* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
Kenyan judge tells state that it cannot continue to “shuffle pedophiles from one school to another”
NAIROBI, KENYA - A landmark judgment by the Kenyan High Court in Nairobi late last month shows the country’s continued commitment to ending sexual violence against girls in school. In 2010, two girls, aged only 12 and 13, were raped on several occasions – at the teacher’s home and even in the girls’ classroom – by a deputy head teacher in Nakuru county, two hours from the capital.
After the girls’ parents noticed they were behaving differently and seemed withdrawn, the girls finally told them what had happened and a criminal case was brought in Nakuru in 2011. However, despite eyewitness accounts and sworn affidavits, which confirmed what had really happened, the perpetrator was acquitted.
The families were shocked to later learn that this wasn’t the first time this had happened; another school had transferred the teacher following similar allegations.
Following the acquittal, the two incredibly brave girls refused to let this be the end of it and along with their families, the Centre for Rights Education and Awareness (CREAW) and a coalition of other rights groups including COVAW, CRADLE, Girl Child Network and the Center for Reproductive Rights, took the case all the way to the High Court of Kenya.
Buoyed on by an increasingly receptive environment to enforce laws on ending sexual violence in Kenya, Justice Mumbi Ngugi issued a historic judgment from the Constitutional and Human Rights Division of the High Court. She also awarded damages to the two girls of two and three million Kenyan shillings, respectively, against the teacher, the school and – very importantly – the State, through the Kenyan Teacher Service Commission (TSC), for its failure to exercise its duty of care to the girls.
Notably, the case also declared sexual violence against all students a violation of their right to human dignity, health and education and should help bolster the justice system for any future cases.
An estimated 32% of girls experience some form of sexual violence before they turn 18, with incidences often taking place in school. The judgment cites another 2009 study, undertaken by the CREAW and the TSC, which reports that over a five-year period, 12,660 girls were sexually abused by male teachers – and concluded that the Ministry of Education was not doing enough to effectively combat SGBV in schools.
Since 2000, Equality Now has been working to end sexual violence and other forms of violence against women and girls in Kenya. Until recently, government accountability to protect children (particularly girls) at risk has been lackluster at best. The TSC has tended to avoid dealing with the issue effectively and seems to simply move perpetrators – or “shuffle pedophiles”, as Justice Ngugi noted in her decision – from one school to the other.
The consequences of sexual violence against minors are extremely severe. It can drastically affect not only their physical and emotional well-being, but also exposes them to the risk of contracting sexually transmitted illnesses. Medical and psychological support for survivors is of paramount importance, and clear policies and processes should be put in place by all governments around the world to ensure that this is freely available when required.
The recent judgment is vitally important as it calls for systems to be urgently put in place by the TSC to better protect girls at risk and to ensure that nobody with the propensity to abuse children is given the opportunity to do so.
Interestingly, the judgment also used case findings from other countries as reference points – including a 2008 case which Equality Now supported in Zambia. In a similar initiative, a 13-year-old girl took on the entire government when they failed to both protect her from being raped by a teacher and to effectively prosecute him when the crime was uncovered. With our support, the girl was finally awarded significant damages.
As in Kenya, the decision also held the government to account and called on the Zambian Ministry of Education to issue regulations to reduce the likelihood of such events happening in the future. Both Kenya and Zambia are state parties to the Protocol on the Rights of Women in Africa, a treaty that is part of the African Charter on Human and Peoples’ Rights, and under article 12 (1c), these states are obliged to “…protect women, especially the girl-child from all forms of abuse including sexual harassment in schools and other educational institutions and provide for sanctions against the perpetrators.”
Without freedom to access education and meaningful access to justice, girls have enormous uphill battles to climb. Their opportunities become extremely restricted, while their exposure to further violence and discrimination increases. For too long, girls like those in Kenya and Zambia – and all around the world – have been too scared to speak out. They have not been given the safe spaces they so vitally need to tell their stories and break the cycle of violence for future generations.
Girls can be incredibly powerful when they are supported in achieving their ambitions. However, they need their governments to uphold their rights and protect them from harm and injustice.
Ensuring that all members of society can live free and healthy lives is not something which anyone should be afraid of. In fact, it will benefit all of us by unleashing a wave of growth for any country that really commits to providing a level playing field for everyone. Hopefully, this Kenyan judgment will be an example for others to follow.
Faiza Mohamed is the Africa Office Director for Equality Now, an international human rights organization, which promotes and protects the rights of women and girls.