The Sexual Offenses Bill

So I’m writing this very warily because I normally have a standing policy of doing things well or not at all, and I can’t address this issue as well I’d like right now because I’m juggling like twenty thousand things BUT I have to say at least something so here goes and hopefully I’ll have some time over the next few days to address anything I didn’t get to. Because of time constraints, this is mostly non-legal commentary.

The Good.
– The bill finally made it to Parliament. The process in South Africa has taken ten years and counting…
– The process to get the bill to Parliament was effective – mobilizing, lobbying, organizing etc. This approach should be extended to other issues that are not “women” issues on their face, but that disproportionately affect women e.g. budget expenditure. Women can be a powerful lobby group in Kenya, but the movement has to be seen as addressing not just issues of “Nairobi women”. How about effectively lobbying on access to potable water, sustainable energy, and other issues that make the lives of women in the rural areas very difficult?

– I liked reading the (disgusting) reports of what happened in Parliament from those who were in the public gallery. Wish we could have more of this – not newspaper reporting, but almost like blogger report of what happened. Is there anyone out there who would like to do this kind of reporting for a reasonable fee? You’d have to have a sharp memory because no note-taking is allowed…or maybe we can hook you up with a fancy digital recorder. Drop me a line if interested. No promises at this point, but something is in the pipeline. kenyanpundit-at-gmail.com

Sidebar: For those who are upset about the minimum sentencing provisions, the issue is not that we didn’t have tough sentencing on the books before, we did. However, judges had discretion to set minimum sentences and they have roundly abused this discretion (you just have to rifle through a couple of decisions to see what people were getting away with). Since the judges have shown an inability to exercise their discretion in light of the facts, as they are supposed to, and don’t seem to be willing to change anytime soon (they’ve even been projects that have attempted to sensitize judges and magistrates on this) minimum sentencing is the only logical option. One last thing, past sexual history is not completely thrown out, the judge has discretion and we know how that goes in Kenya….

The Bad
– I don’t agree with the omnibus strategy that was adopted by those who pushed for the Bill. By that I mean throwing in female circumcision, pimping, and other issues that made low picking fruit for opponents of the bill and that detracted from fundamental issues that need to be addressed. As the saying goes, you have to pick your battles. I’m excluding sexual harassment from this, because I have either been the target or witness of sexual harassment in pretty much every working environment that I’ve been in Kenya it is a HUGE problem…I agree that the current clause could be tightened but there’s only so much that can be done as far as drafting – that fine line issues are often determined in a court of law precisely because they are fact specific, but I digress.

– The bill should have been widely available online way before this (this is more of a strategic point).

– MPs who are busy making noise in Parliament about provisions that they had issues with bill and acting all ambushed when they had more than ample opportunity to share their opportunities in forums with the proponents of the bill.

– OK, a bit of legal analysis. The provision on third-party liability for any offenses committed within the premises is ridiculous (section 30), the requirement on disclosure of past sexual offenses is empty without a registry, the definition of rape should be expanded…I definition I like, the ICTR defines rape as “ a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” Should point out though that non-genital penetration is provided for in the Bill though it is considered sexual assault and not rape.

Omissions (well I hope people are working on this

It is important to keep in mind that a lot of the problems that victims of sexual offenses in Kenya face are not necessarily legal. For instance, changing the current hostile environment that a victim faces who wants to report a rape or assault faces requires more than changes in the law – police stations that abuse victims should be highlighted and shamed; a victim has to obtain a P3 BEFORE the medical exam – I don’t even need to explain how nonsensical this is; victims who go to district (public) hospitals typically have to wait in line to get a hospital card, and then wait in line again in order to be attended to by a doctor or a clinical officer, and then wait to see a laboratory technician and recount what happened at each stage of the process; most hospitals do not have adequate facilities to store medical evidence….

There’s a lot more I have to say on omissions…my main point is that I hope that there will be efforts to continue pushing for change beyond the law, otherwise it won’t amount to much.

Off to feed my hungry stomach and hopefully a bit more on what else I think needs to be done.