The Immediate Realisation of Women and Children’s Rights: Lessons
from the Kenyan Case of C.K & 11 Others V Commissioner of
Police/Inspector General of Police & 2 Others Petition No. 8 of 2012
By Lady Justice Kalpana Rawal*
1.0
Introduction
The Constitution of Kenya, 2010 encapsulates under Article 10, the national
values and principles of governance which bind all state organs, state
officers, public officers and all persons. These national values and
principles include: the rule of law, human dignity, equity, socio justice,
equality, human rights and non-discrimination. On the other hand, Article
21 enjoins the state and its organs to observe, respect, protect, promote and
fulfill the rights and fundamental freedoms in the Bill of Rights. Article
21(3) specifically requires’ all state organs and public officers to address the
needs of vulnerable groups within society, including women and children.
Consequently, women and children have been granted specifically
proclaimed declared constitutional rights to enjoy equal protection before
the law and be protected from all forms of human rights violations
including sexual violence.
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Kenya has ratified International human rights instruments, which further
enhance the obligation placed upon the state and its organs to uphold
human rights. The Constitution encourages the adherence to these
international instruments under Article 2 (6) which states that any treaty or
convention ratified by Kenya shall form part of the law of Kenya. Notable
human rights instruments that bind the state parties to protect women and
children from sexual violence are the International Covenant on the
Elimination of all Forms of Discrimination against Women1, the African
Charter on Human and People’s Rights2, the African Charter on the Rights
and the Welfare of the Child3 and the Convention on the Rights of the
Child.4 State parties are obligated by these human rights instruments to
observe, respect, protect, promote and fulfill the women and children from
violence through legislative and other necessary means.
This paper seeks to analyse the case of C.K (A child & 11 Others v
Commissioner of Police/Inspector General of Police & 2 Others5
(“160 Girls Case”) in the light of the remedies given therein with a view
of establishing their effectiveness and sufficiency in addressing sexual
violence. This will be by way of a brief background of the “160 girls’ case” in
Ratified by Kenya in 1984.
Ratified by Kenya in 1992
3 Ratified by Kenya in 2000
4 Ratified by Kenya in 1990
5 Petition No. 8 of 2012 ( 2012) eKLR
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terms of the facts, the prayers sought and the orders granted by the Court.
The paper further identifies the various stakeholders such as the state and
the judiciary, that have been bestowed upon the obligation to observe,
respect, protect, promote and fulfill the rights and fundamental freedoms
enshrined in the Constitution. The paper, through a comparative analysis of
the relevant jurisdictions, highlights the role of the state and the place of
judiciary in upholding the Bill of Rights. The paper concludes by arguing a
case for immediate realization of women and children’s rights, their dignity
and violation of their inner core of existence; particularly by recognizing the
different but intertwined roles of multiple stakeholders.
2.0 Overview of the “160 Girls’ Decision”
On 27th May, 2013 the High Court in Meru delivered a significant and
unprecedented judgment after 11 girls, through Ripples International, an
NGO that shelters vulnerable children in Meru County, successfully
challenged the Commissioner of Police/Inspector General of Police on their
failure to conduct prompt, effective and proper investigation to the
petitioners (inclusive of a child and women) complaints of defilement and
other forms of sexual violence.
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The petitioners prayers were as follows: a declaration that the neglect and
omission by the respondents to carry out prompt, proper and effective
investigations into the petitioners complaints violated the petitioners’
rights and freedoms as enshrined in the Constitution; an order of
mandamus directing the respondents to carry out proper investigations
into the petitioners’ complaints; an order of mandamus directing the
Minister for Justice, National Cohesion and Constitutional Affairs to
formulate a National Policy Framework envisioned by Section 46 of the
Sexual Offences Act, 2006 and to implement the guidelines provided in the
Reference Manual on the Sexual Offences Act and an order requiring the
respondents to regularly account to the Court on the extent of their
compliance or implementation of those orders.
The Court, acknowledged that the petitioners’ constitutional freedom from
violence and in this case the sexual violence, right to dignity, nondiscrimination and to enjoy equal protection of the law were violated on
account of the failure by police to carry out proper, timely and effective
investigation and prosecution of the petitioners’ complaints of defilement
and other acts of sexual violence.
In particular, the Court stated that the police owed the petitioners a
constitutional duty to protect their rights and that duty was breached when
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they failed, neglected, omitted or refused to conduct prompt and proper
investigations. The Court directed the Commissioner of Police/Inspector
General of Police to carry out prompt, effective, proper and professional
investigations into the petitioners’ respective complaints of defilement.
However, the court declined to grant the petitioners’ prayers for the
respondents to formulate a National Policy Framework and to implement
the guidelines provided in the reference manual on the Sexual Offences Act
as well as the order directing the respondents to regularly appear before
court to report on its compliance with the implementation of the orders.
I shall in this paper concentrate more on the last order.
3.0 Obligation of the State and its’ organs in relation to
entrenched rights
The Constitution of Kenya, 2010 obligates the state to observe, respect,
protect, promote and fulfill the rights and fundamental freedoms in the Bill
of Rights. This ensures that a violation of rights is not a mere individual
problem but one which the state has the obligation to address.6 In essence,
the government has been called upon to not only prevent perpetration of
6Obando
Ana Elena, How Effective is a Human Rights Framework in Addressing Gender Based Violence?
Association For Women’s Right in Development (2004) http://www.awid.org/eng/Library/HowEffective-is-a-Human-Rights-framework-in-addressing-Gender-based-Violence ( accessed on 7th March,
2014)
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any human right violations but also provide the most adequate solution
necessary to remedy any such violation. Japhet Biegon, has correctly
summed up these duties as follows:
“The duty to respect requires the state not to do anything that
infringes on the rights of the individual. The duty to protect
requires the state to ensure that third parties such as other
individuals do not infringe on the rights of the individual.
Finally, the duty to fulfill requires the state to take positive
measures to ensure that the individual enjoys all rights in
practice. ...the duty to promote requires the state to ensure
people are aware or educated of their rights.7
Consequently, the Constitution is a transformative document to the extent
that it lays emphasizes on the obligation of the state to actively intervene
positively in furtherance of the rights and freedoms guaranteed to all its
citizens.8
The judiciary around the world has been at the forefront of safeguarding
the rights and fundamental freedoms enshrined in the Constitution. In
Colombia for example, the Constitutional Court in a landmark ruling
Biegon Japhet, The Inclusion of Socio-Economic Rights in the 2010 Constitution: Conceptual and Practical
Issues. P. 22, published by the Kenyan Section of the International Commission of Jurists, Judiciary Watch
Report, Judicial Enforcement of Socio-Economic Rights under the New Constitution: Challenges and Opportunities
for Kenya. V.10 (2011)
8 See, Musila Godfrey, Testing the Standards of Compliance: A Modest Proposal on the Adjudication of Positive
Socio-Economic Rights under the New Constitution. (2011) P.59
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delivered in 20049 declared that the humanitarian emergency caused by
forced displacement constituted an “unconstitutional state of affairs”, that
is, a massive human rights violation associated by systematic failures in
state action. The court stated that the public policy implemented was
incoherent, insufficient and not grounded adequately in human rights
standards. The court, therefore, ordered the government to implement a
series of measures to solve the broader structural problems faced by the
internally displaced persons, and in particular to ensure their access to
food, health, housing, education and land. Finally, to ensure that the
government would comply with its ruling, the court implemented a
monitoring system which was used to assess public policy against human
rights indicators developed by the court.10
The courts in India too have shown tremendous willingness to issue orders
requiring continuous supervision in order to ensure enforcement of the
orders given.11 This ensures that the relief granted by the court is actually
Corte Constitucional [C.C.] [Constitutional Court], enero 22, 2004, Sentencia T-025/04 (slip
op. at 1), analysed in Rodríguez Garavito, C. 2011. Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America. Texas Law Review 89 (7) 1669-1698.
9
Judicial Review: An Innovative mechanism to Enforce Human Rights in Latin America, published by Fundar,
Centro de Análisis e Investigación A.C. available at http://www.scribd.com/doc/165484894/BriefJudicial-Reviews-Innovative-Mechanisms-to-Enforce-Human-Rights ( accessed 8th March 2014)
11 Jamie Cassels, “Judicial Activism and Public Interest Litigation in India, Attempting the
Impossible” (1998) 37 Am. J. Comp. L 495 at 506.
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made available.12 For example, in the widely recognized South African case
of Government of Republic of South Africa v Grootboom13 the
Constitutional Court issued only a declaratory relief leaving the government
to determine how it would redress the right to housing. Consequently, the
applicant therein died homeless without reaping the fruits of the judgment
which had affirmed her right to housing.
4.0 Progressive or Immediate Realization of Socio Legal Rights
Socio-legal rights in this context has been used to refer to the rights
enshrined in the Bill of Rights that do not necessarily fall within the
mainstream categorization of human rights. This paper specially highlights
the rights of women and children to be protected from sexual violence as
examples of such socio legal rights. The “160 girls’ case” reiterated the
state’s obligation in ensuring protection and preservation of the right to
dignity and access to justice to women and children by laying concrete steps
towards addressing sexual violence in Kenya under the new Constitutional
dispensation.
Nirvani Sharada, A Critical Study of Judicial Enforcement of Human Rights in India Through Public Interest
Litigation with Special Reference to Right to Life, a thesis submitted for the award of Doctor of Philosophy of
Law, Saurashtra Univeristy , (2005) P.109
13 (2001) 1 SA 46 (CC)
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The Court also brought to life the application of Article 2(6) of the
Constitution by re-affirming some of the international human rights
instruments that Kenya has ratified which essentially recognize and protect
the human dignity of all, especially women and children. In this particular
case, the Court affirmed Kenya’s international obligation in the Universal
Declaration of Human Rights; the Convention on the Rights of the Child;
the African Charter on the Rights and Welfare of the Child and the African
Charter on Human and People’s Rights.
The Court clearly stipulated how future investigation by the police should
be carried out by restating the responsibility of the police to conduct
prompt, thorough and professional investigations on all cases reported to
them without any form of discrimination. The Court by affirming that the
rights of the children were violated, reignited the hope of thousands of
children who are sexually abused every year most of them without recourse
to law.14
Of those who experienced sexual violence prior to age 18, 3% of females and 0.4% of males reported
receiving services for any incident. About 24% of females and 18% of males aged 18 to 24 reported that
they would have liked additional services for sexual violence. Finding from a 2010 National Survey, “
Violence Against Children in Kenya” Commissioned by United Nations Children’s Fund (UNICEF).
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However, more than a year after this judgment was delivered, it still
remains unclear as to the extent of implementation of the Court’s orders by
the various state organs named therein. The issue then is how similar
future cases can be addressed to ensure that women and children reap the
fruits of the Constitution by facing equal treatment before the law and
particularly by being protected from any form of sexual abuse. Needless to
say that child’s sexual abuse and violence are demonic acts and in my view
the scars of those who experience it stay with the abused throughout their
life.
The Constitution vests on the courts, powers to grant appropriate relief
under Article 23 including declaration of rights, injunction, conservatory
orders, a declaration of invalidity of any law that violates the Bill of Rights,
compensation and orders of judicial review. In this case, the Court
mandated the Commissioner of Police to conduct effective, proper, prompt
and professional investigations into the petitioners’ respective complaints
of defilement and other forms of sexual violence. However, declaration of
rights on its own may not always be and was not sufficient, at least in this
case. This scenario would reduce an order of the court totally ineffective
and tantamount to denial of justice to the aggrieved person.
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What then is the court expected to do in similar circumstances? I believe
the court need to go further and where possible, stipulate the mechanism to
be followed by the state or its organs in implementing such a decision. This
is in line with Article 23(3) of the Constitution which stipulates that the
court may grant any appropriate relief.
Courts in Kenya, just like other jurisdictions, have where the situation
requires, exercised supervisory jurisdiction over the orders they give in
order to ensure compliance. For example, Justice Mumbi Ngugi in the case
of Mitu-Bell Welfare Society v Attorney General & 2 others15
granted supervisory orders by requiring the state to report to court within
the stipulated time on the progress made towards a resolution of the
petitioners’ grievances. In particular, the court held inter alia that:“That the respondents do provide, by way of affidavit, within 60
days of today, the current state policies and programmes on
provision of shelter and access to housing for the marginalised
groups such as residents of informal and slum settlements….That the
parties report back on the progress made towards a resolution of the
petitioners’ grievances within 90 days from today.”
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(2013) eKLR
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Further, in the case of Vishaka v. Rajasthan16 the Supreme Court of
India gave such supervisory orders. In this case, the police officers in
Rajasthan state of India failed to carry out prompt, effective and
professional investigations on women’s complaints of sexual harassment in
their places of work. The Supreme Court relied on Article 10 of the Indian
Constitution to allow the application of international human rights
instruments that include the International Convention of the
Elimination of All Forms of Discrimination against Women
(CEDAW), which guarantees women’s right to safe working conditions.
The Court taking cognizant of the systematic failure by police officers in
India to carry out proper, prompt and professional investigation on
complaints of sexual harassment in the work place, and the Indian
Parliament’s laxity to enact an appropriate legislation that would proscribe
sexual harassment in place of work and afford victims adequate remedies,
formulated guidelines and norms to afford women protection from sexual
harassment in place of work, pending enactment of legislation on the
subject matter. The court also spelt out how the guidelines should be
implemented thus making protection from violence, including sexual
16
AIR 1997 Supreme Court of India, 3011
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harassment a reality for women in India, thereby exercising its supervisory
role.
Similarly, the South African Constitutional Court in the case of South
Africa case of Minister of Health & Others v Treatment Action
Campaign17
affirmed in clear terms the supervisory powers of the
Judiciary, thereto keeping a sort of reign of its oversight on implementation
of the South Africans’ right to health, by the government. The South Africa
Court affirmed at paragraph 99 of the judgment that:“where State policy is challenged as inconsistent with the
Constitution, a court has to consider and determine whether in
formulating and implementing such policy the State has abided by
its constitutional obligations. If it should hold in any given case that
the State has failed to do so, it is obliged by the Constitution to say
so. And so far as this may be seen as constituting an intrusion into
the domain of the Executive, this is an intrusion mandated by the
Constitution itself. “
Justice Bhagwati, (The Retired Chief Justice of India) in his biography “My Tryst with Justice” - has in simple and piercing language stated;
“Throughout my judicial life, there was only one ideal which motivated
and inspired all my judicial pronouncements and that was the
17
[2002] 5 SA 721(CC)
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advancement of the welfare of my people by ensuring to them the
enforcement of the basic human rights enshrined in the Fundamental
Rights and Directive Principles set out in the Constitution. I, was
therefore, determined to bend the law in the service of my people.”18
It may be opportune to look at the distinction between the ‘progressive
realisation’ and ‘immediate realisation’ of the fundamental right enshrined
in Chapter four of the Constitution.
As succinctly expressed in the matter of The Principle of Gender
Presentation in the National Assembly and the Senate – Advisory
Opinion of the Supreme Court (2012) KLR – SCK “Progressive
realisation” is illustrated as:
“A phased-out attainment of an identified goal – human rights goal
which by its very nature, cannot be achieved on its own, unless first, a
certain set of supportive measures are taken by the State. The exact
shape of such measures will vary, depending on the nature of the
right in question, as well as the prevailing social, economic, cultural
and political environment. Such supportive measures may involve
legislative, policy or programme initiatives including affirmative
action.”
Bhagwati P.N,( Justice), My Trust with Justice , Universal Law Publishing Co. Pvt.Ltd, (New Delhi,
India) 2013 p.114
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As against that, in the dissenting opinion of Mutunga CJ, certain rights
have been stated to require immediate realisation. It was held:“The immediate implementation of the two-thirds gender
principle is reinforced by the values of patriotism, equity, social
justice, human rights, inclusiveness, equality and protection of
the marginalized.
Such values would be subverted by an
interpretation of the provisions that accepts progressive
realization of this principle.”
In my opinion, the above observations on immediate realization perfectly fit
the rights violated in the case under reference.
I am more fortified to state that, in my view, the scope of the “sociolegal” rights (I have purposely coined this phrase to identify the right in
question and to distinguish it from other similar rights) unlike that of
socio-economic rights is that their realization is not necessarily tagged
on the availability of state’s resources. Article 20 of the Constitution, has
clearly stated that the socio-economic rights will be subject to progressive
realization bearing in mind the existence of the state’s resources.19 The
nature of the rights of women and children to be protected from all forms of
This fact has been affirmed by several judicial pronouncement in Kenya such as the case of Michael
Mutinda Mutemi v permanent Secretary,Ministry of Education & 2 Others Petition No.133 of 2013 and Charo
wa Yaa v Jama Adbi Noor &4 Others, H.C at Mombasa Misc Civil. Appl. No 8 of 2011.. Other cases on
progressive realization of rights under the Constitution are, Federation of Women Lawyers Kenya(FIDA-K) &
5 Others v Attorney General & Another (2011) eKLR, also the Advisory Opinion No. 2 of 2012, In the Matter of
Principle of Gender Representation in the National Assembly and the Senate
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sexual violence as depicted in the present case study is that, their
realization is solely dependent on the willingness of the existing machinery
of the state to efficiently, effectively and professionally perform their tasks.
The state therefore, should not be heard to cite unavailability of resources,
as a reason for its failure to undertake a particular task. Therefore, unlike
the socio-economic rights that requires progressive realization, the rights
of women and children to be protected from all forms of sexual violence
should be subject to immediate realization.
In order to ensure this immediate realization, all relevant stakeholders
should embrace a multi-sectoral approach by ensuring that each
stakeholder performs their role in order to sufficiently implement the spirit
and letter of the Constitution. The judiciary on its own cannot adequately
address sexual violence, the wheels of justice are composed of multiple
stakeholders who all have specific unique mandate to foresee and protect
the furtherance of rights and fundamental freedoms enshrined in the
Constitution.
The judiciary however can fast track the implementation of those declared
obligations by retaining supervisory jurisdiction where appropriate. This
will ensure that the courts goes beyond acknowledging the violation of
rights in question by recommending a particular path to be followed by the
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state to restore or protect the proclaimed right.20 Indeed, the decisions of
the courts act as an effective tool for enforcing and restoring fundamental
rights and freedoms especially if they venture beyond the trodden path and
specify the actions that the state should take to implement and hold the
reign of timeline for so doing.21 Consequently, the ‘160 girls’ case’ would not
just be a case that declares the existence of the rights of girls, women and
children to enjoy equal protection before the law and particularly, be freed
from all forms of sexual violence and abuse, but would also lay a solemn
duty upon the relevant state organ, in this case the Commissioner of Police,
to positively undertake present and future investigations as a duty placed
upon the office to observe, respect, protect, promote and fulfill the rights
and fundamental freedoms in the Bill of Rights. The Court having ordered
the Commissioner of Police to undertake relevant investigations, should
have gone further and issued monitoring orders to check on the compliance
of the given orders.
Tlachinollan Mountain Human Rights Centre, Otorga Juez Federal Amparo a la Comunidad de Mini Numa
que Exige su Derecho a la Salud (Federal Judge Grants Writ of Amparo to Mini Numa Community Demanding its
Right to Health, (2008)
20
See, Judicial Review: An Innovative mechanism to Enforce Human Rights in Latin America, published by
Fundar, Centro de Análisis e Investigación A.C. available at
http://www.scribd.com/doc/165484894/Brief-Judicial-Reviews-Innovative-Mechanisms-to-EnforceHuman-Rights ( accessed 8th March 2014)
21
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I am aware that my views could be deemed to be perceived as proactive but
I would dare to say that they should be identified to be emanating from
“Judicious activism” and not from “Judicial activism” as they are called in
common parlance.
5.0 Conclusion
The Constitution of Kenya, 2010 is a transformative document with
unprecedented Bill of Rights that guarantees person’s freedom from all
violence, which includes sexual violence. Article 29 (c) and Article 21, in
entirety, bind all state organs to implement the Bill of Rights. Article 10(2)
on the other hand enumerates human rights, protection of marginalised,
equality and non-discrimination as part of national values and principles of
governance in Kenya. These values and principles are imperative in
addressing sexual offences from a social, moral and legal spectrum.
Moreover, Article 10(1) bind public officers, state organs and state officers
to uphold those values and principles. The “socio-legal” rights enjoy the
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same status as other rights and all relevant stakeholders are obligated to
ensure that the recipient of such rights are not robbed of their dreams and
aspirations safeguarded by the Constitution.
It is worth noting that, socio-economic rights unlike other ‘social’ rights
have elicited much debate and litigation to the extent of overshadowing
other rights. It is however commendable to note that the judiciary has in
the recent past crafted very innovative remedies with regard to enforcement
of socio economic rights in order to ensure the state’s commitment in
ensuring access to justice. Consequently, the energy geared towards
realization of socio economic rights, should equally nay more forcefully, be
applied to ensure that women and children’s “social legal” rights are
protected from all forms of sexual violence.
…………………………………..
K. H. RAWAL
DEPUTY CHIEF JUSTICE &
VICE PRESIDENT SUPREME COURT
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