The Judiciary came under attack last Friday for using the old penal code laws and not the new Sexual Offenses Act that provides for stiffer sentences for culprits of sexual violence.

Angry women attending the launch of Sixteen Days of Activism Against Gender Violence at a Nairobi hotel accused magistrates for using the penal code that provides lenient sentences for perpetrators of such acts and not the new Act.

“The Sexual Offenses Act repealed the provisions of the penal code that touched on these matters. But we are disappointed that even after the Act came into being, the judiciary is yet to embrace it,” moaned Jane Onyango, Executive Director of Federation of Women Lawyers (FIDA) - Kenya chapter.

The current penal code is said to give magistrates and judges wider latitude to determine the sentences to pass on a perpetrator of sexual violence. This has resulted in culprits – in mitigation - receiving lenient sentences and getting away with murder.

Cases of perpetrators being sentenced to one year or less after committing such crimes are too familiar with many people.

A recent case in which a grandfather in Nyandarua was jailed for six years instead for life imprisonment for defiling his six-year-old granddaughter is a case in point.

Yet the new Act in Section 3(3) expressly provides that: “A person guilty of an offense under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”

Enacted mid this year, the Act evoked a lot of jubilation among those who believe in women rights, and was expected to swing into motion immediately. But the reality on the ground is different with magistrates operating as if it does not exist.

“From what I can hear, the judiciary is not running as fast as possible to catch up with the legislators,” said Nyaradzai Gumbovzada, UNIFEM’s Regional Directors, East and Horn of Africa region.

Onyango and Gumbovzada were speaking at the launch of the 16 days of activism against gender violence, which is observed every year from 25th November to 10 December. The main objective of the campaign is to refocus and remind the public and policy makers about issues of violence against women. This year’s theme is celebrating “The 16 Years of 16 Days of Activism Against Gender Violence”.

Speaking at the same meeting, Mary Okioma, Executive Director of Justice in Africa wondered aloud why these highly trained cadres of legal professionals were not taking the time to read the Sexual Offenses Act and apply it in their judgments.

“We should not be afraid to name and shame those in the legal profession who do not get their homework right. Some need to be picketed by us,” she said.

Gumbovzada called on the legislators and the judiciary to find mechanisms of harmonizing their work to make it easy for new laws to benefit those who need them.

While Onyango asked all stakeholders to work with the judiciary to ensure the new laws benefited the many women and girls who are violated on a daily basis.

In addition to raising concerns about the judiciary, participants complained that putting in place laws and policies designed to protect women was not enough if the same were not felt and enjoyed by women at the household level.

They said this will only be possible if the government allocated sufficient resources to departments responsible with the implementation of laws on gender justice and equality.

“There is need for the government to put in place free legal services in the rural areas to compliment the work being done by civil society,” said Gumbovzada.

She further warned that: “We may have laws and figures in the estimates, but life may not change for the women at household level if there are no practical decisions that touch them at that level.”

Meanwhile, campaigners of violence against women now want a policy or a law be put in place to help in the rehabilitation of perpetrators of violence against women.

The whole argument around this is to stop the same people subjecting other women to similar violence in future.

“We need to not only jail perpetrators of sexual violence, but to counsel and rehabilitate them so as to make other women who come in conduct with them live in safety,” said Catherine Gachutha, of Maranatha Professional College of Counselling Training.

At the moment, resources and attention are directed towards helping the survivors of violence and not the perpetrators.

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