Accountability for Gender Based Violence: Prosecuting Sexual Offences in the Post-election Violence 2007-2008

Abstract

The post-election violence that occurred in Kenya after 2007 elections was characterized by massive human rights violation key among them being sexual offences. However very little accountability took place despite the existence of evidence of its commission. This followed a familiar pattern in accountability mechanisms for sexual crimes witnessed in other conflicts chief among them being the 1st and 2nd World Wars. Failure to prosecute sexual offences at the International Military Tribunals in Europe and South East Asia happened despite the existence of accountability mechanisms in international humanitarian law. The turning point occurred after the “establishment of the Ad hoc tribunals of ICTY and ICTR” in former Yugoslavia and Rwanda respectively to try international crimes in the two territories. At the ICTR, Akayesu was the first person in international criminal law to be convicted of sexual crimes. Lessons learned at Ad hoc tribunals have been carried “to the Rome statute of International Criminal Court” where sexual crimes form part of the courts’ jurisdiction. However, a number of challenges still exist in finding accountability mechanisms. This study examined the development of accountability mechanisms for sexual offences in the context of the post-election violence. The finding is that despite the existence of overwhelming evidence of massive commission of sexual offences during the conflict, no tangible prosecutions took place either in local courts or “at the International Criminal Court at The Hague. This shows that despite the” long term ramifications of sexual violence on its victims, the crime is not treated as seriously as murder or robbery. The failure of criminal justice systems therefore calls for innovative means of accountability mechanisms just like those 14 witnessed in investigating other crimes. Desk top analysis of secondary data was used as well as a comparative review of other jurisdictions to make an assessment of best practices.