Rape victims should be paid reparations
People wait for the beginning of the trial of a suspect in a brutal schoolgirl gang rape, on June 24, 2014 in Busia. The Judiciary needs to re-examine its rulings especially with regard to rape and apply the full extent of the law as provided for in our statutes. PHOTO | NICHOLE SOBECKI AFP
Rape is a heinous crime. How does one even begin to envisage compensation as part of a justice package for a rape survivor?
Before you get the wrong end of the stick, consider the real story of a rape and post-election violence survivor who we shall call Cherotich.
“That fateful evening as I walked home worried about my two little brothers who now depended on me, suddenly a strong sweaty hand grabbed and quickly pushed me into the thicket. I began to scream. Two other cigarette stinking men joined him. They brutally raped me as I begged for mercy. They went on until I passed out. “Later, I learnt I had developed fistula and had contracted HIV. My womb had been infected and had to be removed. To the world, I am another statistic. No one understands my pain.”
People who rape should be locked up for a long time and, as some argue, the prison keys thrown away. In some countries like the US, rapists are profiled and in extreme cases isolated.
However, after the perpetrator has been locked up, what mechanisms exist to help the survivor onto her feet again?
Granted, locking up Cherotich’s tormentors will save other girls from such beasts and serve as a warning to others. What is not clear is how Cherotich will get her health back and be able to fend for her brothers, let alone live a normal life again.
These are difficult matters to venture into, but we must face them if only to see life from the survivors’ eyes.
In what could easily go down as a seminal publication, the Agency for Cooperation and Research in Development (ACORD) has a very interesting read in a policy brief titled, "Our Bare Minimum".
Arguing its case in this publication, ACORD observes that, “sexual and gender-based violence in Kenya has reached alarming heights with hardly a single day passing without reported cases of rape and violence against women.”
JAIL AND FINES NOT ENOUGH
What however stands out in this new argument about justice for rape survivors is the concept of reparations.
In international law, reparation is the process of the wrong-doing party redressing the damage caused to the injured party. Rape perpetrators, according to this thinking, must, besides being punished, be forced to foot the medical bills of the survivors and made to pay to restore the livelihoods destroyed by their heinous crime.
This, it is argued, helps in a small way to transfer the guilt of rape that is often on the survivor to the real person who should own it – the perpetrator. He must suffer material deprivation in addition to being denied freedom!
Reparation is a concept that exists in law. It is, therefore safe to argue that, “as we look into having more forceful provision in our laws, there is an urgent need to begin utilising provisions that already exist to ensure victims of sexual violence are effectively compensated”.
To anchor this argument in Kenyan law, check our Penal Code, Articles 139-169. Chapter 24 provides compensation as one of the forms of punishment that can be imposed by a court in crimes mentioned in the Penal Code.
While locking up rapists and imposing fines is quite in order, it is not enough. In cases where fines are imposed, they go to the State. What goes to the survivor?
The Legislature must rise to the occasion and enact the requisite laws that take into consideration reparations for such crimes as rape as was envisaged under the Constitution.
The Judiciary needs to re-examine its rulings especially with regard to rape and apply the full extent of the law as provided for in our statutes.
Mr Nanjakululu is the ACORD Kenya country director (Jacob.firstname.lastname@example.org)
As Originally published on Daily Nation