Health

 DOMESTIC VIOLENCE

"I feel used, wasted, useless and hate men for real..." that was a statement of a great friend of mine who had been a victim of rape to be precise. This is a bitter story meant to awaken the society on the silent killer, domestic violence.

Violence against women is a weapon of war, a tool used to achieve military objectives. Many forms of violence that women suffer during armed conflict are gender-specific in result and nature. The United Nations’ Institute for Research and Training (INSTRAW) suggests that gender-based violence is rooted in prescribed behavior, norms and attitudes on the basis of gender and sexuality. The prescribed norms and definitions of what it means to be a woman or a man, and how men and women are positioned vis-à-vis one another and other groups of men and women define this violence. These norms and definitions allow and even encourage violent behavior within environments that assign privilege and hierarchical power to certain groups of men. Gender-based violence, therefore, is the enforcement of power hierarchies and structural inequalities created and sustained by belief systems, cultural norms and socialization processes. Understanding gender is critical to finding ways to end violence against women at the personal level as well as the community level, as well as to achieve wider development goals.

Gender based violence is the most pervasive socially tolerated of all human rights violations and something that is experienced by women and girls on a global scale every day.

The Kenya Demographic and Health Survey 2008-2009 had various questions about gender violence. The survey found:

·         One in Five Kenyan women has experienced sexual violence

·       12% of women age 15-49 report that their first sexual intercourse was forced against their will

·       Nyanza and Western provinces have the highest proportions of women experiencing sexual violence

·   37% of women have experienced sexual violence report current husbands or partners as the perpetrators 27% of women are circumcised 82% of Kenyan Women believe that female circumcision should be stopped.

Common Forms of Gender-based Violence

1. Domestic Violence

Domestic violence is the use of force or threats by a husband or boyfriend to coerce or intimidate a woman into submission. The violence can come in the form of pushing, hitting, choking, slapping, kicking, burning or stabbing”. It refers to violence between members of a household, usually spouses. Bryan Garner calls it a situation where a member of a household commits assault or other violent acts against another. There are no strict laws against domestic violence in Kenya but it is no different from assault in terms of effect. What sets it apart is that the violence occurs within a family setting, usually dictated by gender relations. Under the Penal Code, assault is recognized as a crime that can be committed by a stranger, without any gender considerations. The defense for official reluctance to identify domestic violence as an offence under the law relies on the argument of recognizing that there is a continuing relationship between the survivor and the assailant. It is thus argued that the law should not interfere in or break up a family.  Survivors of domestic violence, many of whom are women, take the violence as their fate, and fear to disclose the cause of their suffering even to the doctors, as a respondent at the Nairobi Women’s Hospital recounted:

“Most women request that we do not tell their husbands that they disclosed to us that they were battered. So we assure them that privacy and confidence is guaranteed.

Domestic violence was notably rampant in the camps for the displaced, although the women affected did not report the incidents to the police. Many female respondents at the camps said that their husbands were selling whatever meager food rations the family received, as well as blankets and other necessities.

Questioning a husband’s actions could earn a wife a thorough beating. Some respondents also said that their husbands did not provide for their families, resulting in loss of respect for the men:

“The Red Cross has become a husband to many women. They provide food, clothing, soap and other necessaries that husbands have been unable to give their families. As a result, women have no respect for their husbands and do not take orders from them. This has brought rifts in many families and consequently husbands are beating their wives at the camps.”

It was also evident that families were disintegrating at the camps. Many women found themselves alone in the camps because the fighting scattered families in different directions. Some wives said their husbands moved in with other women but they could not question them without provoking a beating. An elderly respondent said:

“Look at me. How can my husband take on a young girl and be cruel to me this much? He told me that he is not interested in me because I am old and that he has found a young woman. When I asked him to stop the relationship, he became so cross that he beat me up. He has since moved in with her to the tent and says he has married her. He has abandoned me despite our children intervening to make him come back home.

In times of conflict, instability in families creates a fertile ground for domestic violence. Women are generally more vulnerable, and conflicts exacerbate their vulnerability. The family is a comfort zone but when there is violence at home coupled with insecurity, women face a double jeopardy. Domestic violence is a manifestation of power imbalance between a wife and a husband. Most men want to be in control of the surroundings in their family and perceive opposition from their wives as a challenge to their authority.

Many men believe that the best way to regain their power and to make their wives submit to them is through force. This perhaps explains why men beat their wives at camps for the displaced despite the fact that both are facing difficulties brought about by the clashes. The lacuna in legislation has encouraged men to mete out violence against their wives, claiming that they were ‘disciplining’ them. Children, too, have been exposed to aggression under the guise of legitimate punishment – even where the law expressly forbids corporal punishment.

2.  Rape and Gang Rape

Rape is sexual intercourse with someone without his or her consent. Under Kenyan law, rape includes both the forceful and unlawful penetration of another person’s genital without consent as well as the fraudulent acquisition of consent. Rape occurs when the survivor’s resistance is overwhelmed by force, intimidation or other coercive means. The element of force before rape need not be a requirement for charging the perpetrator. Ronald Boyce states that the requirement of force is simply a means of demonstrating that the sexual and gender based violence was without consent and against one’s will. Where more than one person commits rape; it is termed as gang rape. Perpetrators of sexual and gender-based violence are often motivated by a desire for power and domination.

Rape and gang rape are mostly common in situations of armed conflict and internal strife. In such circumstances, rape and gang rape are meant to injure, control and humiliate, while violating the survivor’s physical and mental integrity, as illustrated by the following respondent:

“On 31 December 2008, eight assailants came to my house and pounced on me. They dragged me from the house and gang raped me a few meters from the house, until I lost consciousness. I was with my husband and children, but the assailants caught up with me during the melee for safety. Since the incident, I have not seen my husband and he does not know about the ordeal. I want to be assisted so that I can know my HIV status.

Another survivor said:

“The attackers killed my husband and as if that was not enough they turned on me and gang raped me in turns. I can remember seeing 10 of them that are known to me. The elderly started then he invited the youngsters to follow suit. When they finished, they inserted a bottle in my vagina, cut my stomach, ejecting the intestines. They left me for dead but I survived. I was rescued by a Good Samaritan who took me to hospital where I was treated and operated on. I also contracted gonorrhea for which am still being treated. I have not healed from the surgery.”

In armed conflict, the perpetrators may include fellow victims of violence such as Internally Displaced Persons, members of other clans or religious groups, or even family members.

In many cases of rape and gang rape, the survivor knows the perpetrator(s). A respondent at the Eldoret IDP Camp recounted this incident:

“When violence started at Kuresoi, men took advantage of women’s vulnerability to rape, gang rape them and defile children before the tents were brought. Many women who conceived did so through rape. Attackers were not identified as the rape happened in turns, and the assailants disappeared in the mixed groups”

Another respondent said:

“Many women were raped during the crisis and some cannot identify their attackers because it

happened in the night. Some who could identify the attackers are afraid and do not want to talk about it. So it will only be a few cases of women you will be dealing with that are willing to open up. Women are afraid that they will be abandoned by their husbands if they talk”

The Nairobi Women’s Hospital alone received 2,500 cases of sexual and gender-based violence during postelection crisis period. Out of these, 536 were rape cases as the doctor-in-charge of sexual and gender-based violence at the hospital recalls:

“Between 27 December and 31 March 2008, we received 635 survivors, 229 of whom were children.”

Rape and defilement cases were the most common during the crisis period, as shown below:

Prevalence of GBV cases in Nairobi Province

	Total	% Prevalence
Rape/defilement	524	80
Domestic violence	65	10
Physical assault	42	7
Sexual assault	22	3
Total	653	100

Source: Nairobi Women’s Hospital, 6 June 2008.

Court records in Kisumu and Nakuru showed that survivors of sexual and gender-based violence do attempt to have the perpetrators prosecuted. For instance, in Kisumu, there were 10 rape cases referred for prosecution. In Nakuru, 13 rape cases were referred for prosecution between July 2006 and May 2008. A doctor at the Nairobi Women’s Hospital said that many women do not report rape cases. For those raped during the post-election violence, no immediate reports were made to the authorities or the hospitals.

Thus, as at the time of the interview, survivors of rape were trickling into hospital to seek treatment for ailments related to sexual and gender-based violence arising from crisis period.

3.  Defilement

Unlike rape where the survivor is an adult, defilement involves the penetration of a child’s genital organs. Concepts such as ‘consensual’; ‘unlawful’; ‘forceful penetration’ or ‘fraudulent acquisition of consent’ are immaterial in this regard, because the child has no capacity to form the necessary consent to carnal knowledge.

Defilement is also worsened in conflict situations. A respondent at the Eldoret IDP Camp recounted her experience thus:

“I have handled a case of defilement of a 14-year-old girl by her 40-year-old father. The ordeal started when the girl was 9 years old and was left to stay at home with her father. The girl’s uncles also took advantage of the father’s conduct and started to defile the girl.”

A judicial officer in Eldoret said that defilement was rampant at the camp but the families of the minors usually make deals to hush up the crime:

“The survivor’s family is sometimes, paid by the accused to drop the cases. If such cases reach the court,then there is another weakness, witnesses do not attend court or they just disappear. At times the policefile is never traceable making it difficult for hearings to proceed.”

At the time of the study, three minors had been defiled in turns by one assailant at the Eldoret Showground camp. Because he had negotiated with the minors’ family and they were unwilling to cooperate with the police, he could not be arrested. In light of the conditions at the camp, where families are faced with difficulties obtaining sustenance and physical comfort, well-to-do assailants often get their way by paying off the survivor’s family without due regard to the survivors dignity or bodily integrity. Defilement was alsoreported in other camps such as Nakuru Showground, Afraha Stadium as well as Kedong in Naivasha.

The court records in Kisumu and Nakuru reveal that survivors of sexual and gender-based violence do attempt to get the perpetrators of violence prosecuted by the courts. In, Kisumu 57 defilement cases were referred for prosecution while in Nakuru 140 cases were referred for prosecution between July 2006 and May 2008. This is just a tip of the iceberg as many incidents of defilement go unreported.

4.  Abduction

As a form of sexual and gender-based violence, abduction involves the taking away or detaining of a woman in order to have sex with her.  Abduction involves leading someone away by force or fraudulent persuasion. This form of violence is prevalent in the Kenyan traditional societies, where girls perceived to have reached marriageable age were abducted by their suitors -- as long as their parents had consented to the marriage.

A respondent at the Kenya National Human Rights Commission, Nairobi, told researchers:

“I intervened in cases in Kisumu and Budalang’i in which Standard Six girls were forcefully married off to their teachers who had impregnated them. The court system did not help much because the accused persons were acquitted for lack of evidence. Apparently, money had changed hands.

Such repugnant cultural practices flout the Constitution and other written laws of Kenya, which state that traditional and cultural practices apply only when they do  not undermine justice and morality. The practice of marrying off underage girls to teachers is repugnant to justice and morality as marriage can only be contracted between two consenting adults. In some camps, men abducted girls to have sex with them. This happened in Afraha Stadium before the Red Cross brought tents. A respondent recounted:

“There were young girls that were taken forcefully by the officers that were manning the camp at night for sexual purposes to rich men in town then they would be returned in the morning. Some individuals took advantage of the situation and also took away the young girls who were vulnerable at that time. This was reported and some officers were transferred and no other action was taken.

5.  Sexual Exploitation

Most survivors of sexual and gender-based violence are forced into prostitution in order to survive. Those who obtain sexual favors from these women ‘pay’ meager material benefits that cannot compensate for the survivor’s lost dignity. The perpetrators of this form of violence are quite often persons in authority who use their positions to intimidate those seeking services or favors into exploitative sexual relations. A respondent at the Eldoret IDP Camp said:

“Armed officers took advantage of the women’s desperate situation at the camp and exploited them sexually. Tinned food was used to lure young girls into sex.”

Another respondent at the Busia IDP Camp spoke of sexual exploitation by security personnel:

“There was sexual violence visited upon young girls by security personnel. One lady who was raped by a police officer was transferred to Nakuru, and the concerned officer transferred to Sio Port. No legal or disciplinary action was taken against the officer.” At the Eldoret camp, respondents said there was a growing concern about their morality. The townspeoplebelieved that women at the camps were available for sex for as little as Ksh20. One respondent couldneither deny nor confirm this, but said that they were worried about the goings-on of “sex for Ksh20”because it had made some husbands to believe their wives, who were living at the camps alone, wereprostituting themselves. Interviewees said some husbands had rejected their wives because they believedthey were prostituting with the men in the town.

In some camps, people posing as benefactors took advantage of women and girls by promising to provide for them but instead took and held them hostage as sex slaves, as one respondent said:

“There was a man who would pick up a set of young girls from the showground camp. He would take them to the salon and make them look smart but in turn, he would take the girls to give sexual services to his friends in Nakuru Town. The matter was reported to the police and the man was barred from entering any of the camps. He was advised that any future help he wanted to give had to pass through Red Cross.”

Another respondent said that the youth were unable to contain their sexual passions and thus solicited sex in return for favors. Some women and girls found themselves in difficult conditions and were forced into transactional sex to obtain supplies. Some men took advantage of the confusion in the camps to pose as relief ‘officials’, luring unsuspecting girls and women into sexual liaisons with promises to offer assistance.

6.  Abandonment

Rejection by communities and families carries enormous economic consequences for the survivors of sexual and gender-based violence when they excluded from their homes and cut off from their sources of livelihood. Survivors abandoned by their husbands are unlikely to remarry, leaving them as sole caregivers and supporters of their children. Many respondents said their husbands had abandoned them at the camps for the displaced to move in with younger women. Some husbands had secretly sold family land while at the camps, leaving their families destitute. Women in such situations had nowhere to go back to even if the government guaranteed security because the land had passed into the hands of parties unknown to them.51 Such actions only made the situation worse for women who suffered double jeopardy in that a part from being displaced, they were also abandoned by their husbands.

7.  Disinheritance

Wife disinheritance is common in many Kenyan societies. Such societies view property ownership as virtually patri-lineal. Upon the death of a husband, his family disinherits the widow in the guise of ensuring that the property devolves to a male adult dependent of the deceased. Such practices disregard constitutional guarantees of property rights, and the law of succession, which clearly provide for how property in succession should pass on – whether or not there is a will.

Factors that Give Rise to Gender-Based Violence

Although men can also be survivors of sexual and gender-based violence, this phenomenon affects women disproportionately. For instance, both males and females report sexual coercion, but the majority of the survivors are females, and the vast majority of the perpetrators are male. The World Report on Violence and Health shows that between 40% and 70% of all women who are murdered or killed die at the hands of a male intimate partner. In contrast, between 4% and 8.6% of men who are murdered die at the hands of a female intimate partner. Even in instances of male survivors of sexual and gender-based violence, the women commit the aggression in self-defense -- either in response to an attack or in a situation of long-term, chronic abuse by her partner. While men are much more likely to be attacked by a stranger, women -- apart from being attacked by strangers and acquaintances -- are much more likely to be attacked by someone close to them, such as a husband or male partner.

Sexual and gender-based violence is an ancient and universal problem occurring in every culture and social group due to factors mentioned below:

• ·         Power

• ·         Lack of economic empowerment for women

• ·         Culture

• ·         Inadequate legal framework for protection state of insecurity.

Effects of Sexual and Gender-Based Violence

Sexual and gender-based violence has acute physical, psychological and social consequences. Survivors often experience psychological trauma such as depression, terror, guilt, shame and loss of self-esteem. Spouses and families may reject them, ostracize them or subject them to further exploitation or punishment. They may suffer unwanted pregnancy, unsafe abortion, infection with sexually transmitted diseases (including

HIV and Aids), sexual dysfunction and trauma to the reproductive tract, as well as chronic infections leading to pelvic inflammatory diseases and infertility. According to Heise, sexual and gender-based violence has implications for aspects of health policy and programming, from primary care to reproductive health programmes. Not only do women carry a substantial burden of illness and likelihood of death because of physical and sexual violence, but violence also worsens other health conditions, including increasing theopportunity for HIV transmission.

The effects of sexual and gender-based violence can be summarized as:

• ·         Trauma
• ·         Stigma
• ·         Eroded self esteem
• ·         Disease
• ·         Death

HOW THESE GENDER BASED VIOLENCE ARE DEALT WITH

Kenya resolves criminal cases through the traditional justice system as well as the formal legal system. These systems have tensions, weaknesses and concomitant opportunities for strengthening based on the understanding of sexual and gender-based violence within the Kenyan context. They are discussed below:

1.      The traditional system

When Kenya became independent in 1963, the majority of its citizenry was resolving disputes using traditional and informal justice fora. Despite their popularity, these fora were regarded as obstacles to development and it was thought that as Kenya developed, they would eventually die out. This did not happen and instead, informal and traditional modes of settling disputes have survived. The failure of formal structures inherited from the colonial state around Africa has perpetuated their survival and provoked renewed interest in indigenous knowledge and institutions in recent years. This renaissance is fuelled by an attempt to understand the resilience of these institutions and to explore how they can be more effectively institutionalized and used to serve the citizenry in the face of failure by the formal, colonial-based structures. Traditional and informal justice mechanisms continue to be useful in Kenya for a number of reasons. They overcome the principal obstacles that deny many people access to the formal justice systems. Traditional justice systems are quick, accessible, use the local language, follow procedures that are understood by all and are enforced by people who are socially important to litigants.In addition, they avoid the high costs to individuals and governments that come with formal state systems. The end goal of traditional justice in Kenya is primarily the restoration of peace by reconciling the parties to disputes and the wider community. Therefore, justice is more restorative than retributive. This is important, especially in communities where formal law apparatus are not always available when needed, where vast areas remain ungoverned in the conventional sense, and where the formal government machinery is thin and stretches over vast territories. Research among the Mijikenda and Turkana communities in Kenya provide a view of vista into the traditional methods that were adopted by these communities to address sexual and gender-based violence.

2.      The Formal system

The state administration of justice involves various actors such as the police, prosecutors, medical doctors, who collect scientific evidence in cases of assault and sexual violence, and the courts. The efficiency and shortcomings of these actors reflect how effectively the system works. For example, the court may want to try the sexual and gender-based violence cases as required by the law, such efforts are thwarted by the conduct of either the prosecution or the survivor as a respondent at Kisumu law courts noted:

“We take time with the survivors (of GBV) when testifying. We do all sexual offences in chambers, as the Act so provides. We do not refer cases for mediation by the local leaders; in fact, according to Sexual Offences Act, we cannot. Survivors just disappear, including the witnesses.”

Where the prosecution’s investigation into a sexual and gender-based violence case is shoddy, the courts uphold the constitutional right of the accused and dismiss the case.

The table below shows the number of prosecuted cases of GBV in Nakuru and Kisumu Law Courts between March 2006 and June 2008:

Outcome of Prosecuted Cases of SGBV in Nakuru and Kisumu Law Courts

between March 2006 and June 2008.

	NUMBER OF INSTITUTED CASES	%RATE
Convictions	23	25.56
Acquittals	11	12.22
Pending	33	36.67
Discharge	22	24.44
Dismissal	1	1.11

Source: Kisumu and Nakuru Law Courts, 6 June 2008.

It is worth noting, though, that courts have been reluctant to hand down life sentences, even in cases of rape that led to the infection of the survivor with HIV. A respondent at the Nairobi Women’s Hospital made this observation:

“Certain forms of sexual and gender-based violence such as deliberate infection of the survivor with HIV or rape leading to the infection of the survivor with HIV are only comparable to killing the survivor from inside. This notwithstanding, courts have not taken even such extreme forms of sexual and gender based violence as warranting life sentences; the courts have not necessarily strictly adhered to the provisions of the Sexual Offences Act.

The courts have been reluctant to intervene even in instances where advocates pose malicious questions to a child defilement survivor or witness during cross-examination because of the adversarial nature of Kenya’s justice system, as a respondent at Nairobi Women’s Hospital said:

“Magistrates do not protect children from questions raised by advocates who are tainted withmalice.

The complainants are also to blame for the leniency in sentencing of the convicts of sexual and gender based violence. Sometimes, once the accused persons have been convicted, the complainants intervene by pleading with the court to refer the matter for cultural settlement by the local leaders, as a respondent at the Gender Focal Point in Nairobi, said:

“We had many convictions of the accused persons of sexual and gender-based violence, but the complainants withdrew the cases and preferred to settle the matter customarily.”Cases take too long to finalize because of numerous adjournment requests that the courts allowed.

That this discussion has revealed that the psychological, physical, social and economic impact of gender based violence on survivors is immeasurable is not a disputable fact. The shame, stigma, discrimination and rejection associated with sexual and gender-based violence that affects the physical and mental health of women and girls -- and to a lesser extent men and boys -- determine whether or not they seek medical care. Rejection of survivors of sexual and gender-based violence by communities and families carries enormous economic consequences for them, because they are excluded from their homes and cut off from their livelihoods. The nature of gender-based violence and the stigma associated with it make it important to establish safe and effective systems of identifying survivors that merit reparations. The discussion revealed that many cases of sexual and gender-based violence during the post-election violence went unreported due to the anticipation by the survivors that making known their ordeals to their family or the public would only attract further discrimination in the society. Those who reported their cases at the Gender Desk faced ridicule and scorn from the officers, who taunted them and asked why they wanted to ‘betray their husbands’. Some officers slighted the pain and suffering of the survivors by claiming that they had seen and heard of worse cases of violence. Such experiences deterred other women from going to the police.

The study exposed the formal state justice system as weak. The investigation agencies, including the police, remain indifferent, incompetent and inept in dealing with sexual and gender-based violence cases. Where members of the police force perpetrated a sexual and gender-based violence act, the survivors were denied reporting documents -- P-3 forms. Some investigating agencies conducted armchair investigations and never bothered to visit the scenes of the violence to gather evidence. Some police officers destroyed, washed or caused the survivors of the violence to wash the clothes they had worn during rape, thus intentionally destroying evidence. Police officers turned themselves into judges and magistrates, dismissing potential cases of sexual and gender-based violence at the investigation level instead of establishing a case that could sustain a trial. Some police officers subjectively regarded the Sexual Offences Act, 2006 as inordinately harsh and declined to pass on sexual and gender-based violence files for prosecution. Instead, they opted to refer them to the local leaders for cultural punishment, notwithstanding the fact that most such leaders are corrupt and chauvinistic. Some sexual and gender-based violence cases were instituted without the necessary documentation -- P-3 forms -- resulting in their dismissal and the acquittal of the accused. The prosecution did not seek the input of the survivors in an attempt to gather sufficient evidence before prosecuting cases. Most of the cases ended up in acquittals, dismissals or the discharge of the accused. Comprehensive reforms are needed if justice is to be demonstrably served.

This study has therefore identified the need for action to deliver on the following key recommendations. Public acknowledgement for survivors of sexual and gender-based violence, building movements, guaranteeing justice and domestication of international instruments.

I always feel much pity to my friends who have been victims, something must be done soon enough.