A recent review of the Sexual Offences Act by women’s rights organizations has found that while the Act is long overdue piece of legislation in the fight against gender violence, there are potential minefields within the Act that could dampen the expectations it has raised.

A lot of expectation is placed on the capacity of the Act to highlight offences of a sexual nature that had hitherto not been covered in any law; specify sanctions that could serve as a deterrent to rising cases of sexual abuse while protecting vulnerable members of society in ways that allowed the eventual legislation to become a tool for effecting social change as opposed to one that created fear among the sexes.

These observations match the concerns of individuals and organizations in the field of human rights that the trends in recent court decisions on rape cases in the period after the Act came into force, do not seem to carry the spirit of the Act.

This is despite the requirement stipulated in the First Schedule on Transitional Provisions (Section 48 of the Act) that “any proceedings commenced under any written law or part thereof repealed by this Act shall, so far as practicable be continued under this Act.”

For the first time in Kenya, a modern legal framework exists to protect the public from sexual crimes. The Act assigns positive duties and responsibilities to the state, juristic person and individuals, gives law enforcement clarity on various sexual offences and also stipulates court and other procedures that aim at protecting the most vulnerable in society-victims of sexual abuse, children and persons with disabilities.

The Act also provides a framework that reflects the current nature of sexual offences - especially those directed at children, familial offences seldom talked about, workplace related offences and offences by those in positions of trust. In each of these key areas of the Act the punishment is relatively easy for the public to understand and simple for the courts to apply especially since there are specific minimum sentences for each offence identified in the Act.

Ms Kimathi pointed out that this is one of the greatest strengths of this Act: “Once convicted the offenders will certainly feel the full force of the law,” she said

A closer look at the Act through a gender lens, it achieves another first in Kenya’s legislative history by becoming the only Act that has, throughout its text, used the inclusive language of ‘he/she’ to describe the person. All the other Acts use the pronoun ‘he.’

“This specificity aims at pointing out that sexual offences can and are committed by either gender. The stereotypical attitude has been that sexual offences are committed by men. This Act therefore provides men experiencing sexual abuse by women with a framework for seeking redress,” she said.

Another important thing about the Act is that it provides protection for women, men, girls and boys against sexual offences which in effect provides yet another framework through which greater protection of their rights can be enhanced.

In the past, survivors of sexual violence have always lived with the fear that their past sexual history will be dredged up for consideration by the court and is cited as a strong reason discouraging the reporting of rape cases. Other protections given to the victim by section 31, which spell out various measures including giving evidence under protective cover of a witness protection box, prohibiting the publication of a witness identity, and having proceedings undertaken in closed court are powerful measures that have the potential of encouraging more female victims to report sexual offences.

However, the Act is not without its weaknesses. According to Ms Kimathi, it fails to provide for accountability by duty bearers charged with responsibility. For example, ensuring victims of sexual offences are treated professionally and with due care whenever they report cases.

In the absence of this, victims wronged by public officials who may act negligently have no redress: “While the Act imposes positive duties on various role players, it misses out on making specific provisions stipulating what sanctions it will impose on officials who fail to comply with their obligations to fulfill human rights by taking clear measures including budget provisions to ensure implementation of it’s commitments,” she stated.

During the workshop, a rape survivor shared her rape experience at the hands of four men who attacked her in her house. She recounted how at the hospital: “There was no one to offer any kind of support, not even a blanket to keep me warm or cup of tea. I finally met the doctor but I expected him to do better than just the blank statement he gave me on getting medical help within 72hours,” she lamented.

This particular survivor’s story made the important observation about how difficult it is for survivors beyond breaking their silence. She disagrees with the Act on making specific minimum sentences for each offence identified: “I want maximum penalty for these perpetrators and not minimum sentences,” she pointed out.

She also stated that the usefulness of the Act lies in its implementation, and in making it understandable for those receiving the information. She expressed her concern for lack of information on the importance of getting medical help within 72hours after rape. This critical piece on information is not in widely known and it could be the difference between life and death – literally – for rape survivors.

“Counseling is very crucial, if we are not given this support, how would one adhere to these drugs, because for most of us anytime we take the drugs it only reminds us of the whole ordeal again and this is very traumatizing?” she posed.

Ms Wambui Kimathi says the ministry of health should develop a national policy framework to guide the implementation of the Act, since this is the only way to determine its success.

She further recommended the development of guidelines for the media to report sexual violence with sensitivity and a sense of responsibility: “There are some dangers survivors face that are associated with how sexual offences are reported.”

For instance, the security of survivors and their immediate family members could be put at risk from the perpetrators eager to cover up their tracks if their identities are known: “This is not only about punishing perpetrators, it is also about protecting the rights of survivors,” she said.

To give the Act effect, several inter-sectoral binding protocols (including those specifying the kind of information required when a claimant reports to a police station and goes to hospital) ought to be developed to clarify the roles of the various role players in the difference sectors - health, prisons, police, judiciary, children’s department, probation etc.

One of the questions raised concerning the Act is how it can be used to promote a sense of responsibility in offenders and acknowledgement of harm done to victims and community?

The Act has implications for both the voluntary and private sectors too. Some guidelines may need to be issued on matters of staff policies on inappropriate sexual relationships.

Media houses may need specific types of training on reporting on sexual offences - in this case the dos and don’ts.

NGOs are now seriously considering lobbying for the provision of a standing budget line to support the implementation of this Act, and a general provision indicating how child offenders should be dealt with, using the Children’s Act as a point of reference.

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