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Report on the Audit & Review of Existing Policies, Laws, Regulations, Practices, and Customs relating to Sexual Offences in Kenya
R E P U B L I C O F K E N YA

Studies Commissioned by the Task Force on Implementation of the Sexual Offences Act (TFSOA)

2012

Reports by LVCT & CRADLE

Part I: An Audit Report on Delivery of Post Rape Care Services in Kenyan Health Facilities

Report by: Carol Ajema, Reuben Mulwa, Leso Munala & Wanjiru Mukoma LVCT, Kenya August 2011

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TABLE OF CONTENTS
List of Tables 4 List of Figures 4 Acronyms 5 Acknowledgements 6 Executive Summary 7

CHAPTER 1: OVERVIEW 1 0
1.1. BACKGROUND 10 1.2. Overview of the Sexual Offences Act Implementation Taskforce: 11 1.3. Overall Goal 12 1.4. Design and Methodology 12 1.5. Ethics: 13

2. AUDIT FINDINGS: 14 2.1. CHAPTER 2a: PREVALENT COMMUNITY PRACTICES IN RESPONSE TO SGBV CASES 15
2.1.1. Cultural practices and SGBV 15 2.1.1.1. Community perceptions on prevalent types of SGBV 15 2.1.1.2. Community Reaction to Sexual Violence 16 2.1.2. Current responses to cases of SGBV 17 2.1.2.1. Incest 17 2.1.2.2. Defilement 18 2.1.2.3. Sexual Violence Within Marriage 19 2.1.2.4. Male Rape 20 2.1.3. Services Offered by The Local Administration 20 2.1.4. Role of The Local Administration 21 2.1.5. Uptake of Medical and Formal Justice Services by Survivors 22 2.1.5.1. Medical Services 22 2.1.5.2. Community Uptake of Health Care Services 23 2.1.5.3. Uptake of Services From The Formal Justice System 24 2.1.6. Lack Of Knowledge Within The Community on The Mandate of For mal And Informal Justice Systems 25 2.1.7. Conclusion: 26

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2.2. CHAPTER 2b: CURRENT PRACTICE IN THE DELIVERY OF SERVICES AT THE HEALTH FACILITY 27 2.2.1. Characteristics of the HCWs Interviewed 27 2.2.2. Number of Survivors Attended To 29 2.2.3. Type of services provided 31 2.2.3.1. HCWs Knowledge of HIV related services 31 2.2.3.2. Pregnancy prevention 32 2.2.3.3. STI prevention 34 2.2.4. Forensic Management of Evidence 35 2.2.4.1. Examination 35 2.2.4.2. Evidence collection 37 2.2.4.3. Analysis of Evidence Collected 39 2.2.4.4. Documentation 40 2.2.5. Who Provides PRC Services 48 2.2.6. Where PRC Services are Provided Within the Facility 49 2.2.7. Referral To Police From the Health Facility 50 2.2.8. General Facility Observations 52 2.2.8.1. Use of Notice Boards 52 2.2.8.2. Use of Billboards for Advertising 54 2.2.8.3. Available Equipment 55 2.2.9. Conclusion 56 2.3. CHAPTER 2c:CURRENT PRACTICES BY THE POLICE OFFICERS IN DELIVERY PRC SERVICES 57 2.4. Number Of Survivors Attended To By Police 57 2.5. Police Response to Cases of SGBV 58 2.6. Police Response In Line With Existing Legal Framework 59 2.7. Challenges Faced by Police 59 2.7.1. Transportation 60 2.7.2. Communication Barriers Faced By Police 60 2.7.2.1. Communicating With Children And The Elderly 60 2.7.2.2. Language barrier 61 2.7.2.3. Survivors With Disabilities 62 2.7.3. Interference From Family 63 2.7.3.1. Cases of Family Inflicted Violence 64

2.7.3.2. Legal Provisions Vs Cultural Provisions 65 2.7.4. Witness Protection: 66 2.7.5. Adherence To The Provisions For Forensic Evidence Management 67 2.7.5.1. Handling of Evidence By The Police 67 2.7.5.2. Documentation Done by The Police 69 2.7.6. Presence of Gender Desks 70 2.7.7. General Observations 70 2.7.8. Conclusion 71 RECOMMENDATIONS 72

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LIST OF TABLES Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table Table 1: Community Respondents 11 2: Prevalent Forms of SGBV per Region 12 3: Designation of HCWs Interviewed 23 4: Length of Service at Facility Vs PRC SDP 24 5: Survivors of sexual violence Attended To at the Facility 25 6: Services Provided at Facility 27 7: PEP Regimen Prescribed 28 8: Waiting Area for Survivors at Facility 31 9: Type of Specimens Obtained from Survivors 33 10: Types of Evidence and How Often Collected 34 11: Type of Documents Used for PRC Service Delivery 36 12: Police Sign and Storage of PRC Forms 39 13: 14: 15: 16: 17: 18: 19: 20: Source of PRC forms 40 HCWs Who Provide PRC Services 44 When a Survivor Reports to Health Facility First 46 How Survivors Get to the Police 46 Availability of Rooms and Amenities 48 Availability of Equipment 49 Number of Officers Interviewed 51 Cases Attended to at the Police Station 52

LIST OF FIGURES Figure Figure Figure Figure Figure Figure Figure Figure Figure Figure Figure Figure Figure 1: Uptake of PRC Services at the Various SDPs 26 2: Survivors Health Concerns Post sexual violence 26 3: Pregnancy Related Services Offered to Survivors 29 4: Availability of STI Drugs for Survivors of sexual violence 30 5: Time Taken During Examination of Survivors 32 6: Evidence Collection Recommended to All Survivors 33 8: Infection Control 34 9: Hand Washing Facilities 34 7: Safety in Examination room 34 10: Ability to Analyze Evidence Collected Within Facility 35 11: Documents Locked in a Cupboard 36 12: Utilisation of the PRC Form by HCWs 37 13: PRC Form Filled in For All Survivors 38

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Figure Figure Figure Figure Figure Figure Figure 14: 15: 16: 17: 18: 19: 20: Number of PRC Form Copies for Each Survivor 38 PRC Copy for the Police 39 Handling of PRC Forms 40 Number of P3 and PRC Forms Filled in 41 Survivors Pay for P3 Form 42 Who Fills in P3 Form at the Health Facility? 43 Where PRC Services are offered 45

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ACRONYMS DPP EC FGM GBV GIZ HCW LVCT PEP SGBV SOA SV TFSOA Director of Public Prosecution Emergency Contraceptive Female Genital Mutilation Gender Based Violence Gesellschaft fr Internationale Zusammenarbeit Health Care Worker Liverpool VCT, Care & Treatment Post Exposure Prophylaxis Sexual and Gender Based Violence Sexual Offences Act Sexual Violence Taskforce on the Implementation of the Sexual Offences Act

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EXECUTIVE SUMMARY
Introduction Occurrence of sexual and gender based violence continues to be treated in an ad hoc manner by many service providers despite the existence of legal and medical policy frameworks. Whilst so much progress made been made in Kenya to ensure availability of medico-legal services in hospitals and police stations, there still exist instances where survivors of sexual violence fail to access these services. Difficulties in accessing formal post rape care services could be influenced lack of public knowledge on the available services; prevalent cultural practices; and/or perception towards existing services. This study was thus commissioned by the Taskforce on Implementation of the Sexual offences Act to enable it effectively fulfil its mandate around: (i) Auditing and reviewing all the existing policies, laws, regulations, practices, and customs so as to be consistent with the provisions, spirit and intent of the Act; and, (ii) Making recommendations for the modification, amendment or abolition of the said policies, laws, regulations, practices and customs so as to be consistent with the provisions, spirit and intent of the Act. Overall Goal To establish how health and justice services offered to survivors of sexual violence in the formal and informal settings hinder or enable the implementation of the Sexual Offences Act. Methodology Ten districts were selected for this study undertaken between May-July 2011. Interviews and focus group discussions were under taken with participants drawn from the police, health facilities, community and provincial administration using both quantitative and qualitative tools. A total 59 health care workers, 21 police officers and 80 community leaders were interviewed. Informed consent was obtained from all the respondents prior to their involvement in the study. Qualitative data was transcribed and subjected to content analysis using NVIVO 9, qualitative data analysis software; whilst the quantitative data was captured and analyzed using SPSS.

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Key Findings Community members prefer reporting cases of sexual and gender based violence to the informal justice systems due to the low costs involved, lan guage used and timely manner in which these cases are resolved. Certain cases of violence do not get resolved if reported to the police, as the police were found to prefer sending such complainants back to the chief/village elders for a resolution. This experience was considered by the community members as frustrating and confusing given that the police are legally required to handle such cases. Service providers from both the police and health facility require sensitiza tion of the provisions of the sexual offences Act and the national guidelines on the management of survivors of sexual violence. Police officers expressed their challenges in handling persons with disabil ity. All the health facilities visited did not have accurately displayed informa tion, education and communication materials on services available for sur vivors of violence. Survivors were being charged before a P3 form was filled in for them. The fee charged ranged from 50 to 2,000 shillings. This was contrary to the information displayed on the hospital service charters which indicated that the P3 form should only be charged for in cases of general assault. The chiefs and village elders only placed emphasis on settling cases of vio lence reported to them through compensation, with only few of them refer ring such matters to the police or health facility. There exist inconsistencies on the provisions in the National Guidelines on Management of Sexual Violence and the Sexual Offences Act, as regards abortion post rape. In some hospitals, survivors wait for more than one day before they are at tended to, or spend time queuing for services from one service delivery point to the next. This was found to contribute to instances where survivors missed out on receiving emergency prophylaxis despite presenting at the hospital within the required 72 hours. The police lack infrastructural support to allow them visit the scene of crime and/or speedily transfer survivors presenting to them to the health facility for immediate care.

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Conclusion Cases of incest and violence within family relations are not reported to the police due to the prevailing cultural norms. It was also established that violence involving child perpetrators poses a difficulty on the action to be taken by families, hence such cases are resolved at family level and the perpetrator is sent away from the village or at times the survivor is married off to the perpetrator. This was more common in cases where there was a pregnancy involved. The role of the informal systems in responding to cases of sexual and gender based violence remains unclear. Both the police and the chiefs seemed unclear of their mandate in handling certain cases of violence, especially those that occur amongst family relations. There exists limited knowledge among the public and service providers on the policy frameworks around delivery of services to victims of SGBV. Hence need for the sexual offences implementation taskforce to sensitize the public on its mandate. Lack of protective shelters increases vulnerability of survivors and witnesses in cases where the perpetrator comes from the same geographical areas.

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Recommendations Sensitize the provincial administration and the police on their role in re sponding to cases of SGBV. Provide clear guidelines on management of survivors of SV who become pregnant and wish to procure an abortion. Harmonize existing medical and legal policy frameworks. Train both police and health care workers on delivery of comprehensive services to survivors of violence. Equip hospitals and police with the required infrastructure to facilitate timely delivery of services.

The taskforce should set up a national multi-sectoral coordinating body to oversee the development and implementation of broad based SGBV response mechanisms. There is need for temporary protection shelters especially for those violated by persons known to them.

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CHAPTER 1: OVERVIEW 1.1. BACKGROUND The incidences of sexual violence globally have continued to rise despite governments having developed diverse mechanisms to address this issue. In Kenya much progress has been made to facilitate the development of frameworks within which cases of sexual violence can be addressed. Upon recognition of the negative health effects of sexual violence on the survivors, the Ministry of Healths Division of Reproductive Health, through a multi-sectoral collaboration in 2004 developed the First Edition of the National Guidelines on the Medical Management of Rape/ Sexual violence that were subsequently revised in 2009/10 i. The revision was necessitated by amongst other issues, the 2007-8 post-election violence as highlighted in the Waki Report ii which clearly raised questions as to whether The Sexual Offences Act 2006 (SOA) comprehensively covers all forms of sexual violence and whether there were adequate guidelines on the management of Sexual and Gender Based Violence (SGBV) especially in a humanitarian crisis. Moreover, research undertaken by Liverpool VCT, Care & Treatment (LVCT) had highlighted gaps in forensic evidence management and documentation. iiiThe national guidelines were designed to give general information about management of sexual violence in Kenya and focus on the necessity to avail services that address all needs of a sexual violence survivor, be they medical, psycho-social, humanitarian and/or legal. Despite the existence of these guidelines, program data collected by LVCT, indicates discrepancies in the existing health policies vis--vis the services provided to survivors of sexual violence. The Government of Kenya has also developed legislative frameworks that include: The SOA iv, which provides for the definition, prevention and protection of all persons from unlawful sexual acts; The Childrens Act, 2001 which provides for the rights, protection and care of children; The Witness Protection Act, 2006 which provides for the protection of witnesses in criminal proceedings; The Criminal Procedure Code; The Evidence Act; and The Bill of Rights as enshrined in Chapter Four of the Constitution, 2010. The SOA in particular provides definitions of what constitutes a sexual offence, plus other regulatory measures to be adhered to when handling cases of SV. The SOA criminalizes various forms of sexual violence against all persons. Despite the existence of this Act for five years, recent studies

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have established that many Health Care Workers (HCWs) who handle matters regarding sexual violence remain ill-informed of the provisions of the Act v and the National Guidelines; and are therefore not able to provide quality and/or standardized services to survivors of sexual violence presenting in public health facilities as demonstrated by their inabilities to properly collect and document the required forensic evidence samples from survivors, which in turn may deny them access to justice. The society at large has a role to play in the management of cases of sexual violence since its within its confines that the survivor and perpetrator exist. However, the wider public lacks information about the provisions of the SOA, and the available services, where and when they can access these services and how cases of sexual violence ought to be managed by the health and criminal justice systems. Effective management of sexual violence requires an understanding of the social contexts within which the violations occur. Many cultures have been found to tolerate the use of various forms of violence in certain circumstances vi.This could be as a result of the gender-power relations within a given society and also existence of taboos that surround cases of incest vii. Literature shows that many cases of sexual violence are addressed through traditional justice structures that are not acknowledged by law and therefore operate outside the regulation or oversight of formal law. Cases of sexual violence are thus addressed by the council of elders and the immediate family, whereby the perpetrators are required to pay a cash or material fine to the survivors family viii. Research indicates that stigmatization and blaming of survivors of sexual violence is widespread in many cultures and this in turn contributes to poor health and justice seeking behaviours of survivors. Negative responses towards survivors of sexual violence ix by both the formal and informal sources of support largely contributes to preferences by families to settle these cases out of court with limited access to medical and legal services. The LVCT study into Standards Required in Maintaining the Chain of Evidence in the Context of Post Rape Care Services revealed that the existence of informal justice institutions in Kenya, which propagate cultural mores and practices, rarely give priority to the medical needs of survivors of sexual violence . These cultural mores and practices are unclear and vary from community to community making them difficult to access formal services. Further, they increase survivors vulnerability to HIV/STI/ Hepatitis B infection, and unwanted

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pregnancies since priority is not given to having survivors of sexual violence access to timely medical care. Given that there exists no documentation on the extent to which the existing cultural practices hinder access to medico-legal services, this audit sought to establish the magnitude of this problem. 1.2. Overview of the Sexual Offences Act Implementation Taskforce: In 2007 the Honourable Attorney General, Amos Wako, set up the Taskforce on the Implementation of the Sexual Offences Act (TFSOA) whose mandate was to: a) Prepare and recommend a National Policy framework and guidelines for the implementation and administration of the Sexual Offences Act, 2006, in order to secure accessible and uniform treatment of the sexual offend ers; b) Recommend to the Attorney-General relevant regulations for the imple mentation of the Act; c) Consider and recommend a comprehensive policy and propose effective measures to secure acceptable schemes, programmes and other mecha nisms for the protection, treatment and care of victims of sexual violence as well as the treatment, supervision and rehabilitation of sexual offenders; d) Develop an inter-sectoral national action plan and co-ordinating frame work to promote, monitor and evaluate the effective implementation of the Act; e) Audit and review all the existing policies, laws, regulations, practices, and customs so as to be consistent with the provisions, spirit and intent of the Act; f ) Make recommendations for the modification, amendment or abolition of the said policies, laws, regulations, practices and customs so as to be con sistent with the provisions, spirit and intent of the Act; and g) Carry out such public education, awareness and sensitization programmes or campaigns as are necessary for the better carrying out of its mandate in order to adhere to and promote the objects of the Act.

The TFSOA in partnership with GIZ commissioned LVCT to undertake an audit and review between the months of May-June 2011. The audit was aimed at helping in the fulfilment of the mandate of the taskforce on: (i) Auditing and reviewing all the existing policies, laws, regulations, prac tices, and customs so as to be consistent with the provisions, spirit and intent of the Act; and,

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(ii) Making recommendations for the modification, amendment or abolition of the said policies, laws, regulations, practices and customs so as to be consistent with the provisions, spirit and intent of the Act.

1.3. Overall Goal The purpose of the audit was to establish how health and justice services offered to survivors of sexual violence in the formal and informal settings hinder or enable the implementation of the Sexual Offences Act. Objectives To review and document the provisions for management of sexual violence in line with existing national medical and legal frameworks. To document current practices and procedures relating to sexual violence management at the health facility level and in the community. To identify adherence to the provisions for forensic evidence management in the SOA and the National Guideline by health service providers. To provide recommendations to the TFSOA implementation.

1.4. Design and Methodology The following approaches were utilized Desk review of the SOA and the national guidelines on the management of survivors of sexual violence. Interviewing: an interview guide was used to obtain data from service pro viders, both health care workers and police, on their experiences in using the existing National Guidelines on the Management of Sexual Violence in Kenya. Interviews with community leaders, namely: chiefs, religious leaders, and teachers, among others, were undertaken. These helped obtain information on the kind of services offered to survivors of sexual violence at the community level

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Sample and Sampling The project was undertaken in 10 districts: Vihiga, Nakuru, Naivasha, Eldoret, Kisumu, Tharaka, Nairobi, Malindi, Mombasa, and Kiambu. These sites were selected based on the already existing collaboration between the health facilities and GIZ and/or LVCT. The respondents included: Health Care Workers (HCWs) in the selected district hospitals. They were drawn from service delivery points within each facility involved in the de livery of post rape care services. These services included evidence collec tion, physical examination, medical management, counselling, laboratory investigations, and documentation. These HCWs were interviewed using a structured tool. Police officers from selected police stations who were responsible for han dling all GBV related cases reported at the police station. These officers were interviewed using an interview guide. Provincial administration, mainly the Chief and Assistant-chiefs in particu lar areas within the targeted districts. An interview guide was employed for these interviews. ,Community leaders, such as religious leaders, women leaders, youth leaders and teachers, who were randomly selected by a community mobilizer who was introduced to the study team by the local administration in each district. An interview guide was employed for these interviews Youth aged between 18-24 years from all the 10 districts. These youth were randomly selected from areas close to the chief s office to shed light on their perception of how cases of sexual violence were being handled within the community by both the formal and informal justice systems. A Focus Group Discussion (FGD) guide was employed for these interviews

The Snowballing Sampling Technique was used to identify the people who were interviewed.

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1.5. Ethics: Permission to interview the respondents was obtained from the Police Commissioner, Officer Commanding Police Stations (OCS), Chief Administrators of the various health facilities, and the District Commissioners or District Officers. Informed consent to conduct and record the interviews was obtained from the respondents. All respondent personal identifying information was not recorded on the study material presented in this report. Codes were generated for each of the study districts instead of using the names of the health facilities and police stations. Interviewers were trained on confidentiality and research procedures. 2. AUDIT FINDINGS: Highlighted in this section are the findings from interviews undertaken with each of the different groups of stakeholders. These are presented in the following format: 1. Community findings: Highlights the current community practices in responding to occurrences of SGBV. 2. Health facility: These findings focus on the level of adherence to national medical management guidelines in delivery of services to survivors of sexual violence 3. Police findings: These focus on how the formal justice system addresses cases of sexual violence reported to them

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2.1. Chapter 2a: PREVALENT COMMUNITY PRACTICES IN RESPONSE TO SGBV CASES For purposes of this study, Gender-Based Violence is an umbrella term for any harm that is perpetrated against a persons will; that has a negative impact on the physical or psychological health, development, and identity of the person; and that is the result of gendered power inequities that exploit distinctions between males and females, among males, and among females. Violence may be physical, sexual, psychological, economic, or socio-cultural. x This section highlights findings derived from interviews conducted with various members of the community aimed at establishing the following: Cultural practices in the case of Sexual and Gender Based Violence (SGBV). Access to medico-legal services within health facilities and police stations. Traditional justice systems with a focus on procedures involved in resolving cases of sexual violence in the community.

Table 1: Community Respondents Respondents Teachers Religious leaders Chiefs Women group leaders Youth leaders Mixed Youth focus group discussion Number Interviewed 10 9 10 10 10 80

2.1.1. Cultural practices and SGBV The audit sought to establish knowledge of what constitutes a sexual offence and the different types of cultural practices in the community as regards cases of SGBV. These are highlighted in the subsequent sections.

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2.1.1.1. Community perception on prevalent types of SGBV According to the SOA, the following are classified as sexual offences: rape, incest, defilement, indecent acts, sexual assault, attempted rape & defilement, gang rape, among others. It was established that 90% of those interviewed were aware of all the types of sexual violence listed in the SOA. However, in each of the 10 districts there were certain types of sexual violence that were found to be more common than others, as shown below. These responses were obtained when respondents were asked to state What is the common type of SGBV in the district Table 2: Prevalent Forms of SGBV per Region Study Area Coast Province (Malindi and Mombasa) Western Central Rift Valley (Nakuru and Eldoret) Nairobi Kisumu Prevalent Type of Sexual Violence Defilement and male rape Incest Defilement Defilement and Incest Marital rape and Defilement Sexual harassment and rape

However, in some communities marital rape, FGM, and Wife battering were not considered to be offences because of the communities perception of what constitutes a sexual offence. Even in cases where the community members took the initiative of reporting such cases to the local authorities, the police and chiefs did not take their complaints seriously. This clearly shows that there are certain forms of cultural violations that those in authority have chosen not to act upon fear of being regarded as not respecting the existing cultural norms. The SOA does not recognise marital rape as a sexual offence. Section 43(5) clearly indicates that intentional and unlawful acts shall not apply in respect of persons who are lawfully married to each other. This in itself increases intimate partner violence amongst the married, in that victims cannot rely on the provisions of SOA alone to lodge a complaint against their spouses as shown in section 2.1.2.3 of this report.

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2.1.1.2. Community Reaction to Sexual Violence Those interviewed were asked how the members of the community responded to cases of sexual violence in their locality. The majority of those interviewed indicated that survivors of sexual violence are often stigmatised, blamed and in extreme cases isolated from the public. In order to avoid being ostracised by the community, those interviewed indicated that many of the survivors prefer not to report their case to the local or provincial administration. . sometimes people tend to keep quiet. Others dont go to the hospital, others dont even tell the other partner, or maybe the parents or to a friend. We tend to keep quiet so that stigma comes, grows up and a young girl can grow up without even getting married because of the act, yeah (Womens Leader-District 05) Male Respondent 3: its not easy to disclose such cases in the community. You cannot just tell people you have been raped. It is taken to be a shameful act so a person may just choose to be silent and remain like that. It remains a secret so that one can be able to freely walk around as if nothing happened so that people see a person who is alright while in real sense that person was raped (FGD-District 04) Due to the community perception of sexual violence most survivors and witnesses end up suffering in silence. This is mostly common for survivors of incest, marital rape, domestic violence, e.g. wife battering, who choose, in order to avoid conflict in the family, resort to silence. 2.1.2. Current responses to cases of SGBV Highlighted below are some of the measures taken in the community with regard to some forms of SGBV contrary to the provisions of the SOA and the National Guidelines on the Management of Sexual Violence in Kenya.

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2.1.2.1. Incest Section 22(1) of the SOA clearly defines the degree of relationship between parents and siblings that help define what an incestuous relationship is . In study District 10, cases of incest were reported to be most common yet these were rarely reported to the police due to the shame associated with sexual relations among relatives. Even when the case is reported to the administrative structures, the survivor still had to bear ostracization and isolation from the community for having reported a relative to the authorities. This is best demonstrated from the following scenario experienced by a mother who reported her father- in- law for having defiled her daughter: Respondent: There is one case for instance, there was an old man and there was a woman married to the old mans son. The mother had died. Since the woman was usually left with the old man in their compound, she gave her child to the old man to look after it as she performed her daily chores. Sometimes she could hear the child cry but she ignored since she knew the old man was there then one day she went into the house and found the old man in the act and she screamed people came to her rescue and she went to the police and reported the old man was arrested immediately. After been treated they found out it was true the child had been raped but then the community turned on the woman and her husband because they had reported the case to the police and old man had been arrested. Interviewer: So where did the woman go to, is she still around? Respondent: No, they moved together with the husband. (Womens Leader-District 10) It was established there are cases of incest that happen between step-fathers and their step-daughters. This was attributed to the notion that such step-fathers do not regard children sired with other men as their own.

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Respondent: yah its not his daughter and she told the mother to take her back and she refused. She told the mother this girl is not my daughter to take here back she refused then where I stay in Kasarani, when a man disagree and want to punish the wife he punish her by sleeping with the daughter.. (Religious Leader-District 09) In most communities in Kenya sexual relations between relatives are regarded as taboo. Some respondents indicated that the occurrence of such cases has in some families resulted in unexplained events like deaths or incurable diseases. Most communities targeted for this study were found to have rituals to drive away every evil caused by such unacceptable unions. Female respondent: according to what I know, that is taboo and therefore certain ritual must be done so that evil spirits may not enter the family and other things follow including asking for forgiveness. What some families do is undergo some ritual according to their customs. (FGD-District 04) 2.1.2.2. Defilement According to teachers and other community leaders interviewed cases of defilement occurred in all the districts visited, both at home and in schools. In Nairobi, it was established that defilement isnt just perpetrated by adults but by children too. This was linked to the high levels of idleness among the youth. Interviewer: and of all the cases that you have mentioned, which one is more common in..? Respondent: the one which is more common not very common but defilement and sodomy because majority of them are idle they dont go to school you realize most of the boys when they leave school at the age some of them go out after class six class five so they have nothing else to do so they get in to drugs. .. . (Teacher-District 02) Female genital mutilation continues to be used as a rite of passage in some communities. A girl child aged between 9-12 years is usually subjected to this, after which she is then regarded to be an adult. Men have taken advantage of this by having sex with such girls under the guise of it being their cultural practice. This is against the SOA which clearly points out that defilement happens when someone has sex with a child.

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Respondent: some girls in those sides like Marakwet and whatever after this circumcision, then they know they are ready and they are can rape them at any time they want because they are adult now, they just keep quiet and mostly this is because of shame I dont think it should be like that (Religious leader-District 09) 2.1.2.3. Sexual Violence Within Marriage According to most of the respondents, womens objections to sexual advances from their husbands are not respected. In one of the communities, women and girls are socialized to say no to any sexual advances made by males, even their husbands, and thus they expect any sexual activity to be obtained through coercion/force. This behaviour is carried on into marital relationships. This in turn means that women do not report cases of sexual violence committed by their intimate partners Many of those interviewed including the chiefs, indicated that any form of SGBV perpetrated by a husband upon his wife was considered a private occurrence within the family that ought not to be heard by the neighbours. This violence varied from physical, to psychological to sexual. According to the community in instances where the women in these kinds of abusive relationships would need support, the society around them expects that they only share their concerns with their immediate family. Even in cases where some of the women chose to report their cases to the chief they would be sent back to seek help from their husbands brother, father or other elders. This was because the chiefs were found not to want to side with any party involved. The easiest way for them to attain this was by not being involved in settling these types of cases. Interviewer: what happens to, do married women report sexual harassment or sexual violation here in the community? Respondent: okay some okay those who happen to report their cases okay I have one person who whom I experienced. Okay he took the issue to the chief. They are married and they are married over thirty years. Okay they are they take the case to the chief but when they took that case to the chief, the chief already took them back to the family. He said it is a family matter and he cannot come in between married couples. So the woman went straight to the D.O. because she was an acquaintance of the DO. But the DO declined to address her complaint and instead sent the case back to the chief. So the woman was tired with the case. She didnt even go back to the chief .she sticked with her problem. It wasnt tackled.

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..mostly many women dont think majority when they are attacked, may be they call it domestic wrangles and whatever so dont reporting to the police, others they find it very too shameful, to talk about it and I dont think many women knows that they should report. (Religious leader-District 09) Women who experienced rape within their intimate relationships did not get any support from the in-laws, who in most cases were found to side with the male in the relationship. This could be attributed to the patriarchal society they are living in where the women are considered to be the property of their husbands. Occurrence of marital rape could be aggravated by lack of recognition of this violation in the existing laws. 2.1.2.4. Male Rape

Despite the SOA clearly recognizing male rape as a sexual offence, it was established that such cases rarely get reported due to the communitys perception that a man cannot be raped. There is need for measures to be put in place to effectively address stigma associated with male rape, in addition to people made aware of the existing medico-legal services for both male and female survivors. 2.1.3. Services Offered by The Local Administration In each of the study sites it was established that there existed a certain hierarchy of authority that is observed by its members in their endeavour to resolve certain disputes. As such cases of SV could not just be reported to anyone in the local administration. During this study a majority of the respondents indicated that in cases of SGBV, survivors are required first to present their cases to the family or the heads of the family for them to try to resolve it. If the matter is not successfully resolved at the family level they will then be expected to forward it to the elder before being forwarded to the Chief. The matter will only then reported to the police if the chief doesnt succeed in resolving it.

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SGBV Reporting Chain

Survivor of SGBV

Family of survivor

Village elder

Chief/ Police

However, it was established that even in instances where cases of sexual violence are reported to the village elders, most of them rarely provide referral to formal medico-legal services. One respondent who had been sexually violated said that the chief told her, Mum its already done, if you go to the hospital you will be alright . This implied that there was no need for the survivor to proceed with the matter to the police. This was premised on the traditional justice system being more restorative than retributive. In one of the districts it was revealed that most village elders avoid making known the occurrence of cases of sexual violence under their jurisdiction. They will therefore do all it takes to hush any such case reported to them. The reason for this was that most of the chiefs and village elders avoid being considered inept in so far as addressing cases of SGBV is concerned. According to the respondents, some chiefs did not take any action whenever cases of SGBV were reported to them as they did not in any way wish to be associated with geographical areas where the cases occurred. The excerpt below clearly demonstrates this traditional structure: Interviewer: What services does the village elder offer? Respondent: if he has been given money he will take the survivor to the sub chief and the perpetrator will be arrested and then they will take him/her to the police then he will appear there. Interviewer: what if you dont know the person who raped you? Respondent: if you dont know its a problem. Interviewer: what will the village elder say or do? Respondent: he will say did you see him because if you did you are the one who is able to trace him. .. (Women leader-District 10)

28
It was also not clear what policy frameworks the chiefs were using to justify how they responded to cases of sexual violence. It is however worth noting that according to those interviewed many at times people preferred reporting cases to the chiefs due to the low costs incurred in comparison to the high transport and legal costs associated with the formal justice system. 2.1.4. Role of The Local Administration The local administration was perceived by the communities targeted for this study as quick, accessible, cheap, and whose proceedings were easy to understand due to the use the local language. In addition to this the procedures undertaken by the local administration are easily understood by all hence reason why this level of administration was considered to play a very key role in management of cases of sexual violence at the community level. According to one of the chiefs interviewed the local administration plays a mediating role between the police and the community in addressing such complaints. Respondent: As I told you, our people fear the police. They will not want to get involved in any way with the police. Theyd rather come to me so that I act as a go-between them and the police. Even if they are told to report to the police they will come through me, so that if possible I escort (Sub- Chief-District 10) According to those interviewed, the local administration did not have a standardized way of resolving matters of sexual violence. Below is a summary of how such cases of sexual violence are resolved in the community: In some communities survivors of sexual violence, especially those that resulted in pregnancy were forced either to get married to the survivor or be banned from the community. The perpetrator is asked to pay some compensation in cash or kind. Survivors who fall pregnant are requested to carry the pregnancy to term and then hand over the child to the perpetrators family. Children born out of a rape are dumped in a bush near the river or starved to death. The perpetrator caters for the survivors medical expenses. In some communities the chiefs did not handle any cases involving clan members but instead preferred to refer such cases back to the family for action.

29
Despite the variations in action taken against the perpetrator, those interviewed indicated that the local administration provides them with a more speedy redress mechanism with options that do not in any way jeopardize on their security. This was found true in cases where the families of both the survivor and perpetrator agreed upon the terms set by the chief or village elder. It is worth noting that the local administration is more endeared to by the community in terms of reporting cases of SGBV; however the action taken by same administration officers is many at times in violation of the provisions of the SOA. There is therefore need for the SOA taskforce to set standards to be employed by the chiefs and village elders in addressing cases of SGBV reported to them. 2.1.5. Uptake of Medical and Formal Justice Services by Survivors Most survivors placed more weight on reporting cases of sexual violence meted on them to their family, village elder and chief, while placing less priority on going to the police or health facilities. 2.1.5.1. Medical Services There were cases where communities use herbal products to cleanse the survivors instead of advising them to go to the health facility. This was despite them being aware of post rape care services available at the health facilities. Some of the key informants indicated that survivors of sexual violence get referred by the chiefs to the hospital for medical care. This was however done after the case had been reported to the village elder or the chief, since reporting to the health facility was not in most cases regarded as a priority.

30
However, there are cases where the survivors reported to the hospital late more so when they become pregnant. For such cases there is little the health care workers do with focus on pregnancy termination. In as much as Article 26(4) of the New Constitution clearly provides directions on when an abortion can be carried out by health care workers, it was established that health care providers never give survivors this option. They instead encourage the survivors to carry the pregnancy to term without considering the trauma associated with this. In one of the districts, it was indicated that some health care workers in one of the facilities in the province have made a business out of such cases as illustrated below: Interviewer: so for the family what do they do in case one gets pregnant? Respondent 5: when they give birth to a child they sell Interviewer: they normally do what to a child, they sell? Respondent 8: they believe its an out cast Respondent 6: they also kill Respondent 8: they just abandon the baby in the hospital Interviewer: selling how do they negotiate for the price of this kid Respondent 4: you know when someone is in a state of poverty even if she comes here and you tell her that you can buy the child for 50,000shs, thats a lot of money to her. So they just give out the kid and leave Interviewer: you know the issue, is its a willing buyer, willing seller, here you are having a willing seller, how do they know the willing buyer? Respondent 8: to some extent they reveal the secret to the nurses, and the nurses know the potential buyer so they do search for the willing buyer. They dont want to know whether they get something or not. (FGD-District 10)

31
A concern thus emerges as to whether the HCWs course of action is done in favour of the mother or themselves. Lack of policy frameworks on pregnancy termination in the context of SV also complicates this as HCWs lack information on how to provide support to pregnant survivors of sexual violence without breaching their code of ethics and survivors Right to health as espoused in Article 43(1)(a) of the new Constitution, 2010. 2.1.5.2. Community Uptake of Health Care Services Contrary to the belief by the general public that its the police who ask survivors to pay for the P3 forms, those interviewed indicated that in most health facilities there is only one medical doctor who is mandated to fill in all P3 forms. At times some of these doctors, according to the respondents in each of the study sites, requested payment from survivors for them to fill in the P3 forms for them. A consequence of this is that some survivors for lack of money do not report to the health facility . Respondent: when a victim of rape comes here we dont normally leave them to go on their own. Because when they go to the police station on their own, they will not be attended to quickly. No. then also if we leave her to go to the hospital alone, the hospital people normally charge Kshs. 500 to fill in the P3 form. So we would rather take them because maybe they dont have that money to pay. (Womens Leader-District 06) Some of the HCWs upon being asked why survivors were being charged for the P3,indicated that monies raised would help finance the doctors trip to the court to present evidence when called upon. This practice by HCWs may contribute to reasons why many people still prefer to have their cases resolved by the chiefs. Some survivors may fail to access medical care due to their inability to raise the anticipated fee charged by the health providers before they can have a P3 form filled in for them. This in turn increases survivors vulnerability to HIV/STI, unwanted pregnancies and psychological trauma. This issue requires immediate action given most of the health facilities indicated that survivors are usually attended to free of charge. The community also requires sensitisation on the type of medical services essential for a survivor of sexual violence. However, the local administration should be sensitized on the need for them to refer survivors to the health facilities.

32
2.1.5.3. Uptake of Services From The Formal Justice System During this study it was established that most survivors find it challenging to report cases of sexual violence to the police for reasons such as fear of victimization by the community, to the negative approach taken by the police in handling the matter. This in turn means that the majority of the cases end up being handled by the village elders or the chiefs who are known to be quick in making decisions, even if these are contrary to the SOA. Interviewer: why do people like reporting to the chief first? Respondent: they like reporting to the chief very much, they dont fear the chief, and they fear the police, they say police ask many questions they ask you where you are coming from and what you want, such many questions are what they fear, but the chief usually doesnt have many questions and again the at the chief s you will speak using your mother tongue (Womens Leader District 08) Police officers were found to have usurped the role of magistrates by dismissing cases of SGBV at the investigation level. This was true especially in cases of marital rape and incest. According to the respondents police opted to refer such cases to the local leaders. In addition to fear of the police, most of those interviewed indicated that many of the community members feel frustrated by the length of time taken by the formal justice systems in addressing such cases. This situation was also compounded in instances where children were violated by their relatives who they stay with. The main threat is that when these individuals get freed on bond, they end up inflicting more harm on the children or the family member who reported the matter to the police in the first instance. To get the perpetrator and take them to court is hard because sometimes there is no money to do so. Sometimes going to court has so many complications. One is required to go and come back, until the survivor feels like there is no reason to spend so much money, they would rather just leave it alone. There is also that challenge. (Teacher-District 04)

33

According to the respondents, the new Constitution does not enhance the enforcement of the SOA, in that according to the Constitution all suspects are entitled to bail; whereas according to the SOA, it is the responsibility of the court to protect all vulnerable witnesses. There were no government owned shelters or safe houses for witnesses in all the study sites visited. As such many of the community members felt that at time people dont want to testify in court against perpetrators as they will not be assured of safety. The burden of proof is heavily placed on the survivor to prove that what they are saying is indeed a true reflection of the incident. The delays experienced by survivors in getting justice from the formal systems, were found to have resulted in the community taking justice into their own hands. This in some cases was said to have resulted in members of the public resorting to lynching suspected perpetrators of sexual violence instead of reporting the cases to the police. Most people tend to decide on mob justice once the offender has gone to the police most people tend to lose interest except when they are summoned to give details they are okay but they dont keep to the follow up of the case so you dont know whether they get to prison. (FGD-District 05) In almost all the study sites, those interviewed indicated that the formal justice system favours perpetrators more than the survivor especially in cases where the perpetrator has a lot of influence in the area or money. 2.1.6. Lack Of Knowledge Within The Community on The Mandate of For mal And Informal Justice Systems It was established that the community lacked awareness on where exactly to report civil and criminal matters. There is no clear definition of what the role of the chiefs and village elders is in the context of resolving cases of sexual violence. As such most communities were found to have established their own dispute resolution mechanisms. Most of the community members concurred with the police that the informal justice systems are in most cases cheap and easily accessible to local communities. In addition, the informal justice systems provide culturally relevant solutions as opposed to the formal justice system.

34
2.1.7. Conclusion: Majority of key informants interviewed expressed their frustration with how cases of SGBV are handled by the local administrative officers, health care workers and police. None of the chiefs had posters on services available for survivors in the police station and health facility displayed in their offices though some of them knew that survivors could get services from the police or health workers. This in itself could also be considered an impediment in referral of survivors by the local administration to the right institution for medical or legal care. Given the occurrence of sexual violence in learning institutions, measures ought to be put in place to facilitate awareness creation amongst students on prevention and response to sexual violence when it happens. Concern was also raised regarding the constitutional right of offenders to be released on bail before determination of their cases. This according to those interviewed should be reviewed given that there are no government owned safe shelters for survivors of sexual violence, especially those violated by close relatives. GBV indeed does violate several principles stipulated in international and national policy and human rights instruments. However, there are certain forms of violence that have not been included in the SOA; these include early marriage, marital rape, and female genital mutilation which were found common in the study sites. Legal provisions against FGM and early child marriages are however stipulated in Section 14 of the Childrens Act . Certain cultural practices were found to promote the occurrence of SGBV in communities. Article 44(1) of the New Constitution gives every Kenyan the right to participate in a cultural practice of their choice. As such one can be penalized on the basis of the cultural practices observed regarding SGBV. There is thus need for the taskforce and other stakeholders to examine the cultural contexts within which violence occurs in different communities so as to effectively address the gaps in this. This is so because GBV cannot be understood and addressed without taking into cognizance the prevailing gender norms and social structures. There also exists a need for the taskforce to re-examine any clauses in the Constitution and the SOA that contradict each other and /or fail to penalize cultural practices that promote SGBV. The role of the provincial administration in addressing matters regarding SGBV requires more clarity. This is so because most of the chiefs were found to base their arbitration efforts on the cultural precepts around reconciliation of individuals. This however is contentious in matters regarding SGBV in that chiefs put more emphasis

35
on maintenance of peace in the community by reconciling the perpetrator and survivor in violation of the SOA.

36
2.2. CHAPTER 2b: CURRENT PRACTICE IN THE DELIVERY OF SERVICES AT THE HEALTH FACILITY In order to ensure standardized delivery of Post Rape Care (PRC) services by all government health facilities, the Ministry of Health , Division of Reproductive Health, through a multi-sectoral collaboration in 2004 developed the First Edition of the National Guidelines on Medical Management of Rape/Sexual violence that were subsequently revised in 2009/10. These guidelines clearly articulate the minimum services to be offered to survivors in public health facilities. This audit was also undertaken to review the existing practices in delivery of PRC services vis--vis the existing policies guiding the same, which in this case are the medical management guidelines on sexual violence i.e. implementation of these policies in PRC delivery. Parameters of this audit of health facilities included establishing: The types of services offered to survivors of sexual violence The proportion of health care workers with correct knowledge on the provi sions of post rape care services The number of HCWs who have ever utilised the P3 and PRC forms The number of HCWs who have ever utilised the national guidelines The number of service delivery points within the health facility with copies of the revised national guidelines and the SOA 2.2.1. Characteristics of the HCWs Interviewed The audit was undertaken in 10 public health facilities spread across six provinces, namely Eastern, Nairobi, Nyanza, Rift Valley, Western, and Coast. These 10 sites were purposefully selected by the TFSOA, GIZ and LVCT and had been involved in the delivery of PRC services for a period longer than one year. 1.1. Number Interviewed A total of 59 health care workers were interviewed using two sets of individual interview tools: 49 HCWs drawn from service delivery points within the health facilities where PRC services are offered were interviewed using Tool 1(Annex 1) 10 HCWs in charge of the PRC services within the health facility were inter viewed using Tool 2(Annex 2). One of these respondents was also inter viewed using Tool 1 as she was also actively involved in the delivery of PRC services

37
Table 3: Designation of HCWs Interviewed

Facility/ Doctors Designation District 01 District 02 District 03 District 04 District 05 District 06 District 07 District 08 District 09 District 10 Total 0 0 0 3 0 0 1 1 1 0 6 (10%)

Clinical Officers 2 1 2 0 1 2 1 0 0 2 11 (19%)

Nurses

Lab Personnel 0 1 2 3 2 1 1 2 1 2 15 (26%)

Health Records Officers 0 0 1 1 0 0 0 0 1 1 4 (7%)

Others

Total

2 2 2 0 0 1 2 3 2 1 15 (26%)

0 2 (SW) 0 2 (1 GBVRC & 1 LO) 1 (C)

4 6 7 9 4 4

1 (C) 0 1 (SW) 0 7 (12%

6 6 6 6 58 (100%)

*SW=Social Worker; LO=Legal Officer; C=Counsellor; and GBVRC=Gender Based Violence Recovery Centre Officer As Table 3 above shows, 26% of the respondents interviewed were nurses, 26% were laboratory personnel, with clinical officers making up 19%, while 10% were doctors. In most of the health facilities visited, doctors were found not to be very much involved in the day to day delivery of PRC services, with the exception of those based at the Outpatient Department (OPD)/Casualty.

38
Findings presented in this section focus on the 49 respondents who were directly involved in the delivery of PRC services at the targeted health facilities. Findings from the remaining 9 PRC in charges are discussed in section 2.2.8 of this report. 1.2. Duration of employment at health facility The audit also sought to establish the duration the respondents had been stationed in the targeted facility and at the targeted PRC service delivery points. It was anticipated that this understanding would help in getting a comprehensive picture of the human resources involved in delivery of PRC services and how long they had been involved in the delivery of these services within the facility. Table 4: Length of Service at Facility Vs PRC SDP Length of service Duration at the facility Duration at PRC SDP

Frequency Below 1 year 10 Between 2 5 years 15 Between6-10 years 10 Above 10 14 Total 49

Percentage 20% 31% 20% 29% 100%

Frequency 18 17 7 6 48*

Percentage 38% 35% 15% 13% 100%

*1 missing=Duration was not indicated on the data capture tool Table 4, shows that majority (38%) of those interviewed had been in their service delivery points for less than a year. This is assumed to have contributed significantly to the knowledge levels of those interviewed regarding the services to be accorded to survivors of sexual violence. It is also worth noting that there were very few respondents who despite having worked at the facility for more than 10 years were involved in the delivery of PRC services. This audit did not seek to find out the rationale for staff placement in the PRC targeted SDPs.

39
2.2.2. Number of Survivors Attended T o The audit sought to determine the number of survivors attended to six months prior to the commencement of the study. This was to help establish if the services provided were in response to survivors concerns after being sexually violated. A summary of survivors served is presented in the Table 5 below Table 5: Survivors of sexual violence Attended to at the Facility SDP Counseling Laboratory Social worker Records office O utp at ient/ Casualty CCC GBVRC Total <18 years 76 268 5 206 528 28 95 1206 All over 18 156 136 43 236 193 58 58 880 Mentally challenged 2 1 4 5 8 0 2 22 Physically challenged 1 0 0 1 3 0 0 5 Total 257 452 64 475 835 91 188 2362

As Table 5 above shows, most of the survivors of sexual violence were normally attended to in the outpatient/casualty. This could explain why the Kenyan health system is such that all patients presenting in public health facilities are first attended to in OPD/Casualty. This was found to result in the following: (i) most of the HCWs not taking sufficient time in examining both the child and adult survivors; and (ii) in some facilities, there were instances where survivors would wait to be seen for more than eight hours after reporting due to the queues at the Outpatient Department (OPD).

40

Figure 1: Uptake of PRC Services at the Various SDPs Key: 1= Counselling room 5=OPD/casualty 2= Laboratory 6=Comprehensive Care Clinic (CCC) 3= Social work office 7=Gender Based Violence Recovery Centre (GBVRC) 4=Records office HCWs interviewed were questioned on what it is survivors of sexual violence consider as their health concerns whenever they visit the health facility. From the data collected 70% of those interviewed indicated that HIV/AIDS was the main health concern expressed by sexual violence survivors. This was followed by injuries with over 50%, pregnancy (about 45%) and mental health (over 30%). There is thus a need for all HCWs to be well informed on how to provide comprehensive PRC services to survivors even when they only present with one main health concern. Diagrammatically this is presented in Figure 2 below.

41

Figure 2: Survivors Health Concerns Post sexual violence N=49 2.2.3. Type of services provided National Guidelines: Survivors are entitled to receive physical and forensic examination, Post Exposure Prophylaxis (PEP), laboratory investigations, pregnancy prevention services, Prophylaxis of sexually transmitted infections, Hepatitis B prevention, psycho-social support and medical management. HCWs were asked to mention all the types of services accorded to survivors who presented at the facility. They were allowed to mention more than one PRC service that is availed to survivors. Table 6 below shows the type of services offered at facilities based on the respondents knowledge of the same.

42
Table 6: Services Provided at Facility

Services provided Counselling Evidence collection Examination Documentation Drug prescription Referral to police

Frequency 45 39 45 40 41 32

percentage 92% 80% 92% 82% 84% 65%

It was expected that the knowledge levels of those interviewed should have been at 100% because all HCWs stationed at PRC service delivery points are required to be fully aware of all the services to be availed to all survivor presenting to them for purposes of effective referrals. This calls for the sensitization of all HCWs on the services to be provided to all survivors as per the national guidelines. 2.2.3.1. HCWs Knowledge of HIV related services The national guidelines on the management of sexual violence clearly indicate that all HIV negative survivors should be initiated on PEP within 72 hours after the assault. The guidelines also indicate that before survivors are put on the 28 day PEP regimen they should undergo a HIV test. Those found HIV positive are to be referred to the HIV clinic for further care and support. The audit sought to establish if HCWs located at service delivery points within the health facility were familiar with HIV related services offered to survivors of sexual violence within the facility. The research team was to tick as many options as possible from the list given in the tool. 63% of those interviewed indicated that survivors are usually offered HIV testing services; 35% were referred for Provider Initiated Testing and Counselling (PITC) services; 41% indicated that some survivors are usually given advice on PEP in addition to being given PEP; while 71 % of those interviewed indicated that survivors are always given PEP. National Guidelines: All survivors of sexual violence are required to undergo baseline haemoglobin, creatinine and liver function tests before being given the full dose

43
of PEP and a repeat of the tests two weeks after being initiated on PEP. However, none of those interviewed mentioned this as part of the HIV related services offered. We further sought to establish the HCWs knowledge on the PEP regimen given to survivors of sexual violence. Their knowledge levels are as presented below:

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Table 7: PEP Regimen Prescribed

Regimen

Frequency

Percentage (%) 45 49 2 2 2 100%

3TC+AZT 22 Dont know 24 Refer to CCC because they 1 dont know Stavudine 1 Septrin 1 Total 49

Only 45 % of those interviewed had accurate knowledge of the PEP regimen prescribed as per the national guidelines on the management of sexual violence. These 45% respondents were as follows: nurses (41%), doctors (9%), clinical officers (41%) laboratory personnel (5%) and social workers (5%) This calls for health facilities to put in place mechanisms for informing service providers on the HIV related services offered to survivors of sexual violence regardless of the SDP they are working in. This will greatly help in reducing the time taken to train HCWs when they get posted to the PRC targeted SDPs within the government health facilities. 2.2.3.2. Pregnancy prevention

The National Guidelines clearly indicate that female survivors of sexual violence who are not obviously pregnant should be given emergency contraception (EC), even before a baseline pregnancy test is undertaken. However, a follow up pregnancy test should be offered to all women who return for follow up, regardless of whether they were given EC after the rape or not. There is no policy framework in place supporting abortion in instances where survivors present at the health facility with a pregnancy following the rape or defilement. Highlighted in Figure 3 below are the pregnancy related services offered to survivors of sexual violence at the different health facilities:

45

Figure 3: Pregnancy Related Services Offered to Survivors All those interviewed indicated that female survivors who presented at the facility were given EC. There was however a discrepancy as to what is the minimum age for survivors before they are administered EC drugs. There were those who said that EC was given to all female survivors; others said that it was given to those who had begun having menses, while others gave differing ages ranging between 9-16 years. Its worth noting that there was no facility found to run pregnancy tests during the survivors sixth week follow up visit. In one of the facilities pregnancy adoption services were said to be available, this was mostly for incest-related pregnancies where it was a taboo for the survivor to go back home with such a baby. Some HCWs also indicated that the health facility had established collaboration with neighbouring childrens homes where such babies were taken to. This at times was done with permission of the mother and in other instances the survivors would abandon such babies at the facility. However in most of these instances HCWs working in such facilities would also play a part in this by advising the survivor on what they could do with the baby upon delivery. None of the facilities were found to directly provide abortion services as health care workers only advised survivors who wanted to have an abortion to seek help elsewhere. There are no frameworks which clearly permit abortion services in the context of sexual violence. Under Article 26(4) of the new Constitution of 2010, abortion is not permitted unless, 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, or if permitted

46
by any other written law. It follows that in event of a pregnancy resulting from a rape then if in the opinion of the medical practitioner (and on this we mean the medical doctor as registered under Section 6 of the Medical Practitioners and Dentists Act), either: There is need for emergency treatment, or The life or health of the mother is in danger, or If permitted by any other written law (currently there is no law that expressly permits abortion)

The medical practitioner can then go ahead to induce an abortion on the rape victim. HCWs interviewed were not conversant with the provisions of the new Constitution of 2010 in regard to abortion. The National Guidelines on the other hand have erroneously included a provision for abortion that is not supported by the SOA. This calls for clear policy directions on how health facilities ought to respond to all the reproductive health needs of survivors of SV. 2.2.3.3. STI prevention All survivors of sexual violence are eligible for STI prophylaxis. HCWs are required to use the standard regimen prescribed within the National Guidelines. During the audit, HCWs interviewed indicated that they offered both direct STI services to survivors and referral to STI clinics within and outside the facility. Referral to other facilities was done in instances where the facility did not have an adequate supply of Norfloxacin, Doxycycline, Amoxycillin, Erythromycin, and Spectinomycin (for those pregnant). Under the Sexual Offences Regulations, 2008 (Published vide Legal Notice No.132) Section 6 (b) defines a medical practitioner as one who is registered in accordance with Section 6 of the The Medical Practitioners and Dentists Act. Therefore a medical practitioner is any person eligible for and actually registered under the Act and it is only Doctors and Dentists who are registered under this Act. Chapter 1 of the National Guidelines, Page 13 indicates that termination of pregnancy may be allowed after rape as per the SOA. This position is not true. Hence need for this section to be amended in the National Guidelines

47

Figure 4: Availability of STI Drugs for Survivors of sexual violence Some 18 of the 49 HCWs interviewed did not have any knowledge on the kind of STI drugs that were being given to survivors who presented at the health facility. Of these 18, 13 didnt know about the HIV regimen to be administered (Table 6 above). Hence there is a need for health facilities to put in place measures to sensitize their staff on the regimen used in management of survivors of sexual violence, with a focus on PEP and STI drugs. It was established that none of the health facilities visited was prescribing STI drugs as per the stipulations within the guidelines. Most of the facilities had resorted to using other antibiotics like Bentazil, Augmentin, Metronidazole, Flagyl, and Fluconazole. The STI drug of choice was Doxycycline (34%), then Amoxicillin (16%) and Erythromycin and Norfloxacin both at 14%. One of the reasons given for this was that the STI starter pack that contains the drugs indicated in the national guidelines was no longer being supplied to health facilities by the Ministry of Medical Services (MoMS) through the recognised GoK supply chain. As such health facilities had resorted to using what they have in their pharmacy or referred survivors elsewhere to purchase these drugs. The MoH is therefore required to provide guidance on this matter so as to ensure standardized supply of the essential PRC service delivery commodities to facilitate access to these services by survivors at no additional cost.

48
2.2.4. Forensic Management of Evidence

Forensic management involves the examination, collection, preservation, transportation and analysis of specimen collected from survivors of sexual violence. Forensic examination is a medical examination conducted in the knowledge of the possibility of judicial proceedings in the future requiring medical opinion. It is thus necessary that HCWs who attend survivors of sexual violence have a good understanding of the main components and requirements of a forensic examination . Collection of thorough and credible forensic evidence from survivors for possible legal proceedings is the duty of the health worker that attends to survivors of sexual violence. According to the national guidelines there are two types of evidence that should be collected: (i) evidence to confirm that sexual assault occurred, and (ii) evidence to link the alleged assailant to the assault. The collection of adequate and standard forensic evidence by health workers thus plays a key role in the successful prosecution of cases of sexual violence. It is there fore paramount for HCWs to have knowledge on the processes involved in forensic examination and evidence collection. 2.2.4.1. Examination

The Guidelines provide that history taking and examination of survivors should be undertaken immediately in a safe and clean environment. It is also expected that both medical and forensic specimens will be collected during the course of the examination. This is meant to avoid subjecting the survivor to multiple trauma due to the different procedures involved in examination, evidence collection and documentation. The audit therefore sought to establish: Where survivors wait before being examined The time taken to examine a survivor a) Where do survivors wait in the facility before being examined? Ideally all health facilities should have a waiting area for survivors of sexual violence. However, only one of the 10 health facilities had a private waiting area/room for survivors who had been filtered in through the customer care desk.

49
Table 8: Waiting Area for Survivors at Facility

Waiting room Private room Public waiting Room Total

Frequency 1 9 10

Percentage 10% 90% 100%

Public waiting room in the Table 8 above refers to the corridors within the health facilities. In one of the provincial health facilities visited, the benches in the public waiting area were few compared to the number of patients waiting to be given a card before they go in for examination. As such majority of the patients including survivors of sexual violence queued for hours before being attended to. In another one of the facilities the study team was informed that there are instances where survivors had to wait for more than one day before being attended to by a clinician. This was because the clinician at the OPD/Casualty was in most cases responsible for attending to all patients presenting at the facility. This in a way could contribute to some survivors missing out on essential and time specific PRC services due to the long queues and lack of a confidential system of filtering survivors from other patients. b) Duration Taken in Examining a Survivor

According to the HCWs whose job entailed examining survivors of sexual violence, they indicated that there was much variation in the amount of time spent with an adult and child survivors as shown in Figure 5 below

50

Figure 5: Time Taken During Examination of Survivors About 29% of adult survivors, according to Figure 5 are examined for more than one hour. 37% of HCWs reported that it takes less than 30 minutes to examine a survivor and document findings. Some of the reason for this could be on the high patient flow vis--vis low staffing levels as witnessed in all the provincial level hospitals. This trend could be as a result of a lack of clear provisions in the national guidelines as to how much time a clinician should take in examining a survivor. There is thus need for stakeholders to develop Standard Operating Procedures (SOPs) to be adhered to by all those involved in the examination of survivors. The current guidelines only indicate the possible samples that can be collected, but does not provide steps to be followed by HCWs when carrying out forensic examination and evidence collection. The SOPs will greatly help reduce the ad hoc manner in which clinicians are currently undertaking examinations of survivors. 2.2.4.2. Evidence collection This audit sought to find out the kind of evidence that is always collected in the health facilities and how often forensic evidence was collected from survivors. A majority of those interviewed mentioned that they always advise survivors to undergo a medico-legal examination and provide the required samples before being given further treatment. This is presented in Figure 6 below

51

Figure 6: Evidence Collection Recommended to All Survivors a) Type of Evidence Collected Regarding the type of specimens collected, most HCWs indicated that they usually collect evidence to confirm that the survivor was actually sexually violated. This is best demonstrated by the type of specimens they were collecting. Table 9: Type of Specimens Obtained from Survivors Specimen collected High Vaginal swabs Urine Blood High Anal Swabs Frequency 41 39 39 27 Percentage 84% 80% 100% 55%

It is clear that HCWs were not collecting the all required samples as indicated in the guidelines. Focus was placed on the collection of evidence for treatment purposes only. The above samples on their own do not in any way confirm that the survivor was sexually violated, hence need for corroborative evidence from the survivors body and scene of crime.

52
b) How Often Evidence is Collected We also sought to establish the frequency within which certain types of evidence were being collected from survivors of sexual violence. Table 10: Types of Evidence and How Often Collected

E v i d e n c e Always collected Clothes Sanitary pad/tampon External anal swab External genital swab HV swab High penile swab DNA 5 (11%) 3 (6%)

Mostly

Somtimes

Never

Dont know 5 (11%) 6 (13%)

Total

2 (4%)

13 (28%) 5 (11%)

21 (46%) 32 (70%)

46((100%) 46 (100%)

23 (49%) 26 (56%)

1 (2%) 1 (2%)

8 (17%) 6 (13%)

11 (23%) 11 (24%)

4 (9%) 2 (4%)

47 (100%) 46 (100%)

35 (73%) 13 (29%) 2 (4%)

2 (4%) 2 (4%) 1 (2%)

5 (10%) 4 (8%) 6 (13%)

3 (6%) 24 (53%) 34 (76% )

3 (6%) 2 (4%) 2 (4%)

48 (100%) 45 (100%) 45 (100%)

Table 10 above shows that only 11% of the respondents reported that they collected clothes as evidence while a similar number did not know whether clothes were collected as evidence. The table also shows that over 80% of the respondents either never collected or didnt know whether sanitary tampons/pads were collected as evidence.

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c) Transfer of Evidence to The Government Chemist It was established that samples for DNA analysis were only collected in less than 20% of the facilities. However most of the DNA samples never got delivered to the government chemist due to transport logistics. In one of the facilities most of these samples were stashed in a cabinet either due to lack of knowledge by HCWs about what to do with this evidence; or the police not visiting the hospital to collect these specimens. This shows the need for mechanisms to be put in place that would facilitate timely collection and analysis of evidence; appropriate preservation; and transportation to the government chemist for further analysis. The national guidelines should also state clearly the chain of evidence analysis. The national guidelines should also state clearly the chain of evidence with specific focus on what the HCWs do with the evidence should once they collect it.

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a) Status of the Examination Room Part of the audit entailed undertaking observation of the facility to assess standards of care. Upon observation of the area where forensic examination and evidence collection was done, in some of the sites the standards of hygiene were found very wanting as shown in the photos below:

Figure 7: Safety in Examination room

Figure 8: Infection Control

Figure 9: Hand Washing Facilities

The scenario above clearly depicts the need for facilities to make available the required commodities to promote infection control for both the survivor and staff. HCWs also need to be sensitized on how they can undertake examinations in a clean environment using the available resources.

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1.1.1.1. Analysis of Evidence Collected From the findings, it was established that all the health facilities were in a position to analyze the specimens collected, with the exception of DNA related samples. DNA analysis contributes to 20% of the instances where evidence collected from survivors cannot be handled within the laboratory.

Figure 7: Ability to Analyze Evidence Collected Within Facility

It is also worth noting that the laboratory was the only service delivery point where staff were not affected by regular transfer of staff from one SDP to the next, hence staff turnover does not affect service delivery within the laboratory. However 80% (12/15) of the laboratory technicians had never been trained on PRC service delivery. This could be the reason why the laboratory officers interviewed did not mention that they always collect forensic evidence from survivors of sexual violence. Most of the evidence the laboratory personnel were able to analyze was that which was to be used for medical management of the survivors. There is need for capacity building of all HCWs on the standard evidence collection requirements stipulated in the guidelines.

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1.1.1.2. Documentation According to the National Guidelines HCW providers are required to accurately indicate the specimens collected, and details of when, and to whom these were transferred. They are also required to document all evidence that can corroborate the survivors testimony in a court of law. It was established that in all the facilities visited HCWs were using documents stipulated within the national guidelines. These documents include the PRC form and the Kenya Police Medical Examination (P3) form. A physical check of the documentation maintained at PRC SDP was undertaken and Table 11 below presents the kind of documents in use in the health facilities.

Table 11: Type of Documents Used for PRC Document Type PRC register Survivors file PRC form Casualty Registers P3 forms Yes (%) 60 70 70 50 70 No (%) 10 20 10 20 20 Missing (%) 30 10 20 30 10

Table 11 shows that in all the health facilities audited over 50% reported that the required tools to document cases of sexual violence were in place. Table 11 also shows that the availability of casualty registers for use in the facilities was at 50% of the facilities, with 20% and 30% either not knowing or the questionnaires being returned blank. Those interviewed indicated that that there was no one specific place within the health facility where these records were stored. They indicated that these records were either kept in the examination room, doctors room and/or laboratory.

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In most of the facilities, the PRC registers and forms were left on the doctors desk or in the examination room.This raises concerns around maintanance of the chain of custody of PRC records. Upon being asked whether these records were kept under lock and key, slightly over 50% responded with a yes as shown below:

Figure 8: Documents Locked in a Cupboard

There was no one person who was responsible for keeping the cabinet keys in most of the facilties. In one health facility it was established that its the counsellor who keeps the key and this creates a problem whenever she doesnt report to work without having previously handed over the key. During the spot check of records in this facility it was not possible to review the PRC form and register because the counsellor had not reported to work.

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a) Utilization of the PRC Form The audit also sought to find out if the HCWs were aware of the existence of a medico-legal form (PRC form) to be used in documenting PRC services offered. The majority of those interviewed indicated that they had heard about this form Not all those who were attending to survivors indicated having used the PRC form, as shown below:

Figure 9: Utilisation of the PRC Form by HCWs According to Figure 13 above, 69% of the respondents reported that they had never used the PRC form MoH 363. Only 238 out of 2792 survivors who accessed services in all the 10 facilities between December-May 2011 were reported to have had their details documented in the PRC form. For those HCWs who were filling in the PRC form, 56% of them reported that the PRC form is filled in for all survivors of sexual violence irrespective of whether they wish to report to the police or not. However, 44% of the respondents reported that they did not know whether this important document was to be filled in for all survivors.

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Figure 10: PRC Form Filled in For All Survivors There is a need for HCWs to be sensitized on why it is important for them to fill in this form for all survivors. In addition to this they should also be informed that the reason why the PRC form is to be filled in is to help the doctor assigned to fill in the P3 form appropriately, in addition to helping to monitor the survivor throughout the period of care. b) Number of copies to be filled in for each survivor The National Guidelines provide that each survivor should have the PRC form filled in for them in triplicate. The original copy is to be given to the police as evidence; the duplicate copy is given to the survivor; while the triplicate should be kept in the health facility. From the study findings, just fewer than 50% of the HCWs did not know how many copies of this form were to be filled out for each survivor as shown in the figure below.

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Figure 11: Number of PRC Form Copies for Each Survivor The study also sought to find out the HCWs knowledge on which copy of the PRC form went to the police. The following Figure 16 below shows the results of this enquiry.

Figure 12: PRC Copy for the Police A majority (57%) of the respondents didnt know which copy went to the police. The Figure also shows that less than 36% of the respondents had correct knowledge that its the original copy that is supposed to go to the police.

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In an effort to enhance the chain of custody, both the police and HCWs are required to sign the PRC form before the original copy is handed over to the police as corroborating evidence. However, this was found not to be the case in practice given that 64% of those interviewed didnt know whether the police were required to sign the PRC forms or not. Table 12: Police Sign and Storage of PRC Forms

Responses No Yes Dont know Total *7 forms were left blank

Police required to sign PRC forms locked in PRC cupboard 8 (19%) 2 (5%) 7 (17%) 22 (51%) 27 (64%) 18 (44%) 42 (100%) 42 (100%)

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In one of the sites, the PRC booklets were left lying on the clinicians table as shown in the image below:

Figure 13: Handling of PRC Forms

Figure 13: Handling of PRC Forms In the above facility we were informed that the reason why these forms were left on the clinicians table was because the same booklet was shared between two departments hence it was not possible to lock them up. The Ministry of Health should address this issue by adequately stocking all health facilities with these forms. In one of the sites, the health facility had a lockable cabinet where these forms were kept for the purposes of enhancing the chain of custody. This practice ought to be emulated by all facilities. This can be done if the national guidelines clearly state that the PRC forms and registers should be stored in lockable cabinets to avoid loss or tampering of documentation. a) Supply of PRC Forms It is expected that since the delivery of PRC services is to be undertaken in public health facilities, the Ministry of Health should be in charge of supplying all facilities with the required documentation tools. From the audit 53% of the HCWs interviewed didnt know where the hospital got these forms from, while only 22% indicated that the forms were delivered to them through the MoH. In two of the facilities those interviewed indicated that they developed their own PRC forms due to the inconsistencies in the supply of these forms by government, which they could photocopy. There was also one facility where the HCWs had never heard about the PRC form and as such were using forms given to them by an organisation that supports the delivery of PRC services within the facility. These forms were customised to suit the organisations reporting requirements. This is contrary to the requirement that government facilities utilize official government issued tools.

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and as such were using forms given to them by an organisation that supports the delivery of PRC services within the facility. These forms were customised to suit the organisations reporting requirements. This is contrary to the requirement that government facilities utilize official government issued tools. Table 13: Source of PRC forms Source of PRC forms Dont know MoH NGOs Printing/Photocopy Total Frequency 24 10 7 4 45 percentage 53% 22% 15% 9% 100%

In order to address shortage of PRC forms, one facility resorted to photocopying the existing MOH 363 PRC form, whilst the other facility had developed their own form. These two facilities made carbon copies of the forms for their files and police, whilst the survivor was not given a copy. This in itself is a practice in violation of the national guidelines. b) Utilisation of the P3 Form The P3 form serves as a link between the health and judicial systems. It admissible as evidence in court under the provisions of Section 38 of the Evidence Act (Cap.80).It is therefore paramount for HCWs to ensure that each survivor who intends to report their assault to the police has a P3 form filled in for them. The P3 form is to be attached onto the PRC form that has been duly filled in. However, in some facilities the hospital administration was found not have sensitized the staff on why there is need for them to fill in both the P3 and PRC forms. As such HCWs were only focussing on filling all survivor details of the assault in the patients file, then a summary of the same in the P3 form. Their justification for this was that the courts in their jurisdiction do not recognise the PRC form as it did not have an official stamp from the MoH.

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This was found to have resulted in a scenario where there was a discrepancy between the numbers of PRC forms filled in against P3 forms issued for the period, December 2010 to May 2011, as shown in Figure 12 below. The discrepancy could be as a result of the PRC form not having been gazetted hence health care workers cannot be compelled to fill it in.

Figure 14: Number of P3 and PRC Forms Filled in

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National guidelines: The P3 form is to be issued to survivors of sexual violence at no cost. In as much as 70% of the respondents mentioned that survivors usually get this form free of charge, 11% indicated that at times survivors are usually asked to pay the medical doctor any amount ranging from Kshs 50 to 2000.

Figure 15: Survivors Pay for P3 Form

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There was however a contradiction regarding to whom this payment was made. Health care workers interviewed indicated that its the police who always ask survivors to pay for this before they are issued with it. Police officers on the other hand indicated that its the health care workers responsible for filling in this form who have the habit of asking survivors to pay before they fill it in. Data obtained from interviews with the community leaders indicated that it is the HCWs who ask for money before filling in the P3 form. There is need for this matter to be addressed so as to ensure that survivors do not miss out on medico-legal services due to the costs involved. That survivors are being asked to pay for the P3 form is corroborated by data from LVCT PRC program data shared out by the Police officers in some of the districts supported by LVCT. c) Who fills in the P3 form

Section 77 of the Evidence Act (Cap.80) states that: In criminal proceedings any document purporting to be report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. In matters regarding SV, the definition of medical practitioner according to under the Sexual Offences Regulations, 2008 (Published vide Legal Notice No.132) Section 6 (b) medical practitioner as one who is registered in accordance with Section 6 of The Medical Practitioners and Dentists Act, who in this case are only Doctors and Dentists. This therefore means that the P3 form is only supposed to be filled in by the Medical Officer. This is in contrast to the national guidelines on the management of sexual violence, which clearly states that, the P3 form is to be filled in by the medical officer or their representative. The guidelines do not specify who this representative is. In line with this, most clinical officers and nurses indicated that they never filled in the P3 form, but instead referred all survivors to a doctor within the health facility whose responsibility was to fill in all P3 forms from that hospital

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Figure 16: Who Fills in P3 Form at the Health Facility? In most of the health facilities visited there is only one doctor who is required to fill in all the P3 forms. This same doctor is also required to present in court all sexual violence related cases attended to in the facility. This practice had resulted doctors designating a day for filling P3 forms and survivors can only get the form on these days. In some hospitals, it was noted that both doctors and clinical officers could fill in the P3 form. This was influenced by the magistrate before whom cases of sexual violence are heard in the district. HCWs interviewed indicated that some magistrates dont have an issue with clinical officers filling in the P3 form. Ideally, it is expected that whoever attends to a survivor should also fill in the required documentation. This is however not true in practice, given that whereas according to the national guidelines, a doctor, clinical officer or nurse is mandated to fill in the PRC form, in most facilities, nurses and Clinical officers were found to avoid doing this for fear of being asked to go to court. There is need for all the HCWs to be sensitised on how to present sexual violence cases in court in addition to addressing the reasons why the fear going to court. There is the need for the GoK to develop a standard operating framework regarding utilisation of the P3 and PRC forms in the management of survivors.

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1.1.1. Who Provides PRC Services There is no mention in the guidelines of the type of HCWs who should undertake physical examination and management of survivors of sexual violence. However, forensic management according to the guidelines can only be done by a medical doctor, nurse or clinical officers. Trauma counselling on the other hand can only be provided by nurses, psychological counsellors, social workers or psychiatrists. However, in response to the question on ,who in this facility provides PRC services, there was no direct mention of psychological counsellors, social workers or psychiatrists as shown in Table 15 below Table 14: HCWs Who Provide PRC Services Designation Clinical officers Trauma counsellors Laboratory personnel CCC personnel Doctors Trained nurses frequency 49 27 31 7 31 35 Percentage 100% 55% 63% 14% 63% 71%

Table 14 clearly shows that all (100%) respondents reported that in most of the cases, its the clinical officers who provided services to survivors. This was closely followed by trained nurses (71%), doctors and laboratory personnel (63%), and then CCC personnel. It is also worth noting that CCC personnel also include clinical officers and nurses Having specific cadre of HCWs attend to majority of the survivors was a contributory factor in some facilities as to why survivors had to wait for long before being attended. This was so because the clinical officers or nurses were also expected to attend to the other patients in the facility. Due to the long queues of patients waiting to be attended to by the clinical officers, it was established that this was one of the reasons why the PRC form was not filled in for many of the survivors. Reason being that there was no privacy in most of the OPDs where these survivors were attended to and some of the HCWs complained about the PRC form being lengthy and as such hard for them to fill it with several other patients waiting to be attended to.

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1.1.2. Where PRC Services are Provided Within the Facility The audit revealed that in most of the health facilities visited, HCWs interviewed had knowledge on the type of PRC services offered; and where in the hospital the services were offered from. It was overwhelmingly (96%) reported that all these PRC services were not to be offered in the one room as shown in the figure below.

Figure 17: Where PRC Services are offered It was established that in six facilities, PRC services were provided in seven different service delivery points, namely the VCT, OPD, casualty, comprehensive care clinics, pharmacy, family planning clinic and laboratory. Given that most of the facilities visited, did not have one-stop gender based recovery units, an evaluation was done of the 4 sites that are considered to have one stop centres for GBV. None of these sites were actually providing services in one room. In one of the sites, the study team was informed that the gender based recovery unit functions 24 hours a day, 7 days a week. But upon going to the centre, there was no service provider. In some of these supposedly gender based recovery centres, it was established that its only counselling services that are provided there due to lack of staffing, and the clients get referred to other service delivery points for care.

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To overcome staffing and infrastructural challenges, HCWs in one site HCWs were found to have developed a system by which one of them would collect the required specimen from the survivor before taking these to the laboratory for analysis. The same HCW would then bring back the results to the one stop centre In another of the one stop facilities, the HCWs stationed at gender based recovery units accompanied survivors to the other service delivery points so that they did not have to queue again. In facilities where survivors were not escorted, they had to queue at each SDP resulting in loss of clients to follow up from one SDP to the next. This could be one of the reasons why there was a discrepancy between the numbers of survivors attended to at different SDPs as previously shown in Figure 2. Each facility should thus develop referral mechanisms within the facility 1.1.3. Referral To Police From the Health Facility The study also assessed the linkage between the health facilities and the police. These findings are presented in Table 15 below Table 15: When a Survivor Reports to Health Facility First Responses What happens if a SV comes to health facility first

Sent to police station before Police routinely called in examination Yes No Dont know Total 4 (8%) 41 (86%) 3 (6%) 48 (100%) 6 (13%) 37 (77%) 5 (10%) 48 (100%)

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The data above shows clearly those survivors of SV are always attended to at the health facility whether they have reported the case to the police or not. This is evidenced by 86% and 77%, of the respondents who indicated that they provide services even to those survivors who havent reported their complaint at the police station. However, 8% and 13% of the respondents reported that some cases are either referred to the police first before physical examination and that the police are routinely called in whenever someone presents first at the health facilities. This they said was based on the provisions with the national guidelines, that, there is a legal obligation to report an episode of sexual violence to the authorities This provision within the guidelines ought to be reviewed. A retrospective review of the health facility registers. Established that 51 % (n=2792) of survivors had been referred to the police from the 10 health facilities. a) Referal Tracking of Survivors From Health Faciliy Respondents were asked on the mechanisms in place to ensure survivors referred from the health facility get to the police station.The finding for this is presented in Table 16. Table 16: How Survivors Get to the Police How SV survivors get to Frequency police Taken there police come for them Not sure Total 2 6 32 40 percentage

5% 15% 80% 100%

80% of the respondents were either not sure or didnt know how SV survivors got to the police station. This in itself indicates a need for the health facilities and police stations to develop mechanisms that would facilitate tracking of survivors from one referral point to the next.

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1.1.4. General Facility Observations Part of the audit entailed observing whether the health facilities put up posters on the availability of PRC services and notices on where exactly within the health facilities survivors could access these services. The findings are as shown below: 1.1.4.1. Use of Notice Boards Many organisations and institutions utilise notice boards to communicate any key messages to a large clientele over a period of time. A random check of notice boards in the study sites was conducted to establish whether there was any information displayed on: (i) (ii) (iii) Type of post rape care services available at facility; Where these services were delivered; and Accuracy of information displayed both for the patients and HCWs.

All the health facilities had notice boards but these were mainly used to display information targeting staff. Where the information was meant for public utilisation, it was highly unlikely they would read the notices because of the following reasons:

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Poor display of notices, crowded notices, and away from the public waiting bay

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Poor visibility of IECs displayed

Poor placement of notices

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Irrelevant IECs in PRC examination rooms

Inaccurate Information on Services Available

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None of the sites had posters on the PRC services offered at different SDPs in the hospital. Only 1 facility has posters on PEP regimen prescribed to survivors pasted on the walls of the PRC SDP, however, these posters did not contain the accurate PEP regimen stipulated in the guidelines. Two facilities had circumvented lack of IEC materials by developing their own as shown below:

One facility was found to have an internal protocol on how HCWs where required to offer immediate care to survivors. This was done for purposes of ensuring that there was a standardised way of delivering PRC services offered in all SDPS

1.1.1.1. Use of Billboards for Advertising 40% of the hospitals audited did not have any posters advertising availability of PRC services and a further 20% had posters/signposts located inside the health facilities. Majority of health facilities had posters advertising HIV testing (57%), TB services (40%) and STI services (50%) inside the compound. Lack of indications of the availability of PRC services both inside and outside the health facilities could be an impediment for survivors of sexual violence once they get to the facilities.

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Health facilities can make best use of notice boards to sensitize the general patients on where to access medico-legal care. This could be done using the approach taken by all the hospitals of having a service charter drawn on the wall. However not all of the service charter displayed made mention of existing PRC services. 1.1.1.2. Available Equipment The study teams also did a spot check on the type of equipment in the targeted hospitals. From Table 17 over 50% of the health facilities had most of the items required in the delivery of PRC services. 90% of the health facilities had areas set aside for medical examinations, counselling rooms and on the day of the audit there was electricity available. Availability of adequate water and bathrooms were found to be in 50% of the facilities. Only 70% of the facilities where PRC services are provided on 24 hours Table 17: Availability of Rooms and Amenities Availability of: Designated area for medical examination Bathroom Adequate lighting Adequate safe water Availability of electricity Counselling rooms Yes 9 (90%) 5 7 5 9 9 (50%) (70%) (50%) (90%) (90%) No 1 (10%) 4 2 4 1 1 (40%) (20%) (40%) (10%) (10%) Dont Know 0% 1 (10%) 1 (10%) 1 (10%) 0% 0%

The study also sought to find out what kinds of equipment were available in service delivery points where PRC services were being offered.

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Table 18: Availability of Equipment Presence of Examination couch Speculum Stethoscope Disposal Syringe Re-usable Syringe Disposal Gloves Colposcope Sharps Container Lockable Cabinet Sterilizer Patients Gown Sanitary Towels SWABS Sheets of paper for examination Paper bags Pregnancy testing kit HIV testing Consumables Refrigerator Emergency Contraceptives PEP STI Drugs Analgesia Anti-Emetics Yes 10 (100%) 8 (80%) 9 (90%) 9 (90%) 0% 9 (90%) 6 (60%) 10 (100%) 8 (80%) 9 (90%) 3 (30%) 5 (50%) 9 (90%) 9 (90%) 9 (90%) 9 (90%) 10 (100%) 9 (90%) 9 (90%) 9 (90%) 8 (80%) 9 (90%) 9 (90%) No 0% 2(20%_ 1 (10%) 1 (10%) 0% 1 (10%) 4 (40%) 0% 2 (20%) 1 (10%) 7 (70%) 5 (50%) 1 (10%) 1 (10%) 1 (10%) 1 (10%) 0% 1 (10%) 1 (10%) 1 (10%) 0% 1 (10%) 1 (10%)

As can be seen from the above Table 18, 90% of the health care facilities had the essential equipment to offer care to survivors. However, only 30% of the health facilities had gowns for survivors patients to change into during a medical examination. However one facility did not have PEP at the time when the study was being carried out. The facility that was found not to have EC indicated that, survivors of SV were prescribed for other combined or progesterone only family planning contraceptives.

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Some of the above equipment was only available in certain departments within the hospital. HCWs involved in the provision of PRC services had to borrow some of these equipments from other SDPs whenever they received a survivor. Measure ought to be put in place to equip all service delivery points within the hospitals with the required amenities and equipments. 1.1.2. Conclusion Health facilities do not have enough staff, equipment, training or supplies to guarantee delivery of quality and timely medico-legal services to all survivors of sexual violence In all the sites visited its only those HCWs who were directly involved in delivery of PRC services who had an idea of services available for survivors of SV. This in turn poses a challenge due to the regular inter-departmental staff transfers which resulted in HCWs who had not been oriented on the national guidelines being required to attend to survivors. HCWs require training on how to respond to health needs presented by survivors. The community should be sensitized on the type of post rape care services available at public health facilities plus the costs involved. Regarding availability of abortion services to survivors of sexual violence, it is still not clear on the type support to be availed to this group of survivors. Given that the new constitution only states that abortion can be procured if the life of a mother is at risk. It does not provide the parameters for assessing risk. There is need for measures to be put in place to sensitize all HCWs and the police on the provisions in the national guidelines on the management of sexual violence. This can effectively be done in pre-service training institutions.

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1.2. CHAPTER 2c:CURRENT PRACTICES BY THE POLICE OFFICERS IN DELIVERY PRC SERVICES The substantive law pertaining to gender-based violence in Kenya is contained in the Sexual Offences Act No. 3 of 2006. However the Kenyan Constitution is the supreme law of the land and it guarantees the basic and fundamental rights of its citizenry. This audit thus sought to find out the experiences of Kenya police officers in the management of cases of sexual violence in line with the SOA and the national guidelines on the management of sexual violence A total of 21 police constables and Officers Commanding Police stations (OCS) from the 10 districts were interviewed to establish the following: 1. Type of services provided to survivors of sexual violence 2. Proportion of police with correct knowledge on the provisions of the national medical management guidelines 3. Proportion of police with correct knowledge on the provisions of the SOA

Table 19: Number of Officers Interviewed

Designation

Gender Female 0 13 13

Male OCS 2 Police Constables/Officers 6 Total 8

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1.3. Number Of Survivors Attended To By Police A retrospective review of police records was done by the police officers themselves to establish number of cases attended to between 2010 and 2011. Table 20: Cases Attended to at the Police Station District D e f i l e - Rape s e x u a l Attempt- G a n g No. of c a s e s ment assault ed rape/ rape P3 forms taken to defilefilled court ment 4 3 10 8 5 1 Total 9 146 23 13 7 7 205 2 2 1 14 92 23 18 14 119 23 18 10 184

5 1 3 11

2 4

3 1 4

147

Data was not obtained from four stations because the study teams were informed that the officers had not been notified by the superiors that this was a study requirement. Some of the stations did not provide details of the number of P3 forms filled in or cases pending before court. However almost all the stations made effort to present cases reported to them before court. In one of the sites, police data indicated that there are instances where survivors of sexual violence fail to appear in court even when the matter has already been presented. 18 % (n=146) of cases attended to in one of the police stations in district 3 went missing after being presented in court. Most police officers attending to survivors of SGBV made effort to accurately capture details of both the survivor and the alleged accused. This in a way makes it possible for one to trace a case progression from the police into the judiciary. There is need to develop mechanisms that would help trace survivors through the entire medico-legal system so as to address matters regarding cross-sectoral referral of survivors.

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1.4. Police Response to Cases of SGBV

Part of the mandate of the Kenyan Police officers is to address every criminal matter presented by the public. In the context of SGBV, the police are required to record the complaint in the occurrence book, issue survivors with a P3 form, and accompany the survivors to the hospital, in addition to doing further investigation of the crime reported by visiting the crime scene. All police officers interviewed indicated that they do discharge these responsibilities despite the challenges they face in handling offences not stipulated within the SOA, for example cases of marital rape. However, in most cases the police did not provide any service to victims of domestic violence, particularly in cases of marital rape. The police based their actions on the SOA which does not recognize sexual violence within marriage as a sexual offence. Section 43 of the Act, which defines what constitutes intentional and unlawful acts, under subsection (5) specifically, provides that This section shall not apply in respect of persons who are lawfully married to each other. This is based on the assumption that once married, both spouses are entitled to conjugal rights. Some of the police officers indicated that in instances where cases of marital rape are reported to them, they usually charge the perpetrator with common assault as per the Penal Code - this is so because there is no provision for the same under the SOA. The punishment for common assault is lesser than for rape However, 60% of police officers interviewed indicated there not having been trained on how to handle certain cases of SGBV stipulated in the SOA hindered their ability to attend to all SGBV cases. An example being, how they should handle cases of sexual violence amongst children and those with disabilities. This knowledge gap by the police could be reason why most of them according to the community did not handle all cases of SGBV in an empathetic and sensitive manner, according to some of the community members interviewed. Most of the police officers interviewed regarded violence within the home as a domestic matter that should be treated as such. This was demonstrated by feedback received from community leaders on how most cases of marital rape and incest reported to the police were referred back to the chiefs or village elders for resolution.

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1.5. Police Response In Line With Existing Legal Framework

Besides the SOA, Kenya is a signatory to several international instruments that guarantee protection from GBV. These include the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Universal Declaration of Human Rights, amongst others. Under Article 2(6) of the Constitution, 2010: any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. It is thus part of the mandate of the formal justice system to address any violation of the rights protected under these international instruments. However, the police officers interviewed indicated the challenges they face in upholding the provisions of some of these legal instruments, with specific focus on the SOA. The SOA taskforce ought to provide directions on how the police should enforce the law particularly in cases of SGBV that are currently not stipulated within the ACT, for example marital rape, early/forced child marriages and FGM 1.6. Challenges Faced by Police Highlighted below are the challenges given by police that hinder them in responding to the needs of survivors of sexual violence in a timely and efficient manner. 1.6.1. Transportation Some of the officers interviewed indicated that whenever a survivor presents at the police station before being attended to by a doctor they always record the case before escorting them to the hospital. It was also established that it was the mandate of the police to personally take the P3 form to the health facility for it to be filled in by the attending doctor. Almost all police officers cited lack of transportation as one of the challenges that they face in dealing with survivors of sexual violence that come to report their cases to the respective police stations. There were those officers who indicated that at times they use their own resources to help survivors who report to them get to the health facility on time or to help fellow officers visit the scene of the crime. This was true in cases where the survivors who presented at the police station did not have the financial means to go to hospital.

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None of the police stations selected for the study was found to have adequate vehicles to facilitate movement to and from the hospital and/or crime scene. When the station vehicle is not there and we have to take the person to hospital we have to hire a taxi things like that and if we dont have the money (OCS, District 06) Transport maybe we have a survivor who doesnt have any one to escort her and maybe the station vehicle is not available so they have to chip in and use their money (Police Officer-District 07) In some places the community members interviewed however indicated that most of the officers at their local stations usually request survivors to provide transport to facilitate the police officers movement to the health facility. Thus, there exists a need for the Government of Kenya to make budgetary allocations that will facilitate the availability of the transport means required to ensure that all cases of SGBV are thoroughly investigated. 1.6.2. Communication Barriers Faced By Police Police officers repeatedly voiced challenges they experienced in handling cases of sexual violence, in particular in how to obtain the details of the incident from the survivors. These included: 1.6.2.1. Communicating With Children And The Elderly This was more profound when handling cases of defilement. The officers noted that it was difficult when collecting evidence or trying to obtain information from child survivors of sexual violence. Children is big challenge because they are shy they are not ready to talk traumatized ordinarily they are traumatized talking to them you must withstand them you must make them talk you cannot push them around so you have to get the information from them, but also it is good because the act provides for intermediary, (Police Constable-District 04)

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Challenges involve maybe the child is too young to talk, the child sometime is too traumatized to the extent he she cannot talk or she can do is just persevere, you even wonder what to write... (Police Officer-District 06) They also noted that the elderly survivors of sexual violence had a difficult time reporting cases of sexual violence. This was so because most of the elderly people who were raped would find it hard to clearly narrate what happened given that most of the officers manning the gender desks were young enough to be their children. Interviewer: do you have survivors who are old coming to report they have been sexually violated? Respondent: yes. Maybe I have a case whereby an old woman of about 85 years. She was raped by a boy of 19 or 20 years and she came here. The boy was arrested and the case is pending before the court Interviewer: did you have any challenges in trying to get information from her, In terms of addressing her case? Respondent: you know sometimes they become shy too because she is old and the information she is giving to a person who is young than her, she feels it is not good so she feels shy but we have to use some techniques so that she can open up and tell us (Police Officer -07) There is therefore need to equip police officers with skills to interview and handle children, the elderly and disabled persons. 1.6.2.2. Language barrier The Kenya Police have a motto Utumishi Kwa Wote that dictates their mandate to provide services to all regardless of colour, creed etc. However, they expressed a concern that they are unable to serve all who present to the stations due to language barriers. The officers indicated that in some instances, survivors who reported cases of sexual violence could only speak in their vernacular language which the officers at the police station were unable to understand. In such cases, survivors were asked to return with someone who could speak a language understood by the officers behind the gender desk

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The officers indicated that in some instances, survivors who reported cases of sexual violence could only speak in their vernacular language which the officers at the police station were unable to understand. In such cases, survivors were asked to return with someone who could speak a language understood by the officers behind the gender desk ..sometimes it gets difficult to take statements from them, so it takes maybe a lot of time, and the problem there maybe the language barrier sometimes, so it will mean that a 3rd party comes to interpret, and when that happens now it complicates the problem much further. (Police Officer-District 01) we have also language barrier sometimes a child can come here is speaks Luo only , you will need to look for someone to interpret that person must be a police officer who speaks Luo and can be able to get all the information so writing a statement like that is a huge task.. (OCS- District 08) Several police officers interviewed mentioned that their stations were not equipped with personnel who are familiar with sign language and therefore they are unable to effectively attend to cases involving the hearing impaired. Where survivors with disabilities presented at the police station, it was challenging for them to be well attended to, especially those who were either hearing impaired or unable to speak. Yes I once dealt with a deaf person and I could not communicate with her because I do not know the sign language, it was alleged that the survivor had been defiled by the neighbour. Some of those interviewed indicated that it was upon them to make an effort to get an interpreter from the general public so as to extract accurate information about the incident. They based this on Article 50(2)(m) of the Constitution, 2010,further provides that every accused person has the right to a fair trial, which includes the right to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial. This they said also applies to the complainant.

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Yes, in fact right now there is a case of a person with disability, and when you want to talk, you go to a person who interprets sign language and that one, that is the only person who can be found to communicate. So you can imagine if that person was not there. (Police Officer District 01)

The Constitution only provides Rights for the Accused in Article 50(2)(m) which states that they have a right to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial. The same Constitutional Right should be extended to cater for the needs of survivors while reporting their complaint in Police stations or accessing care in health survivors are reporting their cases at the police station. There is thus need for the SOA taskforce to provide guidance on this matter to enable police officers to adequately address all cases reported to them. 1.6.2.3. Survivors With Disabilities Literature shows that more that 80% of Persons with Disabilities (PWDs) xii experience sexual and gender based violence in their lifetime. In most instances, these violations are perpetrated by intimate partners, friends or care givers. Given that sexual violence is a crime against the state, it is therefore expected that all such cases be reported to the police for justice to be done. However, most PWDs who are sexually violated rarely report to the police due to factors like: inability to recognise the incident as a sexual violation, mobility and communication challenges. In some instances police officers find it hard to determine the actual age of some of the PWDs, especially those with physical disabilities. The end result is that it becomes hard to document whether it was a defilement or rape. Such cases always get challenged in court on the basis of age. The physically disabled persons sometimes have body that does not translate to their age. I took the survivor for an age test and test showed he was 20years and not 17 years as the victim had claimed. I therefore had a very hard time in court (Police Officer-District 06)

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The SOA provides clear directions on the sentencing to be imposed in cases of defilement. As such any error made by the police officers or medical officers in determining the actual age of the child could result in the charge sheet being filled in inaccurately by investigating officers. Challenges in attending to the mentally handicapped are best illustrated with the response below from one of the officers interviewed. Yes because a person who has a mental disability may be sometimes difficult for remember the incident that it becomes difficult for her to identify the culprit. So if she sees anybody she can say its this one or this one you fail to understand who has done this (Police Officer District 07) In some cultures, there still exist different forms of discrimination associated with disability. This makes it hard for police officers to record statements from people who might have witnessed the PWD being violated. So I think the biggest challenges, especially for persons with disabilities, communication, and then most of them, I dont know the community does not like to associate with disability. They dont want to side with them. Because I have seen in instances where a person with disability is the victim, but most people tend to just leave it at that. Most people dont want to assist them (Police Officer-District 01) Much effort is required to enable PWDs who are sexually violated to access services in public institutions without any form of discrimination and with utmost confidentiality. 1.6.3. Interference From Family According to Section 40 of the SOA, the decision as to whether the prosecution or investigation by any police officer of a complaint that a sexual offence has been committed should be discontinued shall rest with the Attorney General . Under the Constitution, 2010, the power to discontinue prosecution rests with Director of Public Prosecution (DPP). However the DPP cannot discontinue a prosecution without the permission of the court. The DPP can also direct the Police to investigate any information or allegation of criminal conduct.

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However, this is not the case in most of the districts visited. Both the local administration and the police interviewed indicated that there are several instances where survivors/families choose to withdraw cases previously reported to them. In some instances this was as a result of the following: Pressure from the perpetrator to withdraw the case Financial difficulties, hence not able to meet the costs Pressure from the family, especially if the perpetrator is a relative Reporting to the police is mostly done in instances where the survivors or their families are not happy with the outcome of the case handled by the family, village elder or chief. In some instances survivors would turn to the police if the perpetrator failed to pay the agreed compensation. However, in such instances there was little the police could do given that its not the mandate of the police to enforce decisions made by the local administration. 1.6.3.1. Cases of Family Inflicted Violence Police officers as well as chiefs interviewed mentioned that the family at times try to intervene and get the case withdrawn from the police records. This was found true in cases where the violation was done by a relative. The basis for this was that in some cultures it is deemed wrong for a clan member to take another clan member to court. Such cases therefore have to be resolved by clan elders. . sometimes a case comes here and they just saying you just want to finish it at home because somebody who did it was an uncle or family members so we dont want it to be a police case (Police Officer-District 05) Cases of marital rape and inter-family related defilement were found to never make it to court due to such interferences by family members. The police officers interviewed indicated that women in such communities get torn between wanting to see justice done on one hand and protecting their husbands on the other. We follow up but first of all when somebody comes here and tells you that I have been raped by my husband..But mostly when we record statement you find that this lady after she is supposed to come back she doesnt come back she says that we have talked, we have solved it, and so its hard if the complainant is not cooperative we also find it very difficult for such cases to be taken to court because .. (Police Officer-District 02)

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Several police officers noted that once the P3 form is filed in by a medical officer, some of the survivors do not return this form to the police. The reason for this was that some families resort to using the P3 forms as a bargaining chip to get compensation from the perpetrator in an effort to avoid a court case. This raises serious questions about (i) the extent to which the documentation provided by the formal justice sys tem is being used to propagate alternative justice systems; and (ii) at what point in the formal justice system should the survivor be given a copy of the P3 form? 1.6.3.2. Legal Provisions Vs Cultural Provisions Ideally the police are supposed to ensure that all cases reported to them push through the entire criminal justice system so that the perpetrators are convicted. However, police officers voiced their frustrations in executing this for two reasons: a) Police torn between the legal provisions and respecting local culture Given that the SOA clearly states that its only the Attorney General who can withdraw a case from the justice system, there is usually very little police officers can do to prevent termination of cases by survivors who resort to getting help from the informal justice systems. This is because the police are torn in between the legal provisions and the traditional practices in the communities where they are stationed. The police also fear being seen not to respect the cultural norms of the communities where they work in. On one hand the police are required to uphold the law while on the other they are expected by the community to respect its culture and beliefs. Failure to show respect for the communitys culture could, also jeopardise the security of the police officers and/or their families or cause the community to lose trust in the police. Community members were also found to resort to the formal justice systems as the last resort especially when the local administration fails to ensure families get the compensation they are entitled to. Police officers interviewed indicated that in such instances there is usually little they can do given that the survivors and witness accounts of the incident will have been tampered with. This in turn places a limitation on what the formal justice system can do. There is thus need for the local administration to be sensitised on what exactly their role is in response to cases of sexual violence within their territories. This would help minimize, if not eradicate, the current conflict in the two forms of justice.

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b) Non-Existent follow up mechanisms Despite interferences by family members there were some police officers that indicated that they do not allow such a practice. To address these practices where survivors fail to follow up on their reported cases, police officers in some stations indicated that they always make effort to capture detailed survivors demographic information for ease of follow up. This they noted important in cases where survivors may be threatened and as such unwillingly resort not to proceed with the matter before the police.. Parents of the husband are the ones who come in most cases wanting the case to be withdrawn or they want to negotiate but we dont have room for that (Police Officer-District 09) The police officers interviewed indicated that there is no standard referral and follow up protocol that can be used by police officers to trace survivors once a case is entered into the OB. . we have the P3 forms and have the contacts sometimes. We sometimes visit and check whether they stay there and because they know they have reported a case to police they disappear. You cannot find them where they were residing. They give you their mobile phones and when you try calling them it is switched off, so that case ends that way (Police Officer District 06). There is need for both the police and health sector to develop survivor referral and follow up strategies inter and intra-sector. This could help address the current high levels of survivor case drop outs from the formal medical and justice institutions. There is also need for the taskforce to devise strategies of addressing the existing gaps within the formal justice systems that make the informal systems that preferred choice in most communities. 1.6.4. Witness Protection: The formal justice system is required, according to the SOA section 31(2), to put in place protective measures for all vulnerable witnesses. The SOA clearly indicates that someone may be considered a vulnerable witnesses on the account of: (a) age; (b) intellectual, psychological or physical impairment; (c) trauma; (d) cultural differences; (e) the possibility of intimidation; (f ) race; (g) religion; (h) language; (i) the relationship of the witness to any party to the proceedings; (j) the nature of the subject matter of the evidence; or (k) any other factor the court considers relevant.

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The police interviewed indicated that they experienced challenges in providing protection to survivors of sexual violence given that there are no adequate protective shelters. This is especially troublesome in cases where the perpetrator of the violence is a member of the family and living with the survivor. Section 22(4) of the SOA states that in cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Childrens Act. However, the police officers indicated that they couldnt guarantee witness protection. They also noted that some witnesses shied away from giving a statement to the police because they feared the repercussions that would ensue if they gave any form of evidence/report to the police. This was a challenge in cases where the perpetrators and the survivors were from the same community, as is often the case. The challenges in safeguarding witnesses are compounded by the new Constitution in which every accused person is entitled to bail and a copy of the witness statements made during the trial. This is also provided for in Section 31(4)(d) of the SOA. Section 22(4) of the SOA states that in cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Childrens Act. However, the police officers indicated that they couldnt guarantee witness protection. They also noted that some witnesses shied away from giving a statement to the police because they feared the repercussions that would ensue if they gave any form of evidence/report to the police. This was a challenge in cases where the perpetrators and the survivors were from the same community, as is often the case. The challenges in safeguarding witnesses are compounded by the new Constitution in which every accused person is entitled to bail and a copy of the witness statements made during the trial. This is also provided for in Section 31(4)(d) of the SOA .

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... So threatening the witnesses is a problem by the accused person if the accused person is out on bond. ... Nowadays as per the constitution, the accused person has right to be given the statement of the witness, and all particulars are inside the statements. So you can find somebody being called, being threatened, so you can find even the witnessed they dont avail themselves in court because they fear about their lives yes. (Police Officer-District 03) The lack of protective shelters for survivors and other witnesses makes it challenging for the officers to ensure the safety and security of survivors. The taskforce on the implementation on the SOA should thus provide rules on how the state can provide resources to facilitate witness protection. There is thus need for development of implementation of the Witness Protection Act, 2011 to address some of these challenges around safeguarding an individuals safety. 1.6.5. Adherence To The Provisions For Forensic Evidence Management The majority of the police officers that participated in the study were not aware of the National Guidelines on The management of Sexual violence in Kenya (2009). Only 18% of the officers interviewed were aware of the guidelines. These Guidelines clearly stipulate how management of forensic evidence collected in health facilities helps police prosecutors in presenting credible evidence in court. There is also a section within the Guidelines on the role of the police and HCWs in the maintenance of the chain of evidence. It is the responsibility of the police to convey to the government chemist and the courts any evidence collected by the HCWs for further analysis or for corroboration of the survivors story However, from the audit it was established that there exists insufficient knowledge among the police on two provisions stipulated within the national guidelines: Handling of forensic specimens Documentation

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1.6.5.1. Handling of Evidence By The Police The National Guidelines on the Management of Sexual violence in Kenya (2009) specify the principles of proper collection and handling of specimen that should be adhered to. The Guidelines state that the biological evidence should be packaged in paper envelopes or bags and the use of plastic bags should be strictly avoided. The forensic evidence is vital in terms of prosecuting the perpetrators of this violence. Proper collection and management of the evidence by both police and HCWs is therefore vital. The study participants differed on the provisions on proper packaging of the evidence to ensure that it is not manipulated or contaminated. Poor packaging of exhibits by the police was attributed to lack of resources to buy the requisite packaging materials. We have polythene papers.Polythene but it depends we do not have some specific package but we just ensure we put them in an envelope and we make sure they are not contaminated (Police Officer-District 04) .because we have envelopes for the exhibits. This is our cabinet we normally keep our exhibits here. So we have these envelopes so that we dont we dont want to destroy our evidence. So this is the envelope, where some exhibits like panties, like even clothes, are kept (Police Officer-District 09) Its packaged very nicely, like the panties you are supposed to put it in that manila bag like this one you pack it nicely it can stay there for even six months without getting spoilt, .. (Police officer District 02) The National Guidelines clearly indicate that wet exhibits should be first air dried before being packaged. However, none of those interviewed mentioned that they usually air dry the samples first before packaging. they, well I remember I took what they call vaginal smear, and a swab, and they packed in a what they call a, theres a kind of paper, but I remember there was some forms that we filled, if I remember correctly, but I am the one who marked the exhibit, and I accompanied the forms with the exhibit memo that we usually have here and I took them to the government chemist (Police Officer-District 01)

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Poor packaging of samples largely contributes to the degradation of the collected evidence and subsequently negative case outcomes within the courts Transportation challenges within the police force were found to have resulted in a scenario where the police rarely convey collected evidence to the Government Chemist. In instances where the Police managed to take samples to the Government Chemist for further analysis, those interviewed voiced concerns about the time lapsing between when the evidence is analyzed by the government chemist and when the results are communicated back to them. This was found to be one of the factors as to why some cases take a long time before judgements are made or before suspects are acquitted. . Another challenge that we get is if you get if you take these swabs and the blood to the government chemist, the request takes too long, they take too long. So if you take the case to the court, there is that case where the report is not ready the report is not ready almost year later. (Police Officer-District 05) The SOA taskforce ought to provide policy regulations on this in addition to facilitating the provision of a national DNA laboratory as per the provisions of the Act. There is also need for the inadequacies within the government chemist to be addressed so as to facilitate the timely analysis of evidence 1.6.5.2. Documentation Done by The Police The P3 form is one of the documents maintained by the Kenya Police. It is a creation of the Kenya Police Standing Orders . A medical officer is required to fill in Sections B, C. &D of the P3 form upon completion of Section A by the Police.

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The National Guidelines on the Management of Sexual violence in Kenya state that the Kenya Police Medical Examination P3 form is to be completed by either a health practitioner or a police surgeon and that the form is the link between the judiciary and the health system. It is therefore critical that the form is filled out by the appropriate persons so as not to jeopardize a court case. The medical officer that completes the form is also expected to appear in court in person or send a representative, as an expert witness. The police officers had differing responses as to who at the health facility could fill out the P3 form for the sexual violence survivor. .. as per the law nowadays, a clinical officer cannot fill a P3 form for the survivors. The case will be acquitted in court and we shall loose the case .. The doctor is supposed to fill the P3 form, not clinical officers (Police Officer-District 09) .. but other places the other clinical officer can fill the p3. (Police Officer-District 02) The Majority of those interviewed were of the opinion that its the doctors alone who are required to fill in the P3 form. This is the practice despite the few doctors found in public hospitals. According to the Police Standing Orders, the P3 form is supposed to be filled in duplicate. The form is also supposed to be given out at no cost in cases of sexual violence. This provision is also clearly stipulated in the National Guidelines on the Medical Management of Sexual violence in Kenya. However, this was not found to be the case in practice as there was no police station where the P3 forms were being filled out in duplicate. In terms of payment, there was a contradiction in responses given by the health care workers and the police. According to the HCWs police officers usually ask survivors to pay for the P3 form, whereas according to the police there are HCWs who demand payment from survivors before they fill in the P3 forms for them.

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well, thats a problem that we have been struggling with, because the hospital here charges all P3 forms, filled kshs.1000 even for sexual violence, but through intervention, we had a meeting some time last year but one, where it was said like, if the victim is under the age of 18, it sometimes becomes too much for them to pay. So we agreed that less than 12 years, is filled the P3 forms, no theyll fill in the P3 forms. Though the P3 form is issued here free but is only paid to be filled at the hospital. So for those aged below 12 years it was decided that they will be filled free and then those above 12 years pay kshs.1000, but it goes with case to case. But in cases where it is too difficult for the victims or the relatives of the victim to afford the kshs.1000 we usually write a letter and then they waive the fee, yes (Police officer District 01) Few of those interviewed mentioned having ever received the PRC form as accompanying notes from the doctors who filled in the P3 forms. There is need for police officers to be sensitised on the PRC forms and budgetary provisions made to facilitate both the P3 and PRC forms being filled in for survivors in duplicate and triplicate respectively 1.6.6. Presence of Gender Desks This audit revealed the lack of designated offices serving as gender desks in most of the police stations. Where gender desks were said to be in existence they were not well equipped in terms of staffing and spacing. Most of the officers responsible for the gender desks had also not received training on the skills required in handling survivors of SGBV such as, counseling or referral. Only 1 out of the 10 police stations had a gender desk located within a designated area. Survivors are therefore required to report their complaints at the main reporting desks that are usually crowded with police officers recording statements from the general public. The Constitution provides for the right to privacy, which also caters for survivors of sexual violence. The SOA on the other hand has made specific provisions to acknowledge the vulnerability of some witnesses where appropriate. Its the report office and so there is no confidentiality and I usually feel embarrassed. I always find different officers every time I go to the office (Chief-District 03)

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I have to evict the owner of this office, evict him out, then use this (as gender desk. We dont have an office so Ill have to find at least an office where there is space where I can talk to the person, just me and her (Police Officer-District 10) In one of the stations one of the police officers indicated that most of the support given to the police stations is often in terms of human resource development and not infrastructural support. He was of the opinion that stakeholders should step in to support the police in setting up designated offices within the police station that can serve as gender desks. 1.6.7. General Observations Only three police stations (in Districts 01, 05, and 08) had posters on sexual violence/ abuse displayed in their gender offices. However these posters did not have sufficient information on the services available for survivors at the health facility. 1.6.8. Conclusion Majority of the police officers interviewed were not familiar with the provisions of the National Guidelines on Management of Sexual Violence, with specific focus on forensic examination and documentation. There exists need for the police officers to ensure that all P3 forms forwarded to them are supported by the relevant documentation. This will help reduce on the number cases with negative outcomes due to lack of sufficient corroborative evidence Different stakeholders involved in sensitisation of police on matters regarding SGBV should be encouraged to use a standard training curricular for pre and in-service trainings The referral mechanism between the local administration, police and health facility ought to be enhanced to ensure that survivors access quality and timely services. Whilst it is commendable that all police stations visited have a gender desk, it is necessary for measures to be put in place by the OCPD to ensure that these desks are manned by qualified personnel, in addition to being structured in a way that ensures privacy. The transport challenges and language barriers faced by police in executing their duties should be addressed so as to improve on the perception the communities have on how police respond to cases reported.

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RECOMMENDATIONS This section highlights recommendations per sector Sexual Offences Implementation Taskforce In order to fulfil its mandate, the TFSOA should: Create awareness: The taskforce on the implementation of the SOA should spearhead campaigns geared towards creating public awareness on the provisions of the SOA; and holding county sensitization forums for the police, chiefs and community leaders to sensitize them on what their roles are with regards to management of SGBV There is need for sustained public awareness campaigns to cover the SGBV prevention and response by individuals, formal and informal medico-legal institutions. A mass campaign against all forms of SGBV should be carried out and the public empowered on where they can access help Set up a multi sectoral coordinating mechanism: The taskforce commissions the setting up a national multi-sectoral coordinating body to oversee the development and implementation of broad based SGBV response mechanisms. This recommendation is pegged on the lack of GoK supported coordinated efforts for response, which has given room to development of vertically independent SGBV programs by different sectors. Develop comprehensive Standard operating procedures: GBV programming and policy responses should also include men and boys. This is premised on the fact that men play a key role in addressing cases of SGBV given that in most communities visited during the study, majority of the power holders were found to be men. In most cases penalties of committing an SBGV offence are mostly given to the head of the survivors family. It is thus anticipated that inclusion of males into SGBV response strategies will greatly reduce on the

Advocate for shelters: In line with the provisions of the Witness Protection Act, there is need for the government to develop strategies that would ensure effective protection of survivors of SGBV by creating shelters in all counties.

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They should also provide guidance on the role played by the local leaders in addressing cases of SGBV reported, so as to avoid the current practice where the police who are the custodians of law delegate some of the responsibility in addressing cases of intimate partner violence to the local chiefs. Align the SOA to international instruments: Kenya being a signatory to various international instruments, there is need for the certain forms of violence stipulated within these instruments e.g. female genital mutilation, early marriage and domestic violence to be included in the SOA.

The Police Department

The Office of The President, through the Police Department should do the following: Gender Desks: Each station should have a gender desk. Each police station should then be mandated with the responsibility of ensuring that these desks are manned by police officers trained on matters regarding gender based violence; and they should not be affected by regular police transfers. It is anticipated that this will help enhance continuity of service delivery by the police. Transport: All Police stations should be equipped with adequate number of vehicles to facilitate movement by the police to the crime scenes and health facility.

The Ministry of Health

The following should be addressed by the MoH Financing: The GoK has not given priority to sexual and gender-based violence in terms of funding. It was noted that whilst the GoK finances public health in general, it has not put in place necessary modalities in place to ensure free access of PRC services by survivors of SGBV, consistent supply of PRC service delivery components to public health facilities, inclusion of matters SGBV into pre-service curricular of both police and HCWs All doctors attending to cases of SV are required to present themselves as expert witnesses court upon mention a case they attended to. However there are those who choose not to sign the P3 form for fear of being summoned to attend court with no budgetary allocation given to them. To address this challenge the GoK through the MoH should put in place mechanisms to facilitate movement by doctors to the court from their duty stations.

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Training: Given that survivors of SV present to public health facilities for care, the MoH should put measures in place to continually have all HCWs trained on delivery of PRC services in accordance to the national legal and health frameworks. Supplies: The MoH ought to embed supply of PRC commodities into the government supply chain so as to avoid stock outs of the required supplies. This can be done through the Kenya Medical Supplies Agency. Set up Integrated GBVRC: Health facilities should also set up designated places where survivors can access most of the PRC services with minimal movement from one SDP to the next. This will greatly minimise the loss of clients between the different service delivery points, in addition to the time spent by survivors in moving from one point to the next. Review of National Guidelines: This is required to deal with the anomalies therein as regards termination of pregnancy as a result of rape/defilement, and the obligation placed on HCWs to report to the police any cases of SV presenting at the facility. Prioritize delivery of PRC services: Given the time bound prophylactic treatment to be accorded to survivors, there is need for the MoH to issue a directive that will provide for cases of SV to be treated as emergencies.Start up doses of PEP and EC can be availed at the OPD/Casualty given that this is the first point of presentation in a health facility by all survivors of SV. In addition to the above a policy directive around survivors being able to access free PRC services in all public facilities should be provided. Review of National Guidelines: This is required to deal with the anomalies therein as regards termination of pregnancy as a result of rape/defilement, and the obligation placed on HCWs to report to the police any cases of SV presenting at the facility. Prioritize delivery of PRC services: Given the time bound prophylactic treatment to be accorded to survivors, there is need for the MoH to issue a directive that will provide for cases of SV to be treated as emergencies. Start up doses of PEP and EC can be availed at the OPD/Casualty given that this is the first point of presentation in a health facility by all survivors of SV. In addition to the above a policy directive around survivors being able to access free PRC services in all public facilities should be provided.

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i Kenya, Ministry of Health, Division of Reproductive Health. National Guidelines on the Management of Rape/Sexual violence. ( 1st Edition), Tonaz Agencies: Nairobi, Kenya. 2004. ii The Waki Post Election Violence Report. Available at http://www.dialoguekenya.org/docs/PEV%20Report.pdf iii Ajema, C., Rogena, E., Muchela, H., Buluma, B. and Kilonzo, N. (2009) Standards Required in Maintaining the Chain of Evidence in the Context of Post Rape Care Services: Findings of a Study Conducted in Kenya. Liverpool VCT, Care & Treatment, The Division of Reproductive Health, and the Population Council. iv The Sexual Offences Act (Act No.3 of 2006) [Online] Available http://kenyalaw.org/kenyalaw/klr_app/frames.php (Date accessed: February 1st,2011) v Note 2 Above vi Sexual Violence Research Initiative & WHO.(2007) Rape: How women, the community and the health sector responds. vii Jewkes, R. (2002) Intimate partner violence: causes and prevention. The Lancet, Volume 359. viii Kilonzo N. (2003) Conceptualizing vulnerability to sexual violence & HIV: Implications for practical responses. ix Note 3 Above. x Ward,Jean (2003)If Not Now, When? Addressing Gender-Based Violence in Refugee, Internally Displaced, and Post-conflict Settings: A Global Overview. xi World Health Organization (2003) Guidelines for Medico-Legal Care for Victims of Sexual Violence xii National Clearing House on Family Violence (2008). Violence against Women with Disabilities. Ottawa, ON: Public Health Agency of Canda

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Audit of and Review of Existing Policies, Laws, Regulations, Practices and Customs relating to Sexual Offences: Focus on Children

The CRADLE The Children Foundation, 2011

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Audit of and Review of Existing Policies, Laws, Regulations, Practices and Customs relating to Sexual Offences Background to the Audit and Review The enactment of the Sexual Offences Act has been lauded as one of the great strides Kenya has made towards enhancing protection of children from abuse. The Act introduced new provisions, namely: More comprehensive and integrated provisions on sexual offences. New of fences that were not hitherto addressed were introduced such as defilement of male child, child trafficking, child sex tourism, child prostitution among others Minimum sentencing was introduced. This ensured that there would be uni form sentencing policy and avoids instances where the courts using their discretion metes out lenient sentences. Stiffer penalties were introduced- for instance, in certain cases, the sentence against an accused person can be enhanced to life imprisonment. This was an acknowledgement of the seriousness of sexual abuse against an abused and would be deterrent and punitive. Criminal culpability of juristic persons in certain classes of sexual offences such as child prostitution, child sex tourism and child trafficking. This is realization of the fact that companies can be used by individuals to facilitate the commission of an offence Recognition of special needs of vulnerable groups such as children and pro vision for special measures for their protection The Act also made cognizance of the fact that both male and female persons can be sexually abused. Previously, it was assumed that only females could be abused. The Act also clarified on the age of consent that previously varied under dif ferent statutes and makes it clear that the minimum age of consent is 18 years. It also reduced the standard of proof in determining the commission of a de filement and rape by removing the prerequisite of corroboration. This allows courts to convict on the basis of the strength of the evidence present even when it is not corroborated. The Act was a major step towards complying with international obligations especially regarding violence against women and children. In cushioning complainants from harassment during proceedings, the Act prohibits evidence of character and reference to previous sexual history of

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the victim unless granted by the court under special circumstances prescribed by the Act. Provides for holistic intervention in dealing with sexual offences i.e. protec tion and support for child victims on the one hand and rehabilitation of convicted persons. Supervision of dangerous sexual offenders. A person convicted of a sexual offence against a child can be declared by the court as a dangerous sexual offender.

It is over five years since the Act came into operation there has been a notable increase in reporting of cases of sexual abuse against children. According to The CRADLE Annual Case and Media Trends Monitoring Report, cases of child sexual abuse have been increasing over the years. Media reports have been increasingly highlighting these cases. According to the Kenya Demographic and Health Survey, 2008-2009, 12 percent of women age 15-49 reported that they that their first sexual intercourse was forced against their will. Sexual violence against children is mostly committed by persons who are known to the children and who, more often than not, those who should be protecting them. According to The CRADLE 2010 Case and Media Trends Report, 77 percent of the cases of abuse report were committed by persons known to the children. To address sexual violence against children, both preventative and protective approaches need to be applied. The Sexual Offences Act prescribes these measures as highlighted above. For this to be realized, different actors must play their role since the law alone does not achieve full purpose. Furthermore, the passage of time also calls for an assessment of whether the objects intended by the enactment of the law are being met. This is only possible by assessing and evaluating the interaction by the populace with the law. The implementation of the Sexual Offences Act is highly dependable on a lot of factors, key of which include: a) Understanding by the public and duty bearers on the provision of the law b) Community participation including children c) Institutional support to implement the law and support survivors of sexual violence d) Strong preventive approaches for sustainable solutions e) Financial allocation f ) Collaboration by various actors due to the multi-sectoral needs in addressing sexual violence g) Structured monitoring and documentation

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The Act, having introduced a new legal regime with regard to sexual offences, has had an impact on the pre-existing laws, policies and regulations, customs and practices. The Act is now the primary authority with regard to handling sexual offences, thus all laws, policies, practices, and even customs ought to observe the minimum standards set out by the law. The passage of time since the enactment of the Act also calls for an evaluation of implementation process to provide learning and inform future interventions based on evidence collected through practice. It is against this backdrop that this audit was undertaken to review of all existing policies, laws, regulations, practices and customs relating to Sexual Offences while focusing on children. This is in line with the mandate of the Task Force SOA as defined in Gazette Notice No. 2155/2007 as follows: . (e) to audit and review all the existing policies, laws, regulations, practices and customs so as to be consistent with the provisions, spirit and intent of the Act (f ) to make recommendations for the modification, amendment or abolition of the said policies, laws, regulations, practices and customs so as to be consistent with the provisions, spirit and intent of the Act Objective and Scope of the Audit and Review: The purpose of this audit and review was to assess the progress of implementation of the Sexual Offences Act since its enactment based on the benchmarks and responsibilities created by the Act for the protection of children from sexual violence. This will entail an assessment of the existing policies, laws, regulations, practices and customs relating to the implementation of the Sexual Offences Act and recommendations for their modification, amendment or abolition to ensure their consistency with the provisions of the Act. As such, this report is a result of this audit and review which was undertaken in three parts as follows: a) Part I: Field Assessment on the Implementation of the Sexual Offences Act b) Part II: Analysis and audit of laws, policies, regulations and guidelines that deal with issues of child protection vis-a-vis the Sexual Offences Act c) Part III: Analysis of selected case law to assess implementation, compliance and emerging trends.

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Part I: Field Assessment on the Implementation of the Sexual Offences Act Introduction This part covers the outcome of the field assessment on the implementation of the Sexual Offences Act. The field assessment was mainly intended to assess knowledge and awareness on the sexual offences law, societal practices and attitudes in dealing with sexual offences and response to sexual violence. This would feed into the audit and review process by providing information related to interaction with the Sexual Offences Act. This part also incorporates information from other similar processes that may provide more information beyond the scope of this field assessment. Sample Description and Methodology The study was carried out in three areas: Nairobi, Kwale and Suba, being the areas where The CRADLE has been implementing child protection projects over the years. It targeted members of the community, community leaders, service providers, government officers and children. The field assessment was undertaken using the following methodologies: a) Household survey targeting 150 randomly selected households in the three project areas. These were important to assess the knowledge, attitude and perspectives on sexual violence from the individual perspective of the respondent. b) Focused Group Discussions these targeted both community and children. A total of 100 community members and 56 children were targeted through FGDs undertaken in the three areas. c) Key Informant Interviews: These were conducted with selected individuals who are in a strategic position to give insight on issues regarding the progress of implementation of the Sexual Offences Act as a result of their relevant engagement in implementation and law reform. They included government officers, children officers, NGOs, magistrates, prosecutors, lawyers, police officers, medical service providers, probation officers, chiefs were interviewed.

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________________________________________ STUDY FINDINGS ________________________________________ SAMPLE DESCRIPTION Background information of the respondents from three counties was measured by looking at the following variables: age; gender; number of children (both male and female); marital status; level of education; occupation and monthly income Gender In terms of gender, the study used 43.1% of male respondents and 56.9% of female respondents. Since child sexual abuse involves both gender, the study deemed it vital to solicit information from both male and female.

Age of the respondent Concerning age of the respondents who participated in the study, it was established that the minimum age recorded was 17 years while the maximum age recorded was 54 years. Most (52.8%) of the respondents from the three counties (Nairobi, Kwale and Homabay) were aged 30 years and above while 47.2% was below 30 years. It should be noted that some respondents were married as early as 17 years according to the study findings which explains the presence of early marriages in such areas. Number of Children The study also was interested in indentifying the number of children that respondents have because the major issue or problem in the study revolves around children and therefore it was imperative to establish their numbers and gender. As a result, it was established that 54.5% of the respondents said that they have one male child while 45.5% said that they have one female child. However, 13% of the respondents stated that they have three male children and above while 10.5% have three female children and above.

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Number of Male Children Frequency .00 1.00 2.00 3.00 4.00 5.00 Total 35 67 5 8 5 3 123 Percent 28.5 54.5 4.1 6.5 4.1 2.4 100.0

Number of Female children Frequency 44 56 10 10 3 123 Percent 35.8 45.5 8.1 8.1 2.4 100.0

.00 1.00 2.00 3.00 6.00 Total

Marital status When respondents were asked to give their marital status, it was established that 24.4% were single, 65% were married, and 8.9% were married but with multiple partners while 1.6% were divorced/separated. Findings suggest that most of the respondents were married and were therefore in a position to offer valid responses to the research problem.

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Level of Education It was also deemed important to establish the level of education of the residents as it would further depicts their understanding of the Sexual Offences Act and its provisions in the protection of children against sexual abuse. It was established that majority (48.8%) of the respondents were secondary school leavers, 28.5% were primary school leavers and most of them were from Kwale and Homabay Counties while 22.8% had attained up to college education. Findings suggest that the level of education of the respondents was generally low which would be an inhibitive factors in the effective implementation of the Sexual Offences Act as well as proper protection of their children against sexual abuse.

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Occupation In relation to the occupation of the respondents from the three counties, it was established that few (5.7%) particularly from Homabay county were farmers, 10.6% were employed either on permanent or contract basis, another 10.6% stated that they were employed on casual basis, 21.1% were self employed, 24.4% were housewives/ husbands while 27.6% stated that they were unemployed. Occupation Farmer Paid employment (permanent/contract) Paid employment casual Self employed Housewife/husband unemployed Total Frequency 7 13 13 26 30 34 123 Percent 5.7 10.6 10.6 21.1 24.4 27.6 100.0

UNDERSTANDING SEXUAL VIOLENCE AGAINST CHILDREN AND THE LAW Definition of Sexual Abuse When respondents were asked to define in their own words what sexual abuse means, it was established that majority stated that child sexual abuse is having a sexual intercourse with a person under the age of eighteen years. Others said that child sexual abuse is engaging a child in sexual activity. However, findings also showed that some respondents did not know how to define childs sexual abuse.

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According to the Focused Group Discussion findings, sexual abuse against children was defined as: Adults having sexual intercourse with minors or indecently touching them - Students-Golini Secondary School. kushiriki mapenzi na mtoto chini ya miaka 18 - having sex with a child who is below 18 years- Group FGD for Community-Kwale/Msambweni Having sex with a child with or without her/his consent- Group FGD for children-Kwale/Msambweni

An observation was made with regard to the peoples understanding of child sexual abuse. It Some participants in the FGDs expressed that it does amount to abuse when the children involved are of same age or slightly gap in age such 14 and 16 year old who in reality actually engage in sexual relationships. One discussant noted, when one reaches the age of 16 you can be married and you know many things, thus not a child. Categories of Sexual Abuse The Sexual Offences Act provides for are various forms and categories of child sexual abuse however; the following sexual abuse categories were given by respondents from the three counties under study. They include: defilement (74.8%), attempted defilement (72.4%), incest (74.8%), attempted incest (74.8%), early marriages (95.9%), child prostitution (91.1%), child sex tourism (61%), child trafficking (75.6%), child pornography (63.4%), indecent act with a child (65%) and sexual assault (83.7%). As a result, the study found out that early marriages were highly condoned by the communities from all the three counties, child prostitution particularly in Nairobi and Kwale was high while sexual assault was also reported in all the three counties as being rampant. Categories Yes Freq Defilement Attempted defilement Incest Attempted Incest 92 89 92 92 % 74.8 72.4 74.8 74.8 No Freq. 31 34 31 31 % 25.2 27.6 25.2 25.2 Total Freq. 123 123 123 123 % 100.0 100.0 100.0 100.0

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Early Marriages Child Prostitution Child sex tourism Child trafficking Child pornography 118 112 75 93 78 95.9 91.1 61.0 75.6 63.4 5 11 48 30 45 4.1 8.9 39.0 24.4 36.6 123 123 123 123 123 100.0 100.0 100.0 100.0 100.0

Indecent act with 80 a child Sexual assault 103

65.0 83.7

43 20

35.0 16.3

123 123

100.0 100.0

According to one chief from Mbita, defilement, incest and early marriages and sodomy were the various kinds of sexual abuse against children while the magistrate outlined defilement, rape and indecent act as the common abuse against children. On the other hand, findings from FGD suggest that inappropriate touching, defilement and child marriage are the most forms of sexual abuse (Group FGD for studentsKwale) while the other findings suggested that rape, defilement, child prostitution, child marriage are the most forms of sexual abuse (Group FGD for children-Kwale/ Msambweni). Reasons for Continued Incidences of Child Sexual Abuse However, despite concerted efforts from the government, non-governmental organizations and other interested stakeholders, incidences of child sexual abuse are still prevalent. As a result, the study asked the respondents to state reasons why they think child sexual abuse is still persistent. The following are reasons given by respondents from Nairobi, Kwale and Homabay Counties: high alcohol consumption (24.3%), poor enforcement of the law (11.1%), poverty (25.7%), lack of awareness of childrens rights (16.4%), illiteracy (15%) and negative cultural practices (7.5%).

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Reasons for Continued Incidences of Frequency Child/Sexual Abuse in Respondents Area High Alcohol Consumption Weak/poor Enforcement of the Law Poverty Lack of Awareness/Ignorance on Rights of the Child Illiteracy Negative Cultural Practices Total 68 31 72 46 42 21 280 Percent

24.3 11.1 25.7 16.4 15.0 7.5 100.0

In addition, according to the reports from chiefs of Homabay County, poverty, orphanhood, peer influence, lack of basic necessities, and poor parenting were the causes of sexual violence against children. When asked to state the causes of sexual violence against children stated the following reasons; Excessive drinking of alcohol Customs and traditions that are outdated Inherent/inborn characteristics Due to orphanhood Poverty Lust for money

On the other hand, FGD for the community named parents negligence and poverty as the main causes of sexual abuse against children. Poverty was seen as making children more vulnerable to luring with gifts and promises. Some discussants in the Nairobi FGDs stated: Children are lured into engaging in sexual activities they are given money, chips and phone-credit, bamba mabo Although not stated as a main contributor, some discussants noted that the media was also a negative influence on children, that TV programmes also promoting bad behaviour and children exposed to sexual scene thus are influenced to experiment what they watch on TV.

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Awareness on the Sexual Offences Act When respondents were asked to state whether they were aware of the Sexual Offences Act and its provisions on protection of children against sexual abuse, it was established that majority (57.7%) were not aware while 42.3% were aware of the Act. Going by the statistics, it implies that there is still a long way to go as far as sensitization and awareness creation in these areas is concerned. Most of the residents particularly from Homabay and Kwale County are unaware of Sexual Offences Act. This also suggests that childrens life are in danger because even after being sexually abused, parents/caretakers will not know which steps to follow in order to obtain justice. Furthermore, even those who indicated that they were aware of the Sexual Offences Act were not particularly aware on its provisions. Furthermore, participants from the FGDs also acknowledged that they were aware of the laws and policies that protect children from being sexually abused. For instance, FGD for students termed it as the Njoki Ndungu laws while other FGD groups did not state any laws. Among the service providers, the levels of awareness were higher. Chiefs, policemen, and magistrates agreed that they were aware of Sexual Offences Act that protect children against sexual abuse. Source of Information about the Sexual Offences Act Respondents who indicated that they were aware of the Sexual Offences Act were asked to indicate how they came to learn about the Act. 31.4% stated that they became aware of the Sexual Offences Act from the media, 8.2% from local NGOs and CBOs which mobilize people in their areas, 4.4% from childrens officers, 3.1% from schools while 8.2% from churches.

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How the Respondent learned about the Frequency Sexual Offence Act Media Local NGO/CBO Children Officer School Church N/A Total 50 13 7 5 13 71 159 Percent

31.4 8.2 4.4 3.1 8.2 44.7 100.0

Findings from the FGDs suggest that children/students learned of Sexual Offences Act from their teachers and media; others from teachers and mosque (children in the Coast region) while the FGDs for community unanimously agreed that they have come to learn of SOA from the media and NGOs in their areas These above information is particularly useful for strategizing on how best to promote the the use of the Sexual Offences Act. The media, schools and local NGOs/CBOs are an important avenue for this purpose. Awareness on other Laws and Policies that on Child Protection The implementation of the Sexual Offences Act is also dependent on other laws and policies. Participants from the three counties were therefore asked to state whether they were aware of other laws and policies that addresses protection of children against sexual violence, it was established that 21.1% were aware while 78.9% stated that they were not aware. However, even those who assumed that they were aware of these other laws found a lot of problems in enumerating some of these other laws that they are aware of. Only a few could name the Constitution, the Children Act and labour laws. This is an indication that there is little knowledge on the laws on child protection. The level of awareness on other laws and policies was concentrated among the service providers particularly the lawyers, medical practitioners, and NGOs.

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Technical Knowledge on Sexual Offences Act and other Laws and Policies Participants were also assessed on their detailed knowledge on the provisions of the Sexual Offences Act and other laws. When asked whether they had been trained on the Sexual Offences Act and other laws and policies that protect children against sexual violence, it was established that few (11.4%) have been trained while an overwhelmingly 88.6% stated that they have never been trained particularly in Kwale and Homabay counties. When the 11.4% of the respondents who were trained on the Sexual Offences Act were asked to state their trainers, it was established that 8.9% were trained by local NGOs/ CBOs, 2.4% were trained by local administration including the area chiefs, D.Os and D.Cs. However, overall, the rate of training is still very low and therefore there is need to put in more effort in ensuring that respondents are aware of the laws that protects children from being abused sexually. Furthermore, out of 14 respondents who have been trained, 8.1% said that the information was very useful while 3.3% found the information irrelevant. Some policemen and teachers agreed that they have been trained on the Sexual Offences Act and other policies that protect children from sexual abuse. However, some chiefs indicated that they have never been trained on the same subject. RESPONSE TO INCIDENCES OF CHILD SEXUAL ABUSE Reporting of incidences of Child Sexual Abuse When respondents were asked to state whether there have been incidences of child sexual abuse in their areas for the last twelve months, 57.7% agreed while 42.3% denied the statement. Furthermore, for those who had agreed that there were incidences of child sexual abuse in their areas were asked to further state whether any action was taken, it was established that 36.3% said that action was taken against the culprits, 21.4% said that no action was taken while 42.3% did not participate in this section because they claimed not to have witnessed incidences of child sexual abuse from their areas. When they further asked to state how cases of child sexual abuse were handled, respondents from Homabay and Kwale County said that despite cases being reported to police stations, no actions taken to perpetrators. Some respondents from Nairobi County reiterated that cases of child sexual abuse may be reported but prosecution is not executed due to lack of evidence.

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It was also established that some parents/caretakers of the victim may want to solve the matter without involving any institution for fear of retaliatory attacks from the abuser and thus, according to them cases were not handled effectively as they could have been. However, few respondents from Nairobi and Homabay County said that cases were handled effectively whereby victims were treated adequately while abusers were prosecuted and judged and therefore according to them cases were handled well and effectively. According to the reports given by chief of Mbita, there were 21 cases of child sexual abuse reported to the office. Findings from all FGDs conducted suggest that cases of sexual violence exist. According to the children from Golini secondary school, yes, there are there mostly; inappropriate touching, defilement and child marriage. Children also mentioned rape, defilement, child marriage and child prostitution as the kind of cases that exists in Kwale County. Children from Kwale Findings from the three FGD conducted in Kwale county suggest that participants were aware of children who have been sexually abused. There are two cases that we know of; defilement case and early marriage cases (FGD for students). According to them, in the defilement case, the victim was rescued and taken to hospital while the married child was rescued by childrens officer and taken to school. IN one discussion, the children narrated about a case of early marriage: her father married her off to a middle aged man who was wealthy because the father wanted to be given part of the wealth. However, the police rescued the victim and she was taken to the childrens home. Interactions with children gave insight into childrens willingness to report cases of sexual abuse against them. It was noted that during discussions children were reluctant to discuss incidences of abuse against them. The secret box approach was applied to encourage children to be open to describe instances of abuse against them. Children from Homabay were more open in describing such incidences. One child described this incidence: When I was forced by a teacher to sleep with him in the office when the teachers were not there. I had to do it because he carried a knife and if I was not going to do it he was going to kill me. I had no other alternative but to do it.

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Another one said: As one time I was influenced by my friends to do it. I tried to defend myself but unfortunately I found myself engaged. As they said practice makes perfect I tried to reason whether it is wrong or right, I came to realize that it was wrong to do such a thing because it can lead to early marriage. How to Deal with Reported Incidence of Sexual Abuse of a Child When respondents from the sampled areas in the three counties were asked to state how they would deal with incidences of sexual abuse of a child that has been presented to them, majority (65%) said that they will report to the relevant authority, 17.9% said that they will seek help from the community while 5.7% said that they will do nothing. On the other hand, 11.4% said that they dont know what to do. Responding to Reported Case of Abuse Frequency Seek Help from the Community Report to Authority Do Nothing Dont Know Total 22 80 7 14 123 Percent 17.9 65.0 5.7 11.4 100.0

On the particular question of how to deal with perpetrators of sexual violence against children, it was established that majority of them said that the criminal should be arrested, 33.1% stated that the criminal should be taken to court while 14.8% lamented that the criminal should be ex-communicated from the community. It should be noted that most of the respondents from Homabay County were of the opinion the criminal should be excommunicated from the community while most respondents from Nairobi and Kwale Counties were of the opinion that the criminal should be arrested and taken to court. Action against sexual offenders Frequency Percent 52.1 14.8 33.1 100.0

Arrested 123 Ex-communicated from the Commu- 35 nity Taken to Court 78 Total 236

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An observation was made from the FGDs with community members in Nairobi. Most of them felt that the authorities were not effective in dealing with reported cases of sexual violence. As such they were of the opinion that the community should punish the offenders first before handing them over to the police. As one discussant stated, Sheria mkononi we will deal with the criminal ourselves, there is no need of involving the police since the person will be released anyway. Even if we will report to the police, we will deal with the abuser ourselves. E.g. by thrashing him and then hand him over to authorities. Polici baadaye Alive to the incidences of child sexual abuse may arise within the family setting. To establish if the respondent would have a different view if the abuser was someone close to them, respondents were asked to state their view on the action that should taken should the abuser be a person within the family. 43.1percent believed that proper action would be taken. According to them, the law is the same to everyone and therefore the culprit will face the wrath of the law just like any other. On the other hand, majority (56.9%) denied the statement. According to them, action will not be taken to such a person because family members will not want to wash their dirty linen in the public. Furthermore, the criminal may be the bread winner of the family and as a result, reporting him/her may imply that the family may lose his/her support. Response to Reported Cases of Child Sexual Abuse In relation to the kind of action taken once a case of sexual abuse against a child is reported in the area, 46.4% of the respondents said that after the abuse, a child was taken to hospital, 21.4% said that counseling was provided, 13.8% said that the cases were resolved at home, 4% said that cases were reported to local leaders, 4.3% said that cases were reported to children officer, chiefs, DOs and NGOs while few (8.3%) said that cases were taken to court. Most respondents particularly from Kwale and Homabay counties said that courts were scarce and cases take too long to be solved and therefore did not prefer to take cases to courts rather handle by themselves.

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Action Taken Once a Case of Sexual Frequency Abuse against a Child is reported Child Taken to Hospital Counseling Provided Case Resolved at Home Case Reported to Local Leaders Case Resolved by Chief/Village/Church Case Reported to Children Officer, Chief, DO, NGO Case Taken to Court Total 128 59 38 11 5 12 23 276 Percent

46.4 21.4 13.8 4.0 1.8 4.3 8.3 100.0

Assessment on Availability of Response Mechanisms and Structures When asked to state facilities/structures available in their areas where one could seek help in case an incidence of child sexual abuse respondents highlighted that the following facilities existed: Courts (18.7%) Police (43.3%) Reporting desks (0.7%) Paralegals (3.9%) Churches (8.1%) Chief s office (20.1%) Schools (5.3%) Police were the most convenient structures in place according to most respondents from the three counties while courts were mostly stated by respondents from Nairobi County. Reporting desks however rarely exists in the three counties while chiefs offices forms another important structures for one to seek help especially in rural areas of Kwale and Homabay Counties. The FGD findings suggest that childrens offices, courts, hospitals and police were the facilities and services available for handling cases of child sexual abuse (FGD for students).

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However, the above findings were not suggestive of the actual availability of services. When asked to state the services that were actually available in respondents areas from the three counties, the following were services offered to the victim of sexual abuse: Health care (66.8%) Information (13.6%) Legal aid (1.6%) Counseling (9.8%) HIV treatment and emergency contraceptives (8.2%) The study findings revealed that health care was the main service given to the victim after sexual abuse from the three counties. However, counseling, legal aid and important information were mainly reported in Nairobi County but barely reported to exist in Homabay and Kwale counties. On the other hand, when respondents were asked to state whether the above mentioned services were accessible, well coordinated, charged, timely and child friendly, majority of the respondents from Nairobi county agreed that the services were accessible while most of the respondents from Kwale and Homabay acknowledged that it was hard to access the services. Most respondents from the three counties under study reiterated that the services were charged and that they were not child friendly. However, apart from most respondents from Nairobi county who said that services were well coordinated, in Homabay and Kwale counties, coordination was poorly reported with few services and facilities in place. Quality of Services to Survivors of Child Sexual Abuse Respondents were asked to rate the services given to children survivors of abuse and state whether they were satisfied with how sexually abused children survivors were handled, 22.8% said that they were satisfied. According to them, they reported that the victims were well treated and counseled while the abusers were taken to court and prosecuted. On the other hand, majority 77.2% were dissatisfied with how the victims were handled. When asked why some said cases of child sexual abuse which have been presented to court take too long for justice to be realized others said that local leaders lack the required knowledge and information to effectively handle such situations and the end result is that cases are handled ineffectively.

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Effective Support for Child Survivors of Sexual Abuse When respondents were asked to state what should be done to a child who has been sexually abused, the following were the major responses from the respondents of the three counties: The case should be reported to the police station and the victim taken to hospital The victim should be given first aid before being taken to the hospital Guide and counsel the victim in order to reduce trauma and stigma before the victim is being taken to hospital for treatment When FGD participants were asked what steps they should take when they are sexually abused or are aware of someone who is sexually abused, FGD for students said that they would report to parents and/or teachers and rush the victim to the hospital while the FGD for children said that if they were sexually abused, they will report to police and later to hospital. The Question of Child Sexual Offenders The study was also keen on soliciting peoples views on how to deal with instances where children are sexual offenders. EFFECTIVENESS OF THE LAW IN ADDRESSIGN SEXUAL VIOLENCE AGAINST CHILDREN Effectiveness of the Sexual Offences Act The people interviewed were also asked to state whether other people in their areas were awareness of the Sexual Offences Act. 30.1% of the respondents said that people are aware of the Sexual Offences Act while 69.9% of the respondents said that people from their areas are not aware of the Act. Furthermore, when asked whether the Sexual Offences Act has been effective and adequate in protecting children from sexual abuse, 51.2% agreed especially those from Nairobi County while 42.3% did not believe the Act had been effective. A further 6.5% of the respondents said that they were not aware whether the Act is effective. When asked to give reasons why they think the Sexual Offences Act has not been effective in protecting children against sexual abuse, 29.8% indicated that there were inadequate means for implementing the Act. Most of the respondents from Homabay and Kwale counties reiterated that courts and childrens offices are far away and therefore they cannot access the services. In addition, 25% of the respondents said

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that sometimes cases are not reported by children or their caretakers. 10.6% of the respondents said that reported cases take too long to be solved thus denying the victim justice required. This was mostly reported from Nairobi and Homabay counties. Other reasons mentioned by respondents for ineffectiveness of the Sexual Offences Act include: lack of justice and compensation for the victims (9.6%) and poor relationship between local administration and the community (1.9%) thus hindering the process of seeking justice. Reasons why Sexual Offences Act has not Frequency been Effective in Adequately Protecting Children Poor Relationship between Local Administration and Community Inadequate Means for implementing the Act Sometimes Cases are not Reported/Children do not Report Parents do not Report Incidences of Sexual Abuse against their children Reported Cases Take too Long to be Solved thus Denying Justice There is No Justice and Compensation for the Victims the Police and other Officers are not Sensitive Total 2 31 26 19 11 10 5 104 Percent

1.9 29.8 25.0 18.3 10.6 9.6 4.8 100.0

Findings from students FGDs show that some families hesitate to report sexual abuse cases against children which hinders the effective implementation of the Sexual Offences Act. When asked to state whether other laws and policies that deal with protection of children from violence are useful, 41.5% agreed that other laws and policies are useful while 30.1% said that they are not useful. On the other hand, 28.5% were not aware. However, most could not substantiate their reasons for believing the laws were effective. This also could explain the low levels of knowledge on the substantive provisions on the Sexual Offences Act and other laws on child protection.

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Knowledge by Children on Child Protection In relation to the childrens awareness and knowledge on self protection against sexual abuse, few (20.3%) respondents said that children know how to protect themselves while majority (70.7%) said that children do not know how to protect themselves. In addition very few (8.9%) said that they were not aware whether children have knowledge on self protection against sexual abuse. The latter view could explain the fact that information is not shared between children and their parents/guardians or other care providers. CHALLENGES TO ADDRESSING SEXUAL VIOLENCE Factors that Hinder Successful Reporting and Dealing with Cases of Sexual Abuse When respondents from the three counties were asked to state reasons that may prevent successful reporting and dealing with cases of sexual abuse against children, it was established that the following were highlighted as some of the reasons: Fear of being ridiculed Threats from sexual abusers Fear of not being believed particularly the victims Fear of being punished by parents Lack of information on what to do Lack of community support Fear of breaking the family In relation to the factors that may hinder a child from reporting an incident of sexual violence against him/her, the following factors were enumerated by various FGDs; Fear of ridicule Not being believed Being accused of tempting/seducing the man/woman When respondents from the three counties were asked why they prefer not to report a case of a child who has been sexually abused, the following reasons were given; Ineffective handling of children cases by judiciary Due to fear of what may happen once the criminal is set free Fear of lack of enough evidence to present in court Possible threats from the offender Lack of information on where to report after the child has been sexually abused Fear of breaking the family in case the criminal is an immediate family member

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Community Approaches to Sexual violence against children Respondents were asked to state how the community responds to sexual violence. Some showed that the community does not condone child sexual abuse and therefore they also have their own ways of responding to sexual violence against children such as by participating in creating awareness to community members on how to respond to sexual violence against children. . These include: Family members regularly give advice to their children on how to protect themselves CBOs, police, schools and government create public awareness in the three counties There has been child rights awareness in beaches Education of people through barazas whereby local administrators carry out meetings on child protection Formation of groups dealing with children rights especially in Nairobi county Communities have allowed other organizations in the area that deal with sexual abuse to prevail and sensitize people In rural areas of Kwale and Homabay Counties people have adopted community policing where community work closely with the police department in making sure that criminals are contained. However, there were other responses that manifest a negative approach to sexual violence against children. These included: In Homabay it was established that the community calls the suspect and the victim to settle the matter Taking and reporting the suspect to police station to be arrested In Nairobi it was reported that the community is not united and accessible and therefore everyone does his/her own things thus making the implementation of Sexual Offences Act Some members in the community care less about sexual violence and thus only few cases are reported (from Kwale County) Some communities especially from Homabay and Kwale counties support early marriages.

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Challenges Encountered in Handling Cases of Sexual Abuse against Children The following are the challenges mentioned by respondents from Nairobi, Kwale and Homabay which are encountered in handling cases of sexual abuse against children: cases not reported (23.4%); ignorance (23.1%); cases resolved at home (12.6%); poor services (13.6%); lack of appropriate services (6.4%); costs/funding (9.6%); lack of transport (5%) and corruption (3.8%). Cases of sexual abuse against children are very sensitive and therefore ought to be treated with utmost care. Parents, were however reported to be the major impediment towards seeking justice because most of the cases are not reported partly to lack of information and awareness and partly due to ignorance. Furthermore, in deep rural areas of Homabay and Kwale counties, it was established that there is lack of adequate services that may facilitate appropriate handling of sexual abuse against children. In addition, poor roads and other infrastructures also pose challenges in handling sexual violence cases. Challenges encountered in handling Frequency cases of sexual abuse against children Cases not reported Ignorance cases resolved at home poor services Lack of appropriate services Costs/funding Lack of transport Costs of services compromise/corruption Total 80 79 43 45 22 33 17 10 13 342 Percent

23.4 23.1 12.6 13.2 6.4 9.6 5.0 2.9 3.8 100.0

Respondents further pointed out the particular problems that child who have been sexually abused face together with their families in dealing with the situation as the following: Threats from the offenders Early pregnancies in case of girls High school dropouts due to stigma Risk of getting STIs including HIV/AIDS Rapture of the cervix of the little girls which may lead to permanent bareness and other complications related to fertility Violence from family members Trauma

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ATTITUDES TO SEXUAL VIOLENCE AGAINST CHILDREN Attitudes to sexual violence against children were measured by looking at nine variables. They include; whether: parents also sexually abuse their children; anybody can abuse a child sexually; dressing provocatively justifies sexual abuse; reporting sexual abuse of a child by a family member is shameful; it is not a offence if a child consents to a sexual act with an adult; it is okay for a teacher to have a sexual relationship with a student/pupil; it is not an offence to marry off a girl below the age of 18; sex between persons under the age of 18 is okay and whether only strangers violate children sexually. Due to the importance of attitudes to sexual violence against children, Likert scale was used for answering (where 1= strongly agree, 2= agree, 3= not sure, 4= disagree 5= strongly disagree). As a result, it was established that parents sexually abusing their children was ranked first (1.65); anybody can abuse a child sexually was ranked second (2.08); dressing provocatively justifies sexual abuse was ranked third (2.12); reporting sexual abuse of a child by a family member is shameful was ranked fourth (2.50); it is not a offence if a child consents to a sexual act with an adult was ranked fifth (2.85); it is okay for a teacher to have a sexual relationship with a student/pupil was ranked sixth (2.97); it is not an offence to marry off a girl below the age of 18 was ranked seventh (2.99); sex between persons under the age of 18 is okay was ranked eighth (3.04) and only strangers violating children sexually was ranked the least with a mean of 3.14 from the Likert scale. As a result, among the factors influencing sexual violence against children, parents abusing their children sexually were the major factor. This is attested by the statement being ranked first with a mean of 1.65 from the Likert scale which stands for agree. Respondents from all the three counties under study agreed that parents are the most role player in sexually abusing their children. Cases of these kinds are very hard to solve because they are rarely reported. Respondents also agreed that apart from parents, anybody can abuse a child sexually. This therefore sends a warning to the children that they should be extra carefully because their enemies are all over. This also implies that they should not dress in a way that may provoke other individual to harass them sexually as well as avoiding dangerous places. It was also established that some family members still find it shameful to report cases of sexual abuse on their children. This suggests that such parents lack adequate awareness on how cases of child sexual abuse may be handled.

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A close scrutiny of the findings suggests that respondents were in agreement with statements ranked 1-3 having means of 1.65-2.12 which stands for agree. However, they were not sure with statements ranked 4-9. This is attested by the statements having means of 2.50-3.14 respectively which stands for not sure. Attitudes to Sexual Violence Mean Against Children Parents also sexually abuse their children Anybody can abuse a child sexually Dressing provocatively justifies sexual abuse Reporting sexual abuse of a child by a family member is shameful It is not an offence if a child consents to a Sexual Act with an adult It is okay for a teacher to have a sexual relationship with a student/pupil It is not an offence to marry off a girl below the age of 18 Sex between persons under the age of 18 is okay Only strangers Violate Children Sexually 1.65 2.08 2.12 2.50 2.85 2.97 Std. tion 0.87 0.96 1.03 0.91 0.79 0.40 Devia- Rank

1 2 3 4 5 6

2.99 3.04 3.14

0.43 0.49 0.74

7 8 9

When respondents were asked to explain the attitude of public/community towards sexual abuse against children, it was established that majority of them from all the three counties stated that the community have a negative attitude towards sexual abuse against children. Some respondents stated that the community accommodates and tolerates the abusers while others said that sexual abuse is not tolerated. However, it is clear that the community protects children against sexual abuse except for few members who are indifferent.

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HOW TO ADDRESS SEXUAL VIOLENE AGAINST CHILDREN Role of Stakeholders Participants were asked to state the roles that the following should play in addressing sexual violence against children. a) Family Report cases of child sexual abuse to the relevant authority Educate their children on proper self protection by encouraging proper dressing and avoiding dangerous zones Ensure that family members are adequately provided with basic needs

b) CBO/NGOs Create awareness to family members and the public on the Sexual Offences Act Ensure that the perpetrators of child sexual abuse are arrested and prosecuted Provide more facilities and structures in helping the government to deal with child sexual abuse c) Judiciary Should ensure that they have given justice to the victim Protect the community from sex offenders by issuing harsh judgments to the criminals Should make sure that cases are handled confidentially and with speed Shun corruption d) Government Increase facilities and structures that deal with child sexual abuse to speed up the process Ensure that charges laid upon children sexual abuse cases are affordable Ensure maximum protection to its citizens more so to the children e) Community Should act as a watch dog to the children in the community Support the victims of sexual abuse who are children f ) Children They should report cases of abuse to their parents and relevant authorities

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Should avoid walking at odd hours alone Should avoid taking gifts from strangers Should report suspicious people around them

Preventing Sexual Violence against Children When asked to state things that should be done in the community in order to prevent sexual violence against children, it was established that; There should be awareness creation through legal barazas to members of the public in relation to child sexual abuse The community should be trained and empowered on issues of child sexual abuse More legal facilities should be decentralized to rural areas for easy accessibility Children should be educated on their rights as well as self defense mechanisms Offenders of sexual abuse against children should be given severe punishment in order to serve as an example to other culprits. Chiefs and police should take immediate action on the offenders In relation to how the SOA may be improved to enhance proper and adequate protection of children against sexual abuse, findings from chiefs, magistrates and polices suggested that: There is need to create more awareness to the community Establishment of court in Suba for more law enforcement Establishment of child desks at locational level to deal with child abuse Improving Effectiveness of Laws to Protect Children All the stakeholders should be aware and take action on perpetrators of sexual violence against children Government to ensure that people are aware of childrens sexual Offences Act Local authorities to be permitted to punish sexual offenders NGOs and the government to educate the public on the Sexual Offences Act The law to be strict and very firm on the abusers. These responses indicate that there is need to implement the law firstly as it is. There were few suggestions on how to improve the law especially by the community. This is an indication that according to the community, implementation is the key issue whether or not the law itself is adequate. From the level of service providers (lawyers, magistrates, NGOs), the following were suggested for improving the law:

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Removal of Section 38 which still continues to prevent reporting. Some penalties in the Sexual Offences Act should be more harsh The law needs to define a counsellor Law should deal with child sexual offenders equally the boy is discriminated against especially due to provisions on the criminal liability as defined by the Penal Code There should be clear linkages between the Sexual Offences Act and the Children Act. There is no implementation body for the Sexual offences Act. The TFSOA is not a permanent body Harmonization of laws The law should also address underlying factors that promote sexual violence against children.

CONCLUSION AND RECOMMENDATIONS Conclusion Child sexual abuse is still rampant in all the three counties (Nairobi, Kwale and Homabay) whereby child defilement was given the major priority as well as early marriages. Other forms of sexual violence include; child prostitution, indecent acts, sexual assaults and incest. Furthermore, high alcohol consumption, poverty, peer influence, illiteracy, and lack of adequate information were established as the major causes of sexual abuse against children. Media still plays a very vital role in information and creating awareness to the residents about Sexual Offences Act. However, local NGO and CBO, schools and churches also played crucial part in educating the residents about SOA. Inadequate means of implementing SOA like for instance inadequate courts, police and children officers; cases not being reported; cases taking too long too be resolved; and lack of justice and compensation to the victims were some of the reasons why SOA has been ineffective in protecting children against sexual abuse. Fear of being ridiculed, possible threats from offenders, fear of not being believed, and lack of community support were some of the major factors preventing successful reporting of sexual abuse against children.

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Recommendations Awareness creation: most of the residents are not aware of the Sexual Offences Act and its provisions. This therefore implies that implementing the Act is a mammoth task for the relevant stakeholders. There is therefore need to mobilize, sensitize and educate the public about Act and how it works and the steps that individuals may take in order to access justice for the victim of sexual abuse. Poverty: from the study findings it was established that most of the residents had an average monthly income of less than Ksh. 7,501 which is inadequate for proper family upkeep. Poverty is a catalyst to sexual abuse against children. Children from poor background are more likely to accept gifts and other presents from people because they are not well-catered for from their homes. This makes them vulnerable to sexual abuse. As a result, there is therefore need for the government, NGO/CBO and other interested stakeholders to empower residents with income generating activities which may pull them out of the poverty cycle. Accessibility of services: some services and facilities like paralegals, counseling, legal aid courts and reporting desks are still inadequate and inaccessible. As a result, the key players of child protection ought to ensure that these services and facilities are accessible in order to make implementation of Sexual Offences Act more effective. Illiteracy: most residents particularly from Kwale and Homabay Counties are illiterate. Illiteracy is an impediment to any progress more so, in the implementation of Sexual Offences Act. There is therefore need for the key stakeholders like the government and NGOs to introduce adult learning/classes in order to improve the literacy level. Improvement in literacy level will imply that the level of awareness on Sexual Offences Act will also rise. Training: there is need for specialized training to more paralegals who can be able to reach out to the community and create more awareness on the Sexual Offences Act. Specialized training should also be extended to officers who are charged with implementing the law especially prosecutors, the police and children officers and magistrates.

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Part II: Analysis and Audit of Laws, Policies, Regulations and Guidelines vis-a-vis the Sexual Offences Act

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Analysis and Audit of Laws, Policies, Regulations and Guidelines vis-a-vis the Sexual Offences Act
1.1 Introduction This section analyses laws, policies and regulations in light of their provisions and at the backdrop of provisions of the Sexual Offences Act. This analysis was guided by the standards set out by the Sexual Offences Act in its provisions on child protection. This section also provides a critical appraisal of the Sexual Offences Act itself, to assess if the Act meets the optimal expectations of protecting children from sexual abuse. 1.2 Inventory of Laws, Policies, Regulations Reviewed The following laws, policies and regulations were considered for the analysis: 1.2.1 Laws African Marriage and Divorce Act, Cap 151 Children Act Act No. 8 of 2001 Counter Trafficking in Persons Act No. 9 of .2010 Criminal Procedure Code, Cap. 175 Employment Act Cap. 226 Evidence Act Cap. 80 Films and Stage Plays Act, Cap. 222 Hindu Marriage and Divorce Act Cap 157 Interpretation and General Provisions Act Cap. 2 Kenya Information and Communications Act Cap 446A Marriage Act Cap 150 Matrimonial Causes Act Cap 152 Mohammedan Marriage, and Divorce Registration Act Cap 155 Oaths and Statutory Declarations Act Cap. 15 Penal Code Cap. 63 Persons with Disabilities Act No. 14 of 2003 Teachers Service Commission Act Cap. 212 Truth Justice and Reconciliation Act No. 6 of 2008 Witness Protection Act cap. 79 1.2.2 Regulations Kenya Information and Communications (Broadcasting) Regulations, Kenya Information and Communications (Consumer Protection) Regulations, Films and Stage Plays (Censorship) Regulations

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1.2.3 Policies, Guidelines National Children Policy National ICT Policy National Guidelines on Management of Sexual Violence in Kenya TSC Regulations 1.3 Audit of Laws, Policies, Regulations vis--vis the Sexual Offences Act and Other Laws The audit is focused on specific provisions of the reviewed laws, policies and regulations and also makes general observations on the same. 1.3.1 a) Criminal Procedure Code This is the principal legislation that provides for procedure to be followed in criminal cases. Thus, the handling of sexual offences in the criminal justice process is governed by the Code. The following are noted with regard to the prosecution of sexual offences involving children: Section 7(b) on powers of courts provides that a resident magistrate may pass any sentence authorized by law for an offence under section 278, 308 (1) or 322 of the Penal Code or under the Sexual Offences Act Commentary: This jurisdictional limitation fails to recognize other sexual offences prescribed by other laws such as the Counter Trafficking in Persons Act. Section 123 -133 These provisions provides for bail for accused persons. This provision is also buttressed by the Constitution which recognizes that all offences are bailable. However as matter of practice, bail can be denied under circumstances in a given case. Commentary; With regard to sexual offences against children, there needs to be considerations as to when the bail may be denied if it jeopardizes the security of the child victim of sexual offences especially where the child resides in the same place as the suspect. The principle of the best interest of the child in practice in this circumstance dictates that the childs interest should take precedence. Regard therefore should be had that the childs interests should be preserved as much as possible. Removing the child from the environment should only be in the interests of the child.

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Section 137 With regard to description of persons in framing of charges. Commentary: There is need for a proviso that for purposes of protecting the identity of a child complainant, the description of a child may be limited or altered without affecting the legality of the charge sheet on the basis of this alteration or modification Section 137N this part relates to exemption of certain offences from application of plea agreement on the basis that there can be no compromise where sexual offences are concerned. It is also in line with provisions of the Sexual Offences Act on minimum sentencing. The section provides that This Part shall not apply to(a) offences under the Sexual Offences Act, 2006; Commentary: The section however, is presumptive of the fact that all sexual offences against children are prescribed under the Sexual Offences Act. While this was the intended purpose with the enactment of the Act, there are other offences against children that are prescribed by other pieces of legislation notably the Counter Trafficking in Persons Act which modified certain offences under the Sexual Offences Act and also allows for minimum sentencing. The Counter Trafficking in Persons Act has for instance repealed section 13 of the Sexual Offences Act to allow for modification of the offence under the Act. Thus, the exemption contemplated by this provision should be comprehensive as opposed to limiting to offences under the Sexual Offences Act Section 175 which makes provision for recovery of expenses incurred resulting from the criminal case. It provides that the court while convicting can order that where a fine is imposed as part of the penalty, the part of the whole of it be applied to meeting expenses incurred. The court can also make a finding that the convicted person has civil liability over the complainant or another injured party thus order the convicted person to pay a sum as it considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person; Commentary: this is a progressive provision which is noted for purposes of investigating if the same is ever applied in court, noting that parties rarely seek compensation through civil proceedings which can be seen as another lengthy process. However, this may be disadvantageous on the basis that the standard of proof does varies in civil proceedings thus a non-conviction is not equivalent to absence of civil liability. However, there may be need for rules

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(even administrative) to guide refund of expenditure and claim of damages ordered in criminal trial and also to provide an easier interface for claiming liability on the reliance of a criminal trial. Section 151 which provides that every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.Commentary: This section presumes that all evidence must be taken under oath. Under section 10 of the Oaths and Statutory Declarations Act read together with section 124 Evidence Act, there may be circumstances when evidence of a child of tender who may give evidence not under oath if the child does not understand the nature of an oath. The section needs to be alive to exceptional circumstances provided for by any other written law. Section 186: provides that when a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.Commentary: this provision though in intention is progressive, should not be restricted to the offence of defilement of a girl under the age of fourteen years but rather apply to other offences under the section of the Sexual Offences Act as appropriate. Section 194 provides that Except as otherwise expressly provided, all evidence taken in a trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).Commentary: This provision needs modification in light of protection measures for child victims of sexual offences or where the capacity of the child is a factor. The same can be provided for on the ground that the rights of the accused person are not prejudiced but rather it is in the interests of justice that the exceptions be made. In strict sense unless otherwise defined, presence of accused person may be understood differently thus the need for express modification that may not require actual presence if the rights of all parties are preserved.

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Section 204 - this section allows a complainant to withdraw a complaint at any time before a final order is passed and upon satisfying the court that there are sufficient grounds for permitting him to withdraw his complaint Commentary: This section needs amendment so as to be compliant with the Sexual Offences Act provisions and expressly provide for exemption of application with regard to sexual offences against children as described in the Sexual Offences Act or any other written law. In practice, the Sexual Offences Act takes precedence on exceptions to withdrawal of complaints. Section 302- The witnesses called for the prosecution shall be subject to crossexamination by the accused person or his advocate, and to re-examination by the advocate for the prosecution.Commentary: There is need for rules for examination of child witnesses and other vulnerable witnesses such as persons with disabilities so as to guide the examination process. General Commentary: There is also need for guidelines on interpreters to govern the process of receiving evidence in court (examination) including as mentioned under other laws involving vulnerable persons such as children with disabilities. This will also differentiate the roles of intermediary, interpreter, agent e.t.c who gives evidence on behalf of the primary witness. Section 329A(e) in relation to the giving of victim impact statement, this section describes personal harm to mean actual physical bodily harm, mental illness or nervous shock. Commentary: this definition is restrictive since harm may be more than physical harm. While mental illness indicates a medical assessment. A person may suffer trauma which does not amount to mental illness or nervous shock. These terms, mental illness and nervous shock may need further description. On the one hand, harm suffered by a family victim may be more than what is prescribed here, and death resulting from a crime has far reaching impact on the family victim.

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1.3.2 a) Penal Code The Penal Code is the primary law prescribing offences, although there are other pieces of legislation that create offences. This law was amended by the Sexual offences Act. However, it still provides for a certain class of offences and also provides for other issues considered in this audit. Offences relating to administration of justice: These provisions are considered in light of Section 38 of the Sexual Offences Act which as discussed elsewhere in this chapter is seen to be a claw-back clause. The Penal Code in this regard provides for the following offences: Section 108 provides for the offence of perjury as knowingly giving false testimony touching material pending in judicial proceedings or intended to be raised in that proceeding or for the purpose of instituting any judicial proceeding. It also provides for the offence of subornation of perjury which entails aiding, abetting, counselling, procuring or suborning another person to commit perjury is guilty of the misdemeanour termed subornation of perjury. This offence is punishable with imprisonment for seven years. Commentary: The law should be uniform in its application. The provisions under this Chapter should be applicable to all circumstances including under Section 38 Sexual Offences Act. However, these provisions should also be reviewed to provide for possible enhancement of the sentence depending on aggravating circumstances such as the nature of crime which is the subject matter. Section 146 provides for the offence of unlawful carnal connection with an idiot or imbecile, has or attempts to have unlawful carnal connection without amounting to rape, but with knowledge that the person was an idiot or imbecile. It is punishable with imprisonment for fourteen years with hard labour. Commentary: This provision raises the question on why it was retained with the coming into force of the Sexual Offences Act. All sexual offences should be at a minimum under the Sexual Offences Act unless otherwise and subsequently provided for. The language used under this section is very insensitive to persons with disabilities.

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Section 151 provides for the offence of detention of females for immoral purposes- as detaining any other person against his or her will (a) in or upon any premises with intent that he or she may have unlawful sexual connection with any person, whether any particular person or generally; or (b) in any brothel . Commentary: The provision contravenes the Sexual Offences Act on the ground that it does not recognize that children are not capable of consenting. Although in practice, the Sexual Offences Act takes precedence. It also presumes consent as it refers to any person without any exceptions as to age or matters that may affect ability to consent. The term brothel is not defined. The provision should also be wide enough to cover persons who have an interests in the premises used for purposes here described e.g. owners, lessors. e.t.c. Furthermore, all sexual offences to be under one regime and this provision should also be harmonized with the Counter Trafficking in Persons Act Section 153 (4) A person shall be deemed to be unlawfully detained for immoral purposes if the person is detained for the purpose of having unlawful sexual connection with any person, whether any particular person or generally; and (b) the person - (i) is under the age of sixteen years; or (ii) being of or over the age of sixteen years and under the age of eighteen years, is so detained against his or her will or against the will of his or her father or mother or any person having the lawful care or charge of him or her; or (iii) being of or over the age of eighteen years, is so detained against his or her own will.Commentary: this section contravenes the Sexual Offences Act with regard to capacity to consent. Furthermore, it should be under the Sexual Offences Act and should reflect the minimum sentencing. The reference to immoral purposes is open to subjective application since what is moral or immoral is relative to personal judgment, environment and circumstances of a case. This section should be repealed by the Sexual Offences Act which in turn should be amended to take into account this offence appropriate to minimum requirements of age of consent minimum sentencing among others. It may also have a bearing on the Counter Trafficking in Persons Act. Section 155 If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction or influence over the movements

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of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest such person.Commentary: this section in the first instance may have the effect of victimization of victims of sexual offences. Persons contemplated in this section may in fact be victims such as of trafficking as is often the case. Secondly, it discriminates against women and girls as it does not concern itself with any other parties who could be the real offenders such as person earning out of the practice, owners of premises e.tc. Thirdly, where children are concerned, the section contravenes the Sexual Offences Act as it presumes that a child could be legally involved in sexual activities while in essence this is an offence under the Sexual Offences Act. This section should be repealed by the Sexual Offences Act such as under the offence of child prostitution and other legislation such as the Counter Trafficking in Person Act and be reflected accordingly where children are the subject matter. The offence should also be alive to the criminal culpability of juristic persons. Further, the sentencing is too lenient and should be adapted to the approach under the Sexual Offences Act.

Section 156 Any person who -(a) keeps or manages or assists in the management of a brothel; or (b) being the tenant, lessee or occupier, or person in charge, of any premises, knowingly permits the premises or any part thereof to be used as a brothel; or (c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the same or any part thereof with the knowledge that the premises or some part thereof are or is to be used as a brothel, or is wilfully a party to the continued use of the premises as a brothel,Commentary: Where such premises are used for facilitating the commission of an offence under the Sexual Offences Act against children, whether the offence is actually committed or not, the provisions should be defined under the Sexual Offences Act provisions child prostitution. The use of the word brothel without definition should be addressed as expressed hereinabove. The offence should also be alive to the criminal culpability of juristic persons. Further, the sentencing is too lenient and should be adapted to the approach under the Sexual Offences Act.

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Section 157- conspiracy to defile (1) Any person who conspires with another to induce any woman or girl, by means of any false pretence or other fraudulent means, to permit any man to have unlawful carnal knowledge of her is guilty of a felony and is liable to imprisonment for three years. (2 ) Any person who conspires with another to induce any man or boy, by means of any false pretence or other fraudulent means, to permit any person to have unlawful sexual connexion with him is guilty of a felony and is liable to imprisonment for three years.Commentary: This provision contravenes provisions on sexual offences against children as intended by the Sexual Offences Act. The qualification of means by which a child is induced into a sexual act denotes ability to consent. Since children do not have capacity to consent to a sexual act, the means used should be immaterial. The offence should also be alive to the criminal culpability of juristic persons. Further, the sentencing is too lenient and should be adapted to the approach under the Sexual Offences Act. Where children are concerned, as envisaged by this provision, the offence should be dealt with under the Sexual Offences Act provisions on child prostitution or other modified provisions. Sections 162 - Any person who - (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years: Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if - (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that persons consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.. Section 162 Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years - attempt to commit an unnatural offenceCommentary: These sections contravene the Sexual Offences Act firstly on issues of consent it does not distinguish between adults and minors although in practice the Sexual Offences Act takes precedence. They are also draconian in its reference to against order of nature . The Sexual Offences Act is clear on sexual offences and genital organs includes the vagina and anus

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Section 165. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.Commentary: This section criminalizes all conduct between males irrespective of the fact that where the male is under 18, it amounts to an offence under the Sexual Offences Act with different penalty provisions. It does not define against order of nature and reference to the same is draconian. The Sexual Offences Act as noted above is clear on definition of genital organs to include anus and vagina. Section 174. (1) Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child Commentary: section contravenes the Children Act on definition of a child. The act should amount to child stealing for any person under the age of 18 years. Section 181 Traffic in obscene publications. Commentary: This provision should be repealed and harmonized with the provisions under Sexual Offences Act on child pornography with appropriate modification. Its not clear why the same was retained and the penalty for the offence is very lenient. There is also need to harmonize such provision with provision under laws and policies discussed under child protection and ICT laws. The provision should also be alive to the criminal culpability of juristic persons. The reference to this offence as an offence against health and inconvenience is draconian as it is not live to the possibility of amounting to a sexual offence which affects the person. Section 261. Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person is guilty of a felony and shall be punished in the same manner as if he had kidnapped

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or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement. Section 263. Whoever wrongfully confines any person is guilty of a misdemeanour and is liable to imprisonment for one year or to a fine of fourteen thousand shillings. Commentary: The Counter Trafficking in Persons Act should have amended this section since it captures people who confine a person who has been kidnapped for whatever purpose, which could include exploitation thus trafficking. This can amount to an offence of trafficking as reflected in section 3 of the said Act and amount to a sexual offence where the intention is sexual epxloitation. General commentary: Generally, the Penal Code should be revised to reflect the age of minority in all offences affecting children. Sexual offences retained in this Act should be repealed and modified under the Sexual Offences Act.

1.3.3 c) Evidence Act This Act is the principal law on taking of evidence in judicial proceedings. It makes for specific provisions that focus on children. It has gone through amendments with regard to children and sexual offences that have been progressive most notably being the provision of section 124. The following have been highlighted as needing further consideration to enhanced prosecution of sexual offences: Section 48. (1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible Commentary: The same could be expanded to allow for expert opinions on a state of mind of a person for instance in the case of child witnesses in court and special witnesses such as person with disabilities. Character evidence Section 57 (1) In criminal proceedings the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible unless -(c) the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution; or,

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Provided that the court may, in its discretion, direct that specific evidence on the ground of the exception referred to shall not be led if, in the opinion of the court, the prejudicial effect of such evidence upon the person accused will so outweigh the damage done by imputations on the character of the complainant or of any witness for the prosecution as to prevent a fair trial. Evidence to impeach the credit of a witness: Section 163. (1) The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him (d) when a man is prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of generally immoral character. Commentary: The provisions should be harmonized with the Sexual Offences Act provision on character evidence of children. There is a risk that the provision by Sexual Offences Act may be breached where the court does not exercise its discretion to disallow imputations on character. The application of this section and section 34 Sexual Offences Act in its exceptions should wholly exempt children complainants in sexual offences since their capacity to any sexual act does not exist. Section 34.(1) Sexual Offences Act Facts taken judicially notice of: Section 60 (1) The courts shall take judicial notice of the following facts - (n) the meaning of English words; Commentary: This needs to take into account others such as Swahili and symbols for Braille language Competency section 126. (1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court. Commentary: see the proposal under the Persons with Disabilities Act. The Act should be alive to other forms of communication and may include tactile communication and other means by which PWD can communicate without having to be written.

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Section 127: In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged - (a) with the offence of bigamy; or (b) with offences under the Sexual Offences Act; or Commentary: Include sexual offence prescribed under the Sexual Offences Act or any other written law such as the Counter Trafficking in Persons Act which repealed certain sections of the Sexual Offences Act. General commentary: There is need for introducing provisions for dealing with treatment of evidence of an intermediary including: a) define an intermediary b) Make provisions for taking the evidence of an intermediary. c) Persons who can be appointed as intermediaries such as counselors, psychiatrists, social workers e.t.c., d) Functions of an intermediary e) The process of appointing an intermediary, factors to consider Comprehensive provision on the intermediary may be provided for under the Criminal Procedure Code can provide for evidentiary provisions. General commentary: the law also needs to provide for procedural provisions on interpretation and interpreters in the process of administration fo justice. This needs to be considered for comprehensive determination on what legal regime will govern interpretation. This would provide for among others: a) Definition of interpreters b) Qualification to be an interpreter c) Role of interpreters ( in police station, in court, in other settings) d) Interpreters in court evidentiary considerations e) Special measures on interpreters for persons with disabilities 1.3.4 d) Children Act This is the principal law that provides for rights, responsibilities and institutions for dealing with the welfare of the children. For the purposes of this analysis, the following provisions were considered; Section 2: definition of a parent and duties of a parent: part III

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Commentary: The Act does not define who a parent is nor does it define who has parental responsibility. The presumption from the provisions is either a father or mother. It does not go further to provide for who a father/mother includes. One of the duties of a parent is protection of a child from neglect, discrimination and abuse. Principle of the best interests of the child - Section 4: (2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration. Commentary: This principle is applied subjectively depending on the sensitivity and understanding of a particular court or office. As a result, children are accorded different treatment that is sometimes on responsive to their needs. There is need for this principle to be expounded into operational standards in the context of administration of justice. Section 2 Section 2 - early marriage means marriage or cohabitation with a child or any arrangement made for such marriage or cohabitation;Commentary: This should be made an an express offence under the Sexual Offences Act so as to capture both the offence and the resulting impact and even if the sexual offence was not committed, the conduct that would have exposed a child o sexual abuse is criminalized. Furthermore, coaching the offence as early marriage leaves room for subjective application. It should expressly provider for child marriage. Section 29 is inadequate since it provides for the offence of forcing another person to engage in a sexual act or any act that amounts to an offence under for cultural or religious reasons. Section 13 - a child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person Commentary: Does not encompass sexual abuse in entirety since sexual exploitation is just a sub-set of sexual offences.

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Section 13 (2) any child who becomes the victim of abuse shall be accorded appropriate treatment and rehabilitation in accordance with such regulations as the Minister may make. Commentary: No rules have been made with respect to provision of appropriate treatment and rehabilitation of a child victim of abuse Section 20. Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5 to 19 such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine. Commentary: This section provides a blanket prescription for the violation of the rights so provided, irrespective of the magnitude of the harm that may be occasioned to the child resulting from the said violation. Thus, in absence of any other law or provision prescribing punishment for a violation of rights, prosecuting authorities would rely on Section 20 which is very lenient in its provisions. Commentary: There is need for an amendment to provide that where the infringement constitutes a sexual offence under the Sexual Offences Act or other law, the person shall be charged as specified under the Sexual Offences Act or any other written law. The Sexual offences Act should also make provision for general penalty to guard against resorting to this lenient provision. Section 22(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it or under this section. This section allows for anyone to seek a redress from the High Court where the rights of the child are being violated. Commentary: No rules have been made under Section 22(3). A recourse would be in the Constitution which makes it possible to approach a court even in the absence of court rules. Section 187- (1) Every court in dealing with a child who is brought before it shall have regard to the best interests of the child and shall, in a proper case, take steps for removing him from undesirable surroundings and for securing

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that proper provision be made for his maintenance, education and training. Commentary: this section does not consider rehabilitation as part of guarantees to be taken into consideration with respect to child offenders. Commentary: The Act does not have corresponding provisions on child friendly processes and facilities for victims of offences Section 191 Methods of dealing with a child offender include; discharging the offender, discharging the offender on his entering into a recognizance, by making a probation order against the offender, by committing the offender to the care of a fit person, whether a relative or not, or a charitable childrens institution, ordering him to be sent to a rehabilitation school, ordering the offender to pay a fine, compensation or costs, committing to a borstal institution, placing the offender under the care of a qualified counsellor, order placement in an educational institution or a vocational training programme or in a probation hostel, making a community service order or any other lawful manner. Commentary: the treatment of child offenders including sexual offenders who are children may not be effective since it provides for optional methods that may not achieve the rehabilitation goal since it is subject to subjective application. As a preventative measure, the law should deal with child sexual offenders to realize their full rehabilitation. This calls for structured programmes for child sexual offenders. Commentary: There are also no guiding provisions on how to deal with children offenders especially where it turns out that both victim and accused persons are minors of comparative age. Disclosure of Conviction of Sexual Offence in Adoption Section 158 (3) (b) Children Act provides as one of the requirements for an adoption applicant to be: if any or both of the applicants has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to this Act or similar offences. These offences are offences against morality as were defined by the Penal Code which were repealed by the Sexual Offences Act.

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Commentary: Thus, the provisions of the Children Act need to be amended to expressly provide for offences under the Sexual Offences Act. The Children Act should be amended to reflect these changes and the same should also refer to other offences under the CTIP Act and other laws that may provide for sexual offences. Commentary: The provision on the adoption should also apply to the provision on disclosure of conviction with a sexual offence. With regard to adoption, one of the conditions is that the applicant must have been evaluated and assessed by a registered adoption society in Kenya. This is the process which would provide clearance as to an applicants criminal record. Section 30 as it is presumes an applicant will make the disclosure forthright on the one hand, or the inquiry into the applicant will make this as one of the issues to inquire about. To guard against non adherence, this should be expressly provided for and modify section 30 Sexual Offences Act Recommendation: There should put an express condition as part of the qualifying conditions for seeking adoption of a child to be proved through a process akin to the certificate of good conduct obtained from the high court registrar through the police certifying that a person is not a convicted sexual offender or is not facing criminal proceedings. This same express requirement should be followed in clearing persons for guardianship and foster care. The challenge however, would be involving international adoptions thus need for inter-country collaborations. In Kenya, for this requirement to be met, it needs to be complemented by the following: a) b) Section 39(13) Sexual Offences Act which requires the mainte nance of a register of convicted sexual offenders by the High Court Registrar. Section 37(2) on establishment of Sexual Offences (Dangerous Offenders) DNA Databank. This requirement is also comple mented by the provisions for supervision of dangerous sexual offender

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1.3.5 i) National Children Policy The Policy seeks to realize and safeguard the rights and welfare of the child and particularly: a) To provide a framework for addressing issues related to childrens rights and welfare in a holistic and focused manner. b) To act as a regulatory framework to coordinate the many related policies and legislations that are geared towards the promotion of childrens rights. c) To provide direction and purpose in establishing social and child protection mechanisms while mobilizing resources for action. d) To act as a criterion for evaluating and monitoring the implementation of various legislations, policies and programmes on issues related to children. General commentary: The policy objectives there are no corresponding broad-based policy measures. It provides for rights as defined under the CRC and the Children Act and broad strategies for realizing the same. Being a policy intended to coagulate all issues on children, it should be broad-based and encompass all measures that would take into account all protection concerns. It needs to define an institutional framework, bearing in mind that it addresses multi-sectoral issues that in practice are handled by different institutions. It needs to define how the relevant institutions meet the policy objectives and goals. It should have comprehensive provision on definitions, the issues it seeks to address and relevant laws that are impacted upon by it. Monitoring and evaluation this framework should be clearly defined to guide its implementation and apply to institutions it targets. 1.3.6 e) Marriage Laws and Practices Marriage in Kenya within the African context can be broadly categorized into: a) Religious based b) Civil marriages c) Customary marriages The marriage laws were considered because they deal with the issue of age of marriage. Kenya is governed by different marriage laws which are: a) African Christian Marriage and Divorce Act b) Marriage Act

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c) Mohammedan Marriage and Divorce Registration Act d) Matrimonial Causes Act e) Hindu Marriage and Divorce Act Analysis of these laws highlights the following issues: a) Definition of a child b) Age of consent c) Maintenance of children on the basis of parental duty of care within the context of protection from abuse. The minimum age of marriage is derived from the Children Act, the Sexual Offences Act and the Constitution of Kenya. A child is defined under these laws as any person who has not attained the age of eighteen years. The Constitution provides in Article 44 provides for the right to use language and participate in cultural life. This also entails protection from being forced to undergo cultural rights such as FGM, early marriage. Further, on the basis of the provision in Article 45(1) that only adults have the right to marry, it can be construed to protect children from being subjected to early marriage. Article 53 also provides for protection of children from abuse, neglect, harmful cultural practices, all forms of violence and inhuman treatment and punishment and exploitative labour. The Children Act defines in section 2 early marriages as marriage or cohabitation with a child or any arrangement made for such marriage or cohabitation. Section 14 of the Act categorically prohibits female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the childs life, health, social welfare, dignity or physical or psychological development. The Act however, did not expressly defined the age of consent/marriage. The Sexual Offences Act defines the minimum age of consent at 18 years. It provides that a child has no capacity to consent to a sexual act, thus making any sexual act with a child an offence. In its provisions on consent in section 43(4), the Act expressly provides that a child has no capacity in law to appreciate the nature of a sexual offence. While in interpretation of statutes, the Constitution is the supreme law, it therefore follows that any other laws whose definition contradicts that of the Constitution are unconstitutional. Furthermore, the Children Act and the Sexual Offences Act over-

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rides all other pieces of legislation with regard to the prohibition of early marriage. The following laws therefore need to be revised in their provisions that recognize child marriage as lawful. 1.3.7 i) Marriage Laws and the Minimum Age of Consent The following provisions that deal with consent for marriage of persons under the age of eighteen therefore need to be repealed: 1.3.8 African Christian Marriage and Divorce Act The Act defines the age of marriage as 21 years but it recognizes that if one wishes to marry at a younger age, the consent of the parent/guardian must be obtained. Consent to marry: With regard to consent, this Act recognizes in section 8 that: implies that there are instances where consent for marriage would be necessary to be granted by the presiding minister, where no parent or guardian is available to give consent. This implies marriage where persons under the age of eighteen are involved since marriage between two adults, consent is presumed. Status of African Christian widows: Section 13 (2) recognizes that a woman who has been widowed becomes the guardian of any children of that marriage and this duty extends until the children attain the age of 16 years if male and if females attain the age of 16 years or marries and further recognizes such as widow has the capacity to dispose of such children in marriage. This provision again implies that it is proper to marry off children of 16 years. 1.3.9 Marriage Act Section 11 provides that the registrar of marriages can issue a certificate of marriage if all conditions have been met which include: that the parties to the intended marriage (not being a widower or a widow) are eighteen years old, or that, if either of party is under that age, the necessary consent has been obtained in writing. Section 14- Granting of licence to marry section 14 again provides that it will not be an impediment to the marriage if the conditions have been met including obtaining of necessary consents to marriage. Section 19 -Consent to marriage of minors provides expressly that a marriage can be licensed if where either of the parties to the intended marriage is under eighteen years, a consent has been obtained form a person who has lawful custody of the party. Section 20 and 21 provides for provision of consent for marriage of minors

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where the legal guardian is illiterate or incapable of granting consent. In the latter case, consent can be granted by the relevant minister, judge of the Supreme Court or the registrar. Section 22 grants the Supreme Court powers to give consent upon application where the legal guardian refuses to give consent. Section 3592) on invalid marriages - Section 35(2)recognizes that a marriage is null and void if either party thereto is under the age of sixteen years at the time of the celebration of such marriage, further validating a marriage of a person under the age of eighteen years. Other provisions include the operational provisions found in the Schedule of the Act, notably First Schedule Form no 1. notice of marriage, First Schedule Form no. 3 Registrars certificate and First Schedule form no 8 - certificate of no impediment to marriage age 1.3.10 Mohammedan Marriage and Divorce Registration Act This Act governs the registration of Mohammedan marriages and divorces. Section 9 on registration of marriage or divorce this section introduces the fact that under this regime, minors can marry with the consent of their guardians. It provides that the parties to a marriage or divorce recognized by Mohammedan law, or if the man or the woman or both are minors their respective lawful guardians, shall register such marriage or divorce with an assistant registrar within seven days from the celebration of such marriage or the pronouncement of such divorce, as the case may be. Section 10- Mode of application for registration section 10 also provides that application shall be orally made and where the parties are minors, shall made on their behalf by their respective lawful guardians Section 13 signature of parties in the entries the section provides that where any/or all of the parties is a minor(s), the signature of the parties shall be made by the respective legal guardians. First Schedule the issue of consent is also reflected in the schedule to the Act on Form of Register of Marriages and in particular First schedule rule 5 (5) Name of the guardian of the bridegroom (if the bridegroom is a minor) and that of the guardians father, the guardians address and the relationship in which he stands to the bridegroom and Rule (6) Name of the guardian of the bride (if she is a minor) and that of his father, the guardians address and the relationship in which he stands to the bride.

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1.3.11 Matrimonial Causes Act Definition of a child: Section 2 of the Act defines a child as: In this Act, except where the context otherwise requires-children means, in the case of Africans (including Somalis, Abyssinians (Amhara, Tigre and Shoa), Malagasies and Comoro Islanders), Arabs or Baluchis born in Africa, males who have not attained the age of sixteen years and females who have not attained the age of thirteen years, and in the case of all other persons, unmarried children who have not attained the age of majority; 1.3.12 Hindu Marriage and Divorce Act Conditions for solemnization of a marriage - Section 3 (1) recognizes that a marriage can be solemnized if the following conditions are fulfilled including where the bridegroom has attained the age of eighteen years and the bride the age of sixteen years at the time of the marriage and where the bride has not attained the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage. Persons authorized to give consent Section 4 (1) Further defines the persons who can give consent where such consent is necessary for a bride under the age of eighteen years. Consent can be waived where the authorized person are not available to give consent. Section 11(1) (a) (iii)- Grounds for a decree of nullity The Act further recognizes the issue of consent in instances where consent of either party to the marriage or of the guardian in marriage was obtained by force or fraud. 1.3.13 African Customary Marriages Marriage practices vary with different customs. However, it is a well-known fact that some allow marriage of children under the age of eighteen. This is especially common where communities practice FGM where children once they have undergone the rite, they are prepared for marriage. Although this does not sanction child marriages, it is a practice that is still ingrained in the culture of some communities and must be critically targeted for the communities to embrace progressive practices. In Kenya, this is common among the Maasai, Pokot, Turkana, Meru, etc. General Commentary : Disparity in age of marriage and age of consent to sexual activity: when these vary, there is a conflict of laws due to the fact that marriage presumes consent. There is need to harmonize the laws to provide progressive measures that protect children. General Commentary: The marriage laws themselves are very outdated as a whole. The proposed Marriage Act will cure these gaps if enacted. It will among others: (i) consolidate all marriage laws under one statute (ii) express-

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ly provide for minimum age of marriage as eighteen years. The proposed law however, needs to consider further prohibited relationships to include existing relationships under adoption, guardianship and foster care, and stepchildren. Alternatively, it should give a broader meaning to the term child in defining relationships. It can also create offences where breach of clause 8 is proved. This offence may, as noted before be provided for under the Sexual Offences Act. 1.3.14 ii) Maintenance of children (parental duty of care) in the Context of Marriage Laws and Practices The maintenance of children is important as far as child protection from sexual abuse in that parental duty extends up to the age of 18. The aforementioned laws also restrict the maintenance of parents up to the age of 16, thus removing the duty of a parent to protect their children from sexual abuse before they reach the age of majority. This section needs to be alive to the fact parental rights and duties extend to the age of 18 years thus cannot be deemed to have ended. Section 13 of the African Christian Marriage and Divorce Act seems to imply that parental duty extends until a child reaches the age of 16 years. This is in contradiction of the Children Act which provides for the age of majority as 18 years. 1.3.15 f ) Sexual Offences Act and ICT-Related Laws, Policies and Regulations 1.3.16 i) Kenya Information and Communications Act This Act is the principal law on information and communication. It governs several aspects of information and communication in Kenya including telecommunication services, radio communications, postal services, broadcasting and multimedia services and electronic commerce. It also establishes the CCK. It prescribes different regulatory measures for licensing and regulation of service providers. The following provision can be related to the Sexual Offences Act on child protection Section 20 A licensee shall (a) ensure that due care is exercised in order to avoid content that may disturb or be harmful to children, that has offensive language, explicit sexual or violent material, music with sexually explicit lyrics or lyrics which depict violence; (b) not broadcast programmes with the content specified in paragraph (a) during the watershed period

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Commentary: This section does not create offences for breach of provisions, yet non-compliance may lead to the commission of a sexual offence against a child such as indecent act, child pornography, 29. A person who by means of a licensed telecommunication system (a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both. Commentary: This section needs to be reflected under the Sexual Offences Act by an appropriate provision where the violation under this section is an offence under the Sexual Offences Act if it is intended to commit a sexual offence against a child or an offence is actually committed as a result of its violation. The section should reflect the minimum sentencing approach of the Sexual Offences Act in sentencing. Section 46 H (1) The Commission shall have the power to set standards for the time and manner of programmes to be broadcast by licensees under this Act. (2) Without prejudice to the generality of sub-section (1), the Commission shall (c) prescribe a watershed period programming when large numbers of children are likely to be watching programmes. Commentary: this provision not being observed in practice since there are many broadcasters that air programmes with lurid content during the prohibited periods. Section - 46C - Requirements of a broadcasting license. (1) Subject to this Act, no person shall provide broadcasting services except in accordance with a licence issued under this Part. (2) Any person who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or to both. Commentary: This provision needs to include in addition to any other offence prescribed under the Act or any other law, because, a violation of this Act may amount to a sexual offence prescribed by the Sexual Offences Act or any other law.

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(3) A licence granted under this section may include conditions requiring the licensee to(d) fulfil such other conditions as the Commission may require. Commentary: Certain conditions should not be made optional especially if they border on the commission of a sexual offence against a child. Section 46J: The Commission may in accordance with this Act revoke a licence to broadcast where the licensee is in breach of the provisions of the Act or regulations made thereunder; is in breach of the conditions of a broadcasting licence. Commentary: should entail in addition to other measures such as being charged for an offence committed under this Act or any other law Section 46Q. (2) Any person who provides a broadcasting service pursuant to a licence granted under this Act commits an offence if(c) that person broadcasts in contravention of the Act or the licence conditions (3) A person convicted of an offence under this section shall, on conviction, be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both. Commentary: should entail in addition to other measures such as being charged for an offence committed under this Act or any other law Section 58. No person shall send by post indecent or obscene printing, photograph, lithograph, engraving, book or card or any other indecent or obscene article; (b) any postal article having thereon, or on the cover thereof, any words or designs of an indecent, obscene, scurrilous, threatening or grossly offensive character; Section 71 Any person, who without lawful excuse, the proof of which shall lie on the person charged, sends or procures to be sent by post, a postal article which has thereon or enclosed therein any word, drawing or picture of a scurrilous, threatening, obscene or grossly offensive character, commits an offence and shall on conviction be liable a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years or to both. Commentary: There is need for an interface with the Sexual Offences Act provision since the object referred to here as obscene may be so in the context

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of an object described under certain provisions of the Sexual Offences Act such as child pornography. Section 83A. (1) Where, on its own motion or consequent upon a complaint made by any person, the Commission is satisfied that a licensee is contravening or has contravened the Act, or any other written law or any of the conditions of that licence; (i) notifies the licensee in writing, specifying the acts or omissions which, in its opinion, constitute or would constitute contravention of the Act or the licence; (ii) requires the licensee to remedy the contravention within such period as the Commission may specify in the notice, then if the licensee fails to remedy the contravention within the prescribed period without reasonable cause, such a licensee shall be liable to a penalty of five hundred thousand shillings and such penalty shall be a debt owed to the Commission and recoverable summarily. Commentary: the contravention of this Act may give rise to an offence thus certain acts as this one ought ob cognizable offences where the breach amount to both a breach of licensing condition and a criminal offence. On its own without modification, it seems to be a lenient option. Section 83V. (1) Any person who causes a computer system to perform any function for the purpose of securing access to any program or data held in any computer system, with intent to commit an offence under any law, shall commit an offence and shall, on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years or both. Commentary: there is need for an interface in practice with certain provisions of the Act such as this one and also other provisions of any other law referred to here where the Act is intended to commit an offence. Section 84D. Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both Commentary: Relate this provision with others which may be offences as de-

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fined by other laws such as the Sexual Offences Act such as child pornography, indecent act with child among others. General commentary: There is need for a close scrutiny of this law in relation to the Sexual Offences Act and its impact on certain contraventions that may actually amount to the commission of a sexual offence, in which case, the provisions on the Sexual Offences Act will take precedence over the Act or apply in addition to the provision of this Act. The minimum sentencing may also be affected where different legal regimes have different approaches. The Act adopts the maximum sentencing. Kenya Communications Broadcasting Regulations Regulation 20. Protection of children. A licensee shall (a) ensure that due care is exercised in order to avoid content that may disturb or be harmful to children, that has offensive language, explicit sexual or violent material, music with sexually explicit lyrics or lyrics which depict violence; (b) not broadcast programmes with the content specified in paragraph (a) during the watershed period; (c) request for permission to conduct an interview with a minor from the minors parents or guardian before conducting an interview with a minor. Regulation 26 Conduct of interviews - (2) A licensee shall exercise sensitivity in conducting interviews with bereaved persons, survivors of traumatic incidents or witnesses thereof. Commentary: This provision on conducting interview with children should also include protection of the childs identity. Permission alone may not be enough to protect the child since even care providers may be ignorant of the need to preserve the identity of a child. This is relevant for service providers governed by these regulations to bear in mind the needs of victims when reported about incidences of sexual violence. Perhaps this issue needs to be provided further in terms of ministerial rules or guidelines to govern reporting of cases concerning children. Regulation 27. Sexual offences.A licensee shall(a) not disclose, in a broadcast, the identity of a victim of a sexual offence unless such victim consents in writing to the disclosure of his or her identity. (b) Avoid the use of unnecessary or repetitive detail when broadcasting the circumstances of a sexual offence

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Commentary The commentary above on Rules 20 and 2 also apply here. Further, there are no provisions on any measures to be taken for violating the provisions above. This provision also applies to children and therefore should make exception to children by referring to the protection measures in Rule 20. Further, it should make a general proviso to cover persons who do not have capacity to give consent to cover not only children, but also other vulnerable categories such as persons with disabilities, persons impaired by circumstances such as infirmity, trauma, e.t.c. General penalty - 44. Offence and penalty. Any person who contravenes any provision of these Regulations commits an offence and is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both. Commentary: There is need to provide for an interface to ensure that it corresponds appropriately with the provisions of the Sexual Offences Act, thus, make provision for additional penalty that may be described by the Sexual Offences Act and other laws that provide for sexual offences where breach of these regulations may amount to an offence so prescribed. 1.3.17 Kenya Information and Communications (Consumer Protection Regulations) Regulation 7. Complaint handling procedures of licensees. Commentary: What is the interface with the Sexual Offences Act especially where the complaints alleged could amount to an offence? The processes suggested here are only regulatory. Regulation 8 (3) A person who commits an offence under these Regulations shall, where no specific penalty is provided for, is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or both. Commentary: There is need to provide for an interface to ensure that it corresponds appropriately with the provisions of the Sexual Offences Act, thus, make provision for additional penalty that may be described by the Sexual Offences Act and other laws that provide for sexual offences where breach of these regulations may amount to an offence so prescribed.

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Regulation 9. Protection of children. A licensee shall establish mechanisms that enable parents and legal guardians to block access of children to harmful content. A licensee who owns promotes, glamorizes or markets alcohol and tobacco products or other harmful substances that are directed at children commits an offence. Commentary: other harmful substances described here could include indecent objects, images e.t.c. or products the exposure of which would amount to indecent exposure. This may need to be expressly highlighted and as noted above, there is need for interfacing provisions with the Sexual Offences Act since non-complying conduct may amount to both a breach of regulatory conditions and an offence under the Sexual Offences Act. Films and Stage Plays Act Section 2 child means a person who has attained the age of four years but has not attained the age of eighteen years; Commentary: What was the rationale for a differentiated definition of a child? Is it onthe basis of the cognitive development of a child, when does it begin? Section 17: (2) Where the Board records its ruling in the form for adults only it shall issue a certificate of approval subject to the condition that no child shall be admitted to the exhibition thereof. Commentary: this provision, in light of the above definition means that a child of under four years can be admitted to premises showing adult only films. The Sexual Offences Act makes no exception as to age of the children. Thus this provision is in conflict with the Sexual Offences Act. Regulation 12. (1) No person shall exhibit any film at an exhibition to which the public are admitted or distribute such film unless he is registered by the Board and (2) No film or class of film shall be distributed, exhibited or broadcast, unless the Board has examined it and issued a certificate of approval Regulation 13.(1) No person shall display, or cause or permit to be displayed, in a public place, or so as to be visible from a public place, any poster, unless the Board has first approved the poster for public display. (3) Any person who contravenes the provisions of subsection (1), or who fails to comply with any

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requirement of an authorized person under subsection (2), shall be guilty of an offence. Commentary: Needs to be alive to other penalties that may be prescribed by other laws such as the Sexual Offences Act because contravention may already lead to the commission of an offence under the Sexual Offences Act Regulation 32. (1) Any person who is guilty of an offence under this Act shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment. Commentary: Needs to be alive to in addition to any other offence because contravention may already lead to the commission of an offence under the Sexual Offences Act 1.3.18 Films and Stage Plays (Films Censorship) Regulations. Regulation 11. Certificate of approval.] (4) No person shall display for hire or for sale, or exhibit any video cassette unless there is affixed on it the appropriate label prescribed in paragraph (3). (5) A person who contravenes the provisions of paragraph (4) commits an offence. (6) An offence under paragraph (5) shall be cognisable to the police. Commentary: The regulations make the contravention of this provision a cognizable offence. This is progressive although it is worth noting that this is not the case with offences emanating from the Act, from which the regulations emanate, which in essence ought to be cognizable as appropriate, where the same can amount to a criminal offence. General commentary: The provisions on ICT law need to be clear on the criminal culpability of natural and juristic persons thus make a distinction on the penalties in the same manner as the Sexual Offences Act. 1.3.19 National ICT Policy The policy aims at improving the livelihoods of Kenyans by ensuring the availability of accessible, efficient, reliable and affordable ICT services. It covers a wide range of sectors, namely, broadcasting, telecommunications, postal services and electronic commerce market. As noted in research by The CRADLE, on Beyond Borders: An Exploratory Study on Child Online Safety and Security, it seems to lay much emphasis on increasing ICT access without commensurate consideration of protective measures

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especially concerning children. General commentary: The policy makes no special consideration for children in the usage of ICT save for provisions on child protection in the broadcasting section. The Policy therefore needs to be comprehensive to cover all matters regarding ICT usage and child protection.

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1.3.20 Teachers Service Commission Act The (Teachers Service Commission) TSC Act establishes the TSC which is mandated with the registration of teachers, regulating the teachers profession and their remuneration. This Act is relevant for this analysis since it provides for the disciplining of teachers for unprofessional conduct. The following issues with regard have been identified as requiring modification in lights of the Sexual Offences Act provisions. Section 7(3) The commission shall refuse to register a teacher if it is satisfied that he is an unsuitable person to be a teacher on the grounds that he is not of good moral character, or has been convicted of a criminal offence which in the opinion of the Commission renders him unfit to be a teacher, or is guilty of infamous conduct in any professional respect or has been engaged in any activities which in the opinion of the Commission are prejudicial to peace, good order or good government in Kenya Commentary: This is a progressive provision and its application would be realized in practice by the production of a certificate of good conduct. However, it is important to be categorical of offences that would qualify an applicant ineligible for employment as a teacher, since as is, it leaves room for the Commission to exercise discretion, thus open to subjective application even abuse. It should in particular specify a person convicted of a sexual offence prescribed under the Sexual Offences Act or any other written law such as the Counter Trafficking in Persons Act. This provision should also be extended to factors determining the termination of a teacher. Section 8(1)- The Minister shall make regulations with respect to the register and the registration of teachers therein, and such regulations shall-(a) prescribe the requirements as to qualifications for registration;-prescribe the particulars, information, proof or evidence as to any matter to be furnished upon application for registration, (c) provide for the issue, variation and revocation of certificates of registration. Commentary: This section should be categorical ro include as among other reasons for consideration in the issuance, variation and revocation of certificate of registration conviction of a sexual offence under the Sexual Offences Act and any other written law such as the Counter Trafficking in Persons Act. It should also introduce provisions for complying with the Sexual Offences Act in Section 30 on disclosure of conviction. The disclosure by an applicant should also include existence of any criminal proceedings against him of

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Sexual Offences Act and Counter Trafficking in Person Act or other offence to apply as a factor conditioned to the registration. With regard to proof of evidence on qualifications for registration, it should be categorical to include clearance from the registrar of the High Court (supposed to maintain a register of dangerous sexual offenders) and certificate of good of conduct. Section 9 (1) the Commission shall investigate, consider and determine any case where it is alleged a registered teacher should have his name removed from the register on the ground that if he were not registered, the Commission would not register him. The Minister may make rules for regulating the practice and procedure of the commission in proceedings under this section There should be a proviso that these proceedings shall not take the place of criminal proceedings where the act complained of amounts to an offence prescribed by law. Apply the latter to section 10 and 12 on action after proceedings. Introduce also a mandatory duty to reporting to police if the act complained of amounts to a criminal offence. A finding of not guilty by the TSC should not replace the outcome of criminal proceedings against a teacher. Where after the TSC finds a teacher not guilty and the court convicts a teacher of a criminal offence arising from the same facts, the finding of the Court should take precedence over the TSC finding and should have effect as if the TSC had come to the conclusion that the teacher was guilty, i.e. in addition to the teacher being convicted and sentenced accordingly, the termination of his/her membership. Determination of proceedings by Commission and Tribunal: a) Section 10 where the Commission determines in any case that the name of the teacher be removed from the register, the Commission is required to give notice to the teacher in question and proceeding to remove the name from the register. This action can only be stayed if the teacher lodges an appeal against the decision of the TSC. b) Section 11 establishes the Teachers Service Appeals Tribunal whose membership shall include an assessor, an advocate who may be co-opted as necessary to advise on questions of law. c) Section 12 defines the procedure for the Tribunal. Commentary: the concerns mentioned above should also apply to these provisions. Any proceedings shall not take the place of criminal proceedings where the act complained of amounts to an offence prescribed by law. A finding of not guilty by the Tribunal shall not take precedence over any decision

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emanating from the court of law. The Tribunal should also have a mandatory obligation to report to relevant authorities if the conduct being investigated amounts to an offence prescribed by the law, in this case a sexual offence. General Commentary: there are no provisions as to the representation of the complainant in the proceedings before the Commission and the Tribunal. The same should be provided for. General Commentary: The Act should also allow room for issues that may have an impact on the consideration for the registration of a teacher to include upon receipt from a competent authority that the teacher has been convicted of an offence under the Sexual Offences Act or any other law so that the TSC does not only act on its own motion. General Commentary: There is need for a mechanism that governs all teachers whether or not registered under the TSC. 1.3.20.1 The Teachers Service Commission Registration Regulations Particulars to be provided on application for registration include: a) Rule 3 requires provision of the following in writing: full name, sex, date of birth, address, nationality, educational qualifications, professional qualifications, reference number of any certificate, licence or authority to teach that may have been issued under the Education Act, record of service, and any other particulars or information that the Commission may require for the purpose of this Act or of Pensions Act. b) Rule 4 provides that the Commission may at any time require a person who has been registered, or is applying to be registered, to furnish the Commission with proof as to the correctness of the date of birth or presumed date of birth, nationality, educational qualifications and professional qualifications. Commentary: the requirements for submitting an application should also include a clearance certificate that the person is not convicted of is not being investigated for an offence particularly a sexual offence described under the Sexual Offences Act. Commentary: There is need for an interface for provision between the private and public employer. Convicted teachers may go ahead and seek employment in the private sector which is not governed by the TSC Act. rule 11 can cure

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this gap as it provides for publication of cancellation of the registration in the Gazette. Rule 14: The following particulars of a registered teacher shall be included in the register full name, address; and registration number. Commentary: include clearance with certificate of good conduct and High Court Registrar that one is not a convicted dangerous sexual offender. Rule 16. Where the Commission refuses to register a person as a teacher on any of the grounds specified in section 7 (3) (b) of the Act, or determines that the name of a registered teacher be removed from the register on such grounds, and any appeal to the Appeals Tribunal against such refusal or such determination is withdrawn or dismissed, such person, or such teacher, is precluded from applying for registration within a period of two years from the date of such refusal, such determination, such withdrawal, or such dismissal, whichever is the latest. Commentary: make a proviso for the non-readmission into the register until the conclusion or making a decision by a court of law concerning the case before the Commission or the Tribunal so that the finding of the Court of law not taken over by a finding of the Commission or the Tribunal. Commentary: The recommendations herein should also be effected in the various forms being used under these regulations 1.3.20.2 Teachers Service Commission Qualification for Registration Regulations Rule 6(2) The Minister shall cancel a licence issued to a person under paragraph (1) of this regulation where-(a) he is satisfied that the name of the person been removed from the register in accordance with section 10 of the Act. Commentary: This will be affected by the proposed additional requirements for qualification for employment i.e. not convicted of a sexual offence against a child or is not facing criminal proceedings involving a sexual offence against a child.

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1.3.20.3 Teachers Service Commission (Removal from Register) Regulations Rule 2: All proceedings under section 9 of the Act shall be in private. Commentary: There should be a proviso that where children are party to proceedings, the procedure shall be guided by the protective laws and guidelines regarding protection of child witnesses as prescribed by any other written law, notably the Children Act and the Sexual Offences among others. Rule 5 (b) that the name of the teacher, notwithstanding that he is guilty of .the allegations made against him, be not removed from the register, the Commission shall cause notice of such determination to be served on the teacher in the form in the Third Schedule to these Rules. Commentary: this seems to recognize that the teacher can still maintain his/ her membership irrespective of the outcome of the allegations against him/ her. The concern mentioned hereinbefore should also apply here, that the decision of a court of law on the conviction, in regard to allegations against a teacher shall take precedence over that of the Commission or the Tribunal. Commentary: The recommendations herein should also be effected in the various forms being used under these regulations General commentary: recording of proceedings and decision of the Commission and Tribunal shall be public documents save where there needs to protect the identity of the child who was a party or witness to those proceedings. 1.3.20.4 Teachers Service Commission Appeal Tribunal Practice and Procedure Rule 6(2) Where the Appeals Tribunal determines that an allegation against a teacher has not been proved, the decision of the Tribunal shall include a statement that the teacher is not guilty of such conduct in respect of the matters to which the allegation relates. Commentary: should be alive to any proceedings against a teacher before a court of law, so that any finding of not guilty by the Tribunal does not affect the outcome of the court and further that the court decision on the conviction of the teacher shall have the effect as if the Tribunal had found the teacher guilty.

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Rule 2 all proceedings of the Appeals Tribunal shall be in private. Commentary: Make provision for the protection fo children who take part in proceedings before the Tribunal as guided by the Sexual Offences Act and other child protection laws. Commentary: The proceedings should allow the attendance of children who are party to the issues before the Tribunal and the Commission and also allow attendance of a person accompanying the child either as a parent/guardian, legal representative. General commentary: Decision of the tribunal to be public with the necessary modifications to protect the identity of the child. Teachers Service Commission Guidelines on Protection of Pupils/Students from Sexual Abuse They provide for measures towards addressing suspected cases of child sexual abuse and preventing exposure of children to sexual abuse. However, these guidelines need to go an extra mile to capture all the circumstances that expose children to abuse and protection of abused children. Specifically, we note that more needs to be prescribed as follows: Rule 2: For purposes of this circular, sexual abuse by a teacher to a pupil/ student shall include sexual intercourse, touching of a pupil/students body which is of a sexual nature, any suggestive language or gesture, any form of inducement, threats or violence to force them to engage in sexual intercourse, exposing pornographic material or any form of flirtation with or without consent. Commentary: While the guidelines also enumerate sexual offences with a pupil/student, with or without consent, , on the basis that a child under the guidelines may be over the age of 18, for clearance of doubt, the guidelines should be more emphatic that consent of the child is immaterial in the case of a sexual offence. The guidelines should leave definition of offences as enumerated by the Sexual Offences Act. Rule 6: Sending of pupils/students to teachers houses for any reason whatsoever is hereby prohibited.

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Commentary: there is no provision on effect of non-compliance such as disciplinary action and where it is if for purposes of the commission of a criminal offence, the law in addition to any other action takes effect. Rule 7: Any teacher who finds out or suspects a case of sexual abuse of a pupil/student in their school, outside the school, or in any other school, must report such a case or suspicion to the Head teacher, the District Education Officer and the Teachers Service Commission within 24 hours. Commentary: Mandatory reporting should be extended beyond this to include the police and the Department of Children Services, the subject matter being a criminal offence calling for legal action. This is also important so as to address the immediate needs of an abused child such as ensuring medical assistance and, removal of the suspected abuser from a childs environment among others. Rule 9: Any teacher who fails to report a case of sexual abuse or suspicion of the same shall be considered an accomplice and shall face disciplinary action. Rule 12: Any teacher or agent who facilitates and or arranges the coverup of a case of sexual abuse against a pupil/student shall face disciplinary action Commentary : The repercussions for failure for instance to report a case of sexual abuse or suspicion of the same or concealing a case of sexual abuse should not be limited to disciplinary action but include legal action and prosecution by the relevant authorities where the act/omission amounts to a criminal offence as provided for by the law. Disciplinary action cannot exonerate an offender from criminal liability; the Guidelines should underscore this fact. The Guidelines require that school rules must include specific provisions aimed at protecting pupils/students from sexual abuse. Commentary: there is no provision for a timeline and minimum standards for safeguarding the interests of the children and especially victims of sexual abuse. The TSC as an authority ought to expressly prescribe such provisions to ensure that the same are uniformly applied across board and not left to the

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schools alone. This may be in the form of an elaborate child protection policy on among others, procedures for reporting and responding to cases of abuse for adoption into the schools governing policies. This will also guard against concealment of information since teachers and school administrators would not be forthright in indicting themselves where they are the abusers. Commentary: Further to the above, among the minimum suggested standards is the need for a protective reporting system that among others protects the identity of the child in question, and guards against fear of victimization bearing in mind the position of authority a teacher has over a pupil/student. General Commentary: The TSC guidelines should also lay strong emphasis on the provisions of criminal laws of the country especially the Sexual Offences Act, No. 3 of 2006 to avoid a misguided perception that conduct that amounts to a sexual offence will be dealt with in accordance with the guidelines/other policies as opposed to the law which takes precedence over any other regulations. General Commentary: There is a need for comprehensive protection and policy guidelines for all schools in the form of child protection policy that not only target teachers but pupils and students as well. Concluding Commentary: As a criminal offence, there should be a mandatory duty to report to the police first in order to preserve the interests of the child and remove the child from an abusive environment. When the TSC conducts investigations into allegations of sexual abuse without the involvement of the police, it amounts to the TSC exercising judicial authority. The authority of the TSC should be limited to dealing with professional misconduct of its members, without subverting or replacing the criminal proceedings. Furthermore, a conviction by a court of law should act as an automatic indictment of the guilty teachers professional conduct. The findings of the TSC may result in disciplinary action which in itself does not amount to legal action and prosecution. Disciplinary action cannot exonerate an offender from criminal liability.

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1.3.21 Employment Act This Act, as amended in 2007, provides for the fundamental rights of employees, basic conditions of employment of employees, and regulation of employment of children. It has been considered for this analysis as it provides certain provisions that impact on the Sexual Offences Act in provisions on acts that constitute sexual offences. The following observations were made: Definitions: use of the term juveniles Commentary: This should be replaced with the use of the word child, the word juvenile has a derogatory connotation or association with crime. Section 2 which describes the worst forms of child labour to include child trafficking that may also be for purposes of sexual exploitation. This Act makes no definition of child trafficking which gap has been cured by the Counter Trafficking in Persons Act. Commentary :There is need for relating these provisions with those under the Counter Trafficking in Persons Act which takes precedence. Section 53: protects children from worst forms of child labour which in respect to children means employing, engaging or using children in any activity which among others entails all forms of slavery or practices similar to slavery such as the sale and trafficking of children. Commentary: The provisions on child employment are open to abuse for several reasons; The Minister is yet to make rules under Section 53 declaring any work, activity or contract of service harmful to the health, safety or morals of a child and section 56 prescribing light work in which a child of between thirteen years of age and sixteen years of age may be employed and the terms and conditions of that employment. Section 56 allows children between the age of thirteen to perform light work. This is subject to the rules being made on by the appropriate Minister prescribing the work and conditions of that employment. Commentary: This is yet to be done thus open to abuse and exposes children to abuse where there is no regulation as to the work children can perform.

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Penalties Section 54 (4) Notwithstanding subsection (2) employment of a child in any work constituting worst form of child labour shall constitute a cognizable offence punishable under Section 64 or any other written law provided that no person shall be punished twice for the same offence. Section 64: Using a child in an activity constituting worst forms of child labour is an offence punishable by a fine not exceeding 200,000 shillings or an imprisonment term of not more than twelve months or both. This offence therefore does not capture the instance of the child as a victim of trafficking, rather engaging a child in processes which include child trafficking. Commentary: This is in contravention and contradiction of the Sexual Offences Act which provides higher penalties and provides for minimum sentencing. The Act needs to provide in addition to any other offence that may be prescribed by any other law..using a child in an activity constituting worst forms of child labour may result in the commission of a sexual offence against a child especially offences such as child prostitution, child trafficking for sexual exploitation and child sex tourism. The Sexual Offences Act should take precedence. Further with regard to the provisions that touch on child trafficking, reference should be made to the Counter Trafficking in Persons Act. Section 64(3) -It shall be a defence if the accused person proves that he genuinely had reason to believe that the child was above the age limit, which is the subject of the charge. Commentary: it should be the responsibility of the employer to ascertain the age of the child before engaging the child in the first instance. This is open to abuse Section 54 (1) A person may make a complaint to a labour officer or a police officer of the rank of an inspector and above if that person considers any child to be employed in any activity which constitute worst form of child labour. Commentary: There is need for an interface of this provision and the legal process where this is already the commission of a crime. The labour officer or police officer is required to submit the outcome of the investigation to the police. There should be a dual process where an act/omission under the Act amounts to an offence, the legal process should automatically take over even

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when the issue is pursued under the labour processes. Section 55 on cancellation of a contract with a child which may among others involve an activity which constitutes worst forms of child labour Commentary: The above concern should extend to this provision. The decision to terminate a contract on this basis is appealable at the Industrial Court which may not deal with instance of abuse or intended abuse. Section 60. In case of a serious emergency, when the public interest demands it, the Minister may, by notice in the Gazette, suspend the operation of section 59. Commentary: Section 59 prescribes the times within which a child may work. This section 60 therefore opens an opportunity for children to be enlisted in work during emergencies including armed conflict which exposes children to abuse include sexual abuse.

Section 6, Section 54(5) and Section 64(1): Commentary: There are no penalties prescribed for these offences. Recourse therefore is had to Section 88 which provides punishment of fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months or to both where there is no penalty prescribed. It however, for proceedings to be pursued under any other written lw. In spite of this provision, the penalty hereto provided is very lenient and does not adhere to the minimum sentencing standards set out in the Sexual Offences Act. Section 65(1) If a child is killed, dies or suffers any bodily injury in consequence of his employer having contravened any provision of this Part, the employer shall, in addition to any other penalty, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both and the whole or any part of the fine may be applied for the benefit of the injured child or his family or otherwise as the Minister may direct.

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This provision is too lenient yet the employer could have been involved in the cause of action that resulted in the harm or death of a child. There is need for an interface with the Sexual Offences Act for anyone whose action or omission results in the offence under the Sexual Offences Act. This approach has been adopted by the provisions of the Counter Trafficking in Persons Act on aggravating circumstances that can enhance a sentence to life imprisonment. A contravention under the Act could be engaging the child in worst forms of child labour thus this section should serve as an additional penalty. This may be cured by section 88 (2) which provide that Nothing in this Act shall prevent an employer or employee from being proceeded against according to law for an offence punishable under any other law in force and section 92 on which provides that except where otherwise provided, the provisions of this Act shall be in addition to, and not in substitution for or in derogation of, the provisions of any other Act. However, these provisions need to be clear on the relationship between the laws and should not prescribe penalties that are comprehensively covered by other laws. The same may not be invoked by a person who is not clear on the provisions thus the law should be clear in its provisions. General commentary: The Act does not generally provide for the role of the parents/ guardians in making decision of the child on employment.

Disclosure of Conviction of Sexual Offence in Adoption and Employment Processes Section 158 (3) (b) Children Act provides as one of the requirements for an adoption applicant to be: if any or both of the applicants has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to this Act or similar offences. These offences are offences against morality as were defined by the Penal Code which were repealed by the Sexual Offences Act. Thus, the provisions of the Children Act refer to offences under the Sexual Offences Act. The same should also refer to other offences under the Counter Trafficking in Persons Act and other laws that may provide for sexual offences. Section 30 Sexual Offences Act

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Commentary: The requirement under Section 30 on the other hand presumes that a job applicant will automatically disclose having convicted of a sexual offence. However, it still leaves room for non-disclosure where a person will not be forthright in disclosing his/her criminal conduct in the past. It also presumes that an employee is sensitized with regards to the Sexual Offences Act requirements and will therefore be proactive in seeking disclosure. In practice, this duty is not observed by employers and therefore prospective employees are unlikely to disclose this fact. This duty would also be complemented by the requirements: a) Section 39(13) Sexual Offences Act which requires the maintenance of a register of convicted sexual offenders by the High Court Registrar. b) Section 37(2) on establishment of Sexual Offences (Dangerous Offenders) DNA Databank. This requirement is also complemented by the provisions for supervision of dangerous sexual offender. Recommendation: There is need to ensure that the register for convicted sexual offenders and the DNA databank for dangerous sexual offenders are maintained. Further, with regard to employment of persons who will be working with children in the course of their employment, any employing authority should put an express condition as part of the qualifying conditions for seeking employment to be proved through a process akin to the certificate of good conduct obtained from the high court registrar through the police certifying that a person is not a convicted sexual offender or is not facing criminal proceedings. 1.3.22 Persons with Disabilities Act The enactment of the Persons with Disabilities Act was the first effort by Kenya to provide a comprehensive legislation that is focused on issues of disability. It establishes the National Council for Persons with Disabilities and also defines duties and responsibilities with respect to persons with disabilities. This Act is relevant to this audit since the Sexual Offences Act makes recognition of person with disabilities as vulnerable persons. The following were noted for further action in light of the provisions of the Sexual Offences Act. Section 7 functions of the council focus on interventions in employment, education, data, rehabilitation, registration, access to information, and housing among others.

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Commentary: there are no provisions under the functions with regard to the welfare of children with disabilities and generally person with disabilities in the justice system. The functions should include provisions on procedures, facilities and services to facilitate access to justice for persons with disabilities. Section 38 provides that The Attorney-General, on consultation with the Council and the Law Society of Kenya, shall make regulations providing for among others free legal services, interpretation and physical guidance for persons with disabilities Commentary: The rules have not been made. The rules proposed to be made only relate to the provision of legal aid, language and physical guidance. There are no rules for guiding procedure in court, taking evidence and treatment of person with disabilities in the justice system. There are also no guidelines with regard to facilities, services, personnel and taking of evidence. The laws themselves are not coded in a language adapted to the needs of persons with disabilities. General commentary: The Act needs to to adopt entirely provisions reflected in the Convention on the Rights of Persons with Disabilities including: a) Provisions on access to justice for persons with disabilities. The Convention in this regard provides that: States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

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b) Provisions on protection of children with Disabilities from abuse, exploitation and violence, including preventive approaches. While the laws in particular the Act and the Children Act make general protective provisions, there should be more elaborate on both preventive and protective provisions. Alternatively a policy should provide for such expanded provisions. The Convention in this regard requires: States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted

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c) Provide for the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice and services in accessible and usable formats for persons with disabilities. These should be further expanded as regulations under the Act to provide for detailed procedure concerning persons with disabilities in judicial proceedings. This duty is defined by Article 21 of the Convention. d) The Act needs to adopt the definition of communication with respect to persons with disabilities as provided for by the Convention. This would ensure that the same is applied in all judicial proceedings including on taking of evidence under the Evidence Act. The Convention defines communication as : Communication includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plainlanguage, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology; 1.3.23 Witness Protection Regulations, 2011 Rule 4(c) an application on behalf of a child, shall be made in Form C set out in the First Schedule: Provided that where parental or guardian consent cannot be obtained, the application shall be accompanied by a notice of declination of protection in Form E set out in the First Schedule and a sworn statement stating the reasons for the declination; Commentary: this presumes that parental consent may not be obtained on account of declination by the parent/guardian. It should be broad enough as to accommodate other circumstances where there is no identifiable guardian/parent o act on behalf of ht children for instances in cases of unaccompanied children. Rule 5 takes note of these circumstances and the same should be reflected here. Rule 5. (1) A witness or a person related to the witness shall participate in the programme voluntarily. Commentary the rule should make a proviso where the consent of a person cannot be secured on account of the age of the person or other circumstances in which case the voluntary inclusion shall be made by a representative and in the interests of that person.

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Rule 5(9) Where the High Court declines to grant a protection order, after considering an application made under paragraph (7), the Director shall discharge such child from the programme. Commentary: The rules should provide for measures after the order is not granted for the preservation of the rights of the child especially where there is no known parent/ guardian. General commentary: In light of section 31 of the Sexual Offences Act and the realm of the Witness Protection Act, there is need for an interface on witness protection provisions. The Act should be more elaborate to include all means through which a witness can be protected including the use of an intermediary. Section 31(2) identifies circumstances on the basis of which a witness can be declared vulnerable. It needs to be as exhaustive as possible. General commentary: The Witness Protection Act should be broad enough to accommodate all instances where witness protection needs arises in the normal process of administration of justice. General commentary: The Act as it is seems to respond to situations of high level crimes such as the post-election violence trials, corruption and the debate on the Act reflects the outcome. There is need to amend the Witness Protection Act to cover all persons who need protection in the criminal justice process. This will even provide an opportunity for expanding the means for enhancing witness protection. General commentary: the composition of the Board may negate the functions of the Agency since sometimes the state is the threat. It is heavily comprised of government agencies and this may affect the object of the Act. General commentary: Where children are involved minimum protection measures should include: a) Physical protection b) Psychological protection involving expert counselors, shielding direct contact, e.t.c. c) Protection from unfair treatment e.g. invasive cross-examination, repeated interrogation, right to information on case, allowing for the presence of a support person or child advocate while the child is giving evidence, considering the use of an intermediary to assist the child witness to give evidence, objecting to aggressive or improper cross-examination by the defence.

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d) Providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness. General commentary: It does provide for inter-country collaboration/mutual legal assistance yet this may be a fact for enforcing certain protection measures General commentary: The Act needs to be supported by procedural rules especially since its implementation has an impact on the process of taking evidence especially involving different categories of witnesses, protective measures of taking evidence among others. General commentary: Other considerations that need to be generally made of in the development of implementing rules of procedure, and application of the Act include the rights of children witnesses and the ability of the current institutional mechanisms to uphold them; the question of protecting victims/witnesses involved in cases of police misconducts or misconduct by state bodies thus interface with complaints procedures, and also the protection of witnesses for the defense who may need protection in the same regard. Truth Justice and Reconciliation Act This Act was enacted as part of the Agenda Four Reforms following the 2007 post election violence in Kenya and came into operation in March 2009. It establishes the Truth, Justice and Reconciliation Commission which is mandated to deal with historical injustices experienced in Kenya since 1963. The Act is relevant in that it has provision on sexual offences namely sexual offences as part of crimes against humanity and offences that that amount to gross violations of human rights. In light of standards set out in the Sexual Offences Act, the following provisions have been noted as contravening the spirit of the Sexual Offences Act: Section 6 (h) which defines one of the functions of the Commission as to investigate and provide redress in respect of crimes of a sexual nature against female victims;Commentary: This provision seems to limit the function in this respect to female victims alone thus discriminative of male victims. The Sexual Offences Act recognizes the fact that both males and females can be victims of sexual violence Section 34 (3) while providing for offences for which no amnesty may be recommended by the Commission, with respect to acts, omissions or offence

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constituting a gross violation as lists them as including sexual assault, rape and torture.

Commentary: In a strict interpretation sense, this limits offences of a sexual nature by limiting to sexual assault and rape which are not representative of the understanding of sexual offences. Ideally, it should describe in blanket terms, sexual violence. Regard would be had to the Sexual Offences Act with regard to interpretation on sexual offences. Commentary: This Act also brings to the fore issues of handling sexual violence in the context of mass violations and transitional periods such as those experienced during and after the post elections violence. 1.3.24 Oaths and Statutory Declarations Act This Act provides for the appointment of commissioners for oaths, and to make provision in regard to the administering of oaths and the taking of statutory declarations The relationship between this Act and the Sexual Offences Act arises out of provisions on evidence of children of tender years. Section 19(1), which is severally, comes into use in hearing of cases involving children Commentary: However, this provision has not taken into account latter developments of the law. The reference to section 233 of the Criminal Code on how to record the evidence of a child of tender years which is not taken under oath is not alive to the fact that section has been repealed by the Criminal Law Amendment Act No. 5 of 2003 which repealed provisions on committal proceedings before subordinate courts. Section 19(2) provides for punishment of a child whose evidence is taken under subsection 1 as that that if it had been taken under oath would amount have been guilty of perjury is liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment. Commentary: This provision is however, in contravention of the treatment of child offenders under the Children Act which recognizes that child offend-

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ers are not to be treated as adult offenders. The sentence for the offence of perjury under section 110 Criminal Procedure Code is seven years imprisonment. In practice, court should also be cautious about condemning children to perjury and should take into consideration different circumstances such as age of the child, the status of the child at the time of testing among other consideration. Children may fail to speak the truth as a result of many factors including threats, intimidation or coaching by adults. The court should, in line with the principle of the best interests of the child see the child as a victim off an offence first. 1.3.25 Interpretation and General Provisions Act This is the principal law that guides the construction, application and interpretation of written laws. Section 3: In this Act, and in every other written law, and in all public documents enacted, made or issued before or after the commencement of this Act, the following words and expressions shall have the meanings hereby assigned to them respectively, except where there is something in the subject or context inconsistent with that construction or interpretation, and except where it is therein expressly otherwise provided: Commentary: Irrespective the Act needs to be cognizant of contexts in its definition of terms and the same could be amended to reflect changes over time such as follows under section 2: a) father, in the case of any person whose personal law permits adoption, includes an adoptive father; b) son, in the case of a person whose personal law permits adoption, includes an adopted son; - this can also be applied to the same concerns as under the definition of father. It needs to enhanced degree of consanguinity i.e. alive to other relationships that impact on this definition such as adoption, foster care, guardianship, step children

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Part III: Analysis of Selected Case Law to Assess Implementation, Compliance and Emerging Trends.

187 Analysis of Selected Case Law to Assess Implementation, Compliance and Emerging Trends
1.4 Introduction The law on its own and in its paper form cannot make sense if it is not utilized to its intended purpose. One way of assessing the applicability of the law is through case law, which gives insight into the interpretation of the law by the courts of law. It is through the implementation of the law can we learn if it meets its intended purpose. In the words of Elisha Ongoya, the meaning that the courts attach to the text of the law is what eventually breathes life into the law. This analysis, is mostly drawn from the decisions of the High Court and the Court of Appeal, following from the Kenyan common law system of judicial precedence. Nevertheless, apart from the jurisprudential learning they provide, they also give a glimpse into the initial application of the Sexual Offences Act by the courts of first instance. The case law is also used to point out issues that affect the effective implementation of the Sexual Offences Act. In assessing the application of the Sexual Offences Act the following issues were highlighted 1.5 Transition into Application of the Sexual Offences Act The coming into force of the Sexual Offences Act changed the legal regime on sexual offences. Previously, sexual offences were defined by the Penal Code. The Act repealed most of the provisions on sexual offences. The initial challenge experienced with regard to transition into applying the Act from the coaching of the transitional clause in Section 48: that the proceedings commenced under any law represented by the Acts shall be conform (sic) under the said Sexual Offences Act. Certain decisions indicate that even courts grappled with the application of the transitional clause and familiarizing fully with the transitional provision. In the case of Republic v Moses Gachovi Njiru the transitional provisions were challenged on their constitutionality as required by section 77 on the application of the law. The appellant in this case had been charged with the offence of defilement of a girl under the age of 16 years c/s 145(1) of the Penal Code but the trial magistrate had proceeded to convict the accused person under the Sexual Offences Act. On appeal, the appellate court agreed that the magistrates decision was unconstitutional and did not apply the transitional clauses. The conviction was set aside and a retrial ordered. This issue was also challenged in the case of Kamwaro Mwangi versus Republic , where the accused person had been charged with an offence under the Penal Code (rightly so since the offence was committed before the commencement of the Sexual Offences Act but was convicted and sentenced under Sexual Offences Act. This was overturned by the appellate court.

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However, this issue was dealt with through Misc. Amendment No. 7 of 2007 and the provision now provides in Section 48 as read with the First Schedule; Any proceedings commenced under any written law or part thereof repealed by this Act shall continue to their logical conclusion under those written laws. Further to the above, there were instances where suspects were charged with offences under the Penal Code. This was especially so in the initial years after the enactment o the Sexual Offences Act, a testimony that police and prosecutors were yet to familiarize with the new provisions. In practice, practitioners have come across similar experiences but have been able to advise prosecutors on time. This trend has however, diminished over time 1.6 Compliance with the 24 Hour Rule in Arraigning Suspects

For a while, the issue of the need to abide by the 24 hour rule was raised severally and was used in some cases to render a trial a nullity. This rule is based on the Constitutional provisions that require that a suspect to be produced before court within 24 hours of arrest if suspected of committing a non-capital offence. Decisions by courts seemed to conflict, with some agreeing that the rule resulted in automatic nullity of the trial. This was the approach adopted by the Court in the case of Republic v. James Njuguna Nyaga where the court stated that : and that upon determination that the constitutional rights of the applicants have been violated, any prosecution is null and void. This trend was also followed in other criminal cases that affected the prosecution of cases of sexual violence against children. Other courts ruled that the breaking of the 24 hour rule did not automatically make the trial a nullity. This latter view was adopted by the Court in the case of Eliud Njeru Nyaga vs- Republic , where the Court of Appeal held that, While we would reiterate the position that under the fair-trial provisions of the Constitution, an accused person must be brought to court within twenty-four hours for noncapital offences and within fourteen days for capital offences, yet it would be unreasonable to hold that any delay must amount to a constitutional breach and must result in an automatic acquittal This uncertainty in judgments affected the prosecution of cases including cases of sexual violence. However, the courts have since resolved this issue with the later rul-

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ings. The Court has to balance the delicate balance of protecting the rights of the accused person and protecting public interests. While the police are required to be diligent in arraigning a suspect in Court, it is now acceptable that a breach of the 24 hour rule does not render the trial a nullity automatically. This approach allows the case to be decided on merit as opposed to be defeated on technicalities. It has also been ruled that a concern regarding compliance with the 24 hour rule should be raised at the earliest stages of the trial. The Court can determine whether the delay caused by non-adherence to the rule would negate the accused persons rights to a fair trial. Furthermore, courts have agreed that it would be imprudent to raise the issue in an appeal against a sentence and/or conviction. In one case, to assert this point of view, the court said that, the issue is now a moot point If the appellants rights to a fair trial were violated it would be a subject of a separate inquiry under a separate suit for damages under Section 72(6) of the repealed Constitution. It is not a subject of inquiry in an appeal against conviction and sentence 1.7 Evidentiary Challenges

Proof of Penetration in Defilement Cases Penetration is one of the elements of the offence of defilement. The fact of penetration is established by evidence. That evidence is primarily from the victim, and is usually corroborated by medical evidence. Under the proviso to Section 124 of the Evidence Act, the court may still convict without the evidence of corroboration if the court is convinced for reasons to be recorded, that the victim is telling the truth.- Paul Kamau Mwangi vs. Republic. Even where penetration is proved and there is evidence of spermatozoa, Courts have noted that the prosecution rarely goes further to link the crime to the accused e.g. by DNA testing of the spermatozoa or other evidence found on the victim. In Kassin Nyangau versus Republic while the court acknowledged that this did not exonerate the accused person, the court observed that in the absence of direct evidence, such an omission would cause doubt on the prosecution case. Medical Evidence and Proof of Penetration The issue raised above is an observation in practice where the medical report sometimes does not give conclusive information as to the occurrence of penetration. In practice, especially with respect to police doctors, rarely is a thorough examination done and in some cases, the police doctor merely states hymen is intact, alluding that no penetration ever took place. Strictly speaking, an intact hymen is not automatic

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proof of non-penetration. On the other hand, tearing of the hymen is not proof of penetration. This explains why immediate reporting of a sexual offence is important to allow for preservation of evidence. The prosecution, even so needs to go further to connect the evidence collected with the suspect to ensure certainty of the evidence. The case of Republic versus Harun Muktar Mursal also raised the issue of proof of penetration. There seems to be lack of certainty as to the medical evidentiary requirements for proving penetration. Reliance on medical evidence to prove penetration must therefore be broadly understood that it is not about how intact the hymen is, as this approach would not address evidence concerning a male survivor of a sexual offence. When Medical Examination is Immaterial to Proof Offence There are certain kinds of sexual offences proof of which may not be practically realized by medical evidence. Yet, in some cases, reference was still made to the need for medical evidence to prove the same. Such offences include: attempted defilement, indecent act, with child among others. Thus, it would be erroneous for the Court to want to rely on such evidence when the same would unlikely provide evidence. In the case of Peter Maina Wachira versus Republic the accused person was charged with attempted defilement. Since the court could not rely on the sole evidence of the child, the court noted there was need for medical evidence to corroborate the childs testimony. The court noted: P.W.1 said that she was told to go and testify by her mother (P.W.2). The evidence of P.W.2 shows that P.W.1 was taken for treatment at Muranga District Hospital and later at Nairobi Women Hospital. There was no medical reports from the above medical institutions which were presented in evidence. Could the prosecution have withheld that evidence because they were injurious to their case? In a nutshell doubts have been raised in my mind. I agree with the appellant that the prosecutions case was not proved to the standard of beyond reasonable doubt.

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This case shows the need for the prosecution and to an extent the courts to explore other ways of corroborating the evidence of a child where medical evidence may not necessarily provide evidence. These include using evidence of surrounding circumstances and victim impact statements. Section 33 of the Sexual Offences Act provides that: Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove (a) whether a sexual offence is likely to have been committed(i) towards or in connection with the person concerned Conflicting Medical Evidence It was also observed, that there were instances where the medical evidence was conflicting, mostly emanating from the medical report of another doctor and the police doctors report, with the latter sometimes not finding evidence of sexual abuse. It also a well-known fact that the police doctor does not undertake full medical examination and is not well equipped to undertake the same efficiently. This raised the issue of how courts should rely on this evidence. Instances of police doctor finding there were no tears or bruises can be seen as an indication of non commission of offence as against a finding by a private doctor that there was penetration. This obviously raises doubt, although it is not clear if courts actually interrogate surrounding circumstances such as after how many days the police doctor examination was undertaken. In the case of Benard Gatu Muchiri versus Republic, the appellate court, in finding that the trial court did not record if the child being of tender years was possessed of sufficient intelligence to testify, still cited the need for corroboration thus resorted to the P3 form whose contents were found to be inconclusive, since it did not show if the child was defiled. 1.8 Understanding Elements of a Crime Sometimes in the judicial reasoning, the elements of the offence in questioned were not fully understood by the courts of law. This could be attributed to lack of understanding of law on certain issues. This arose in the case of Kenneth Kiplagat Rono versus Republic. The Court of Appeal challenged the trial courts handling of the offence of child trafficking for not focusing on the ingredients of the offence i.e. act, means and the purpose. The court observed that it was not clear between the appellant and another person (not called to testify) who facilitated the movement of the child from one place to another. The appellate court has also failed in that it did not go further

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to observe according to the Palermo Protocol and now under the Counter Trafficking in Persons Act (which is yet to become operational) that the means as an ingredient, is immaterial where it is the offence of child trafficking. The appellate court seems to imply that the child was not forcefully detained (as to invoke the means element) when it said , And although it was 4.00 p.m., PW1 did not express her wish to leave the appellants home by, say, running away and/or that she was prevented by the appellant or anybody else in the home from doing so. Then when she was found on 20th June, 2008 she was outside the house of the appellants parents, which really meant she was not under detention by the appellant or anyone else. Further, the appellate court seems to be of the view of the fact that the offence of child trafficking for purposes of sexual exploitation was dependent on the proof of the offence of defilement of the child. Yet, this being a separate account (Count II) means that the offence is independent on its own and is not automatically defeated if Count I is defeated. Furthermore, the court was not alive to the provisions of the Sexual Offences Act (which in operation will be replaced by the Counter Trafficking in Persons Act) that the offence can still be proved irrespective of whether the offence was committed. By associating the proof of Count II with the proof of Count I, the appellate court misdirected itself. 1.9 Adherence to Minimum Sentencing The Sexual Offences Act sets up minimum sentences to guard against instances where courts would sentence accused persons to lesser sentences. Yet, it was observed that there are instances where the courts have not complied with the minimum sentencing requirement and sentenced accused persons to a lesser sentence than the one prescribed by the law. In the case of John Bakhoya Arunga vs. Republic the Court sentenced the accused person to 20 years imprisonment despite being aware that he should have been imprisoned for life for the child is under the age of 11 years. This is a gross violation of the law and the rights of the child in this case since the appropriate sentence was life imprisonment. Some judicial officers have argued that due to the high standards and the corresponding sentences, it has become difficult to convict. Even accused persons were not aware of the sentencing requirements of the Sexual Offences Act since some would appeal against a sentence meted out in compliance with the Act. In Kipkurui Kipkemos versus Republic, HC Nakuru , the appellate court, aware of the minimum sentencing requirements rejected the appeal seeking reduction of sentence in a case of attempted defilement, and acknowledged the standards set out

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by the Sexual Offences Act. The non-compliance with minimum sentencing was glaring in certain cases as was observed in Baishe Ali Mohammed versus Republic. The accused person had been charged with the offence of indecent act with child contrary to section 11 of the Sexual Offences Act. He was sentenced to 7 yrs imprisonment instead of the mandatory minimum 10 years. He appealed against the conviction and sentence. On appeal, the conviction was confirmed but the sentence was reduced to the term the accused had already served thus he was set free. The court in this case showed its non-familiarity with the provisions on minimum sentencing when it stated that: On sentence, I take cognizance of the fact that the maximum sentence for an offence under section 11(1) of the Sexual Offences Act is 10 years. Given the mitigating circumstances of the case, I am of the view that the sentence was harsh and excessive in the circumstance. In Samwel Odongo Okoth versus Republic , Cr Appeal the trial court sentenced the accused person to 15 months imprisonment where the accused was convicted after he pleaded guilty to the offence of attempted defilement of a 10 months old baby and an alternative charge of indecent assault. This was a clear cut case where the accused pleaded guilty and the only issue for appeal would have been the whether the sentence was lawful. The trial court also erred in failing to convict before sentencing in contravention of the CPC provisions in section 207(2) which provides, (2) If the accused person admits the truth of the charge his admission shall be recorded as nearly as possible in the words used by him, and the court shall [my emphasis] convict him ... The appellate court ordered a retrial, which hopefully would rectify all the errors in both process and the provisions of the law. Non adherence to the minimum sentencing is a valid ground for review to allow compliance with the law. In practice, it is not clear if the prosecution ever follows up.

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1.10 Children in the Judicial Process Dealing with Children of Tender Years- Voire Dire Non-compliance with the procedure for dealing with children of tender years was often cited as a basis of appeal where the trial courts were challenged for not following due process in taking evidence of a child of tender years. The requirement arises out of the provisions of the Oaths and Statutory Declaration Act, in section 19 that: Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section. Meaning of a Child of Tender Years It was observed that in certain instances, the courts did not understand the meaning of a child of tender years thus misdirected itself with the taking of a childs evidence, which if not properly adhered to, compromised the prosecution of a sexual offence, to the benefit of the accused person. The Children Act defined a child of tender years as a child under age of 10 years. Yet, the court in certain cases were not aware of this definition as was observed in the case of Emmanuel Nyange versus Republic HC where the the Court without citing any law or authority stated that the term tender years has been taken to mean a child of 12 years and below. In another case, In the case of Francis Omari Nyachiro versus Republic , the trial Court stated, the witness is aged 13 years old. I have examined her and found that she does understand the meaning of Oath to give a sworn statement... In this case, the Court bound itself to follow procedure of voire dire examination and since this was not followed, the decision was challenged on appeal.

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Process of Conducting a Voire Dire The process has been defined by the provision cited above. This has also been ruled upon by courts over the years, yet, some courts still fail to follow the process. a) Ascertain whether the witness is a child of tender years. In Sakilla .v. R. , the Court of Appeal stated that the first duty of the court is to ascertain and record accordingly, whether or not the witness is a child of tender years. Thereafter the trial court investigates whether the child understands the nature of an oath, if not, investigate further, whether the child is possessed of sufficient intelligence and the need to tell the truth. Depending on the conclusion that the trial court will come to after such investigations, the court may decide to take the childs evidence either on oath, affirmed and or unsworn. b) Investigate the childs understanding the nature of an oath. This, the Court stated in Fransisio Matovu versus R is through questions put to the child. The questions put to the child and his answer must be reflected in the record of the trial court. This, the court stated in Johnson Muiruri versus Republic, is important so that the appellate court is able to decide whether this important matter was rightly decided. c) The Court of Appeal restated this procedure in full, emphasizing that strict procedure must be taken into account in admitting the evidence of a child in the case of Yussuf Sabwani Opicho versus Republic. Although this appeal emanated from a charge of causing grievous harm contrary to section 234 of the Penal Code, it provides the position by the highest court of land, then, and restated the procedure of admitting the evidence of a child. In this case, the there was nothing on record to show how the child was examined. The failure by the court to follow the procedure vitiated the evidence of the child who was a key witness. The Court of Appeal in this case restated the procedure, borrowing from previous decisions as follows:

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Ascertain whether the child understands the nature of an oath . Kinyua v. Republic (a)The court should first ascertain whether the child understands the nature of an oath. An investigation to this effect must be done by the court immediately the child witness appears in court. The investigation need not be a long one but it has to be done and it has to be directed to the particular question whether the child understands the nature of an oath. If upon investigation it appears that the child understands the nature of the oath, then the court proceeds to swear or affirm the child and to take his or her evidence. If the child does not understand the nature of the oath, he or she is not necessarily disqualified from giving evidence. The court may still receive the evidence if it is satisfied, upon investigation, that the young person is possessed of sufficient intelligence and understands the duty of speaking the truth. This investigation must be done and when done, it must appear on record. Where the court is so satisfied then the court will proceed to record unsworn evidence from the child witness. Set out the questions and answers John Muiruri v. R 2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided. 3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the childs ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood. 6. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of oath. The failure to do so is fatal to the conviction. 9. The correct procedure for the court to follow is to record the examination of the child witness as to the sufficiency of her intelligence to satisfy the reception of evidence and understanding of the duty to tell the truth.

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Particular questions as to whether the childs understands the nature of an oath must be directed Kibangeny Arap Kolil v. R Such an investigation need not be a lengthy one, but it must be made and, when made, the trial judge ought to record it. The investigation should precede the swearing and the evidence and should be directed to the particular question whether the child understands the nature of an oath rather than to the question of his general intelligence.

Corroboration of a Childs Evidence The issue of corroboration of the evidence of a child arose regularly in the determination of sexual offences. This arises out of the provisions of the Evidence Act in section 124 that: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. In practice this provision was often challenging to prove occurrence of sexual abuse of a child, due to the nature of sexual offences which are mostly committed in seclusion and therefore likely to be uncorroborated. This resulted in the amendment of the section by the inclusion of a proviso to the above provision that Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. The Courts have even gone ahead to convict on the basis of this provision, a very progressive move.. The most authoritative decision in this regard was in the case of Jacob Odhiambo Omumbo vs. Republic where the Court held that a Court can safely prosecute on the evidence of a child without corroboration where the evidence clearly points out to the guilt of the accused and the reasons for such reliance be recorded in the judg-

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ment. However, in instances where the Court, for whatever reason is unable to solely rely on a childs testimony, then corroboration must be fulfilled such as through medical evidence. This is still a challenge, where, as noted above, the P3 Form fails to provide conclusive evidence. In the case of Benard Gatu Muchiri versus Republic the appellate court, noted that even if the evidence of the child had been properly received, there would have been need for corroboration, thus the court resorted to the P3 form whose contents were found to be inconclusive, since it did not show if the child was defiled. Sometimes, the Court loses the benefit of invoking the proviso to Section 124 by failing to comply with the conditions set out in relying on it. This was restated in the case of Peter Maina Wachira versus Republic, where the appellate court, while challenging the trial court for not fully complying with requirements of voire dire examination, noted that even if the childs evidence had been properly received, there was need for corroboration. The court emphasized that the proviso to section 124 of the Evidence Act requires that the court must record reasons for relying on the victims sole witness. In this case the court, merely warned itself and did not state that the minor told the truth. The Court should have stated the reasons for relying on the evidence of a sole witness to convict. The conviction and sentence were quashed by the appellate court as a result. In John Leteiyan versus Republic, the court noted that a child witness is a special witness as recognized by the Evidence Act and the Sexual Offences Act. with regard to corroboration, the court noted that section 124 Evidence Act which requires corroboration of evidence of a child in respect of other offences but it makes an exception with respect to a sexual offence where the court, for reasons recorded in the proceedings, is satisfied that the child is telling the truth. The Court of Appeal in Shida Kazungu Baya & 4 others versus Republic also restated that the law is now well settled that the evidence of a child of tender years requires corroboration except in sexual offences cases. It is also a legal principle that the evidence of an accomplice requires corroboration. The court was further emphatic that evidence that requires corroboration cannot be corroborated by other evidence which in itself also requires corroboration. In other words, evidence itself requiring corroboration (in this case, the evidence of the accomplice), cannot act as corroborating evidence.

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Evidence of Surrounding Circumstances to Support Corroboration As noted above, corroboration of a childs evidence can also be realized through evidence of surrounding circumstances and victim impact statement. Courts can consider the evidence of surrounding circumstances to assess if the same would prove the commission of the alleged offence. This provision needs to be utilized more in securing corroboration. Age Assessment In offences created under the Sexual Offences Act, the age of a child victim of the offence forms an important element of the charge since it determines the offence and corresponding sentencing. Age assessment is also important in a criminal trial where the accused is a person since it also determined how the court is to deal with a child offender. . a) Age Assessment: Victim It was noted that in certain cases, the age assessment was not properly proved thus creating doubt on the prosecution case, In Emmanuel Nyange versus Republic , the charge sheet indicated that the complainant was 18 years. This would render the charge defective since the accused was charged under section 8 of the Sexual Offences Act. However, the Court addressed the anomaly in the judgment since evidence of child and medical doctor asserted her age to be 14 years. There were instances where the court never sought clarification on proof of age of the child which would be a contributory factor in the defeat of a case at the appeal stage. This was the case in Kenneth Kiplagat Rono versus Republic . In Thomas Kwamba Dzombo versus Republic , the court stated that where there is doubt as to the age of the complainant, the prosecution ought to provide documentary evidence to ascertain the same, especially where the threshold as to the guilt of the accused lies. In this case, it was not clear if the child was 18 years and above. Documentary evidence can be either a birth certificate, school records e.t.c. The complainant in this case stated that she was 19 years old, while the mother stated she was 16 years. The doctor who examined the child she was 16 years. Such contradictions created doubts to the benefit of the appellant. b) Age Assessment: Child Offender While age assessment of a child offender does not affect the conviction, it determines the sentencing options that the court has to make since a child offender cannot be sentenced to imprisonment. It was noted that sometimes children offenders get convicted and sentenced due to non-ascertainment of age. The Sexual Offences Act provides that if the offender is a child, that child is to be dealt with in accordance with the provision of the Children Act. In one such case, the appeal court overturned a

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life sentence and ordered the admission of the offender into Kamiti Youth Corrective Training Centre for a period of two years. In this case, RCK versus Republic, the accused was charged with the offence of defilement of a girl aged 2 years old. He was about 16-17 years of age when the offence was committed. The Children Act provides in Section 191 provides for ways in which a child offender may be treated . 1.11 Framing of Charges The enactment of the Sexual Offences Act introduced new offences which would entirely impact on the framing of charges of sexual offences. This called for a new understanding of the elements of the offences to guide the framing of charges. The consideration of cases therefore, gave insight into how the prosecution was interacting with the Act on drafting of charges. Reference to the Penal Code It was noted that in some cases, the charges as framed did not reflect the provisions of the Act, rather, they seemed to be based on the provisions of the PC description of offences. In Washington Ouma Oketch versus Republic, the charges against the accused were attempted defilement contrary to section 9 of the Sexual Offences Act, attempted to have carnal knowledge ofa girl under 16 years. Wrong Citation of the Sexual Offences Act Provisions In other cases, the police glaringly cited the wrong provisions of the Sexual Offences Act. For instance, in Republic versus Peter Irungu Muthoni , the accused person was charged with the offence of defilement of a girl under the age of sixteen years contrary to section 3(1)(4) of the Sexual Offences Act. Section 3 of the Sexual Offences Act provides for the offence of rape. Further, there is no provision Section 3(10(4) under the Sexual Offences Act. In the particulars of the offence, the charge sheet provided intentionally and unlawfully had carnal knowledge of On the face of this alone, the charge was defective but this fact did not come to the realization of neither the prosecution, the defence or the trial court. The accused person in this case was acquitted on the basis that the prosecution case did not meet the standard of proof. Should the accused person have been convicted, the defectiveness of the charge sheet would have been a valid ground of appeal. In the case of Erro Oba versus Republic, the accused had been charged under Section 3 of the Sexual Offences Act yet it was an offence against a child i.e. defilement. The appellate court proceeded on this erroneous note and ruled on another issue regarding the failure to include the words

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unlawful and intentionally which it ruled was a serious omission that rendered the charge defective and therefore acquitted the appellant on this ground. Non-correlation of Contravened Section and Particulars of Offence There were also instances noted where the charges cited did not correlate to the particulars of the offence. It was thus questionable how the decision was reached to frame certain charges. In one such case, Abdulrahaman Kakana versus Republic , the accused person was charged with the offence of indecent act with child contrary to section 11 of the Sexual Offences Act yet the facts seemed to point to defilement as both the children in the case described in their testimony, there was penetration. DMK versus Republic , the accused person was charged with defilement of his 3 year old son under section 8 of the Sexual Offences Act, while the correct charge would have been incest under section 21. Use of the Words Unlawful and Intentionally Failing to include all elements of the crime as expressly defined in the law also arose in the challenging of case on appeal for instance failure to include the word unlawful when describing an offence. In Charles Karuga Kinyua versus Republic the appeal was centred on among other grounds the ground that the the charge sheet was totally defective in failing to state the act complained of was unlawful and/or the time of committing the offence. The accused was charged with the offence of sexual assault contrary to section 5 of the Sexual Offences Act which describes the offence as follows: Any person who unlawfully manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other persons body, The court in agreeing with the appellant said that a charge under the said section must ipso facto in the particulars thereof include the word unlawful. Failure to state in the particulars that the sexual assault was unlawful renders the charge fatally defective.

The court in another decision in George Hezron Mwaakio versus Republic has, however noted that even this be the case, where the words unlawful are not include in framing the charge, it does not render the chare defective in charges brought under the Sexual Offences Act. Reasoning that this omission would have been fatal if the charges were brought under the Penal Code . The court elaborated,

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The passing of the Sexual Offences Act 2006 rendered the Penal Code provisions on Rape and Defilement obsolete. Under the old law provision was made for sexual relations with a minor who was for example ones wife giving legality to the system of child marriages practiced in some parts of the country. However, under the new Act, any act of sexual intercourse with a child under the age of 18 years is unlawful. Child marriages are outlawed thus one cannot raise the defence that the minor was his wife. As such the omission of this word unlawful is not a fatal defect and indeed inclusion of the word unlawful would be unnecessary since under the Sexual Offences Act any and all acts of sexual intercourse with a child under the age of 18 is unlawful. This latter argument in deed holds water, since any sexual act with a child is automatically unlawful. This issue was also observed in the case of Republic versus Harun Muktar Mursal Cr. Case where the court misdirected itself in observing that as ruled in Erro Oba versus Republic , it was a fatal omission to fail to include the words unlawfully and intentionally in the particulars of the charge. Yet this case was a case of defilement where the inclusion of the words unlawfully and intentionally is not mandatory since the Sexual Offences Act defines the offence of defilement as an act which causes penetration with a child. Furthermore, consent is not an element of a sexual offence against a child since a child has no capacity in law to consent to a sexual act thus the act is automatically unlawful. Secondly, the reasoning was made in reference made to the decision of the appellate court in the case of Erro Oba versus Republic which is itself, bad law. In this case, the accused had been charged under Section 3 of the Sexual Offences Act yet it was an offence against a child. The appellate court proceeded on this erroneous note and ruled that failure to include the words unlawful and intentionally was a serious omission that rendered the charge defective and therefore acquitted the appellant on this ground. In this case, the court however, rightfully noted that the prosecution is to blame for drawing a defective charge sheet. Even so, this case also exposes prosecutorial mistakes that in charging accused person. In this case, it was noted that the particulars of the charge did not disclose any offence in law. The court also proposed amendments to the Sexual Offences Act that the use of t he words unlawful and intentionally should not apply as an element of the offence where the victim is mentally challenged as such person had no capacity to consent. In the above case, the appellate court instead of conceding to the fact that that my hands are tied with the law as it is, had the option of applying Section 42 of the Sexual Offences Act which provides with regard to consent that,

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For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. Thus, in light of the above provision, the court can make an appropriate ruling on a case-to-case basis to determine if the victim in a particular case has the freedom and capacity to make a choice. Furthermore, under section 43 of the Sexual Offences Act, an act is unlawful and intentional if it is among others committed in respect of a person who is incapable of appreciating the nature of an act which causes the offence. It further provides instances when one would not be able to appreciate the nature of an offence to include among others where the person is mentally impaired or a child. Thus, in such as case the court would have the basis for finding that the non-inclusion of the words does not automatically render the charge fatally defective if the victim has no capacity to appreciate the nature of the offence. This is further clarified by section 2 of the Sexual Offences Act in the definition of a person with mental disabilities to be: a person affected by any mental disability irrespective of its cause, whether temporary or permanent, and for purposes of this Act includes a person affected by such mental disability to the extent that he or she, at the time of the alleged commission of the offence in question, was a) unable to appreciate the nature and reasonably foreseeable consequenc es of any act described under this Act; b) able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation; c) unable to resist the commission of any such act; or unable to communi cate his or her unwillingness to participate in any Amendment of Charges Courts have power to alter charges or substitute the same where is it clear on the face of it that the charges are defective. However, this power can only be exercised before close of the prosecution case and the court needs to call upon the accused person to plead to the charges. This affords the accused the right to recall any witnesses so as not to compromise his/her rights to a fair trial. Yet, despite this clear legal require ment, as defined by section 214 of the CPC, some courts that sought to exercise this power, did not abide by the procedure. There were instances where courts amended the charges at the time of writing the judgment; an action which automatically negated the accused persons right to a fair trial. In Dalmar Musa Ali versus Republic, the court amended the charges at the time of writing the judgment and went ahead to sentence on the amended charges. This caused a miscarriage of justice since it did not comply with section 214 of the CPC. Amendment at the time of writing the judg-

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ment goes against the set down rules and in fact prejudices the accused person. Upon appeal, this may result to an acquittal or order for retrial depending on the circumstances of each case. The issue also arose in the case of Republic versus Jon Cardon Wagner and Others . The trial court in this case also substituted the charges at the time of writing the judgment since the initial charges did not correlate to the offence of defilement in accordance with the age of the child(ren) as categorized under section 8 of the Sexual Offence s Act. The accused person was charged under Section 8 (1) as read together with Section 8(4) but was convicted under Section 8 (1) as read together with Section 8(3). This was one of the grounds of appeal relied on by the appellant when the matter on appeal. 1.12 Capacity of Prosecutors in Prosecuting Offences under the Sexual Offences Act Concession to Appeals The prosecution came under scrutiny on its handling of cases. A recurring trend was noted where the prosecution concedes to appeals by accused persons even when credible arguments can be made to challenge the appeal. The saving grace in such instances is that the Court is bound to examine the case on both law and facts as appropriate thus decide on appeals on its own merit. In the case of Issa Mahammed Karisa versus Republic , the accused person appealed against conviction and sentence despite having pleaded guilty. In the appeal, the prosecution conceded to the appeal on the ground that at the time of the conviction, the P3 form had not been filled, a fact which the appellate court, noted, and rightly so, was neither here nor there, the absence of the P3 Form does not negate a plea of guilt. Poor Investigations From appeal judgments, the courts were clear in certain cases that convictions were defeated on the basis of poor investigations. Daniel Murimi Maina versus Republic, the court noted that the investigations were so poorly done, the childs mother being a material witness did not record statements, yet was called as a defence witness in a case against her child. The child had reported the incest incidence to would have been a primary prosecution witness. The acquittal of accused persons was also blamed on poor investigations and non adherence to key principles such as the identification of the accused person. This was the case in Republic versus Peter Irungu Muthoni, 1.13 Victim Protection Victim protection under the Sexual Offences Act is defined by section 31 (4) which provides for several ways in which the court may protect child victims in the trial process including:

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a) allowing such witness to give evidence under the protective cover of a witness protection box; b) directing that the witness shall give evidence through an intermediary; c) directing that the proceedings may not take place in open court; d) prohibiting the publication of the identity of the complainant or of the complain ants family, including the publication of information that may lead to the identification of the complainant or the complainants family; or e) any other measure which the court deems just and appropriate.

Whether or not courts implement these provisions can only be ascertained in practice on a case to case basis. With regard to this being an issue in the findings of the court, the use of intermediary was cited in some cases in considering the evidence in the trial process. In RCK versus Republic, HC Nakuru , where the accused was charged with defilement of a 21/2 year old child it was challenged, on appeal that: a) the trial magistrate failed to examine the terms of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15, Laws of Kenya) to test the complainants understanding. The appellate court noted that the court thus denied itself, and this court, the benefit of the complainants view of what happened, or what, in her own smattering words, the Appellant did to her. This is important because it would form the basic evidence against the Appellant without the need for corroboration under the proviso to Section 124 of the Evidence Act. .b) The trial court plunged into the evidence of PW1 ( the victims mother ) without first declaring that the victim at the age of 21/2 years, was because of both her age, and trauma, a vulnerable witness, and therefore required the appointment of the mother as the intermediary in terms of Section 31 of the Sexual Offences Act, 2006. However, the appellate court noted that notwithstanding that these procedural steps were not observed, PW1, the mother of the victim, would be, and was in the absence of any other witness, the logical and natural source of first evidence as to the condition of the victim. PW1 was therefore a competent witness in her own right, and without being declared an intermediary under Section 31 of the Sexual Offences. However, not having been the victim, her own evidence being information and findings from her daughter her evidence would require corroboration from an independent witness This finding rules according to the law that the evidence of an intermediary, not being direct evidence, requires corroboration.

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The use of intermediaries was also raised in the case of John Leteiyan versus Republic,, a case of defilement a 7 year-old girl, The court reiterated the provisions of Section 31(10) that a court cannot convict solely on the uncorroborated evidence of an intermediary. In the courts words, Corroboration in this context means or refers to independent evidence not that of the alleged victim whose place has been sub-planted by the intermediary. The court thus ruled that it was irregular for the trial court to recall the complaint whose place had already been sub-planted by the intermediary. As noted in the previous chapter, there is need for rules to provide the process of using intermediaries in judicial proceedings. 1.14 Application of International Standards Application of Provisions of International and Regional Treaties International law, by virtue of the Constitution of Kenya now forms part of the laws of Kenya expressly. It is therefore hoped, that in time, the decisions by courts of law will progressively reflect an appreciation of the international human rights standards. A consideration of decided cases, however, noted rare reference to the regional and international Conventions that provide for the rights of the child. Only in one case of the sampled cases did the Court make reference to international legal instruments. In the case of Kenneth Kiplagat Rone versus Republic , the appellate court referred to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, to seek definition of trafficking since there was none existent in the Kenya laws. This was a very progressive manifestation of the appreciation of the international law especially where the local laws are deficient of certain provisions. Principle of the Best Interests of the Child A consideration of various cases did not disclose if the courts categorically consider the principle of the best interests of the child. However, this is mostly observable in the process of conducting a trial. It will also to a larger extent require the sensitivity of the prosecution and the Courts to ensure that the best interests of the child are preserved in the trial process. Furthermore, the application of this principle is also dependent on the appreciation of the particular court thus it is subject to varied application. It was however, noted that this principle is severally invoked by courts in reaching decisions in adoption proceedings. The court in John Leteiyan versus

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Republic, the court in considering an appeal against the conviction and sentence on a charge of defilement, reiterated the provisions of Article 53(2) of the Constitution which restates the principle of the best interests of the child. As noted previously, the principle of the best interests of the child has not been enunciated into key operational guiding principles that courts can make reference to. Decisions of the court would be an opportunity to fill this gap. 1.15 CONCLUSION: Need to Critically and Holistically Engage with the Sexual Offences Act Since 2006, it is possible to say that there has been progressive and increased application of the Sexual Offences Act. The analysis of the case law above enables one to safely make the following conclusions: a) Jurisprudential developments. Cases based on the Sexual Offences Act have been tried up to the highest court of the land out giving life to the provisions of the Act and encouraging growth of jurisprudence. b) There is growing appreciation of the standards set out in the Sexual Offences Act especially with respect to minimum sentencing. Although as noted earlier that some courts do not comply with the minimum requirements. To cure this gap, the prosecution, and the Courts need to be aware of the strict provisions of the Act. There is need for a mechanism that allows for review of all courts decisions to assess their compliance with the law, since rights of children may be compromised in instances where the prosecution or other concerned parties fail to ensure that the minimum standards are met. c) Attitude of judicial officers: it can be wholly said that courts are keen on implementing the Act to ensure justice is realized for victims of sexual abuse. This was noted in instances where the Courts would not automatically quash conviction on the basis of procedural issues. Rather, the courts would, alive to the seriousness of the offences, order for retrial where the rights of the accused person were not compromised. This is an indication of an interest to preserve the interests of justice, through substantive as opposed to technical considerations. However, some courts tend to adopt an accommodating attitude to certain categories of sexual offences. As a certain judge stated in a case, while challenging the sentence of 10 years imprisonment of an offence of indecent act with child, thereby reducing it to 3 years, I find the sentence to be harsh and excessive, in the circumstances of the case as the indecency was a mere touch of the breast after concluding earlier on that the breasts cannot be private parts. Thankfully, this conclusion was made under

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the Penal Code, but does not erase the possibility of continued trivializing of sexual offences. There is also a recent Court of Appeal decision in M.B.O. versus Republic , which defines private parts. d) Application of the provisions of the Sexual Offences Act. A general observation is that most cases being prosecuted are mainly defilement, attempted defilement, indecent act with child, sexual assault. There are also non-offences provisions of the Act that remain untested. This therefore calls for a broader understanding of the Act and how it can be optimized in application to ensure justice for victims. This will require the efforts of police, courts, prosecution, service providers and the general public. Some of the areas highlighted for uptake in prosecution include: Application of certain provisions on offences further to the main charge sexual offences. One of the glaringly underutilized provisions relates to sexual offences relating to position of authority and persons in position of trust under Section 24 of the Sexual Offences Act. Yet, there are cases of police officers, teachers, managers of children institutions among others contemplated in the section, being charged with sexual offences against children. There is need to consistently take into account the severity of the physical and psychological harm experienced by the child as a result of the sexual offence through increased mainstreaming of victim impact statements in the trial process Courts should increasingly make use of powers conferred on them by the Act such as orders which can be made to preserve the interests of the child especially where the accused person is one who has authority over a child either as a guardian or other position. For instance, section 20(3) allows the court upon a conviction to make further orders as provided for under section 114 of the Children Act which include access orders, residence order, an exclusion order, a child assessment order, a family assistance order, a wardship order, or a production order. The Court can addition divest the convicted person all authority over the particular child and appoint a person to be the guardian of the child for a certain period. e) Sentencing Policy: To ensure consistency in sentencing there is need for a sentencing policy. This need was also noted by the Task Force on Judicial Reforms which recommends a sentencing policy and manual to guide judicial officers in passing of sentences.

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1.16 Reference
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Abdulrahaman Kakana versus Republic, Cr. Appeal 186 of 2008 High Court Baishe Ali Mohammed versus Republic, Cr Appeal no 83 of 2007 High Court Benard Gatu Muchiri versus Republic, High Court Nyeri Cr Appeal No. 86 of Charles Karuga Kinyua versus Republic, Cr Appeal 319 0f 2008 High Court Daniel Murimi Maina versus Republic, Cr Appeal 199 of 2008 High Court DMK versus Republic, Cr. Appeal No. 322 0f 2009 High Court Nakuru Eliud Njeru Nyaga vs- Republic Criminal Appeal 182 of 2006 Emmanuel Nyange versus Republic HC, Mombasa Cr. Appeal No. 281 of 2008 Erro Oba versus Republic, Cr. Appeal No. 11 of 2008 High Court Nakuru Francis Omari Nyachiro versus Republic, High Court Kisii, Criminal Appeal No. 213 of 2009 Fransisio Matovu versus R, 1961) E.A 260 George Hezron Mwaakio versus Republic, Cr. Appeal No. 169 of 2008 High Court Mombasa Harun Muktar Mursal Cr. Case No. 636 of 2009, PMC Garissa, Issa Mahammed Karisa versus Republic, Criminal Appeal 84 of 2008 High Court Mombasa Jacob Odhiambo Omumbo vs. Republic, Criminal Appeal No. 75 of 2002 John Bakhoya Arunga vs. Republic Cr. Appeal No. 32 0f 2009, High Court- John Leteiyan versus Republic, Cr Appeal No. 29 of 2010, High Court Nakuru Johnson Muiruri versus Republic,, (1983) KLR 445 Kamwaro Mwangi versus Republic Cr. Appeal No.185 of 2006 Kassin Nyangau versus Republic 2010 eKLR, Kenneth Kiplagat Rono versus Republic Cr. Appeal No. 66 of 2009, Court of Appeal Nakuru Kibangeny Arap Kolil v. R, [1959] EA 92 Kinyua v. Republic, [2002] 1 KLR 256

Mombasa Malindi. 2008 Nyeri Nyeri

Kenya

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24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. Kipkurui Kipkemos versus Republic, HC Nakuru, Cr. Appeal 167 0f 2009 M.B.O. versus Republic, Court of Appeal in Nakuru, Criminal Case 342 of 2008, eKLR Musa Ali versus Republic, Cr Appeal No 58 of 2007 High Court Nairobi Paul Kamau Mwangi vs. Republic Criminal Appeal No. 249 of 2009, High Court Nakuru Peter Maina Wachira versus Republic, High Court Nyeri, Cr. Appeal No. 167 of 2007, 2010 eKLR, RCK versus Republic, High Court Nakuru, Cr. Appeal No. 168 of 2009 Republic v Moses Gachovi Njiru, Criminal Appeal 128 of 2009 High Court Republic v. James Njuguna Nyaga High Court Criminal Case No. 40 of 2007 Republic versus Harun Muktar Mursal Cr. Case No. 636 of 2009, PMC Garissa Republic versus Jon Cardon Wagner and Others, Cr. Case No. 1017 of 2009 Republic versus Peter Irungu Muthoni, Cr. Case No. 752 of 2008, SRM Kigumo Sakilla .v. R. (1967) E.A.403 Samwel Odongo Okoth versus Republic, Cr Appeal, Cr Appeal no 83 of 2007 High Court Malindi. Shida Kazungu Baya & 4 others versus Republic, Cr. Appeal 273 of 2006 Court o f Appeal Mombasa [2008] eKLR Thomas Kwamba Dzombo versus Republic, High Court Mombasa Cr. Appeal No. 281 of 2008 Washington Ouma Oketch versus Republic, High Court Kisumu, Cr. Appeal No. 3 of 2007 Yussuf Sabwani Opicho versus Republic, Cr. Appeal No. 208 of 2008, the Court o f Appeal in Nakuru

Embu

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