Charging P3 forms brazen injustice for victims of violence

Four months and counting, we seem not to appreciate the import of a landmark judgment with the likelihood to enhance justice among, particularly, poor survivors of violence.

On April 4, Justice Florence Muchemi, sitting in the High Court in Embu, declared charging for P3 forms unconstitutional. She was categorical that the Cabinet secretary for Health, Inspector-General of Police, Attorney-General and national- and county government-managed health facilities were prohibited from charging for the forms.

The judge termed such payment and any other solicitation therefrom a violation of the basic principles of access to justice. Simply put, charging for P3 forms is null and void.

VIOLENCE

The judgment may have gone unnoticed because information from various counties indicate non-compliance. This necessitates a reminder, especially from the Legal Resources Foundation Trust, who canvassed the matter on behalf of poor Kenyans.

Violence is barbaric, primitive, unjust and unashamedly a manifestation of a society whose values are fast eroding. Survivors of sexual and gender-based violence, grievous harm and assault, among others, are ostracised, stigmatised and discriminated against when made to pay for P3 forms.

Records show that at least seven of 10 Kenyans, more so women, cannot afford and, therefore, often abandon prosecution, hence lessening the legal possibilities of dealing with perpetrators of violence.

For Kenya to implement Sustainable Development Goals, especially Goal 16, a culture of observing and respecting court orders must be nurtured. But the opposite is true and common among national and county governments agents.

It is not the entitlement of the State to ensure legal inclusivity, through public participation, including protests; Kenyans must be central to this discourse. Article 48 of the Constitution is an aide-mémoire that institutional and legal governance, which upholds the rule of law, is evidentiary to civility. So, should non-compliance to Justice Muchemi’s judgment bother us as a country?

FAIRNESS

P3 forms are central in managing the criminal justice system in Kenya. They are strategic evidence-archiving instruments, without which ascertaining allegations regarding violence may be difficult. Secondly, they serve to demonstrate the extent of harm and confirmation of offence in sexual and gender-based abuse.

The absence of a medical expert’s opinion, which is recorded in P3 forms, reduces the level of truthfulness in an allegation of violence. Therefore, mishandling P3 forms is a procedural blunder that points to a mistrial, yet Article 50 of the Constitution demands fairness.

The magnitude of the P3 issue is so huge that the Law Society of Kenya and International Justice Mission were part of the suit as interested parties. Court of Appeal data indicate that perpetrators of violence are likely to be acquitted for lack of P3 forms or poorly filled ones. This is besides varied testimonies by medical experts, who didn’t interact with the survivor and are, hence, less inclined to link the information in the form to the moment of reporting.

The interdicts by Justice Muchemi politely instructed that P3 forms are not to be charged for, irrespective of the crime they represent; public health facilities were not to charge any form of fees on P3 forms; and police officers and stations were expected not to nor seem to suggest or behave in such a manner as if P3 forms were only accessible at a fee.

DISRESPECT

Further, the Health CS was to issue a directive to public hospitals not to charge for P3 forms; the national and county governments, under Article 174 and 189, were to ensure that health facilities did not charge for P3 forms; the Council of Governors was to employ its political and administrative oversight to rein in counties’ health authorities that charged for P3 forms; and the Attorney-General was to constitute a multi-stakeholder dialogue to develop policy and guidelines on the modus operandi of P3 forms.

The public should be vigilant and canvass emerging trends of blatant disrespect for court orders and monitor how institutions implement the judgment. Nonetheless, officers in the Ministry of Health, in particular those working in public hospitals, ought to remember that they cannot cite institutional failure to observe its order as defence for contempt of court.

We must echo Benjamin Franklin’s perspective of justice. He once said: “Justice will not be served until those who are unaffected are as outraged as those who are.”

Mr Mukoya is the executive director of the Legal Resources Foundation Trust. [email protected]