
Following the disputed 2007 general elections in Kenya, the country descended into widespread chaos and bloodshed, resulting in the deaths of over 1,100 individuals. Thousands more endured various forms of violence, including sexual violence, which was perpetrated against women, men, and children. More than a decade later, the majority of these violations remain unpunished, leaving survivors to grapple with long-term physical, emotional, and psychological trauma in the absence of justice or accountability.
In an effort to address this egregious failure, a group of survivors initiated legal proceedings against the Kenyan government. In 2013, six women and two men, who had suffered sexual violence during the post-election turmoil filed Constitutional Petition No. 122 at the High Court in Nairobi. The petition sought to hold the government accountable for its failure to prevent, investigate, and prosecute cases of sexual violence that occurred during the crisis.
Understanding the Context of the 2007-2008 Post-Election Violence
Violence that erupted after the December 27, 2007, elections was fueled by electoral fraud and political betrayal allegations. Protests and confrontations escalated into large-scale intercommunal violence in six of Kenya’s eight provinces. As homes and businesses were set ablaze, reports of sexual violence committed by both security forces and civilian groups became alarmingly frequent. Women, girls, men, and boys were subjected to brutal acts of rape, gang rape, defilement, and other forms of sexual abuse. In many instances, the assaults took place in the presence of family members, amplifying the survivors’ trauma.
Despite the widespread nature of these crimes, survivors encountered substantial barriers in their quest for justice. Fear of retaliation, societal stigma, and institutional neglect discouraged many from reporting their assaults. Those who did attempt to seek justice were met with indifference or outright dismissal by law enforcement agencies. The government’s failure to investigate and prosecute these offenses effectively created an environment of impunity, allowing perpetrators to evade accountability while survivors continued to suffer in silence.
Core Arguments of the Petition
Petition-122 of 2013 was founded on the assertion that the Kenyan government violated multiple constitutional and human rights obligations by failing to:
- Prevent acts of sexual violence during the post-election crisis;
- Provide adequate protection to its citizens against such violations;
- Conduct prompt, thorough, and impartial investigations into reported cases of sexual violence;
- Prosecute the perpetrators of these heinous acts;
- Ensure comprehensive support and redress for survivors, including access to medical, psychological, and legal assistance.
The petitioners argued that security forces, who were tasked with restoring order, were among the principal perpetrators of sexual violence. They also contended that the government’s failure to gather sufficient forensic evidence, conduct medical examinations, and properly document survivor testimonies severely compromised the ability of victims to obtain justice.
Judgment and its Implications
After years of delays, the High Court of Kenya delivered its judgment in December 2020. The court ruled that the government had failed to investigate and prosecute sexual violence cases linked to the post-election violence, thereby violating the rights of survivors. However, the ruling only recognized four of the eight survivors petitioning the court. Each of these four individuals was awarded KES 4 million (approximately USD 35,000) in compensation for their suffering.
Despite this partial victory, as of late 2021, the awarded compensation had not been disbursed. The decision also fell short in holding the government accountable for its failure to address sexual violence committed by gangs and militias, further highlighting gaps in the judicial process.
Appeal and the Continued Fight for Justice
Dissatisfied with the limitations of the ruling, survivors and their legal representatives filed an appeal on November 11, 2021. The appeal challenged the court’s failure to recognize the government’s responsibility for crimes perpetrated by non-state actors, including militias and civilian groups. The petitioners argued that the government was obligated to protect all citizens, regardless of whether the perpetrators were security forces or private individuals.
By filing the appeal, survivors and human rights organizations aimed to set a stronger legal precedent—one that would ensure all victims of election-related sexual violence receive justice, acknowledgment, and reparations. This step also underscored the urgent need for Kenya’s judicial system to adopt a more survivor-centered approach in handling cases of gender-based violence.
Kenya’s Legal and Moral Obligations
Under both Kenyan law and international human rights frameworks, the government is duty-bound to prevent, investigate, and prosecute sexual violence. The 2010 Constitution of Kenya, the Sexual Offences Act, and various international treaties—including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples’ Rights—all emphasize the state’s responsibility to uphold the rights and dignity of survivors.
Beyond legal obligations, the state has a moral duty to provide comprehensive support services to those affected by sexual violence. This includes ensuring survivors receive medical treatment, mental health support, legal aid, and economic empowerment programs to help them rebuild their lives.
The Broader Impact of the Case
Constitutional Petition No. 122 represents a critical moment in Kenya’s legal history. It is not merely about the eight survivors who courageously came forward; it is about the hundreds of others who suffered similar violations but never had the opportunity or means to seek justice. The outcome of this case has far-reaching implications for how Kenya addresses conflict-related sexual violence in the future.
By holding the government accountable, this case challenges the culture of impunity that has long shielded perpetrators of sexual violence. It also serves as a call to action for policymakers, civil society organizations, and the broader public to advocate for stronger protections against gender-based violence and to push for reforms within the country’s legal and law enforcement systems.