Elusive justice for victims of rape as police bungle cases

Five years ago, Jacinta Kamau*, 38, boarded a matatu from the Commercial Bank stage in the city centre, Nairobi, at about 7.30pm. It was a Sunday, so she expected to arrive at her destination, Kikuyu, a few minutes past 8pm. But things did not turn out that way.

NO PEACE

At Kangemi, four men boarded the matatu. One sat with the driver while the other three took various seats in the back. A few minutes later, Jacinta heard a commotion in the driver’s cabin, and the matatu began swerving. A few seconds later, one of the three men in the back drew a gun and ordered everyone to face down and put all their money and phones in a bag his accomplice passed around.

The gunman then viciously hit the passenger nearest him, a man, on the head, promising that he would kill anyone who defied his order. Shaken, Jacinta compiled, praying that the men would alight once they got the money and phones.

But they had other sinister plans. The matatu went past the Kikuyu junction and into Zambezi. Jacinta says they all ended up “somewhere in Limuru in a lonely dark spot”.

The gunman ordered all passengers out and told them to lie on the ground. Jacinta recalls the place being bushy. Two of the men, she says, raped her. Several women in the matatu were raped too.

What happened next remains a blur five years on, though she recalls being driven by a Good Samaritan to hospital, where she was treated. Her mother would later pick her up and drive her home. “I reported the case two days later, but I never followed it up,” she says.

For all she knows, the men who stole from her and then raped her, scarring her for life, are out there, free as birds, going about their lives as if what they did to her never happened.

At the time of the rape, Jacinta had a boyfriend that she planned to marry. They were in love, and had in fact introduced each other to their families. But after that incident, she could not bring herself to be in the same room with her boyfriend, leave alone get married to him. And so she ended the relationship. Jacinta is still single, and no, she does not think that she will ever get married. “I cannot bring myself to be with a man,” she explains. Moreover, she says, she would have no peace were she to get a daughter.

ERASE SCARS

“I would worry about her all the time … no, I will never get married …” she trails off.

Margaret Mwiti, a counselling psychologist for the past eight years, says that time cannot erase the scars of rape. “The physical scars will wear off with time, but the psychological ones will always be there,” says Ms Mwiti, who has counselled several rape victims.

One of the psychological symptoms victims experience is anxiety, normally soon after the rape. “Some also blame themselves, convinced that had they gone home earlier, or not gone to that party or been in the same room alone with the perpetrator, then the rape would not have happened,” she continues.

Some get depressed while others contemplate suicide.

Some, like Jacinta, are unable to go through the normal phases of life that many go through such as getting married and having children. “Rape is a big burden to live with,” Ms Mwiti says.

Scene of crime: the Nyalenda slum in Kisumu. A 15-year-old girl sits in a corner of her family’s iron-sheet home. She tells us that she was defiled by a group of men in 2018. She still remembers that day. It was, in fact, December 26. The gang was not content with raping her, they also inserted an empty soda bottle into her private parts and left her for dead.

“The people who found me called the police. The bottle was removed and I was taken to hospital,” she says in a small voice.

She tells us that the police did not preserve the bottle as evidence, as one would expect. Instead, it ended up exchanging hands among the crowd that had gathered at the scene of the crime, a factor that, a forensic expert would tell you, would complicate the investigation due to the many finger prints introduced to the evidence. This factor alone would be enough to deny the victim justice.

Almost a month later, a four-year-old girl was defiled by a man known to her mother.

PROCESSING EVIDENCE

The child was taken to hospital, and on arrival, she had all relevant tests done, including high vaginal swabs. Treatment was then initiated. The team leader of a community-based organisation advocating children’s rights in Kisumu, Ms Hellen Apiyo, says the investigation was initiated by the police.

“We knew that by not cleaning the girl after the incident and not tampering with her clothes, as well as having the high vaginal swab done, we would attain justice for her,” says Ms Apiyo, an advocate with Watoto Musiliye.

Unfortunately, the girl’s family refused to proceed with the case, citing intimidation from people, including the police. But Ms Apiyo believes the girl’s family was compromised.

These are just two of many such cases. Several other cases have been reported where prosecution of rape and defilement failed to take due course because of shoddy investigations.

In a rape incident in Nairobi in March 2015, bedsheets collected by police as evidence from a suspect’s house had been used as curtains at the Soweto Police Station, prompting Makadara Senior Resident Magistrate Evelyn Nyongesa to issue warrants of arrest against the investigating officer and two others. “Several victims of defilement, rape and sodomy have failed to attain justice because investigating officers fail to take their work seriously while handling and processing evidence,” Ms Tuli points out.

Dr Kizzie Shako, a forensic medical apecialist and National Police Service surgeon, during calls for review of the P3 Form, highlighted that medics do not gather enough information from the victim, which explains the high number of acquittals.

“The Police Form (P3 form) is archaic, there is inadequate information input when it comes to post-rape care,” Dr Kizzie said.

Statistics from the 2019 Economic Survey show the high rate at which reported sexual offences fail to be concluded.

The survey by the Kenya National Bureau of Statistics indicates that 75,037 people were reported to the police as having committed sex crimes in 2018, 4,700 more than the cases reported in 2017. But only 312 suspects served probation in 2018 and 286 in 2017.

PROSECUTION

In a landmark case filed in Meru County, christened the “160 Girls Project”, the court held that it is the responsibility of the State to ensure access to justice for girls who have been sexually abused. The petitioners, all minors, were victims of defilement and other sexual abuses on sundry dates between 2008 and 2012.

The court found that the police in Meru County had failed in three key areas: to investigate claims of sexual abuse brought by young girls, to arrest sexual offenders, and where they arrested the offenders, they handled the prosecution so poorly that the offenders would be released.

The police, the Director of Public Prosecutions and the Justice minister, the court said, were responsible for the violation of the rights of the girls in this case because of omissions and inaction.

The Sexual Offences Act was passed in 2006, giving hope to women and girls throughout the country that their right to be free from sexual violence would be protected, but from the “160 Girls” decision, the court proved that the legal provisions have not been adequate in ensuring women and girls in Kenya are free from sexual violence.

While deciding a defilement case in 2013, Justice James Makau in Meru noted that police had failed to conduct prompt and professional investigations and protect violated girls.

“The police, by demanding payment as a precondition for help, whether for fuel or P3 forms or whatever the case might have been, violated the petitioners’ right to access of justice,” the judge pointed out.

In the case, the evidence of the police failure to conduct proper investigations was documented by social workers from the shelter run by the 12th petitioner.

But even after the ruling six years ago, police still fail to conduct proper investigations that can lead to a successful prosecution.

SPECIMEN

In criminal appeal 11 of 2016 in a case filed by one JK (aged about 16 years, a Form Three student) against John Mutua Munyoki, the appeal judges noted:

“There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice”.

Under Section 36 (1) of the Sexual Offences Act, DNA has to be conducted to ascertain whether or not it was the appellant who committed the offence.

Crime scene expert Edward Obonyo says many cases of defilement fail to earn the victim justice because some investigating officers fail to secure scientific evidence, which is vital in the case.

“The Control (obtained from the victim) semen specimen and the Questioned (from the suspect/s) semen specimen should match to facilitate prosecution of the suspect,” Mr Obonyo says.

The Forensic Crime Scene laboratory at the Directorate of Criminal Investigations and the DNA Section of the Government Chemist have the capability to conduct forensic investigations on specimen obtained from the victim.