July 18, 2022

‘We are putting you on notice’ – the feminist fighting to prevent sexual violence in Kenya’s election

By Megan Clement (follow me on Twitter here)

It is the eve of elections in Kenya, and amid the frenzied final weeks of campaigning between deputy president William Ruto and former prime minister and long-time opposition leader Raila Odinga, the threat of violence looms.

In 2007 and 2017, the post-election period descended into episodes of mass violence carried out by security forces and civilians. More than a thousand people were killed in the conflict that followed the 2007 election, and there were at least 900 cases of sexual violence, though the true toll is thought to be much higher.

Ruto and current president Uhuru Kenyatta were subsequently charged with crimes against humanity by the International Criminal Court for their roles on opposing sides of the conflict. The charges against Kenyatta were withdrawn, and the case against Ruto was dismissed.

As the 2022 poll heats up, civil society groups have warned of the potential for another outbreak of conflict in the aftermath of election day on August 9.

Christine Alai is a human rights lawyer who specialises in transitional justice. As part of the NGO Physicians for Human Rights, she was part of a legal challenge to recognise and provide reparations to survivors of gang rape and forced circumcision during the post-election violence of 2007-8. Today, she is co-founder and trustee of the Utu Wetu Trust, which works with survivors to pursue justice through strategic legal cases, and a transitional justice advisor to the UN Commission on Human Rights in South Sudan.

Impact spoke to Alai about how feminists and activists are working to prevent history repeating in 2022, and the fight for justice for survivors of past episodes of sexual violence. The conversation has been edited for length and clarity.

Megan Clement: Tell me about yourself, Christine, and how you came to be involved in the work you’re doing today.

Christine Alai: I started with the Kenya National Commission on Human Rights in 2006 and in 2007, the post-election violence happened. I was part of the teams that were sent out to investigate and document what had happened. I remember very vividly the victims who were burned in the Kiambaa church in Eldoret – one of the goriest incidents of post-election violence. Our team was tasked with going to that church and then following up the stories, including visiting children who were burnt at a hospital. And my god. I was very young, I had never interacted with anything like this my whole life, because Kenya had never experienced that level of conflict. It was life-changing. And I think that sealed my decision to use my legal skills to support victims of gross human rights violations.

After the post-election violence, we had a process that gave rise to a coalition government, a Truth, Justice and Reconciliation Commission and an inquiry that eventually led to International Criminal Court cases and now, an ongoing process of trying to pursue reparations. I became part of a group that began to conceptualise a strategic impact litigation case to bring justice to victims of post-election sexual and gender-based violence. The essence was to find the government itself responsible for failing to prevent the violence, for failing to respond effectively when the violence occurred, and for continuing to fail to investigate and prosecute perpetrators and provide reparations to victims.

We had eight victim petitioners in the case, who are representative of the various forms of violations that many others experienced – they had been gang-raped by state security officers, or by civilians, and there was forced circumcision against two male victims. We were in court for seven years, back and forth before six different judges until eventually, a decision was passed by the High Court in December 2020.

The court agreed on all accounts that the state is responsible for preventing conflict-related sexual and gender-based violence, for protecting its citizens from it, and for effectively investigating, prosecuting and providing remedies. But unfortunately, the court only found in favour of four of the eight victims, including three who were gang-raped by state police officers. The court determined that the state is vicariously responsible for the violations that were committed by their own agents. The other of the four was gang-raped by civilians. But the difference between her and the others is that she reported her case to the police. The judge ordered compensation of four million Kenyan shillings (US$33,800) to each of these four victims.

For the remaining four, the judge said, ‘I cannot help you because you have not told us who your perpetrators were’. We filed a partial appeal in November last year, and we are now pursuing that appeal for all eight victims. 

Megan Clement: What is the history of sexual violence related to Kenya’s elections?

Christine Alai: Violence during elections has been a very common tool to destabilise opponents since the reintroduction of the multi-party system in Kenya in the 1990s. We’ve called it different things like “land clashes” and “ethnic cleansing” at different times. In all of these contexts, there has been sexual and gender-based violence, which was rarely reported, because of the stigma, the lack of  safety, and the structural barriers.

2007 was the very first time there was a deliberate effort [to monitor sexual violence] given the sheer scale of the violence, and the acknowledgement that in previous episodes, sexual and gender-based violence had occurred, but was not properly documented. The commission of inquiry into post-election violence hired a specialist to document cases. As a result, you had a whole chapter dedicated to sexual and gender-based violence against women and girls and violations against men and boys as well.

Even with all of these efforts, only 30 victims testified before this commission. This was supplemented with testimonies from doctors from various hospitals where victims had reported, and from civil society organisations who were offering support to those victims. The commission eventually reported that there were at least 900 cases of sexual and gender-based violence, and to say that those cases were the tip of the iceberg.

In 2017, there was violence at a lower level. The Kenya National Commission on Human Rights commissioned a study that found 201 cases of sexual and gender-based violence in 11 counties. Again, they emphasised that this is a very small percentage.

This time around, there’s a very clear focus on ensuring that we get it right. We are now at a much better place where we cannot say, ‘we are not aware’.

Megan Clement: A number of NGOs andnhuman rights groups are warning that the heated conditions surrounding the upcoming election could spark a fresh wave of violence in Kenya. What are the specific concerns?

Christine Alai: I think most importantly, is that you have two presidential candidates, one whom [William Ruto], was in government as deputy president and who is seemingly in opposition because he fell out with the president. And then you have [Raila Odinga], a former strong opponent of the current president together with his vice president [Martha Karua], who have now sided with the president. The president feels he must win with Odinga to prove a point, and the deputy president feels he must win to bring the point home that henreally was the right leader. There’s a do-or-die element, which is the strongest indicator from our previous electoral cycles that creates an atmosphere for violence.

Underlying all of that is ethnicity, which is something that is never lost in all our elections. We can be best friends any other day, but when it comes to elections, we take political sides and each side has done an ethnic calculation and a geographic calculation. They want to win as many of the ethnic groups as they can by bringing the ethnic leaders to their side. And this year, the Kikuyu vote is split.

Then there is the economic question. The frustration of how bad things have turned out economically could easily be triggered to cause violence. Everything is expensive, and people are very angry. It feels like they just need to be pushed hard enough to flip.

The preparedness of the Electoral Commission is another issue. Speaking to election specialists, across the board, they say they are not prepared, there is a likelihood that the electronic transmission system may fail. The immediate triggers are very much present.

Finally, the biggest issue that I see is that, electoral cycle in and electoral cycle out, we have had impunity for political violence. Historical grievances have not been addressed. The Truth, Justice and Reconciliation commission attempted to do that, but the report has never been implemented so the grievances have remained intact. In the majority of cases, victims have never been remedied and perpetrators have never been held accountable.

Megan Clement: How are activists and civil society groups organising to try to prevent a repeat of 2007 or 2017?

Christine Alai: There are already monitors on the ground monitoring any form of sexual and gender-based violence across the country, documenting it and making sure the outcomes can feed into mitigation measures.

The policenhave been working closely with institutions like ours. They now have various mechanisms in place to engage with communities so they can report any kind of unease in a timely manner. The National Cohesion and Integration Commission released a report that listed various hotspots with potential for violence.

We are now at that stage where we are trying to draw out what our referral pathways could look like, particularly in those hotspot areas. We’re saying that in informal settlement X, these are the community gender activists we have on the ground, these are the paralegals, these are the people who are already trusted within their communities, and to then conduct awareness campaigns so that victims are able to know they can report to Person X.

We’ve asked for it to be a non-negotiable condition that for all police officers deployed, we want to have their names. So if a victim then reports that they were raped by a GSU officer, then we go back to the commander to ensure we are reporting in a timely manner.

In a nutshell, what we’re saying this time around is: ‘We are putting you on notice’. We’re saying that this time around, whether or not victims report – because the structural barriers still exist – whether or not victimsnknow who the perpetrators are, somebody must be held accountable.

Megan Clement: In 2022, we have three women running for deputy president and 47 women representative posts are up for grabs. Would an increase in women in government be helpful?

Christine Alai: Absolutely. We had acknowledged that women’s leadership is important enough that we actually ingrained it in our constitution, but implementing that has continued to be an issue.

We have not dismantled this way of thinking that women are not as good as men. We need to unlearn our socialisation to the extent that when a voter sees a man and a woman on that ballot paper, it will not be a question of their gender, but a question of their capabilities and their competencies. This is the task of our generation.

Elections become annextremely important place to play that out. And leaders and political parties can make a very deliberate choice to continuously create room. The more we have more women coming up, then we demonstrate to our children that we can all be leaders. But the harder work is not during elections. We reap the result during elections of what we have done in between. The harder work is how we are sensitising, unlearning and dismantling all of these negative beliefs that are gender-based so that we create a fully equal and free world for everybody to show up and be the best of themselves.

Megan Clement: You’ve been fighting hard for accountability for many years. What helps you keep going and what gives you hope?

Christine Alai: I recently turned 40, and when I was thinking of what to celebrate, I thought I want to have a cause – something that’s going to outlive this 40 years for the next 40. I ended up calling family and friends to support victims of sexual and gender-based violence. I thought it was going to be something different because I was like, ‘I want to separate work from life’. But I then realised that the thing that really keeps me going is that it’s not just a job. It’s not just my work. I actually live out my deepest values and life calling and purpose through my work.

The second very powerful tool that gives me hope is interacting with survivors. Our work is so survivor-centred that it becomes inevitable to be reminded each time that this is actually life and death for somebody else. It’s not a paycheck. It is very tiring, and sometimes we lose steam. But we come back to this place of strength by working hand-in-hand with survivors. For me, whatever direction it takes, it really is a life calling.