) of the Constitution which stipulates that the court may grant any appropriate relief.

Courts in Kenya, just like other jurisdictions, have where the situation requires, exercised supervisory jurisdiction over the orders they give in order to ensure compliance. For example, Justice Mumbi Ngugi in the case of Mitu-Bell Welfare Society v Attorney General & 2 others[15] granted supervisory orders by requiring the state to report to court within the stipulated time on the progress made towards a resolution of the petitioners’ grievances. In particular, the court held inter alia that:-

“That the respondents do provide, by way of affidavit, within 60 days of today, the current state policies and programmes on provision of shelter and access to housing for the marginalised groups such as residents of informal and slum settlements….That the parties report back on the progress made towards a resolution of the petitioners’ grievances within 90 days from today.”

Further, in the case of Vishaka v. Rajasthan[16] the Supreme Court of India gave such supervisory orders. In this case, the police officers in Rajasthan state of India failed to carry out prompt, effective and professional investigations on women’s complaints of sexual harassment in their places of work. The Supreme Court relied on Article 10 of the Indian Constitution to allow the application of international human rights instruments that include the International Convention of the Elimination of All Forms of Discrimination against Women (CEDAW), which guarantees women’s right to safe working conditions.

The Court taking cognizant of the systematic failure by police officers in India to carry out proper, prompt and professional investigation on complaints of sexual harassment in the work place, and the Indian Parliament’s laxity to enact an appropriate legislation that would proscribe sexual harassment in place of work and afford victims adequate remedies, formulated guidelines and norms to afford women protection from sexual harassment in place of work, pending enactment of legislation on the subject matter. The court also spelt out how the guidelines should be implemented thus making protection from violence, including sexual harassment a reality for women in India, thereby exercising its supervisory role.

Similarly, the South African Constitutional Court in the case of South Africa case of Minister of Health & Others v Treatment Action Campaign[17] affirmed in clear terms the supervisory powers of the Judiciary, thereto keeping a sort of reign of its oversight on implementation of the South Africans’ right to health, by the government. The South Africa Court affirmed at paragraph 99 of the judgment that:-

“where State policy is challenged as inconsistent with the Constitution, a court has to consider and determine whether in formulating and implementing such policy the State has abided by its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged by the Constitution to say so. And so far as this may be seen as constituting an intrusion into the domain of the Executive, this is an intrusion mandated by the Constitution itself. “

Justice Bhagwati, (The Retired Chief Justice of India) in his biography - “My Tryst with Justice” - has in simple and piercing language stated; “Throughout my judicial life, there was only one ideal which motivated and inspired all my judicial pronouncements and that was the advancement of the welfare of my people by ensuring to them the enforcement of the basic human rights enshrined in the Fundamental Rights and Directive Principles set out in the Constitution. I, was therefore, determined to bend the law in the service of my people.”[18]

It may be opportune to look at the distinction between the ‘progressive realisation’ and ‘immediate realisation’ of the fundamental right enshrined in Chapter four of the Constitution.

As succinctly expressed in the matter of The Principle of Gender Presentation in the National Assembly and the Senate – Advisory Opinion of the Supreme Court (2012) KLR – SCK “Progressive realisation” is illustrated as:

“A phased-out attainment of an identified goal – human rights goal which by its very nature, cannot be achieved on its own, unless first, a certain set of supportive measures are taken by the State. The exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including affirmative action.”

As against that, in the dissenting opinion of Mutunga CJ, certain rights have been stated to require immediate realisation. It was held:-

“The immediate implementation of the two-thirds gender principle is reinforced by the values of patriotism, equity, social justice, human rights, inclusiveness, equality and protection of the marginalized. Such values would be subverted by an interpretation of the provisions that accepts progressive realization of this principle.”

In my opinion, the above observations on immediate realization perfectly fit the rights violated in the case under reference.

I am more fortified to state that, in my view, the scope of the “socio-legal” rights (I have purposely coined this phrase to identify the right in question and to distinguish it from other similar rights) unlike that of socio-economic rights is that their realization is not necessarily tagged on the availability of state’s resources. Article 20 of the Constitution, has clearly stated that the socio-economic rights will be subject to progressive realization bearing in mind the existence of the state’s resources.[19] The nature of the rights of women and children to be protected from all forms of sexual violence as depicted in the present case study is that, their realization is solely dependent on the willingness of the existing machinery of the state to efficiently, effectively and professionally perform their tasks. The state therefore, should not be heard to cite unavailability of resources, as a reason for its failure to undertake a particular task. Therefore, unlike the socio-economic rights that requires progressive realization, the rights of women and children to be protected from all forms of sexual violence should be subject to immediate realization.

In order to ensure this immediate realization, all relevant stakeholders should embrace a multi-sectoral approach by ensuring that each stakeholder performs their role in order to sufficiently implement the spirit and letter of the Constitution. The judiciary on its own cannot adequately address sexual violence, the wheels of justice are composed of multiple stakeholders who all have specific unique mandate to foresee and protect the furtherance of rights and fundamental freedoms enshrined in the Constitution.