A constitutional challenge to systemic discrimination

In the first case of its kind in Africa, a suit has been filed against Kenyan police for systemic discrimination in permitting the rape of young girls and in failing to enforce existing laws.  If successful the case could establish legal protection from rape for all girls in Kenya

Fiona Sampson
3 December 2012

One day on her way to school, ten year old Pauline was raped by a neighbour. The police refused to investigate unless Pauline’s grandmother paid them. She was unable to pay the police and so Pauline’s case was never investigated and the perpetrator remains free to this day.  Eight year old Maryann was gang raped by three men; the police refused to investigate.  After Maryann’s father and a local NGO repeatedly requested that the police investigate, the police simply gave the father an arrest warrant for one of the perpetrators and told him to arrest the perpetrator himself.  Thirteen year old Bridget has been raped by her father repeatedly since her mother died when she was 8 years old. The police have refused to investigate, taking the position that they believe the father is mentally disabled.

In March, 2008, a Kenyan study reported that 165 children are defiled every month in Kenya, and that defilement incidents are on the rise.  The 2005 Chambers of Justice report "The Defilement Index" concluded that incestuous defilement was responsible for about 75 percent of abuse against young girls in urban areas in Kenya. The report also said that six of ten people who worked with abused children thought the most vulnerable girls were 1 to 10 years old.  Girls in Kenya are often raped by family members, but are also raped by community members.  Girl victims are often orphans, whose parents have died of AIDS, and they are vulnerable to abuse from extended family members and from strangers.  Their vulnerability is compounded by the misconception that having sex with a virgin is a cure for HIV/AIDS.  The epidemic of girl child rape leaves these young girls at increased risk of contracting HIV/AIDS themselves. The practice of girls’ defilement in Kenya is so common it can be accurately described as an epidemic.

A chief project for the international, charitable organization, the equality effect, is the “160 Girls” Project – a collaborative legal initiative centred around a constitutional challenge against the Kenyan Police for permitting the rape of young girls and failing to adequately respond to the tragic mistreatment of those young girls.  Some of the 160 Girls have been raped by family members, teachers or even in some cases, by the police officers to whom the rapes have been reported.  The ages of these victims ranges between 3 and 17.  The girls are often traumatized or maimed and unduly stigmatized within their communities.  They and their loved ones are also often threatened with violence if they choose to speak out.  Sadly, the police generally fail to properly investigate these crimes or prosecute them despite being presented with incontrovertible proof of child rape. 

The constitutional challenge was filed in Kenya on October 11, 2012, the International Day of the Girl Child. The challenge argues that the failure of the police to enforce existing laws is a breach of the girls’ rights to equality, dignity and security of the person under the new Kenyan Constitution.  The action seeks to address the root cause of the problem, and to address the systemic discrimination that is responsible for the defilement of girls and the police failure to investigate defilement.  The suit aims to hold the police accountable for the failure to enforce existing laws that are intended to protect girls from defilement (the term used for the rape of girls in the Kenyan Sexual Offences Act); once police enforce the existing defilement laws, perpetrators will be held accountable for their violence.  As a result, the “160 Girls” initiative is designed to not only provide access to justice for the 160 girls that inspired the court action but to also seek legal protection from rape for all girls in Kenya.

The Kenyan litigators handling this constitutional challenge are supported by the equality effect and other lawyers around the world, who provide their services pro bono.  The legal team has encountered challenges in mounting a legal challenge in Kenya, where the gathering of evidence has been conducted by front-line social workers who trek through the bush and up mountains to interview the victims, most of whom live in poor rural areas with no access to modern technology. It can take days to scan and send one document to the partners working on the project. As this is the first case of its kind in Africa, it is uncertain as to how long it will take to complete the case.  Even a winning decision will require significant follow up to ensure that subsequent rape cases are appropriately tracked and monitored and that the court’s direction is duly adhered to.

Yet no matter how long the constitutional challenge takes, the equality effect is confident that it will ultimately bring about long-term and positive change.  The project is already showing signs of empowering the girls in Kenya.  Previously, when the girls were asked how they would describe “justice”, they could not do so.  But now they are learning how the legal system is supposed to work, and are engaged and empowered as change-makers. They now know what justice is and they want to experience it.

Fiona Sampson is speaking at the Trust Women conference in London December 4th-5th. Read more articles on openDemocracy 50.50 exploring the key themes of the conference




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