Submitted by basma on
KENYA
Title:
C.K. (A Child) (through Ripples International as her guardian and next friend) and others v. Commissioner of Police / Inspector General of the National Police Service and others
Court:
High Court at Meru
Date:
27 May 2013
CRC Provisions:
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 4: Implementation of rights
Article 5: Parental guidance and the child's evolving capacities
Article 6: Survival and development
Article 7: Name and nationality
Article 8: Preservation of identity
Articles 19: Protection from abuse and neglect
Articles 34: Sexual exploitation
Articles 39: Rehabilitative care
Other International Provisions:
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
Convention on the Elimination of All Forms of Discrimination Against Women
African Charter on Human and People’s Rights
Domestic Provisions:
Constitution of Kenya 2010: Article 2(5) (general rules of international law shall form part of the law of Kenya), Article 21 (state’s duty to protect), Article 22 (right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been violated or is threatened), Article 23 (jurisdiction of the High Court), Article 27 (equality and freedom from discrimination on grounds including sex and age), Article 28 (right to human dignity), Article 29 (security of the person), Articles 48 and 50 (access to justice and the right to a fair trial), Article 53(1)(d) (right of children to be protected from abuse), Article 244 (policing standards)
Children Act 2001
Sexual Offences Act 2006
Police Act
Case Summary:
Background:
This constitutional law claim was brought on behalf of several girls challenging the failure of the Kenyan police to conduct prompt, effective, proper and professional investigations into complaints of sexual abuse against the girls (known as “defilement” under Kenyan law). The petition – which was filed on the International Day of the Girl Child on 11 October 2012 – alleged that the Commissioner of Police / Inspector General of the Police, Director of Public Prosecutions, and Minister for Justice had violated several of the petitioners’ rights under the Constitution of Kenya as well as international legal instruments, including the CRC, by failing to properly investigate defilement claims. The lawsuit became known internationally as the “160 Girls Project” and was supported by the legal human rights NGO, Equality Effect.
Issue and resolution:
Child sexual abuse; whether the Kenyan police violated the petitioners’ rights by failing to properly investigate their sexual abuse complaints. The Court held that the failure of the police to conduct prompt, effective, proper and professional investigations into the petitioners’ complaints violated their fundamental rights and freedoms under the Constitution and international legal instruments, including Articles 2, 4, 19, 34 and 39 of the CRC. The Court ordered the police to conduct proper investigations into the petitioners’ complaints and other forms of sexual violence.
Court reasoning:
Everyone has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights of Kenya has been violated, and Articles 22 and 23 of the Constitution provides the High Court with jurisdiction to determine such claims.
The Court found that the girls were victims of defilement, their complaints were reported to the police, and the police “unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints”. The respondents’ inaction created a climate of impunity for defilement, which made them indirectly responsible for the harms inflicted by the perpetrators. The police inaction led to “psychological damage experienced by the petitioners arising from their alienation from family, schools and their own communities”, which amounts to a violation of the girls’ constitutional rights under all of the articles raised by the petition.
The failure of the police to follow Kenyan laws including the Sexual Offences Act 2006 and the Police Act deprived the petitioners of their rights to equal protection and benefit of the law, thereby violating Article 27 of the Constitution. This is supported by various sources of international law which provide that sexual abuse and gender-based violence as well as state failure to investigate claims involving such violence amount to gender discrimination.
The failure of the police to conduct proper investigations into the complaints and their demand for payments as preconditions for assistance violated the petitioners' rights to access to justice and a fair and public hearing under Articles 48 and 50 of the Constitution.
Furthermore, the State’s failure to act on the petitioners’ complaints amounts to a failure in its duty to protect children from abuse and all forms of violence and to protect the child’s best interests under Article 53 of the Constitution. The State’s duty to investigate and punish those responsible for committing violence is recognised by the UN Committee on the Rights of the Child as well as international case law.
In addition, the police failed to meet Kenyan and international policing standards, leading to a violation of Article 244 of the Constitution.
By way of remedies, the Court granted a declaration that the petitioners’ constitutional rights indicated above, as well as their rights under the Universal Declaration of Human Rights, the CRC, the African Charter on the Rights and Welfare of the Child and the African Charter on Human and Peoples Rights, were violated. The Court ordered the police to conduct prompt, effective, proper and professional investigations into the petitioners’ complaints, and to implement Article 244 of the Constitution as it relates to the matters raised in the petition.
The Court declined to grant three other orders sought by the petitioners: two orders of directing the Minister for Justice to formulate a National Policy Framework under the Sexual Offences Act 2006 and to implement the guidelines from the Reference Manual on the Sexual Offences Act, and an order directing the respondents to regularly appear before the Court to report on its compliance with the implementation of the orders. No reasons were given for declining to make these orders.
Excerpts citing CRC and other relevant human rights instruments:
The petitioners as per affidavit in support, which had not been controverted by the respondents in anyway and which I find to be true having not been challenged have confirmed that they have been victims of defilement, and other forms of sexual violence and child abuse. The reports of defilement and other forms of sexual abuse were reported to various police stations. Police unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints. That failure caused grave harm to the petitioners and also created a climate of impunity for defilement as perpetrators were let free. This infringed the petitioners’ fundamental rights and freedoms under inter alia… the general rules of international law, including any treaty or convention ratified by Kenya, which form part of the law of Kenya as per Article 2(5) and 2(6) of the Constitution of Kenya, 2010. That these international instruments are applicable to the petitioners cases. The relevant conventions include:
1. The United Nations Convention on Rights of Child notably Article 2, 3, 4, 5, 6, 7 and 8.
…
As recognized by the U.N. committee on rights of the child, under Article 19, General Convention, the State is obligated to investigate and punish those responsible for committing violence against children…
Having considered the evidence in the petitioners’ affidavit and the petition herein, the relevant articles in the Constitution of Kenya, 2010, the general rules of international law, treaty or convention ratified by Kenya and other related and relevant laws applicable in Kenya, I am satisfied that the petitioners have proved their petition and that the failure on part of the respondents to conduct prompt, effective, proper and professional investigations into the petitioners complaints of defil[e]ment and other forms of sexual violence infringes on the petitioners fundamental rights and freedoms, under Articles 21(1), 21(3), 27, 28, 29, 48, 50(1) and 53(1) (d) of the Constitution of Kenya, 2010.
In the circumstances I find the petitioners’ petition is meritorious and I proceed to grant the following orders:-
A declaration be and is hereby made to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners’ respective complaints violates the first eleven petitioners’ fundamental rights and freedoms under-
…
(b) Articles 2, 4, 19, 34 and 39 of the United Nations Convention on the rights of the child…
Notes:
Further background information on the “160 Girls Project” and a summary of the judgment is available at:
http://ablawg.ca/2013/06/18/160-girls-litigation-successful-in-kenya/
http://theequalityeffect.org/justice-for-160-girls/
Follow Up:
Similar initiatives to hold state actors accountable for failure to investigate and prosecute perpetrators of sexual abuse of girls are now underway in Malawi. For more information, see: http://theequalityeffect.org/160-girls-update-august-2013/.
CRIN Comments:
CRIN believes that this decision is consistent with the CRC. As recognised by the Court, the State has a duty under Articles 19 and 34 of the CRC to protect children from all forms of abuse, violence and sexual exploitation, which includes a duty to have in place effective procedures for the prevention and investigation of such crimes. This decision properly found the State accountable for its failure to fulfil these duties, and upheld the petitioners’ rights to access to justice.
Citation:
Petition 8 of 2012 [2013] eKLR
Link to Full Judgment:
http://kenyalaw.org/caselaw/cases/view/89322/
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
