Case Summary C.K. et al v the Commissioner of Police/Inspector General of the National Police Service et al Petition no. 8 of 2012

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1 Case Summary C.K. et al v the Commissioner of Police/Inspector General of the National Police Service et al Petition no. 8 of Reference Details Jurisdiction: High Court of Kenya Date of Decision: 27 May 2013 Case Status: In case of appeal (to be filed within 14 days of the date of the decision), the case shall be considered by the Court of Appeals in Kenya, which is the court with jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament. Link to Full Case: 2. Facts of the Case The case was brought by a Kenyan NGO named Ripples International (the 12th Petitioner) on behalf of eleven Kenyan girls (the first eleven Petitioners) against the Commissioner of Police/Inspector General of the National Police Service (1st Respondent), the Director of Public Prosecutions (2nd Respondent), and the Minister for Justice, National Cohesion & Constitutional Affairs (3rd Respondent) through a petition dated 11 October The petition was filed as part of the 160 Girls Project, a programme coordinated by a Canadian NGO, The Equality Effect, that aims to achieve justice and protection against rape for all girls in Kenya through strategic human rights litigation. The Kenya National Commission on Human Rights joined the case as Amicus Curiae, and the Federation of Women Lawyers (FIDA Kenya) was an interested party to the proceedings. According to the facts provided in the petition, the first eleven Petitioners had on separate dates between 2008 and 2012 been victims of defilement (rape) and other forms of sexual violence and child abuse, as defined in the Kenyan Sexual Offences Act In each case the alleged acts were perpetrated by members of the victim s family or community and were reported to the police authorities within Meru County. The petitioners contended that, in relation to each of the allegations, the police authorities neglected, omitted, refused and or otherwise failed to do one or more of the following: conduct prompt, effective, proper and professional investigation into the petitioners' complaints; record the petitioners' complaints in the police occurrence book ; visit the crime scenes; interview the witnesses; collect and preserve evidence; take steps to hold the perpetrators accountable for their unlawful acts; take such other legislative, policing and/or administrative measures as would protect the petitioners (in common with other Kenyan children) from abuse, sexual violence, inhuman and degrading treatment. It was also argued that due to the police s actions and omissions the petitioners had suffered grave physical and psychological trauma and that, as the perpetrators of the offences had not 1

2 been brought to justice, they continued to threaten the physical and psychological wellbeing of the petitioners. In order to support their claim, the petitioners' counsel attached opinions of two experts on Kenyan and International Police standards for establishing the standards to be applied to police treatment of defilement. Both experts concluded inter alia that in all cases investigations were inadequate and fell short of international policing standards in that the police failed to visit scenes of crime to gather evidence that is vital in collaboration of a case, did not interview witnesses/victims, samples were not taken and even those produced by victims were never forwarded to the Government analysts' for examination. The petition was supported by affidavit of Mutuma Kirima, a Social Worker employed by the 12th Petitioner. 3. Law National laws: Articles 2, 21(1), 21(3), 27, 28, 29, 48, 50(1) and 53(1), (c) Constitution of Kenya, 2010; Section 3, 5 15 and 22 Children Act 2001 (Chapter 141) of the Laws of Kenya; Sexual Offences Act, 2006 (Act No.3 of 2006); and The Police Act (Chapter 84) of the Laws of Kenya. International laws: Articles 1 to 8 (inclusive) and 10 Universal Declaration of Human Rights; and Articles 2, 4, 19, 34 and 39 United Nations Convention on the Rights of the Child. Regional laws: Articles 1, 3, 4, 16 and 27 African Charter on the Rights and Welfare of the Child; and Articles 2 to 7 (inclusive) and 18 African Charter on Human and People's Rights. 4. Legal Arguments Applicants arguments The 12th petitioner contended that the neglect, omission, refusal and failure of the police to conduct prompt, effective, proper and professional investigations into the eleven petitioners respective complaints violated their fundamental rights and freedoms under, inter alia, articles 2, 21(1), 21(3), 27, 28, 29, 48, 50(1) and 53(1)(c) of the Constitution of Kenya 2010; articles 1 to 8 (inclusive) and 10 of the Universal Declaration of Human Rights; articles 2, 3, 19, 34 and 39 of United Nations Conversation of Rights of the Child; articles, 1, 2, 3, 16, and 27 of the African Charter on the rights and welfare of the child; and, articles 2 to 7 (inclusive) and 18 of the African Charter on Human and Peoples Rights. The 12th petitioner further complained that the police's failure to act on the petitioner s complaints constituted a grave abdication of statutory duty and express and implied provisions under, inter alia, The Sexual Offences Act 2006 (Act No. 3 of 2006) and The Police Act (Chapter 84) of the Laws of Kenya. Respondents arguments The 1st and 3rd respondents did not file any replying affidavit but filed grounds of opposition dated 6 March 2013 alleging that the petition was incompetent, and bad in law. They contended that: the petitioners had not identified the perpetrators by giving their names; the court lacked jurisdiction; the petitioners had not demonstrated how the respondents were involved in the 2

3 order sought; and the petitioners had not exhausted all available avenues. Accordingly, they argued that constitutional remedies should be trivialised. The 2nd respondent filed a replying affidavit dated 17 January 2012, in which it referred to article 157(4) of the Constitution of Kenya, which gives the Director of Public Prosecution power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct. It was averred that such directions to investigate were given by a letter dated 29 May Decision On the 1st and 3rd respondents grounds of opposition Given that the 1st and 3rd respondents did not file any affidavit to controvert the matters raised in the affidavit of the 12th Petitioner, Judge Makau took the affidavit s allegations to be unchallenged and truthful. He noted that the names of the perpetrators had clearly been given and their whereabouts disclosed. On the matter of jurisdiction, Judge Makau decided that the Court had jurisdiction to entertain the proceedings. Firstly, he noted that under article 22 of the Constitution of Kenya everyone has the right to institute court proceedings for enforcement of the Bill of Rights, including a person acting on behalf of another person who cannot act in their own name, which legitimated the 12th petitioner to act on behalf of the first eleven petitioners. Second, article 23(1) of the Constitution of Kenya provides that the High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Accordingly, the judge rejected and dismissed the 1st and 3rd respondents grounds of opposition. On the 2nd respondent s affidavit Judge Makau held that the letter dated 29 May 2012, which the 2nd respondent stated demonstrated that there had been a direction to investigate, only related to the complaints of two of the eleven victims. Further he found that it had not been written to the Inspector General nor was it copied to the relevant office. The judge found that the 2nd respondent s affidavit failed to provide reasons for their refusal, neglect or omission to act on the petitioners complaints or to prosecute the perpetrators promptly upon receipt of the various complaints. On the merits Under article 21 of the Constitution of Kenya, the state and every state organ has a fundamental duty to observe, respect, protect, promote and fulfil the rights and fundamental freedoms protected under the Kenyan Bill of Rights (which is an integral part of the Kenyan Constitution under articles 26 to 51). The judge held that the respondents had breached article 21 of the Constitution by failing to comply with their constitutional duty to protect the rights and fundamental freedoms of the petitioners, and, as a consequence, a number of other constitutional fundamental rights of the petitioners had been violated. In particular, the following constitutional rights were found to have been violated: the right to special protection as members of a vulnerable group, as provided under article 21(3); the right to equal protection and benefit of the law and the right not to be discriminated against, as provided under article 27; 3

4 the right to inherent dignity and the right to have the dignity protected, as provided under article 28; the right to security of the person, which includes the right not to be subjected to any form of violence, either from public or private sources, and the right not to be tortured or to suffer cruel or degrading treatment, as provided under article 29; the right to access to justice, as provided under article 48; the right to a fair and public hearing before a court, as provided under article 50; and the right of every child has to health care, as provided under article 53(1)(c). The judge also declared that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners' respective complaints violated the first eleven petitioners' fundamental rights and freedoms under general rules of international law, including any treaty or convention ratified by Kenya, which formed part of the law of Kenya as per Article 2(5) and 2(6) of the Constitution of Kenya. In particular, the following international provisions had been breached: articles 1 to 8 (inclusive) and 10 of the Universal Declaration of Human Rights; articles 2, 4, 19, 34 and 39 of the United Nations Convention on the rights of the child; articles 1, 3, 4,16 and 27 of the African Charter on the Rights and welfare of the child; and articles 2 to 7 (inclusive) and 18 of the African Charter on Human and Peoples Rights The judge found that it was clear that the eleven petitioners had faced serious physical and psychological harm. The judge noted that whereas the perpetrators were directly responsible for the harms to the petitioners, the respondents could not escape blame and responsibility, as their ongoing failure to ensure criminal consequences for the perpetrators through proper and effective investigation and prosecution of the crimes had created a "climate of impunity" for the commission of sexual offences and in particular defilement. The judge held that this made the respondents directly responsible for physical and psychological harms inflicted by perpetrators. The judge referred to the Inter-American Commission of Human Rights decision in Jessica Len Ah An (Gonzales) et al v US (Case , Report No. 80/11, 17 August 2011). In that case, in which the Commission had considered police obligations to enforce a restraining order in circumstances where a father took his children from their mother's custody without permission and killed them, the Commission found that there was "broad international consensus" that states "may incur (...) responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations for acts of violence against women". The judge held that the state's duty to protect is heightened in the case of vulnerable groups such as girl-children. He went on to find that the state's failure to protect need not be intentional to constitute a breach of its obligation, and that the police failure to act on the petitioners complaints of defilement violated their rights under article 53 of the Constitution of Kenya (that provides for a series of rights of the child), particularly the state s duty to protect the best interest of the child. The judge referred to the state s obligations to uphold the right to non-discrimination under Article 27 of the Kenyan Constitution, which stipulates that: (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. 4

5 ( ) (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth." He also referred to Article 1 of the Convention of Elimination of All forms of Discrimination against Women, which defines discrimination against women as including "acts that inflict sexual harm". He found that the police failure to conduct prompt, effective, proper, corruption-free, and professional investigations into the petitioners complaints of defilement and other forms of sexual violence amounted to gender-based discrimination contrary to the express and implied provisions of article 27 of the Constitution of Kenya. Furthermore, the failure to effectively enforce section 8 of the Sexual Offences Act infringed upon the petitioners right to equal protection and benefit of the law under Article 27 and contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity. 6. Remedy An order of mandamus was made directing the 1st respondent together with his agents, delegates and/or subordinates to conduct prompt, effective, proper and professional investigations into the 1st to 11th petitioners' respective complaints of defilement and other forms of sexual violence and to implement article 244 of the Constitution in as far as it is relevant to the matters raised in the petition. 5