Authors: Sally Armstrong
These are grand claims for redressing a crime as old as Methuselah, but the researchers and lawyers working on the case insist that the evidence is on their side.
The suit is the brainchild of Fiona Sampson, project director of the Equality Effect, a non-profit organization located in Canada that uses international human rights law to improve the lives of girls and women. It came about by way of a touch of serendipity and a lot of tenacity. Sampson was doing a master’s degree at Osgoode Hall Law School in Toronto in 2002 when she met fellow students Winifred Kamau, a lecturer from the University of Nairobi Law School, and Elizabeth Archampong, vice dean at the Faculty of Law in Kwame Nkrumah University in Ghana who had come to Canada to study international law. Their mutual interest in equality rights drew the women together. A few years later, when Seodi White, a lawyer from Malawi was a visiting scholar at the International Women’s Human Rights Project at the University of Toronto, the trio became a foursome. When the African women wondered if the model used in Canada in the early eighties to reform the law around sexual assault—in which legal activists successfully lobbied to rewrite the law, educate the judiciary and raise awareness with the public—could work in Africa, Sampson started thinking about ways to tackle the entrenched violence against women in countries like Kenya, Malawi and Ghana.
Eight years after their initial meeting, the quartet gathered in Nairobi in 2010 with the pick of the human rights legal crop from Canada and Africa for the historic launch of Three to Be Free, a program that targets three countries, Kenya, Malawi and
Ghana, with three strategies—litigation, policy reform and legal education over three years in order to alter the status of women. Their intention was to tackle marital rape and make it a crime. But when the lawyers returned home and started their research, another serendipitous meeting took place. A woman named Mercy Chidi was in Toronto taking a course at the Women’s Human Rights Education Institute at the University of Toronto. One of the lawyers working on the marital rape case, Mary Eberts, was teaching the course and heard Chidi’s story. She called Sampson and suggested she meet Chidi, who was the director of a non-governmental organization called Ripples International in Meru, Kenya. Chidi told Sampson about the shelter she runs for girls who have been raped and can’t go home because the men who raped them are still at large. They both knew it was time to tackle the root of the problem—the impunity of rapists and the failure of the justice system to convict them.
Sampson admits it was her own sense of urgency that made the concept take flight. “I am the last thalidomide child to be born in Canada,” she explains, referring to the anti-morning-sickness drug whose side effects in utero had affected the development of her hands and arms. (The drug was banned in Canada in 1962.) “There was a culture of impunity in the testing of drugs at that time,” she explains, “so I’m consumed with the desire to seek justice in the face of impunity.”
Kenya has laws on its books designed to protect girls from rape, or “defilement.” The state is responsible for the police and the way police enforce existing laws. Since the police in Kenya failed to arrest the perpetrators and fail on an ongoing basis to provide the protection girls need, the lawyers are filing notice that the state is responsible for the breakdown in the system. Sampson
says, “We will argue that the failure to protect the girls from rape is actually a human rights violation, that it’s a violation of the equality provisions of the Kenyan constitution. It’s the Kenyan state that signed on to international, regional and domestic equality provisions and it’s therefore their obligation to protect the girls. Only the state can provide the remedies we’re looking for, which is the safety and security of the girls.”
Sampson and other human rights lawyers in Canada have done this successfully for approximately twenty-five years since the introduction of Section 15, the equality provision of the Charter of Rights and Freedoms. Their track record includes considerable success with precedent-setting cases that establish the state’s responsibility to protect the rights of Canadian women. One of them was a case in Toronto in 1986 involving a woman raped by a man referred to as the Balcony Rapist, who was targeting the women of one downtown neighbourhood, gaining access to their bedrooms by breaking in through second- and third-floor balconies in the dark of night. The woman, who calls herself Jane Doe, sued the police, claiming it was their responsibility to warn the potential targets of the Balcony Rapist and thereby protect them. The police tried to have her case dismissed using the argument that if they warned the potential targets, it would have tipped off the rapist. But Jane Doe argued that the Toronto police used her as bait to draw out the predator. Her courage and dogged determination turned her case into a
cause célèbre
. In 1998 she won.
Mary Eberts, who is working on the Kenyan girls’ suit, explains the connection between the two cases: “The police knew about this guy, they knew about his method of operation, and they knew where in the city the women he liked to target would be living, but they did not warn those women about the potential
danger they were in. Jane Doe was raped by this guy, as the police might have predicted. She brought this case, which we are using as a precedent in the 160 girls’ litigation, to say there is a duty on the part of the police to enforce the law—that’s why the law is there. And if the police do not enforce the law, if the government does not enforce the law, then they are guilty of violating a person’s equality.”
Eberts knows that the stars need to be aligned for precedent-setting cases to work. Her colleague Winnie Kamau, a law professor at the University of Nairobi, says a case like this couldn’t have happened even a few years ago. “I think the timing is actually quite perfect, particularly in the Kenyan context,” Kamau says. “We have a new constitution that was enacted in August 2010, and in the last half dozen years we have had some very progressive laws passed in our country. Five years ago it would have been difficult to bring everybody together, but the timing now I believe is right. There’s also a lot more awareness among African women about their rights, and they have the feeling, the sense that they need to change. We can harness these energies.”
The new Kenyan constitution contains powerful provisions that provide for increased equality for women and girls, provisions that have not yet been interpreted by the country’s courts. This is precisely where the Canadian courts were twenty-five years ago when the Charter of Rights and Freedoms was enacted. New laws must be tested and interpreted in the courts. Reflecting on their own experience with Charter challenges, the Canadian lawyers see this case as an opportunity to ensure that the courts interpret and apply constitutional provisions in ways that guarantee the human rights of women and girls. The process is time-consuming and expensive, but it’s the best way to establish
precedents that the courts can rely on for future cases. The Three to Be Free activists plan to take similar action in Malawi and Ghana once this case is won.
Historically, when you alter the status of one woman, you alter the status of her family. When a girl is confident and knows what her rights are, she knows what she can claim from the state and that the state owes her certain things by virtue of the fact that she’s a citizen of that state. She can claim an education, livelihood and shelter. She can claim that she has the right not to be marginalized. Once the state is held accountable for its obligation to promote women’s human rights and to protect women and girls from violence, a climate of intolerance for violence against women follows. There’s more likelihood that people who talk casually about violating women and girls will be censured by their friends and that women themselves will speak out, bring charges, demand justice.
~
It’s a four-hour drive from Nairobi to Meru (population 1 million) and the shelter where the Kenyan girls are staying. We drive through banana farms and tea plantations, past dark umbrella-like acacia trees, inhaling the dry scent of the savannah. Bleating goats and signs declaring “Jesus Saves” dot the landscape. Mango trees and roadsides drenched in pink, orange and red bougainvillea smack up against fluorescent green billboards advertising Safari, the country’s mobile phone provider. When we cross the equator on the way to Meru, the heat intensifies but the traffic remains the same—heavy and fast, a series of near misses for both vehicles and pedestrians.
The rutted red dirt road into the Ripples International shelter is shaded by a canopy of lush trees that offer refuge from the heat of the equatorial sun. Hedges of purple azalea and yellow hibiscus camouflage the fence that keeps intruders away from this bucolic place that is a refuge for the 160 girls who are poised to cut off the head of the snake that is sexual assault.
I’d been briefed in Nairobi about what to expect when I met the girls whose cases have been selected for the lawsuit. The first one I’m introduced to is Emily. The size of the child takes my breath away. Emily is barely four and a half feet tall, her tiny shoulders scarcely twelve inches across. But when she sits down to tell her story, her husky eleven-year-old voice is charged with determination. “My grandfather asked me to fetch the torch,” she explains. But when she brought it to him, it wasn’t a flashlight he wanted. “He took me by force and warned me not to scream or he would cut me up.” Along with thousands of men in Kenya and indeed throughout sub-Saharan Africa, Emily’s grandfather believes that having sex with a girl child will cure HIV/AIDS, a belief that led him to rape his own granddaughter to presumably heal himself. What’s worse, men believe that the younger the child is, the stronger the cure will be. Now she is taking the old man to the high court in Nairobi. Even Emily knows the case is likely to be history making. This little kid, along with the other 159 plaintiffs, knows that they may be the ones who strengthen the status of women and girls not only in Kenya but in all of Africa.
“These men will learn they cannot do this to small girls,” says Emily, who, like the other girls I met, balances the victim label with the newfound empowerment that has come to her from the decision to sue.
Charity is also eleven and her sister Susan only six. Their mother is dead. Their father raped them—first Charity, then Susan—after they came home from school one day during the winter months. Charity says, “I want my father to go to the jail.” Her sister is so traumatized that she won’t leave Charity’s side and only eats, sleeps and speaks when Charity tells her it’s okay to do so. Perpetual Kimanze, who takes care of these girls and coordinates their counselling and therapy, keeps a close eye on Susan when the little girl begins to talk to me in a barely audible voice uttering each word with an agonizing pause between, and says, “My … father … put … his … penis … between … my … legs … and … he … hurt … me.”
It’s six days since Emily was raped; she still complains of stomach pain. She can’t sleep. She says in her native Kiswahili (a local dialect of Swahili),
“Nasikia uchungu sana nikienda choo, kukojoa.”
It hurts to go to the bathroom.
Doreen, fifteen, has a four-month-old baby as a result of being raped by her cousin. Her mother is mentally ill. Her father left them years ago, and they had moved in with her mother’s sister. When she realized she was pregnant, her aunt told her to have an abortion; when her uncle found out, he beat her and threw her out of the house. She was considering suicide when she heard about Ripples and came to their Tumaini Centre—a Swahili word that means “hope.”
In Kenya a girl child is raped every thirty minutes, some as young as three months old. If a girl doesn’t die of her injuries, she faces abandonment; families don’t want anything to do with girls who have been sexually assaulted. She almost certainly loses the chance to get an education. Some can’t go to school anymore because they’ve been raped by the teacher. Others are prohibited
by the stigma; the girls are doubly victimized by being ostracized. They often become HIV-positive as a result of rape, so their health is compromised. Urinary tract infections and sexually transmitted diseases plague them. Without an education, with poor health and no means of financial support, the girls drift into poverty.
Twenty-five percent of Kenyan girls aged twelve to twenty-four lose their virginity due to rape. An estimated 70 percent never report it to the authorities, and only one-third of the reported cases wind up in court. If the prosecutor can prove that a girl was under the age of fifteen when she was assaulted, the rapist’s sentence is life in prison. But there’s the rub. The laws are not enforced, and rape is on the rise. More than 90 percent know their assailant—fathers, grandfathers, uncles, teachers, priests—the very people assigned the task of keeping vulnerable children safe. And raping little girls as a way of cleansing themselves from HIV/AIDS isn’t the only reason they act. Says Hedaya Atupelye, a social worker I met at the shelter run by the Women’s Rights Awareness Program in Nairobi, “Men think having sex with a little girl is a sign of being wealthy and stylish. Some of these men are educated beyond the graduate level, but they want to be the first to break the flower so they seek out young girls.”
If it’s the breadwinner who’s guilty, the family will go hungry if he’s sent to jail, so even a child’s mother will choose to remain silent. “It’s our African culture,” says Kimanze. “No one wants to associate with one who’s been raped or who’s lived in a shelter. We need to stand up and say the shame isn’t ours, it’s yours.”
In Kenya people can pay to have their police charges disappear. Or they can bribe a police officer and no charges will be laid. If the case is taken seriously, statements are taken, the child is sent to a doctor for examination and the file with the doctor’s
report is returned to the police. “This is also where money changes hands,” says Hedaya. “If a girl, or for that matter a woman, goes to the police on her own she is usually ridiculed and harassed. It was suggested half a dozen years ago that the police create a gender desk where a female would be safe in reporting the crime, but invariably the gender desk isn’t manned and is covered with dust.”