JUSTICE THROUGH THE LEGAL PROCESS - KENYAN CONTEXT
Abuse through Sexual Violence is one of the most traumatic experience anyone can go
through. Unfortunately when it happens most survivors are overcome with fear, shame and
despair and in most if not all cases, the survivors keep silent.
However it important to note that the law provides equal protection to each and every
person. The Bill of Rights contained in Chapter 4 of the Constitution 2010, specifically Article
19(2) 1 is very clear on the purpose of the Bill of Rights. Also as one of the rights that may be
not limited is the right to a Fair Trial which is provided for under Article 25(c) of the
The governing law of sexual offences is the Sexual Offences Act No.3 of 2006; which
provides for all sexual offences and punishments with an aim to prevent and protect persons
from unlawful sexual acts. In addition, it is a salient reminder that Sexual Offences are
Criminal offences and as such, the Criminal Procedure Code Cap 75 provides for the
procedure to be followed.
So what does one do once they have been Sexually Violated?
The immediate action to take is to report the matter to the nearest police station .One is
required to record a Statement and obtain an Occurrence Book Number (OB Number). The
Statement should be very detailed explaining vividly all that transpired.
Once one obtains the OB. number, the Police Officer is required to issue the survivor with
the Kenya Police Medical Examination Form popularly known as the p3 form. This form,
is a request for medical examination by a qualified doctor, who is to conduct physical
examination and all required tests in order determine the extent of bodily injury sustained.
Once the examination is complete, the doctor will fill in the form, all findings, and this is what
is used as part of the evidence adduced in Court.
The information recorded at the police station is later reduced into a Charge Sheet .The
Charge Sheet contains the statement of offence together with concise particulars of the
Although it is individual persons who are affected in most Criminal Trials, the State itself
initiates and conducts the Criminal proceedings on behalf of the public. This being the case,
it is important to note that the person who has audience before the Court is the Prosecutor.
As a result a file will be opened and the Survivor will be assigned a Prosecutor. The State
confers the power of controlling criminal prosecutions to the Office of the Director of Public
Once that is done, summons or warrants of arrest (depending on the case) are issued to the
Accused person, issued compelling their attendance.
Article 50 of the Constitution 2010 is very clear on the rules of Fair Hearing; more
specifically, Article 50(1) asserts that ‘Every person has the right to have any dispute that
can be resolved by the application of law decided in a fair and public hearing before a
court or, if appropriate, another independent and impartial tribunal or body’.
Once an Accused person appears or has been forcefully brought to Court, the Charge
together with the Statement of Offence and Particulars of each count, will be read to them in
1 Article 19 (2) The purpose of recognising and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the realisation of the
potential of all human beings
open Court and they will be required to respond. This response is what is known as the Plea.
If the Accused pleads not guilty, then the matter proceeds to trail where it is to be heard and
determined. If the Accused pleads Guilty, then the Court will go straight to give its Judgment
and then Sentencing.
In Criminal proceedings, the onus of proof lies with the Prosecution. The burden of proof
should be beyond a shadow of doubt. The Prosecution is required to demonstrate to the
Court that there is a case to answer (prima facie). In so doing, they present their case
together any evidence in support of the Charge and this may will include calling witnesses if
any. In the event that a Survivor has their own Advocate, the Advocate may work closely
with the Prosecutor, with an aim of establishing a strong case against the Accused.
Once the Prosecution closes their case, and the Court determines that there is a case to
answer, the court will again explain to the accused person the substance of the charge.
Thereafter it will inform the accused of their rights and this will be the opening of the case for
During trial that involve sexual offences that result to sexual violence, one of the most
important ingredients to be proved beyond any shadow of doubt is Consent. The Prosecutor
must ensure that they are able to prove the absence of consent between the parties that led
to the unlawful act.
Once both parties have adduced their evidence, the Prosecution and Accused are both
required to summarise their cases and await for the Court to issue Judgment that will then
lead to Sentencing.
In light of the above in the unfortunate event that one is Sexually Violated, the Legal system
provides a source of recourse. The State is legally obligated to represent you and prove your
case, given the evidence that they obtain in order to ensure that you receive Justice.
We will only receive Justice when we speak out. We should endeavour to encourage each
other to speak up and come out in order for the perpetrators to face the full force of the Law.
It is important to encourage and affirm Survivors that they are not Victims or damaged, that
there that there is no shame, and silence only aids the aggressors. That continued silence
gives them leeway to continue supressing many.
It is time to speak out and utilise the resources we have in our hands to make this happen,
and the Law is one of them.
All Survivors should be aware that they have a Right to Representation and to be heard
through a Fair Trial process, which are rights enshrined in the Constitution which is the
Supreme Law of the Land together with other enabling provisions of the Law.
We are in this together.