Deche - Legal Responses To Intra-Familial Child Sexual Abuse in Kenya - A Case For Restorative Justice

UNIVERSITY OF NAIROBI
SCHOOL OF LAW
LEGAL RESPONSES TO INTRA-FAMILIAL CHILD SEXUAL ABUSE IN KENYA: A

CASE FOR RESTORATIVE JUSTICE
MERCY MWARAH DECHE

G80/50811/2016
A Thesis submitted in fulfilment of the requirements for the award of the Degree of Doctor
of Philosophy (PhD) of the University of Nairobi
DECEMBER 2019
DECLARATION
This thesis is submitted in fulfilment of the requirements for the award of the degree of Doctor of
Philosophy (PhD) in Law of the University of Nairobi. The thesis is my original work and has not
been submitted for examination to this or any other University.
Candidate: Mercy Mwarah Deche
Sign: …………………………………
Date: ………………………………….
This thesis has been submitted with our approval as the Supervisors.
Dr Sarah Kinyanjui
Sign: …………………………..
Date: …………………………..
Prof. Kiarie Mwaura
Sign: …………………………..
Date: ……………………………
1
Table of Contents
Table of Contents ............................................................................................................................ 2
Abstract ........................................................................................................................................... 5
Acknowledgment ............................................................................................................................ 7
List of Abbreviations ...................................................................................................................... 8
Table of Cases ................................................................................................................................. 9
Table of Cases from Other Jurisdictions....................................................................................... 11
Table of Legislation ...................................................................................................................... 12
CHAPTER ONE: INTRODUCTION ........................................................................................... 14
1.1 Background to the Research ............................................................................................... 14
1.2 Statement of the Problem .................................................................................................... 20
1.3 Purpose and Objectives of the Study .................................................................................. 21
1.4 Research Questions ............................................................................................................. 21
1.5 Hypothesis........................................................................................................................... 22
1.6 Significance of the Study .................................................................................................... 22
1.7 Terminologies ..................................................................................................................... 23
1.7.1 Child................................................................................................................................... 23
1.7.2 Child Sexual Abuse............................................................................................................ 23
1.7.3 Formal Justice System ......................................................................................................... 24
1.7.4 Informal Justice System ....................................................................................................... 24
1.7.5 Intra-familial Child Sexual Abuse (IFCSA) ...................................................................... 24
1.7.6 Perpetrator .......................................................................................................................... 24
1.7.7 Restorative Justice ............................................................................................................. 24
1.7.8 Victim ................................................................................................................................ 25
1.8 Theoretical and Conceptual Framework ............................................................................. 25
1.9 Literature Review................................................................................................................ 31
1.9.1 General Child Sexual Abuse .............................................................................................. 31
1.9.2 Intra-familial Child Sexual Abuse ..................................................................................... 33
1.9.3 Restorative Justice ............................................................................................................. 34
1.9.4 Restorative Justice in Sexual Abuse Cases ........................................................................ 37
1.9.5 Best Interest of the Child ................................................................................................... 39
1.9.6 Access to Justice ................................................................................................................ 40
1.9.7 Legal Pluralism .................................................................................................................. 41
1.10 Research Methodology ...................................................................................................... 42
1.10.1 Desk Research .................................................................................................................... 42
1.10.2 Field Research .................................................................................................................... 42
1.11 Limitations of the Study..................................................................................................... 47
1.12 Organization of the Study (Chapter breakdown) ............................................................... 48
CHAPTER TWO: THEORETICAL AND CONCEPTUAL FRAMEWORK ............................ 51
2.1 Introduction ......................................................................................................................... 51
2.2.1 Background and Meaning of Restorative Justice............................................................... 52
2.2.2 Restoration ......................................................................................................................... 57
2.2.3 Practice of Restorative Justice ........................................................................................... 60
2.2.4 Why Restorative Justice? ................................................................................................... 63
2.2.5 Restorative Justice in Sexual Offences .............................................................................. 69
2.2.6 Restorative Justice and Feminism ...................................................................................... 73
2
2.2.7 Restorative Justice and the Vulnerability Theory .............................................................. 76
2.2.8 Restorative Justice and Legal Pluralism ............................................................................ 79
2.2.9 The Human Rights Perspective .......................................................................................... 86
2.3 Conclusion .......................................................................................................................... 94
CHAPTER THREE: THE OPERATING LEGAL FRAMEWORK ............................................ 96
3.1 Introduction ......................................................................................................................... 96
3.2 Investigation ........................................................................................................................ 98
3.3 Offences ............................................................................................................................ 109
3.4 Procedure .......................................................................................................................... 115
3.5 Evidence ............................................................................................................................ 120
3.6 Sentencing ......................................................................................................................... 126
3.7 Victim Protection in the Criminal Justice Process ............................................................ 131
3.8 Informal Justice................................................................................................................. 136
3.9 Conclusion ......................................................................................................................... 141
CHAPTER FOUR: SPECIFICITIES OF IFCSA ....................................................................... 143
4.1 Introduction ....................................................................................................................... 143
4.2 Prevalence ......................................................................................................................... 144
4.3 Complexity and Propensity for Misuse............................................................................. 146
4.4 Influence of Patriarchy...................................................................................................... 153
4.5 Family Set Up ................................................................................................................... 159
4.6 The victim’s livelihood ..................................................................................................... 166
4.7 Beliefs, Taboo, and Stigma ............................................................................................... 172
4.8 Community Expectations .................................................................................................. 174
4.9 Whose Conflict?................................................................................................................ 176
4.10 The Up Shot ..................................................................................................................... 179
CHAPTER FIVE: ENTRY POINTS FOR RESTORATIVE JUSTICE IN IFSCA CASES ..... 181
5.1 Introduction ....................................................................................................................... 181
5.2 The Justice Process ........................................................................................................... 182
5.2.1 Therapeutic Processes as Instruments of Restorative Justice .......................................... 183
5.2.2 Lessons on Restorative Justice Discernible from IJS ...................................................... 187
5.2.3 Diversion of Certain Categories of IFCSA ...................................................................... 195
5.2.4 Need for Continuous Engagement with the Community ................................................. 199
5.3 Legislative Intervention .................................................................................................... 202
5.3.1 The Children Act.............................................................................................................. 202
5.3.2 Age of Consent ................................................................................................................ 206
5.2.3 Plea Bargain and Minimum Sentences ............................................................................ 208
5.3.4 Bail ................................................................................................................................... 210
5.4 Executive Intervention ...................................................................................................... 212
5.4.1 Restoration of Health ....................................................................................................... 213
5.4.2 Restoration of the Victim’s Safety................................................................................. 216
5.4.3 Investing in Restorative Lifestyles................................................................................... 218
5.4.4 Strengthening Child Related Institutions ......................................................................... 221
5.5 Conclusion ........................................................................................................................ 223
CHAPTER SIX: RECOMMENDATIONS AND CONCLUSION ............................................ 225
6.1 Overview ........................................................................................................................... 225
6.2 Opportunities for Restorative Interventions...................................................................... 228
3
6.3 Need for Further Research ................................................................................................ 231
Bibliography ............................................................................................................................... 233
APPENDICES ............................................................................................................................ 244
Appendix One: Consent Form .................................................................................................... 244
Appendix Two: Research Authorization from National Commission for Science, Technology and
Innovation. .................................................................................................................................. 246
Appendix Three: Consent from Probation and Aftercare Service Directorate ........................... 247
Appendix Four: Authorization from Directorate of Children’s Services ................................... 248
Appendix Five: Consent from Commissioner General of Prisons.............................................. 249
Appendix Six: Consent from Kenya Police Service ................................................................... 250
Appendix Seven: Consent from Judiciary .................................................................................. 251
4
Abstract
Children are more vulnerable to victimization than adults. It is for this reason that they are more
prone to all kinds of abuse including sexual abuse. Statistics show that most perpetrators of child
sexual abuse are persons closest to the child, including family members. This study focuses on
child sexual abuse within the family, referred to as intra-familial child sexual abuse (IFCSA). This
kind of abuse impacts its victim differently from child sexual abuse by an outsider. The criminal
justice process in Kenya, however, responds to both uniformly without regard to this distinction.
This means that an incidence of sexual abuse by a father or any other relative is dealt with in a
similar way as that of sexual abuse by a stranger.
This study demonstrates the uniqueness of IFCSA by identifying and unpacking its specificities.
The specificities include the influence of patriarchy and family set up, concerns of livelihood,
associated stigma and taboos, community expectations, and the tension around the issue of
ownership of the conflict. They present bottlenecks that have the cumulative effect of complicating
the reporting, investigation and prosecution of IFCSA cases. The complications propel the victims
and their families towards the path of least resistance. This may take the form of either covering
up the abuse or outright complicity and acquiescence by those supposed to report the offence.
These specificities therefore have the potential of impeding justice if left unacknowledged and
unattended by the legal system. The research demonstrates that the bottlenecks cannot be resolved
under the existing legal framework. It hence proposes the incorporation of restorative processes,
values and ideals into the criminal justice system.
The study does not however seek to replace or overhaul the entire criminal justice system. It instead
explores possibilities of incorporating the beneficial and constructive values of restorative justice
to the extent that they are compatible with the existing criminal justice system. The possibilities
identified by the study include re-designing the justice process in order to minimize its anti-
therapeutic effects through the implementation of therapeutic jurisprudence throughout the
criminal justice process; borrowing restorative processes and values from informal justice to enrich
the criminal justice system; diverting a limited category of IFCSA cases especially those involving
non coercive sexual encounter between teenage relatives; incorporating the participation of more
non-professional players at all possible stages of the justice process; reforming existing laws to
5
accommodate restorative justice; and calling upon the executive to show political will by investing
in institutions that are positioned to build resilience in victims and potential victims of IFCSA.
6
Acknowledgment
I wish to start by expressing my appreciation to my supervisors Doctor Sarah Kinyanjui and
Professor Kiarie Mwaura for their diligent guidance and encouragement throughout this research.
I also offer special gratitude to the immediate former Dean of the University of Nairobi, School of
Law, Professor Patricia Mbote and the immediate former Vice Chancellor of the University of
Nairobi, Professor George Magoha. They both provided the much needed initial thrust that I
needed to commence this research and ensured an accommodating environment for study while
teaching at the University.
Beyond the support from the University of Nairobi, I am grateful to the Danida Fellowship Center
(DFC) for facilitating my research visit at the Danish Institute for Human Rights as a DFC scholar
under the instructions of Prof Stephanie Lagoutte. I am also grateful for the assistance provided
Professor Elina Pirjatanniemi, the Director of the Institute of Human Rights (IHR) of the Abo
Akademi in Turku, Finland. Her invaluable advice and that of the staff of the IHR under the Shurea
Project greatly enriched this research. The opportunity given to me by Southern and Eastern Africa
Regional Centre for Womens Law, University of Zimbabwe to present my work and access their
library is also highly appreciated.
I appreciate the immense support of my husband, our three sons and my church family. I am
thankful to my two house helps, Clemence and Maria who stepped in to faithfully take care of my
domestic duties especially taking care of my ailing mother as I concentrated on this research. Last
but not least, I thank God almighty for the gift of life and health.
7
List of Abbreviations
ACRWC - African Charter on the Rights and Welfare of the Child.
AJS - Alternative Justice System.
CEDAW - Convention on Elimination of all forms of Discrimination Against Women.
CRC - Convention on the Rights of the Child.
DANIDA - Danish International Development Agency.
DFC - Danida Fellowship Center.
eKLR - Electronic Kenya Law Report.
FJS - Formal Justice System.
ICCPR - International Covenant on Civil and Political Rights.
ICESCR - International Covenant on Economic Social and Cultural Rights.
ICRH - International Center for Reproductive Health.
IFCSA - Intra-Familial Child Sexual Abuse.
IJS - Informal Justice System.
SHUREA - Strengthening Human Rights Research and Education in Sub Saharan Africa.
SEARCWL - Southern & Eastern African Regional Centre for Women's Law.
SOA - Sexual Offences Act.
UDHR - Universal Declaration on Human Rights.
UNGA - United Nations General Assembly.
WHO - World Health Organization.
8
Table of Cases
A G v Republic Meru High Court Criminal Appeal No 257 of 2009 [2013] eKLR.
A S S v Republic Malindi High Court Criminal Appeal No 64 of 2011 [2013] eKLR.
BMM v Republic Machakos High Court Criminal Revision No 343 of 2014 [2015] eKLR.
BMN v Republic Nyeri Court of Appeal Criminal Appeal No 97 of 2013 [2014] eKLR.
BNM v Republic Mombasa High Court Criminal Appeal No 232 of 2009 [2011] eKLR.
Re Baby GTO alias Unknown Male Child Mombasa High Court Adoption Cause No 14 of 2013
[2013] eKLR.
C.K. (A Child) & 11 Others v Commissioner of Police/Inspector-General of the National Police

Service & 2 Others Meru High Court Petition No 8 of 2012 [2012] eKLR.
CKW v AG & DPP High Court of Kenya at Eldoret; Petition No 6 of 2013 [2014 eKLR].
C N v Republic Muranga High Court Criminal Appeal No 60 of 2013 [2014] eKLR.
Calvins Otieno Ochoo v Republic HomaBay High Court Criminal Appeal No 48 of 2014 [2015]
eKLR.
D W M v Republic Kerugoya High Court Criminal Appeal No 185 of 2012 [2016] eKLR.
Daniel Kyalo Muema v Republic Nairobi Court of Appeal Criminal Appeal No 479 of 2007 [2009]
eKLR.
David Kundu Simiyu v Republic Eldoret Court of Appeal Criminal Appeal No 8 of 2008 [2009]
eKLR.
Edward Shivanji Makanga v Republic Nakuru High Court Criminal Appeal No 313 of 2010 [2015]
eKLR.
Evans Wanjala Wanyonyi v R Eldoret Court of Appeal Criminal Appeal No 312 of 2018 [2019]
eKLR.
F O D v Republic Homabay High Court Criminal Appeal No 32 of 2014 [2014] eKLR.
Francis Karioko Muruatetu & another v Republic Supreme Court Petition No 15 of 2015 [2017]
eKLR.
GMK v Republic Nairobi High Court Criminal Appeal No 26 of 2010 [2012] eKLR.
Geoffrey Kioji v Republic Nyeri Court of Appeal Criminal Appeal No 270 of 2010 [2014] eKLR.
9
Godfrey Oluoch Ochuodha v Republic Migori High Court Criminal Appeal Number 17 of 2015
[2015] eKLR.
J K K v Republic Nairobi High Court Criminal Appeal No 443 of 2010 [2014] eKLR.
J.O.D v Republic Kisumu High Court Criminal Appeal No 173 of 2008 [2010] eKLR.
Joel Sio Mwasi v Republic Voi High Court Criminal Appeal No 4 of 2014 [2014] eKLR.
Joseph Njuguna Mwaura and 2 others v Republic Nairobi Court of Appeal Criminal Appeal No 5
of 2008 [2013] eKLR.
Julius Kamau Mbugua v Republic Nairobi Court of Appeal Criminal Appeal No 50 of 2008 [2010]
eKLR.
M K v Republic Embu High Court Criminal Appeal No 171 of 2010 [2014] eKLR.
Muiruri v Republic Mombasa Court of Appeal Criminal Appeal No 84 of 2003 [2003] eKLR.
Ngoka v Madzomba Mombasa High Court Civil Appeal No 49 of 1999 [2002] eKLR.
P.M.M v Republic Nyeri High Court Criminal Appeal No 148 of 2007 [2009] eKLR.
P M M v Republic Nakuru High Court Criminal Appeal No 188 of 2010 [2011] eKLR.
Paul Mwangi Murunga v Republic Nakuru Court of Appeal Criminal Appeal No 35 of 2006 [2008]
eKLR.
In the Matter of an Application by Phylis Temwai Kipteyo for Leave to Apply for an Order of
Habeaus Corpus on Behalf of Patrick Kipteyo Sewui Bungoma High Court Miscellaneous
Application No 27 of 2008 [2011] eKLR.
Peter Kipchumba Too v Republic Eldoret High Court Criminal Appeal No 66 of 2012 [2014]
eKLR.
Phidesio Nthiga Kithumbu v Republic Embu High Court Criminal Appeal No 67 of 2011 [2014]
eKLR.
Republic v A.N.N [2016] Naivasha Criminal Registry Sample case No 5 (unreported and case
number not availed).
Republic v Alice Chepkorir Koech and Another Kabarnet High Court Criminal Revision No 4 of
2018 [2018] eKLR.
10
Republic v B C M Criminal [2016] Resident Magistrates Court Criminal Case No 66 of 2015
(Kwale unreported).
Republic v DK, Naivasha Criminal Registry Sample case No 1 (unreported and case number not
availed).
Republic v GN Mombasa Senior Resident Magistrate Criminal Case Number 1765 of 2011
(unreported).
Republic v Mohamed Abdow Mohamed Nairobi High Court Criminal Case No 86 of 2011 [2013]
eKLR.
Republic v Nyawa Dongoi Mvurya [2016] Resident Magistrate Court Criminal Case No 1262 of
2014 (Kwale Unreported).
Republic v O J Kwale Resident Magistrates Court Criminal Case No 660 of 2014 (Kwale
Unreported).
.
Republic v Thomas Patrick Gilbert Cholmondeley Nairobi High Court Criminal Case No 55 of
2006 [2009] eKLR 2.
Samson Aginga Ayieyo v Republic Kisumu Court of Appeal Criminal Appeal No 165 of 2006
[2006] eKLR.
Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others Nairobi
Court of Appeal Civil Appeal No 172 of 2014 [2017] eKLR.
S.N.T. v Republic Nyeri Court of Appeal Criminal Appeal No 20 of 2012 [2013] eKLR).
Muita Thumi v Republic Nakuru Court of Appeal Criminal Appeal No 36 of 1984 [1984] eKLR.
Veronica Gitahi & Another v Republic Mombasa Court of Appeal Criminal Appeal No 23 of 2016
[2016] eKLR.
Wahome Chege v Republic Nyeri Court of Appeal Criminal Appeal No 61 of 2014 [2014] eKLR.
Yusuf Gitau Githanga v Republic Nairobi High Court Criminal Appeal No 99 of 2013 [2015]
eKLR.
Table of Cases from Other Jurisdictions
Case 26692/05 CAS and CS v Romania [2012] ECHR.
11
Case 194/2011 Ghia Van Eeden (Formerly Nadel) v Minister of Safety and Security [2012]
ZASCA.
Inter-American Court of Human Rights Gonzalez & Others (Cotton Field) v Mexico [2009].
Case 12.626 Jessica Lenahan (Gonzales) et al v United States [2011].
Case no 39272/98 MC v Bulgaria [2003].
Table of Legislation
Children Act 2001 (KEN).
Constitution 2010 (KEN).
Criminal Procedure Code Revised 2012 (KEN).
Evidence Act Revised 2014 (KEN).
Interpretation and General Provisions Act Revised 2014 (KEN).
Judicature Act Revised 2018 (KEN).
National Police Service Act 2011 (KEN).
Penal Code Revised 2014 (KEN).
Protection Against Domestic Violence 2015 (KEN).
Child Welfare Act 2007 (FINLAND).
Sexual Offences Act 2006 (KEN).
Victim Protection Act 2014 (KEN).
Table of International Treaties and Conventions
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171.
International Covenant on Economic Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 January 1976) 993 UNTS 3.
12
UNGA Convention on the Rights of the Child (Adopted and opened for signature, ratification 20
November 1989, entered into force 2 September 1990), 1577 UNTS 3.
13
CHAPTER ONE: INTRODUCTION
1.1 Background to the Research
Children are more vulnerable to victimization than adults.1 The Constitution of Kenya
acknowledges their vulnerability by including them in the list of vulnerable groups. This is
alongside women, older members of society, persons living with disabilities, youth, members of
minority or marginalized communities, and members of particular ethnic, religious and cultural
communities.2 Several reasons have been advanced to explain children’s heightened vulnerability.
The first is the obvious power imbalance between a minor a substantially older person which
diminishes their agency.3 Secondly, children are easily impressionable, physically weak, and
dependent on adults or older children for protection, and provision.4 The vulnerability makes the
children susceptible to violence and abuse. The abuse occurs in different forms including neglect,
psychological, physical and sexual.5 Of all these forms, sexual abuse is one of the gravest
violations. Its effects are as widespread as they are long term and complex. The most obvious take
the form of the harm suffered by the victim. These range from emotional and psychological trauma
to serious and often irreversible medical complications including pregnancy as well as life-
threatening infections. For these and other reasons, it has been highlighted as a global health and
human rights concern.6 Despite being deplorable, child sexual abuse is rife and widespread
throughout the world.7 It is for this reason that this research focuses on this particular form of
abuse.
1
D Finkelhor and J D Leatherman, ‘Victimization of Children’ (1994), American Psychologist, 49(3). 173
<http://www.unh.edu/ccrc/pdf/hold.CV1.pdf> accessed14 October 2014.
2
The Constitution 2010 (KEN) Article 21(3) <http://www.kenyalaw.org/lex/actview.xql?actid=Const2010>
accessed 2 June 2018.
3
L Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (OUP 2010) 194.
4
UNGA Convention on the Rights of the Child (Adopted and opened for signature, ratification 20 November 1989,
entered into force 2 September 1990), 1577 UNTS 3 (CRC) Preamble.
5
WHO, (Report of the Consultation on Child Abuse Prevention), ‘World Health Organization, Social Change and
Mental Health, Violence and Injury Prevention’ (1999) 13 <www.who.int/mip2001/files/2011/childabuse.pdf>
accessed 16 July 2013.
6
F Kisanga et al, ‘Parents’ Experiences of Reporting Child Sexual Abuse in Urban Tanzania (2013) 22(5) Journal
of Child Sexual Abuse 481, 482.
7
A Browne and D Finkelhor, ‘Impact of Child Sexual Abuse: A Review of the Research’ (1986) 99(1)
Psychological Bulletin <http://psycnet.apa.org/journals/bul/99/1/66/> accessed 6 February 2014.
14
Though reference to child sexual abuse is more likely to conjure the image of a stranger abusing
children, there is a marked trend of children experiencing sexual abuse perpetrated by those closest
to them, including members of the family. The World Health Organization (WHO) has estimated
that 150 million girls and 73 million boys below eighteen years have experienced sexual abuse at
the hands of people known to them including members of the household.8 Startling statistics from
the Caribbean, for example, reveal that as high as 47.6% of girls and 31.9% of boys interviewed
reported that their first sexual intercourse was forced or coerced by family members.9 The
Committee on the Rights of the Child has also confirmed the trend by noting that in every place
where sexual violence has been studied, a large number of them are reportedly assaulted by those
closest to them.10
Statistics are not any different in Kenya where 43% of child sexual abuse in the country reportedly
takes place within the home and is perpetrated by family members.11 In the Coast region, a study
analysis of a sample of 165 sexual offence cases concluded in Mombasa Law Courts revealed that
the sexual assault in 80 of them took place within the home and over 80% involved child victims.12
These statistics do not necessarily tell the full story of the gravity of child sexual abuse within the
home as a substantial number of sexual violation incidences are never reported.13 They nonetheless
suffice as a basis for the assertion that child sexual abuse does take place within the family. Child
sexual abuse within the family is in this study referred to as Intra-Familial Child Sexual Abuse
(IFCSA).
8
UNGA Report of the Secretary General ‘Violence Against children in the home and family’ (2006), para 28
<http://www.unicef.org/violencestudy/reports/SG_violencestudy_en.pdf>, accessed 27 November 2013 (emphasis
mine).
9
UNGA Report of the Special Representative of the Secretary General ‘Violence Against Children With Respect to
the Caribbean’ (2006) < http://srsg.violenceagainstchildren.org> accessed 4 April 2012.
10
UN Committee on the Rights of the Child, ‘ General comment No 8’ in ‘Note by the Secretariat, Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (2 March 2007 ) UN
Doc CRC/C/GC/8. <http://www2.ohchr.org/english/bodies/crc/comments.htm>accessed 4 April 2012.
11
UN Committee on the Rights of the Child, ‘Replies by the Government of Kenya concerning the list of issues
(CRC/C/KEN/Q/2 ) Received by the Committee on The Rights of the Child relating to the consideration of the
second periodic Report of Kenya (28 November 2006) UN Doc CRC/C/KEN/2
https://digitallibrary.un.org/record/589667/files/CRC_C_KEN_Q_2_Add.1-EN.pdf accessed 2 June 2018.
12
ICRH Kenya (2013) An Investigation of the Barriers to Accessing Justice Study for Survivors of SGBV in
Mombasa, Kenya (unpublished, on file with the author).
13
Kisanga (n 6) 482.
15
The family unit has been given due recognition by the major international declarations, covenants
and treaties as the basic unit of society.14 This recognition is also highlighted by Kenya’s supreme
law, the Constitution of Kenya 2010, which states that the family is the necessary basis for social
order.15 In relation to the child, the family plays a critical role in the enjoyment of most child
related human rights and freedoms. When this legally recognised safety net is breached from
within by the very people vested with the duty to protect the child, the impact on the child victim
is magnified. Children’s inherent vulnerability is exacerbated by abuse by a family member. This
impact has been summarized as ‘complex in emotional and social aspects’.16 Some of the factors
that complicate child sexual violence within the home include the issue of the livelihood of the
victim, their family life, and the associated stigma.
Livelihood refers to the means of securing the essentials of life like food, clothing, shelter,
education, and other needs.17 It therefore goes hand in hand with economic empowerment. In
Kenya, as in most of sub-Saharan Africa, women rarely have control of the means of livelihood.
It is no wonder that poverty has been said to wear the ‘face of a woman’.18 Though perpetrators of
IFCSA may be male or female, they are more often the former.19 The males within the family are
often the providers and breadwinners. When the provider doubles up as the perpetrator, the
victim’s livelihood becomes a major concern, especially where the justice process results in
incarceration. A research by Lalor on child sexual abuse in Kenya and Tanzania has hence
observed that children are less likely to report where their livelihood may be threatened by the
perpetrator’s imprisonment.20 The concern of the victim’s livelihood is even more profound in a
country like Kenya where state welfare is unknown or erratic. 21 It is no wonder that Kisanga
14
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 16(3) ;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 (ICCPR) art 23; and International Covenant on Economic Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 10.
15
The Constitution (n 2) Art 45(1).
16
B Ryan, et al. Treatment of Intra-familial Crime Victims (1998).
<http://www.vcgcb.ca.gov/docs/forms/victims/standardsofcare/Chapter_6.pdf> accessed 11 September 2013.
17
Oxford Dictionaries, <http://oxforddictionaries.com/definition/english/livelihood> accessed o 14 October 2013.
18
A Jaggger, ‘Does Poverty Wear a Woman’s face? Some Mora Dimensions of a Transnational Feminist Research
Project’ (2013) 28 (2) Hypatia, a Journal of Feminist Philosophy 240, 246.
19
ICRH (n 12) 64.
20
K Lalor, ‘Child Sexual Abuse in Tanzania and Kenya’ (2004) 28(8) Child Abuse and Neglect 833 Available at
<https://arrow.dit.ie/cgi/viewcontent.cgi?article=1002&context=aaschsslarts> accessed 7 August 2018.
21
A National Plan of Action for Orphans and Vulnerable Children does exist, but this programme does not include
victims of IFCSA < http://www.ovcsupport.net/s/library.php?lk=demographic+factors>, accessed 17 October 2013.
16
observes that the protection of children from child sexual abuse within the family is closely tied to
economic empowerment of women.22
The question of family ties complicates the response to IFCSA. Where the perpetrator is a stranger,
the child victim has their family to fall back on for support throughout the process. Where the child
is violated by a family member, however, they have to deal with the dilemma of how to relate with
the person they previously trusted and probably loved, but who has now turned against them.
Further, when the criminal justice process is eventually set in motion, the rest of the family
members may play conflicting roles. They may be called upon as witnesses, either for the
prosecution or for the accused. This creates opposing camps as some members side with the
perpetrator while others sympathise with the victim. The process inevitably disrupts the family
and has the potential to cause family break-up and loss of relationships. All through this, the family
usually has to deal with breach of their privacy and negative public exposure as such incidences
attract a lot of media attention.
Sex is a taboo subject that is seldom freely discussed in most communities in the sub-Saharan
African region.23 When it arises in the context of having taken place within the prohibited degree
of consanguinity, the taboo tag attached to it is magnified and any party associated with such an
incident is stigmatised. As a result of the stigma, IFCSA is less likely to be voluntarily disclosed
by the victim and their family than child sexual abuse by a stranger. The urge to sweep the incident
under the carpet is usually strong. The abuse may therefore continue to take place over an extended
period of time before detection, which is often by default.24 Late detection compromises the
collection of forensic evidence which may be lost with time.25 As a result proving an IFCSA case
beyond reasonable doubt becomes an uphill task.
The above highlighted unique circumstances of an IFCSA victim are best illustrated in the
proceedings of a case in the Resident Magistrate’s court in Mombasa. When asked by the
22
Kisanga, (n 6) 482.
23
Lalor (n 20) 837.
24
Kisanga (n 6) 482.
25
WHO, ‘Guidelines for Medico-Legal Care for Victims of Sexual Violence’ (2003) 76
<http://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf> accessed 16
October 2014.
17
Prosecutor whether she had anything else to tell the court, thirteen year old NN26 concluded her
evidence in chief as follows:
‘I have no grudge against the accused. He is the only dad I have known
since my parents died. He always paid my fees and bought me books
and uniform. I do not know who will pay my school fees. I love him as
my uncle but this has happened and I had to come to court to tell the
truth’.27
NN was testifying in a case where her uncle, who was her guardian, had been charged with
repeatedly defiling her. She was recounting her evidence in chief for the third time as the
magistrate who first heard the case had disqualified himself and the one who subsequently took
over was transferred to another station. Since the case was reported to the police, NN had been
living with her classmate’s mother amidst a lot of uncertainty on her livelihood. The two year trial
eventually ended with an acquittal on a ‘no case to answer’ for lack of sufficient evidence.28
Though the fate that befell her case is common to all types of cases, NN’s position as a victim
related to the perpetrator summarizes the complex scenario created by cases of intra familial child
sexual abuse. On the one hand is the child who deserves justice but who might still love, and in
most cases, depend on the perpetrator. On the other hand is the perpetrator who deserves to be
punished but who may also be the bread winner, not only of the child but also the extended family.
In between is an adversarial criminal justice system that does not prioritize the best interest of the
child victim and is riddled with serious structural and institutional deficiencies as well as
procedural gaps in its response to IFCSA.
NN’s case along with the predicament it creates for the victim is not an isolated incident. It is
replicated frequently with varying degrees of gravity and complexity in Kenya. It is no wonder
that findings have been made to the effect that many IFCSA cases go unreported while a good
number of those that get reported are concluded informally under arrangements that are
unrecognized and unsupervised by the criminal justice system.29 The fact that people are seeking
justice in informal social-legal orders outside the formal justice system signals the need for an
alternative approach.
26
Pseudonym.
27
Republic v GN Mombasa Senior Resident Magistrate Criminal Case Number 1765 of 2011 (unreported).
28
The Criminal Procedure Code Revised 2012 (KEN) 87.
29
ICRH (n 12)17.
18
This research is an acknowledgment of the reality of sexual violations against children within the
family, its unique impact on its victims and the resultant demand for a different legal response.
The current exclusively retributive response is reflective of the strong condemnation that child
sexual abuse attracts from the community.30 Any action that does not lead to retribution is therefore
seen as tantamount to condoning the act. This research looks beyond the outrage to focus more on
the interests of the victim. It
explores possibilities of incorporating the beneficial and constructive standards of restorative
justice into the existing criminal justice process to the greatest possible extent in order to achieve
justice for the victim. This includes aligning the court towards more intentional embracing of
therapeutic practices and jurisprudence throughout the criminal justice process; borrowing
restorative processes and values from informal justice to enrich the criminal justice system;
diverting a limited category of IFSCA especially non coercive sexual encounters between teenage
relatives; incorporating the participation of more non- professional players at all possible phases
of the justice process; reforming existing laws to accommodate restorative justice; and calling
upon the executive to show political will by investing in institutions that are positioned to build
resilience in victims and potential victims of IFCSA. Incorporation of restorative values and
processes is meant to address the material, financial, emotional and social concerns of the victim.31
Though the criminal justice process is able to accommodate some restorative processes and values,
the informal justice mechanisms that are often resorted to are largely restorative in nature.32 It is
for this reason that the study interrogates processes and values outside the formal criminal justice
process with a view to finding innovative ways of achieving justice for the child victim. The extent
to which these informal mechanisms adhere to restorative ideals is the subject of interrogation in
this study. The study does not however seek to overhaul the entire existing criminal justice system.
In line with O’Connor’s suggestion, it seeks to achieve the injection of restorative justice both
30
K Daly, ‘Restorative Justice and Sexual Assault’ (2006) 46(2) Br J Criminal 334,337.
31
T Marshall, ‘Restorative Justice: An Overview’ (1999) in G Johnstone (ed.) A Restorative Reader, Texts, Sources,
Context (WP 2003) 28.
32
UNDP, UNICEF and UN Women, ‘Informal Justice Systems, Charting the Course for Human Rights Based
Engagement’ (2013) 75.
19
alongside and within the criminal justice so that the option to invoke the latter fully remains
available especially where the perpetrator fails to fully cooperate.33
1.2 Statement of the Problem
The criminal justice process in Kenya responds to IFCSA without giving due attention to the
specificities of its impact on the victim. This means that a case of a victim sexually abused by her
own father or any other close relative is dealt with under the same framework as that of another
victim sexually abused by a total stranger. The underlying philosophy guiding the legal response
in both scenarios is based on two hard line stances: First is the imposition of longer and stiffer
custodial sentences on the perpetrator in proportion to the age of the victim.34 Second is the
absolute ousting of any opportunity for a negotiated conclusion of sexual offences.
This approach is almost always countered by a vicious response by the perpetrator. Having no
incentive to concede to the offence, even in the most obvious cases, the perpetrator fights for an
acquittal using all available means. In a jurisdiction where court cases take up to five years to
conclude,35 the victim is left at the mercy of the ‘winner takes it all’ adversarial system and ends
up suffering more emotional, social and financial harm in pursuit of justice. Once set in motion,
the process remains firmly under the control of the Director of Public Prosecutions. 36 Despite the
recognition of victim’s rights in the Victim Protection Act,37 the victim plays a peripheral role in
the justice process as the parties to the case remain the ‘Republic of Kenya’ and the perpetrator.
Convictions in sexual offences are also few.38 Even where it is achieved, incarceration often
results in substantial economic hardship to the victim and the family at large where the perpetrator
was the breadwinner. Further, the prolonged rigid adversarial and punishment centered criminal
justice system disrupts the family life of the child victim as it does not prioritize its restoration or
33
R O’Connor, Child Sexual Abuse: Treatment, Prevention and Detection, (Center for Health program evaluation,
Australia, 1991) para 5.5.
34
The Sexual Offences Act 2006 (KEN) section 8.
35
B Shadle, ‘Sexual Offences in Kenya Courts, 1960s-2008’(2010) Previous versions of this paper were presented
at the VAD/German Association of African Studies annual conference, Mainz, April 10, 2010, and the European
Social Science History Conference, Gent, Belgium, April 14, 2010. < www.kenyalaw.org> accessed 29 March 2012.
36
SOA (n 34) s 40.
37
The Victim Protection Act 2014 (KEN) sections 8 - 26.
38
ICRH (n 12) 18.
20
reconciliation. In its present state therefore, the criminal justice process is not responsive to the
unique specificities of the circumstances, needs and interests of the victim of IFCSA.
1.3 Purpose and Objectives of the Study
The purpose of this study is to advance a victim centered legal response to cases of IFCSA through
incorporation of restorative justice values and practices into the criminal justice system.
The specific objectives of the research are to:
i. Identify the specificities of the impact of IFCSA on its victim.
ii. Examine the statutory legal framework within which IFCSA has been responded to with a
view to identifying the gaps therein.
iii. Explore restorative justice as an innovative legal response to IFCSA.
iv. Identify opportunities and entry points for application of restorative justice within the
criminal Justice process with a view to providing a legal response which adequately
responds to the realities and needs of IFCSA victims.
1.4 Research Questions
i. To what extent is the existing legal framework sufficient in protecting the interests of the
victim of IFCSA in Kenya?
ii. In what unique ways does IFCSA impact its victim?
iii. To what extent can restorative justice provide an effective legal response to IFCSA?
iv. What can the criminal justice system learn from existing informal justice mechanisms in
coming up with a more restorative approach in responding to IFCSA?
v. What entry points exist for the application of restorative practices and values within the
Kenyan criminal justice system?
21
1.5 Hypothesis
This study is conducted on the hypothesis that the victim of IFCSA has unique interests and needs
which are different from those of child victims of sexual abuse by non- family members. It is
further hypothesized that the existing criminal justice system is deficient in sufficiently addressing
these unique needs. Due to the challenges and deficiencies in the criminal justice system, many of
these cases go unreported while others are terminated prematurely as parties seek alternative
modes of justice away from the courts. The solution hypothesized by this research is the
incorporation of restorative justice systems and values at appropriate stages of the criminal justice
process.
1.6 Significance of the Study

As stated above, child sexual abuse within the home is a widespread problem in Kenya. The
convictions arising from these cases are comparatively low and many more cases go unreported.
This is suggestive of failure by the system to adequately respond to IFCSA. While not purporting
to provide the panacea for all that ails the criminal justice process, the research gives pointers to
a more effective justice process to victims of IFCSA.
The research is groundbreaking in the Kenyan criminal justice as it delves into the hitherto
uncharted realm of applying restorative justice to serious offences including sexual offences. It
will also contribute to the knowledge on child rights. This is because the guiding principle in
securing the interests and needs of the child victim is the principle of the best interest of the child
and the child’s right to access to justice. It is also timely as it provides a stepping stone to the
implementation of the letter and spirit of the Constitution of Kenya 2010 which enjoins the courts
to embrace and encourage alternative methods of dispute resolution, including restorative justice
processes.39
39
Art 159(2) (c), section 2.
22
1.7 Terminologies
1.7.1 Child
In this research a child is, a person eighteen years. This is in line with the definition in the CRC
which is also echoed in the Children Act.40 The child victim referred to in this research is both
male and female.
1.7.2 Child Sexual Abuse
There is no specific definition of child sexual abuse in the Sexual Offences Act. The
research adopts the second limb of WHO’s definition which defines child sexual abuse as,
The involvement of a child in sexual activity that … violate the laws
or social taboos of society. Child sexual abuse is evidenced by this
activity between a child and an adult or another child who by age or
development is in a relationship of responsibility, trust or power, the
activity being intended to gratify or satisfy the needs of the other
person. This may include but is not limited to:
1. The inducement or coercion of a child to engage in any unlawful
sexual activity.
2. The exploitative use of child in prostitution or other unlawful sexual
practices.
3. The exploitative use of children in pornographic performances and
materials.41
The above definition covers the whole range of acts described in sections 7 to 16 of the Sexual
Offences Act. This research does not therefore limit itself to acts that cause penetration. It
considers child sexual abuse in its broadest sense including any sexual activity with a child. The
Committee on the Rights of the Child has excluded sexual activities among children from the ambit
of child sexual abuse. It has however noted that such activities may amount to abuse where the
child perpetrator is substantially older than the victim or exerts power, threat, or other means of
pressure.42 This research also considers sexual activity among children of the same household.
40
UNGA CRC (n 4) Art 1.
41
WHO (Report of the Consultation on Child Abuse Prevention, Geneva) (n 5) 16.
42
UN Committee on the Rights of the Child, ‘ General comment No 13’ in ‘Note by the Secretariat, Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ 18 April 2011
<http://www2.ohchr.org/english/bodies/crc/comments.htm> accessed 6 May 2013.
23
1.7.3 Formal Justice System
The FJS here refers to the formal, state-based justice procedures and institutions like the judiciary,
the office of the Director of Public Prosecutions, the National Police Service, Prisons Department,
Children’s Department, and the Probation and Aftercare Service Department. The institutions are
governed by the constitution and the respective statutes that establish some of them.43
1.7.4 Informal Justice System
The IJS refers to ‘the resolution of disputes and the regulation of conduct by adjudication or the
assistance of a neutral third party that is not a part of the judiciary as established by law and/or
whose substantive, procedural or structural foundation is not primarily based on statutory law’.44
1.7.5 Intra-familial Child Sexual Abuse (IFCSA)
The research strictly focuses on child sexual abuse within the household commonly known as
intra-familial child sexual abuse. This has been defined as the use of a child for sexual satisfaction
by family members, that is, blood relatives too close to marry legally.45
1.7.6 Perpetrator
The perpetrator in this research refers to persons who sexually violate children. This includes
adults and older children of a remarkable age difference with the victim.
1.7.7 Restorative Justice
Restorative justice is still an evolving concept yet to have a single agreed on definition.46 A broad
definition of restorative justice in this research refers to an approach that focuses on repairing the
43
Office of the Director of Public Prosecution Act 2013 (KEN), National Police Service Act 2011(KEN), Prison
Service Act 1962 (KEN), Children Act 2001 (KEN), Probation of Offenders Act 1981 (KEN).
44
UN Publication, ‘Informal Justice Systems: Charting a Course for Human Rights-based Engagement’ (2013) 75
<http://www.undp.org/content/undp/en/home/librarypage/democratic-
governance/access_to_justiceandruleoflaw/informal-justice-systems/> accessed 25 October 2013.
45
H N Snyder, ‘Child Sexual Abuse – The Perpetrators’. <http://www.libraryindex.com/pages/1411/Child-Sexual-
Abuse-PERPETRATORS.html> accessed on 29 March 2012.
46
D W Van Ness and K H Strong, Restoring Justice: An Introduction to Restorative Justice’ (4th ed 2010 Lexis
Nexis Anderson Publishing) 41.
24
harm caused by criminal behavior through cooperative processes that include all stakeholders. This
concept is discussed in chapter two of this research.47
1.7.8 Victim
The scope of the term victim in this research is as broad as the one adopted in the Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power.48 This includes the child
who has suffered harm as a result of sexual abuse together with members of the immediate family
and those who suffer harm in the course of intervention for the child victim. Similarly the definition
in the Victim Protection Act encompasses any natural person who suffers injury, loss or damage
as a consequence of an offence.49
1.8 Theoretical and Conceptual Framework
The thrust of this thesis is for victims of IFCSA to receive justice that is holistic and adequately
meets their needs. This is through recognizing its unique specificities, and acknowledging the
deficiencies inherent in the existing criminal justice framework in responding to the vice. The
thesis therefore resonates with restorative justice upon which it is grounded. Restorative justice is
discussed against the backdrop of vulnerability theory, feminism, legal pluralism and human rights
standards for reasons that are stated here below. The concepts and theories are discussed in the
following chapter.
Restorative justice is a much misconstrued concept. Reference to it often conjures a process where
the victim and perpetrator are reconciled with the latter getting away with a slap on the wrist. The
reason for the misconception is that restorative justice is conceived in diverse ways by its
proponents and critics. Gerry Johnstone has summarized its breadth and width in the observation
that restorative justice has been interpreted as a set of values, a process and as a lifestyle.50 As a
process, it provides the forum where all parties with a stake in the offence come together to resolve
47
Ibid 43.
48
UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 96th plenary meeting of
the General Assembly (29th November 1985) Para 1, 2 <http://www.un.org/documents/ga/res/40/a40r034.htm >
accessed 14 October 2014.
49
Victim Protection Act (n 37) s 2.
50
G Johnstone (ed) A Restorative Reader, Texts, Sources, Context (WP 2003) 1.
25
collectively how to deal with its aftermath.51 As a set of values, it calls for the injection of attitudes
that make the criminal justice system more responsive to the needs of the victim. 52 As a lifestyle,
it involves the application of restorative values and principles in everyday interaction with people
even outside the realms of crime.53 Whether perceived as a process, a set of values, or a lifestyle,
the overriding concern of restorative justice proponents is the need to shift focus from punishment
to the perpetrator to the victim’s interests. They emphasize the need to mete out justice in a manner
that is best understood and embraced by the victim. The proponents of restorative justice view it
as less disruptive to the family as it advances values that are more re-integrative and constructive
than the formal criminal justice system which is viewed as ‘brutal, vengeful and hypocritical,
humiliating and stigmatizing’.54 Victims of IFCSA can benefit from this overall utility value
advanced by restorative justice but missing in the formal criminal justice system.
When contrasted to the formal criminal justice system restorative justice is presented as one guided
by principles of ’democracy, social support and love’ while the former is deemed as ’stiff, distant
and lacking in warmth’.55 Olson and Dzor further contrast the informal nature of restorative justice
with the conventional criminal justice process. They juxtapose the specialized roles of the criminal
justice professionals with the informal human interaction between the victim, perpetrator and the
community in restorative justice. The proposal in their work is that professionals may still have a
role in restorative justice but as ‘democratic professional’ who operate as task sharers as opposed
to being aloof to the unique circumstances of each case.56 The strand of restorative justice that is
of interest to this study is the one that focuses on the interests of the victim throughout the criminal
justice process. The study does not therefore confine itself to one perception of restorative justice.
It interrogates it as a process, a set of values and a lifestyle.
51
T Marshall, Restorative Justice: An Overview (n 31) 28.
52
G Johnstone (n 50)5.
53
Ibid 8.
54
J Braithwaite, Crime, shame and Reintegration, (Cambridge university press 1989) 12.
55
G Johnstone (ed), ‘Introduction: Restorative Approaches to Criminal Justice’ in G Johnstone (ed), A Restorative
Justice Reader Texts, sources, context, (WP 2005) 5.
56
S M Olson and A W Dzur, ‘Revisiting Informal Justice: Restorative Justice and Democratic Professionalism’
2004) 28 1 Law & Society Review 139 <http://www.jstor.org/stable/1555115 > .accessed: 24 June 2013.
26
Restorative justice is not entirely an alien concept in Kenya. A lot of African traditional concepts
of justice are grounded on restorative values focusing on reparation and reconciliation.57 It is also
not unknown to the formal criminal justice system as the main procedural statute the Criminal
Procedure Code gives it recognition albeit a nuanced one. 58 This includes allowing for diversion
of court fines to a victim as compensation for loss or injury.59 It also allows the court to facilitate
reconciliation and promote amicable settlement in cases of common assault and other
misdemeanor offences.60 The code also provides for plea bargain negotiations but excludes its
application in sexual offences.61 These opportunities are captured by Ombijah, J, in his article
written before the promulgation of the Constitution of Kenya 2010. 62 This Constitution now
provides as one of the guiding principles of judicial authority the promotion of alternative forms
of dispute settlement.63 This includes reconciliation, mediation, arbitration and traditional
resolution mechanisms. The same provision states that administration of justice should be without
undue regard to procedural technicalities which is also a running theme in restorative justice. The
processes and values of restorative justice can be extended to cases of intra- familial child sexual
abuse. If applied appropriately, they may alleviate prolonged trauma and re-victimization
otherwise suffered by the victim of IFCSA.
Restorative justice is distinguishable from retributive justice though the two are not mutually
exclusive. The latter’s main concern is giving the offender their just deserts and using punishment
to denounce the act. Retribution places minimal focus on the victim save that it is hoped that they
derive some satisfaction from the fact that the perpetrator gets punished. 64 Of the two, retribution
needs less justification as the sequence of crime and punishment has been compared to the natural
sequence of stimuli and response.65 The two cannot however be said to be entirely incompatible.
57
S Kinyanjui, ‘Restorative Justice in Traditional Pre-colonial ‘Criminal Justice Systems’ in Kenya’ (2009-2010)
10 Tribal Law Journal 2, 3.
58
The Criminal Procedure Code (n 28).
59
Ibid s 175.
60
Ibid s 176.
61
Ibid s 137(N) (a).
62
N R O Ombijah, ‘Restorative Justice and Victims of Crime in Kenya : A Practitioner’s Perspective ‘- Non-Peer
Reviewed Articles< http://www.kenyalaw.org/klr/index.php?id=168> accessed 19 July 2013.
63
Art 159 (2).
64
Clarkson and Keating, Criminal Law, (7th edn, Sweet & Maxwell 2010) 3.
65
N S Timasheff, ‘The Retributive Structure of Punishment ‘(1937) 28 3 Journal of Criminal Law and Criminology
396.
27
There are cases for instance where restoration can only be brought about only through retribution
punishment.66 Similarly, certain procedures like victim inclusion in the retribution centered
criminal justice system are restorative in nature.67 This study seeks to find a balance between
restorative and retributive justice as proposed by Barnet.68 He advocates for a balance he refers to
as ‘punitive restitution’. This is where the benefits of restitution are sought while retaining the
paradigm of punishment.
The positioning and needs of the vulnerable child victim is examined through the vulnerability
theory. The theory is relatively new but steadily gaining momentum. Its main proponent is Martha
Albertson Fineman in her endeavor to respond to the limitations encountered by sole reliance on
equality.69 The theory focuses on human beings’ susceptibility to change.70 It propounds that
vulnerability is a universal state vested in everyone and only varying in degree and intensity. The
converse of vulnerability is resilience. This is the ability to recover from the harm resulting from
vulnerability. The theory expects the state to actively assume the of building resilience through the
establishment and maintenance of institutions like schools, health facilities, courts, rehabilitation
institutions, prisons and police stations.71 The relevance of engaging vulnerability theory in this
study is that it assists in positioning the victim in relation the state. This is important in ultimately
laying expectation on the state as the ultimate facilitator of identified restorative values, processes
and lifestyles needed to assist an IFCSA victim realize justice.
The victim of IFCSA is usually a female child while the perpetrator is in most cases male.72 The
gender dynamics inherent in the topic under research necessitates a discussion of feminism. Not
unlike restorative justice, feminism lacks a universally accepted definition. This is because it
presents itself in multiple strands. The general consensus among the proponents of the various
strands is that women suffer injustices because of their sex and hence the need for the creation of
66
D Van Ness (n 46) 52.
67
Ibid 120.
68
R E Barnett, ‘Restitution: A New Paradigm of Criminal Justice’ in G Johnstone (ed), A Restorative Justice Reader
Texts, sources, context, (Willan publishing 2005) 50.
69
M A Fineman, ‘Vulnerability and Inevitable Inequality’ (2017) 4 Oslo L. Rev. 133, 134.
70
Ibid 142.
71
M A Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale J.L. &
Feminism 1, 10.
72
ICRH (n 12) 6.
28
a social order in which women's experiences are brought to the fore as opposed to being
suppressed.73 They however part ways on the reason behind the injustices with each explaining
their own reasons for gender inequality. They also have varying suggestions on ways out of the
injustices. Classification of the strands also varies but the most prominent categories include the
liberal feminist theory, the radical feminist theory, the Marxist feminist theory and the cultural
feminist theory. The strands that are of relevance to this research are radical feminism and cultural
feminism for reasons expounded in chapter two of this study.
Intra-familial child sexual abuse is, among many other things, a human rights violation. For
instance, it is a violation of the right to protection all forms of sexual exploitation and sexual abuse
and of freedom from torture or other cruel, inhuman or degrading treatment or punishment.
Therefore, any meaningful legal response to IFSCA ought to have a human rights approach. The
thesis is therefore informed by the principle of the best interest of the child and access to justice
which are cardinal human rights standards in relation to children. Interrogating the two human
rights principles has necessitated a discussion of the concept of human rights. This has been done
through the lens of human rights theory. In a nut shell, the theory is concerned with the content,
nature, origins and legal status of human rights.74
As stated above, human rights principles provide a standard that is useful in informing the
discussion on what eventually constitutes holistic justice for an IFCSA victim. The Bill of Rights
in the Constitution of Kenya is key in informing all policies including those specific to the criminal
justice system.75 The human rights principles and standards that are of the greatest relevance in
this study are the right of access to justice and the principle of the best interest of the child, together
with the attendant rights specific to the rights of the child including the right to dignity. The term
best interest of the child broadly describes the well- being of the child as determined by their age
and circumstances.76 It is a running theme in major documents related to the rights of the child.77
73
K Daly and M Chesney-Lind, ‘Feminism and Criminology’ (1988) 5 Just. Q. 497, 498.
74
N James, Human Rights, The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.),
URL = http://plato.stanford.edu/archives/spr2014/entries/rights-human/ accessed 15 October 2014.
75
Art 19(1).
76
UNHCR Guidelines on Determining the Best Interest of the Child (May 2008). <www.unhcr.org/4566b16b2.pdf
> accessed 19 July 2013.
77
The UN Convention on the Rights of the Child and the African Convention on the Rights and Welfare of the
Child.
29
It emphasizes that in all actions concerning children, including those undertaken by public
institutions, administrative and legislative authorities and courts of law, the best interest of the
child shall be a primary consideration. The Constitution of Kenya 2010 also restates the concept
by providing that a child’s best interest is of paramount importance in every matter concerning the
child. 78
The study recognizes the fact that communities resort to use of informal mechanisms to resolve or
cover up a good number of cases outside the legal framework. Since the informal mechanisms
gravitate more towards restorative justice, the criminal justice system has something to learn from
informal processes in as far as the use of restorative values and processes is concerned. This is not
to say that restorative justice is untenable in the criminal justice process. It is for this reason that
the research considers the theory of legal pluralism to explore the framework within which the
criminal justice process can be enriched by the restorative values and processes in alternative
informal justice systems. The use of the term legal pluralism in this research refers to the presence
of more than one legal order based on a variety of certain common interests including geographical
location, religion or ethnic affiliation.79 The essence of legal pluralism as a theory is ‘to validate
and acknowledge the existence of alternative or co-existing forms of legal ordering within a
particular domain’.80 This concept has a constitutional basis in Kenya by dint of the provision
sanctioning the use alternative dispute resolution mechanisms, including traditional justice
mechanisms. The constitution clarifies that traditional dispute resolution mechanisms should be
used in a way that does not contravene the bill of rights, is repugnant to justice and morality or is
inconsistent with this Constitution or any written law.81 Its relevance to this research is mainly in
its versatility which provides space for creativity in coming up with a more victim centered legal
response to IFCSA.
78
Art 53(2).
79
J Griffiths, ‘What is legal pluralism?’ (1986) 24 Journal for Legal Pluralism 3
http://www.jus.uio.no/smr/english/research/areas/diversity/Docs/griffiths_what-is-legal-pluralism-1986.pdf accessed
4 February 2014.
80
A Griffiths, ‘Pursuing Legal Pluralism: The Power of Paradigms in a Global World’ (2011) 64 Journal for Legal
Pluralism 174 <http://www.jlp.bham.ac.uk/volumes/64/griffiths-art.pdf> accessed 6 February 2014.
81
Art 159 (2) (c).
30
1.9 Literature Review
1.9.1 General Child Sexual Abuse

A lot has been published on child sexual abuse generally both locally and at the international level.
The United Nations has been a notable front runner and has commissioned substantial literature
on the issue. In 2002, the UN General Assembly appointed an independent expert to report on
violence against children.82 The expert subsequently compiled a Report which included his
findings on child sexual abuse.83 The report states that most cases of child sexual abuse occur
within the family circle. Of relevance to this study is the fact that the report suggested a judicial
and legislative response to the abuse that shifts away from penalties to recovery, reintegration and
redress. This recommendation is inclined towards restorative justice which is a central theme in
this research. The UN Secretary General subsequently appointed a Special Representative to
promote the dissemination of the study and ensure effective follow up to its recommendation.84
The Special Representative makes annual and thematic reports to the Human Rights Council and
the General Assembly on issues concerning violence against children, including sexual abuse.85
Locally, studies have been conducted on access to justice for sexual assault victims since the
enactment of the Sexual Offences Act. Professor Brett Shadle has reviewed sexual offence cases
handled by the Kenyan courts between 1960 and 2008.86 The review was both statistical and
qualitative designed to evaluate the impact made by the implementation of the Sexual Offences
Act. The study focused mainly on adult sexual assault. In the study report’s conclusion, he calls
upon legal scholars and activists to pay close attention to trends in sentencing and in judicial
attitudes in sexual offence cases. 87 This is partly what this research embarks on through the lens
of restorative justice.
82
Paulo Sergio Pinheiro, appointed pursuant to General Assembly Resolution 57/90 of 2002.
83
UN Secretary General Document, Report of the independent expert for the UN study on Violence against children
(n 9) 45.
84
Marta Santos Pais appointed on 1st May 2009.
85
SRSG on Violence against Children- Publications < http://srsg.violenceagainstchildren.org/publications> accessed
on 6 February2014.
86
B Shadle, (n 35).
87
Ibid.
31
At the Kenyan coast region, ICRH, in conjunction with GIZ conducted a study of 165 out of a total
of 286 cases concluded at the Mombasa law courts.88 The broad objective was to contribute to
improved access to justice for victims of SGBV in Mombasa. The study involved investigating
access to justice for victims of Sex and Gender based Violence and examining the legal outcomes
of sexual Offences cases. It specifically focuses on reasons for successful or failed prosecutions
and reasons for filing or not filing cases in court. Among the recommendations made by the study
is a proposal for consideration of use of traditional justice systems by the community. 89 This study
again is on sexual offences in general with no special focus on the child victim. It will however
provide a good background for this research on the experiences of victims of sexual offences in
their pursuit for justice.
ANPPCAN has also compiled a report from their first conference in Africa on child sexual abuse
which concludes with a host of recommendations on the best way to handle child sexual abuse.
Among the recommendations is the need to re-orient towards a sensitive, innovative response that
looks beyond punishing the perpetrator.90 The report does not suggest how this is to be
implemented; which is what this research will attempt to do. The leading child rights organization
in Kenya, The Cradle91 has also been monitoring trends on general child sexual abuse since 2002
with periodic reports.92 These reports also confirm the fact that in Kenya, children are sexually
abused mostly by persons known to them.
None of the above reports focuses on the legal response to IFCSA cases, which is the focus of this
study.
88
ICRH (n 12) Generally.
89
W Bosire, ‘Pre-dissemination of “Haki Yenu” Study’ (Stake holders meeting, the Royal court Hotel. Mombasa,
Kenya, 28 March 2013).
90
ANPPCAN, ‘Enhancing knowledge through research, practice and partnership to protect children against sexual
abuse’ (First international conference in Africa on child sexual abuse, Nairobi 24th – 26th September 2007).
http://www.anppcan.org/files/File/Report%20of%20the%201st%20International%20Conference%20in%20Africa%
20on%20Child%20Sexual%20Abuse.pdf accessed 27 June 2013.
91
A leading non-governmental children foundation in Kenya on promotion of justice for children (est 1997).
92
The Cradle Publications, < http://www.thecradle.or.ke/resources-publications/the-cradle-publications> accessed 12
May 2012.
32
1.9.2 Intra-familial Child Sexual Abuse
The unique specificity of the impact of IFCSA on its victim has been captured by Dickens in his
survey of problems arising from legal response to child abuse within the family.93 His concern is
that law’s intrusion into the family relationship may be at the cost of interests of both the parents
and the child. His other concerns include the legal process’s ability to deplete family resources,
and depress rather than enhance the child victim’s environment. He notes that a custodial sentence,
while removing an immediate physical threat may damage home life and deny the child emotional
security making the child a double victim. The point of departure between Dickens’ work and this
research is that Dickens deals with child abuse in general whereas the research is specific to intra
familial child sexual abuse in the Kenyan setting.
Other proponents of the separate handling of IFCSA include Ryan Barbara, et al. who propose an
alternative way of handling some IFCSA cases through treatment interventions.94 Their focus is
however mainly on the treatment of the perpetrator. As stated earlier, this study is focused more
on achieving holistic justice for the victim than seeking treatment for the perpetrator. There are
authors however like Ruby Andrews, who are of the view that cases of IFCSA abuse should not
be treated as a distinct group.95 To her, there is no significant difference between intra familial and
extra familial child sexual abuse perpetrators. This study departs from Andrews’ view and
proceeds from the stand point that IFCSA is distinguishable from child excuse abuse by a non-
family member. Feminists like S, Carolyne Taylor on the other hand, are for separate response of
IFCSA cases but for different reasons. She deems the application of the law in such cases as being
masculine and patriarchal hence discriminatory against women and recommends a different
response.96 The concerns of feminists in the topic under research are addressed in the next chapter.
93
B M Dickens, ‘Legal Responses to Child Abuse’ (1978) 12 (1) Family Law Quarterly 1
<http://www.jstor.org/stable/25739204> accessed: 27 June 2013.
94
B Ryan et al (n 16).
95
A P Ruby, ‘Child Sexual Abuse and the State: Applying Critical Outsider Methodologies to Legislative
Policymaking ‘(2006) 39 (5) Davis Law Review <http://ssrn.com/abstract=904100 > accessed 19 July 2013.
96
C S Taylor, ‘Intra-familial Rape and the Law in Australia: Upholding the Love of the Father’ (Keynote address at
the Townsville International Women’s conference, James Cook University, July 2002).
33
1.9.3 Restorative Justice
There is vast literature on restorative justice by both its proponents and critiques ranging from its
content, scope, justification, to its implementation and practice. Some authors have published
extensively on diverse facets of the topic. A leading author, Gerry Johnstone introduces and
analyses the theory of restorative justice and traces its development in criminal justice
jurisprudence over time.97 As far as its critics are concerned, Acorn has argued that restorative
justice lacks authenticity and fails to accommodate people’s natural needs to give just desserts.
She further states that restorative justice assumes that the participants are drawn from the ranks of
morally supererogatory without appreciating the propensity of some bad actors to keep on being
bad. 98 This negative attitude is anticipated in this research especially when restorative justice is
recommended in such deplorable offences as child sexual abuse. This has been acknowledged as
a limitation of the research and was dealt with in the manner specified in the methodology.
Other book authors have focused on the mode of implementation of restorative justice including
conferencing99, and use of indigenous as opposed to western type dispute resolution mechanisms
as happens in many Indian communities,100 and family group therapy.101 This research has
considered implementation through a combination of the above modes depending on the
environment surrounding the community within which the offence is committed. The modes
considered in this research include African traditional informal justice mechanisms, mediation and
faith-based interventions especially Christian and Islam. This is akin to FitzGerald’s recommended
mode of supplanting parts of the formal system with existing informal institutions with the aim of
mitigating the rigidity inherent in the formal system.102
97
G Johnstone (n 50).
98
A Acorn, Compulsory Compassion: A Critique of Restorative Justice. (Vancouver: University of British
Columbia Press, 2004) 224.
99
J Braithwaite, (n 54).
100
R Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto: Penguin Books 1996).
101
E McNevin, ‘Applied Restorative Justice as a Compliment to Systematic Family Therapy: Theory and Practice
implications for Families experiencing Intra familial Adolescent Sibling Incest’ (2010) 31 Journal Of Family
Therapy 60.
102
J M FitzGerald, ‘Thinking about Law and Its Alternatives: Abel et al. and the Debate over Informal Justice’
(1984) 9 American Bar Foundation Research Journal 3 637.
34
The works of various proponents and critics as compiled and edited by Johnstone have also been
considered.103 As far as the justification of the theory is concerned, authors offer diverse
explanations. Zehr infuses religion in rationalizing the theory. He associates it with Christian
principles such as accountability for the offender and restitution, and an experience of justice and
forgiveness for the victim.104 This research does not concern itself with the needs of the offender
as the criminal justice system has focused on him for too long. With regard to applicability of
restorative justice, the trend by its proponents is to stretch it even to serious offences. The only
condition is that there should be an identifiable victim and an admission by the accused. 105 It has
however been noted to have the potential for security concerns in case of serious offences and
repeat offenders.106 This again is noted as a limitation in the research.
The greatest criticism against restorative justice is hinged on the impression that it cheapens the
impact of crime by letting off a perpetrator with a ‘slap on the wrist’. When contrasted to retributive
justice, the latter is deemed ‘the natural sequence of stimuli and response’, hence needs less
justification.107 Restorative justice has thus been accused of lacking authenticity and failing to
accommodate people’s natural need to give ‘just desserts’. This argument is based on the
presumption that it is natural for an aggrieved person to want the perpetrator to suffer for the
offence.
Restorative justice has also been criticized for its tendency to reinforce the power imbalance
inherent in a victim-perpetrator relationship which heightens possibilities of re-victimization. This
is even more so in respect of child victims, who may be more vulnerable to a forced settlement
because of their weak social standing, especially in the African society. It has further been
presented as having the propensity to encourage vigilantism as opposed to encouraging adherence
to the rule of law.108 This fear arises from the belief that any process outside the western type of
103
G Johnstone (n 50).
104
H Zehr, ‘Retributive Justice Restorative Justice’ in G Johnstone (ed) , A Restorative Justice Reader Texts,
sources, context, (Willan Publishing 2005) 69.
105
R.A Duff, ‘Restorative Punishment and Punitive Restoration’ in G Johnstone (Ed) A Restorative Justice Reader
Texts, sources, context, (Willan Publishing 2005) 382.
106
L Walgrave, ‘Restorative Justice for Juvenile’ in G Johnstone (ed), A Restorative Justice Reader Texts, sources,
context, (Willan publishing 2005) 255.
107
N.S.Timasheff (n 65).
108
Acorn (n 98) 223.
35
justice concept is outside the rule of law. Another gap highlighted by critiques of restorative justice
is its potential for raising security concerns in case of serious offences and repeat offenders.109 In
this regard, it is charged with assuming that the participants in the restorative process are ‘drawn
from the ranks of morally superogatory without appreciating the propensity of some bad actors to
keep on being bad’.110 The argument here is that if the offenders are not put away from the society,
its security remains at stake as restorative justice has no mechanisms to ensure that the perpetrator
does not reoffend. Finally, restorative justice has been cited for assuming that the offender has
already assumed responsibility and for its irrelevance where there is no identifiable victim or
admission of guilt by the perpetrator.111
Braithwaite has dedicated time and effort to respond to the above criticism.112 Suffice it to say that
restorative justice begins from the disadvantaged point of having to explain and justify its very
existence and relevance. This is the same negative attitude that is anticipated during the conduct
of this research especially when the same is recommended in such deplorable offences as child
sexual abuse. This negative attitude is acknowledged as a limitation and has been dealt with in the
manner specified in the methodology part of the study.
Critiques of restorative justice have further been engaged in great depth by Morris J who has taken
time to respond to various claims against the theory.113 The main claim is on the tendency by
restorative justice to trivialize crime. Braithwaite in his journal article also reacts to various claims
against restorative justice and concludes that restorative justice is more useful for preventing crime
in an acceptable way than the existing criminal law jurisprudence. 114
As already stated, the purpose of this study is not to propose a replacement of the criminal justice
system through a paradigm shift to restorative or informal justice. What is proposed is
109
Walgrave (n106).
110
Acorn (n 98) 224.
111
R.A. Duff, (n 105).
112
J. Braithwaite, ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’ in M Tonry (ed) Crime and
Justice A Review of Research 25 (University of Chicago Press 1999) 1.
113
A Morris: ‘Critiquing the Critics: A Brief Response to Critics of Restorative Justice’ in G Johnstone, (ed), A
Restorative Justice Reader Texts, sources, context (Willan publishing 2005) 461.
114
J Braithwaite (n 112).
36
incorporation of restorative values and processes within the criminal justice system in order to
craft out a more victim centred legal response.
1.9.4 Restorative Justice in Sexual Abuse Cases

Despite its growing acceptance in the criminal justice system, existing literature reveals a concern
on the feasibility of restorative justice in sexual offences. Sexual offences just like racial violence
offences are said to involve huge imbalance of power between the victim and the perpetrator that
may bring to question the viability of restorative justice. Hudson has however proposed that since
the formal criminal justice system has not provided sufficient remedies to victims of these
offences, restorative justice should be given a chance.115
There is a trend to the effect that restorative justice is more creditable in minor offences and less
so for more serious offences. It is for this reason that its utility in the global arena in respect of
sexual violations is still limited. It has for instance been utilized in a unique South Australian
initiative. Under this initiative, young offenders of with sexual assault, and who do not contest
their charges, are diverted to family conferences.116 The literature around viability of restorative
justice in sexual violations is however a growing steadily. Myers has, for instance, made an appeal
to veer away from what he refers to as ‘emotional and visceral’ responses to sexual offences, which
he warns as having the effect of ‘impairing objectivity’. He promotes the role of restorative justice
by contending that ‘the social and legal issues engendered by child sexual abuse are too important
to be obscured by adversarial rhetoric’.117 Another bold proposition for suitability of restorative
justice in sexual offences has been made by Wright.118 In his conference paper, he argues that in
the light of the inadequacies of the criminal justice process, restorative justice in form of mediation
can be applied in rape cases. This is especially so where the victim and the perpetrator are
115
B Hudson , ‘Restorative Justice: The Challenge of Sexual and Racial Violence’ in G Johnstone (ed) , A
Restorative Justice Reader Texts, sources, context (Willan publishing 2005) 438
116
M Doig & B Wallace, ‘Family Conference Team, Youth Court Of South Australia’ ( Restoration for Victims of
Crime Conference, Australian Institute of Criminology in conjunction with Victims Referral and Assistance Service,
Melbourne, September 1999) <http://www.aic.gov.au/media_library/conferences/rvc/doig.pdf,> accessed on 30
November 2013.
117
J E B Myers, ‘The Child Sexual Abuse Literature: A Call for Greater Objectivity’ (1990) 88 (6) Michigan Law
Review Ass 1703.
118
M Wright, ‘Is Mediation Appropriate Even for Rape?’ (International Conference on Restorative Justice,
Winchester, March 2000). <www.restorativejustice.org/10fulltext/wrightmartin2000ismediation>, accessed on 2
November 2013.
37
acquainted. Wright however falls short of recommending restorative justice in cases of child sexual
abuse as is being proposed in this study. The most promising indication of the future of restorative
justice in sexual offences is however best demonstrated by McGlynn’s exploratory study
befittingly entitled, ‘I Just Wanted Him to Hear Me'. The aim of the study was to investigate
experiences of a restorative justice conference involving an adult survivor of child rape and other
child sexual abuse. The results of the study confirmed that there is room for application of
restorative justice in sexual offences.119
With regard to the stage of the criminal justice process at which restorative justice is applicable,
Miller recommends intervention at the post- conviction stage. In review of Miller’s work however,
McGlynn finds Miller’s scope very limiting and calls for rethinking of the approach of what justice
means for a rape victim beyond punitive state outcomes.120 The approach taken by this research is
that restorative justice should be applied at any stage of the criminal justice process, as long as
opportunity presents itself, and it is in the best interest of the victim.
The literature review on restorative justice reveals that the proposition to extend restorative justice
to sexual offences, especially child sexual abuse, is bound to be met with some resistance. This
together with the concerns highlighted by the critics of restorative justice, have been acknowledged
as limitations and concerns in this study. The concern is addressed by reiteration, through-out the
study that the purpose of this research is not to replace the criminal justice system through a
paradigm shift to restorative justice. What is proposed is incorporation of restorative justice values
and processes within the existing criminal justice process.
From the foregoing, the global dialogue to extend restorative justice to sexual offences is evident.
The possibility of its making inroads in the realm of sexual offences, including cases of IFCSA,
cannot be ruled out. It is however clear that this is bound to be met with substantial resistance.
119
C McGlynn et al., ‘I Just wanted Him to Hear Me: Sexual Violence and the Possibilities of Restorative Justice’
(2012) 39 (2) Journal of Law and Society 213-240, 239.
120
C McGlynn, ‘Feminism, Rape and the Search for Justice’ (2011) 31 (4) Oxford Journal of Legal Studies 825,
842.
38
1.9.5 Best Interest of the Child
The importance of the best interest of the child principle has been highlighted by Freeman who
argues that the fact that it appears in one of the earliest articles of the CRC may be interpreted as
evidence that it underpins all other provisions of the CRC.121 Few attempts have however been
made to elaborate what the principle entails. The UNHCR has provided guidelines elaborating
what the best interest of the child in their area of specialization entails.122The guidelines were
compiled with input from international governmental and nongovernmental organizations
including UNICEF and the Committee on the rights of the child, among others. Under the
guidelines, the best interest of the child is mainly determined by the circumstances of the child.
The Committee on the Rights of the Child has in its General Comment on the right of the child to
freedom from all violence suggested that the interest of a child victim should encompass
enforcement of judicial procedures in a child friendly way. The committee recommends a
restorative approach as opposed to a purely punitive judicial involvement.123 This research
explores ways of implementing this restorative approach as a means of safeguarding the best
interest of the child victim of IFCSA.
Alston brings out the issue of cultural relativism in the best interest principle by highlighting the
variation in its perceptions across different cultural settings.124 Elsewhere, the challenges of
applying the principle in the context of the traditional African setting have been discussed. In this
setting, children were deemed as belonging to someone, who was usually the patriarch of the home,
and were not expected to have an opinion or interests separate from the patriarch. The traditional
African child has thus been described as a ‘victim of intergenerational power imbalance … in a
gerontocratic structure’ where the value of their opinion is directly proportional to their age.125 The
principle is by and large not altogether inconsistent with African customary norms as long as
creative ways of applying it are sought. Ncube for instance brings out the scenario where an
African child could sufficiently participate in decision making on matters of their welfare through
121
M. Freeman, ‘Article 3. The Best interest of the Child’ in A, Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E.
Berghmans and M. Verheyde (eds.), A Commentary on the United Nations Convention on the Rights of the Child
(Martinus Nijhoff Publishers, Leiden, 2007) 6.
122
UNHCR Guidelines (n76).
123
CRC General Comment No 13 (n 42).
124
P Alston, (Ed) The Best Interest of the Child; Reconciling Culture and Human Rights (OUP 1994) 11.
125
JW Wafula, ‘African Values and the Rights of the Child: A View of the Dilemmas and Prospects for Change’ in
S Lagoutte & N Svaneberg (eds.), Women and Children’s Rights, African Views (Karthala, 2011) 115.
39
an intermediary like a grandmother, without uttering a word.126 This study has been sensitive to
the cultural realities of the geographical areas under study and has resisted the imposition of the
strict western conceptualisation of the rights of a child.
1.9.6 Access to Justice

In common parlance, justice means fairness.127 In the context of access to justice, it includes the
granting of equal opportunities and liberties to the parties to a dispute in a manner that benefits the
least advantaged.128.In discussing procedural justice, Omondi highlights explains that the essence
of benefitting the least advantaged is to bring them to an equal level with those more
advantaged.129Her concern is the positioning of a child victim of sexual abuse vis-à-vis an accused
person. The juxtaposition in this study is an IFCSA victim vis-à-vis a child sexual abuse victim by
a non-family member.
Access to justice has been given a broad definition by Penal Reform International as
encompassing:
access to a fair and equitable set of laws; access to popular education about laws and legal
procedure; as well as access to formal courts and, if preferred in any particular case, a
dispute resolution forum based on restorative justice (both subject to appropriate regulation
in order to prevent abuse).130
The right to access to justice does not therefore merely mean physical access. The concept has
been unpacked in detail by Mbote and Akech to include several incidentals.131 This study adopts
the broad view of access to justice in arriving at a standard for victims of IFCSA.
126
C Himonga, ‘The Right of the Child to Participate in Decision Making, A Perspective from Zambia’ in
Welshman Ncube (ed.), Law, Culture, Tradition and Children’s Rights in Eastern and Southern Africa (Dartsmouth
Publishing Co 1998) 95.
127
https://www.merriam-webster.com/dictionary/justice accessed 4 July 2019.
128
S Omondi, Balancing Rights of Child Victims of Sexual Abuse and Accused Persons: A Critique of the Adversarial
Trial Process in Kenya (LAP Lambert Academic Publishing 2014) 106.
129
Ibid 107.
130
Penal Reform International, ‘Access to Justice in Sub-Saharan Africa: The role of Traditional and Informal
Justice Systems’ (2000) < www.penalreform.org> accessed 25 November 2013.
131
P K. Mbote & Akech M, Kenya: Justice Sector and The Rule Of Law (: Johannesburg: Open Society Initiative
for Eastern Africa 2011) 157
<http://www.afrimap.org/english/images/report/MAIN%20Report%20Kenya%20Justice%20Web.pdf>, accessed 24
October 2013.
40
1.9.7 Legal Pluralism
Legal pluralism is replete with easily accessible literature most of which is compiled in the Journal
for Legal Pluralism.132 The journal contains both book reviews and journal articles on the subject.
Most of the books reviewed are on the application of legal pluralism in specific geographical areas
across the world including Netherlands,133 the African continent,134 Japan,135 and Australia.136
A number of journal articles address the meaning and scope of the theory of legal pluralism. It has
been defined as the presence, in the social field, of more than one legal order.137 It is contrasted to
legal centralism where only the law of the state is recognized to the exclusion of lesser normative
orderings existing within the community like the church, traditional models, the family or any
other grouping. These groupings are however subordinate to state institutions and organs. Though
the two may compete and even contradict, they can be mutually constitutive.
There is a trend by various authors to perceive legal pluralism in the broadest possible terms. In
the African context, they warn against the risk of limiting the perception of legal pluralism to the
European versus African customary law dichotomy. Merry refers to this dichotomy based on
intersections between native and western law as the ‘classic legal pluralism’. 138 She distinguishes
it from the ‘new legal pluralism’ when the concept is applied to non- colonized societies.139 This
study interrogates legal pluralism in the broad sense by looking beyond the African customary
systems in considering the restorative processes the community resorts to in settling cases of
IFCSA. None of the books and articles specifically addresses the place of legal pluralism in
response to IFCSA cases which is what this research will focus on.
132
Journal for Legal Pluralism and Unofficial Law <http://www.jlp.bham.ac.uk> accessed on 20/1/14.
133
K von Benda-Beckmann and F Strijbosch (eds.) ‘Anthropology of Law in the Netherlands: Essays in Legal
Pluralism’ (1986) 24 Journal for Legal Pluralism 161.
134
B E. Harrell-Bond and E. van Rouveroy van Nieuwaal (ed.) ‘Disparity Between Law and Social Reality in
Africa’ (1975) 13 Journal for Legal Pluralism 162.
135
M Yasaki (ed.) ‘East and West. Legal Philosophies in Japan’ (1987) 27 Journal for Legal Pluralism 145.
136
P Sack and E Minchin (eds.) ‘Legal Pluralism: Proceedings of the Canberra Law Workshop VII’ (1986) 27
Journal for Legal Pluralism (1986) 173.
137
J Griffiths, (n 79) 1.
138
S E Merry, ‘Legal Pluralism ‘(1988) 22 (5) Law & Society Review 869-896, 889.
<http://www.jstor.org/stable/3053638> accessed: 20 January 2014.
139
Ibid 873.
41
1.10 Research Methodology
The research methodology was informed by the overall objective of this research which is the
advancement of a victim centered response to IFCSA through the incorporation of restorative
justice values and processes in the criminal justice process. This necessitated an interrogation of
the existing legal framework and the theory of restorative justice, and an inquiry into the
phenomenon of IFCSA. This was done through a qualitative research where the data was sourced
from both desk and field research.
1.10.1 Desk Research

Desk research was carried out in two main ways. The first involved interrogating primary legal
sources including relevant domestic statutes and international legal instruments together with
secondary literature. Both the primary and secondary sources were accessed through electronic
and manual resources at the libraries of various institutions visited by the researcher including the
University of Nairobi, the Danish Institute for Human Rights in Copenhagen, the Institute for
Human Rights at the Abo Akademi University in Turku, Finland and the SEARCWL-UZ (South
& Eastern African Regional for Women’s Law – University of Zimbabwe. They include the works
of various scholars and writers as published in various books, journals and electronic resources,
reported case law, and qualitative data from previous studies.
The second way was through the perusal of a total of thirty most recently concluded court files on
IFCSA cases. The thirty were evenly distributed in the three subordinate court criminal registries
in Kwale, Naivasha and Mombasa. The rationale behind focusing on the most recently concluded
was to target those decided after the enactment of the victim centered statute, the Victim Protection
Act of 2016. The statute’s intended impact is discussed in chapters three and five of this thesis.
The justification of the choice of the three counties is discussed in the following part.
1.10.2 Field Research
The field research was conducted at two levels including in-depth key informants’ interviews and
focused group discussions. The interviews focused on four categories of respondents who have
interacted with IFCSA cases at different levels in their various capacities. They included victims,
perpetrators, non-professionals and professionals who have engaged with IFCSA as community
42
leaders or witnesses. The first three categories were interviewed with the aim of interrogating how
different players perceive and interpret relevant issues pertinent to IFCSA. Difficulty in identifying
and accessing respondents amongst perpetrators and victims was anticipated. With regard to the
perpetrators, the researcher engaged closely with the prison authorities for a period of one year
leading to the interviews as is evident from the timelines in Appendix Five. The engagement
included a vetting interview process with the senior prisons officers. This was useful in the
identification of inmates incarcerated for IFCSA offences who were willing to be interviewed. It
was also useful in learning interview techniques of this unique category. The researcher was for
instance advised to frame the interview questions indirectly in order to avoid the accusatory
sounding direct questions. Instead of asking ‘why did you do it?’ the researcher was advised to
frame the same as ‘why do people do such things?’ The latter version not only put the responding
perpetrator at ease, it also provided him with an opportunity to answer an open ended question
without necessarily incriminating himself. With regard to victims, the anticipated challenge of
identifying and accessing them was overcome by the intentional choice of geographical locations
of conducting the research as explained later in this part.
The professionals interviewed included legal practitioners, judicial officers, prisons officers,
probation officers, police officers, and children’s officers. The respondents under this category
were identified on the basis of their frequent interaction with Sexual and Gender Based Violence
cases in the course of their work. They were drawn from aforementioned three counties apart from
three senior judicial officers who are based in Nairobi. The professionals were interviewed with a
view to gathering details of their experiences and view- points from their day to day practice. The
experiences included projecting and echoing the voices of the victims as narrated to them in their
interaction. The judicial officers interviewed included a magistrate, a high court judge, the then
Chief justice of the Republic of Kenya, and a Court of Appeal judge who had risen through the
ranks over a span of over thirty five years from the magistracy. She therefore had vast experience
in presiding over SGBV cases. The judge in charge of the judiciary task force on Alternative
Justice System was also interviewed. His input was useful to this research as restorative values
and processes have been sought in the informal justice system.
43
As noted already noted above and as confirmed in Kisanga’s140 and the ICRH141 reports,
disclosure of sexual offence is often a problem. This problem was anticipated during data
collection from the victims. The researcher countered this by building confidence with the victims
and/or their guardians in order to create a suitable environment for data collection in this sensitive
subject. It is this reason that informed the choice of two of the three counties identified for research
that is Kwale and Mombasa counties. The researcher has a fifteen year history of working with the
community and the professionals from these two counties on SGBV cases. She therefore took
advantage of the pre-existing networks and goodwill to identify and access the respondents.
Further justification for the choice of geographical delimitation is that Mombasa in particular has
a well-established gender recovery center with good record keeping for SGBV cases under which
IFCSA falls. The sample from these three counties is also sufficiently representative of both rural
and urban population in Kenya. Mombasa is an urban, multi-ethnic and multicultural port city and
the second-largest city in Kenya. Though it occupies approximately 200 km2, it has a dense
population of about 1 million people. It has representation from all the 42 ethnic communities in
Kenya who migrate there for work and business-related reasons.142Kwale on the other hand is
largely rural occupying about 8,000 km2 with an approximate population of 750,000. It does,
however, have a small urban population around the tourist resorts dotting the shoreline. The
population comprises the indigenous Digos and Durumas and a significant number of migrants
from the Kamba community.143 The Digos and Durumas specifically still hold dear their traditional
way of life in matters of health, childbirth, marriage, burial and dispute resolution.144 This research
is alive to the fact that many cases of IFCSA go unreported. It is for this reason that the research
focused on community grass root gatekeepers in the two counties who are likely to be the first
contact even before the involvement of the police. These gatekeepers are also involved in some
form of alternative dispute resolution of all cases, including child sexual abuse cases, though
outside the criminal justice system. The reason of focusing on this latter group was to seek the
140
Kisanga (n 6) 482.
141
ICRH study (n 12) 52.
142
Kenya Open Data Survey; County Data Sheet – Mombasa,
<https://www.opendata.go.ke/facet/counties/Mombasa,> accessed on 10 October 2013.
143
Kenya Open Data Survey, County; County Data Sheet – Kwale,
<https://www.opendata.go.ke/facet/counties/Kwale>, accessed on 10 October 2013.
144
Information on the Digos and Durumas is available on http://www.joshuaproject.net/peoples.php?peo3=11557>,
accessed on 28 November 2013.
44
extent to which informal justice is applied, whether it has any best practices that can be borrowed
and whether it is possible to legalize and legitimize it in cases of intra-familial child sexual abuse.
Naivasha’ s choice was informed by its notoriety in sexual and gender based violence resulting in
it being flagged out as a hotspot by various human rights bodies in 2015. It is also home to many
flower farm workers from all over the country. The face of Kenya is therefore fairly well
represented in that geographical region.
In total, forty six respondents were interviewed individually. They included five victims, six
perpetrators, one teacher, one community leader, one social worker and manager of a shelter, five
judicial officers, three probation officers, twelve police officers (three as separate individuals and
nine in two separate groups of four and five in Mombasa and Naivasha respectively), five
children’s officers, three probation officers, one prison’s officer and three legal practitioners. The
perpetrators interviewed were more than the victims. This is because it was easier to access the
confined perpetrators through the Department of Prison Services. |It was not as easy to identify
IFCSA victims as they are not held in a common place. Even after identification, it was harder to
get those who were willing to be interviewed. The disparity between the number of victims and
perpetrators interviewed did not necessarily diminish the voices of the victims in this study. In
addition to the voices of the five interviewed, their voices were also heard through the professionals
who have the advantage of interacting with many victims in the course of duty.
The selection of the respondents was purposive owing to the sensitive nature of the topic under
research. Purposive sampling was done to select the informants after which their interviews
snowballed and presented additional informants who were also interviewed.145 This began with a
few respondents with a wide reputation of interacting with cases of child sexual abuse in case of
professionals or those ready to share information in case of non-professionals. This method has
been said to work well in sensitive research topics where the population is not readily
identifiable.146The interviews were semi-structured based on open ended questions designed to suit
the nature of information sought from each interviewee. In view of its flexibility, this method
145
D K Kombo and D L A Tromp, Proposal and Thesis Writing: An Introduction (Paulines Publication Africa 2006)
83.
146
Ibid.
45
enabled the researcher to obtain detailed information that led to a more comprehensive
appreciation of the issue under research.147 There are however two senior judicial officers who
were not available for a face to face interview. For these two, the researcher forwarded a
questionnaire to them by email and received their respective responses through the same means.
With regard to the focused group discussions, two of them were conducted. One targeted the
mentioned professionals in the criminal justice process while the other target community
gatekeepers, including community elders, religious leaders and Community Based Organizations.
The community leaders targeted in this interview are those who in practice, work with the chiefs
and are recognized by the national government organs at the grass root.148 The aim of the
discussions was to obtain feedback on experiences, perceptions and attitudes towards IFCSA and
restorative justice in a controlled, structured environment. The two focused group discussions were
held in Kwale and Mombasa counties. The one held in Kwale targeted community gate keepers.
Those in attendance included community elders, religious leaders, teachers and grassroots
Community Based Organizations. The focused group discussion held in Mombasa was attended
by police officers from across the coast region, and legal practitioners.
The subject matter of this research is a minor. The research was therefore alive to the study’s
potential for ethical concerns throughout the study. These concerns were addressed in two ways.
First and foremost, the field work was preceded by obtaining consents from the highest level of
the concerned government agencies. Some of the agencies like the prisons department and the
National Commission for Science, Technology and Innovation (NACOSTI) vetted the researcher
before issuing her with the consent. Secondly, in appreciation of the ethical intricacies involved in
interviewing minors, the researcher took advantage of the availability of adults who were abused
as minors. Three of the victims were therefore adults. The two minors who were interviewed were
wards of the state. Handwritten consent was obtained both from the department of children services
Head office and from the persons in-charge of the institutions where they were held. The persons
147
Ibid 93.
148
FIDA Kenya, ‘Traditional Justice Systems in Kenya: A Study of Communities in Coast Province, Kenya’ 8
<http://fidakenya.org/wp-content/uploads/2013/08/Traditional-Justicefinal.pdf > accessed 15 October 2014.
46
were invited to be present during the interviews though none of them stayed throughout. All the
consents obtained from the government agencies are annexed as appendices to this thesis apart
from the consents from the department of children services with regard to the two minor victims.
This is to protect their privacy.
1.11 Limitations of the Study
This research was conducted against a status quo whose usual response to crime is punishment to
the perpetrator. A deviation from this response is frowned upon as a lenient slap on the wrist. This
attitude is most prevalent amongst professionals and was an obvious limitation. This manifested
itself through their very guarded responses especially at the commencement of the interviews. The
guarded responses had the potential of hindering in-depth discussions with most respondents
beginning the discussion on an argumentative tone. The researcher was however able to overcome
the challenge through the use of open ended questions which gave room for the respondents to air
their misgivings on the topic under research even as they answered the questions asked. The use
of focused group also provided an appropriate forum for structured engagement devoid of
emotional biases.
The study involved the relatively uncharted field of the use of restorative justice in sexual offences
in Kenya. This comes with scarcity of relevant Kenyan literature in the area. This was overcome
by reviewing literature from jurisdictions where restorative justice in sexual offences is already in
place. This includes New Zealand and South Australia where restoratively justice is routinely
applied in youth justice cases of sexual assault.149
Finally, sexual offences have a lot of stigma attached to them rendering the research by its very
nature self- limiting. Sampling and therefore data collection was a challenge as not many victims
were willing to share their experiences. As stated above, the researcher did not interview as many
victims as she had hoped to. Particularly, it was not possible to interview child victims’ immediate
relatives especially the mothers. One mother whose child had been defiled by her father changed
149
K Daly and J Stubbs, ‘Feminist Theory, Feminist and Anti- Racist Politics, and Restorative Justice,’ in G
Johnstone and D W Van Ness (eds) Handbook of Restorative Justice (Willan Publishing 2007) 160.
47
her mind a week to the interview. The challenge posed by lack of cooperation from victims’
immediate relatives especially the mothers was overcome in two ways. First by resort to interview
adult victims who were abused as children and who did not therefore require parental consent.
Secondly by dealing with child victims under the custody and guardianship of persons other than
the parents including a children’s officer in charge of a children’s home and a manager in charge
of a shelter. The researcher’s prior engagement with sexual offences within the communities
assisted in identifying the five victims interviewed. Further, random sampling was avoided in favor
of purposive sampling targeting only those victims willing to participate in the research.
1.12 Organization of the Study (Chapter breakdown)
Chapter One lays the introduction to the research and summarizes its structure. It provides the
background, it highlights the hypothesis, the research problem, questions and chapter breakdown.
It also discusses the research methods and methodology and introduces the theoretical framework
of the research which is unpacked further in chapter two. This chapter therefore provides a
roadmap on how the research will be conducted.
Chapter Two sets out the theoretical framework. It analyzes the theories of restorative justice and
legal pluralism. It interrogates their meaning, scope and relevance in responding to IFCSA cases.
Since Kenya is a pluralistic society with the formal justice system (FJS) operating alongside the
informal justice system (IJS), the chapter also interrogates the concept of legal pluralism with a
view to identifying the values and processes that can enrich restorative justice, beyond the FJS. As
child sexual abuse is a human rights issue, the relevant human rights principles and standards are
imperative in addressing the concept if the best interest of the child and the extent to which it is
accommodated by restorative justice. In summary, this chapter interrogates the theory of
restorative justice against the backdrop of feminism, vulnerability theory, legal pluralism and
human rights standards.
Chapter Three explores the extent to which the existing legal framework is sufficient in protecting
the interests of the victim of IFCSA in Kenya. It analyses critically the legal framework within
which IFCSA is responded to by the criminal justice system from the time of reporting to
sentencing under the existing structures. The chapter discusses both the formal and informal legal
48
framework with a special focus on the statutory framework that comes into play as FJS responds
to cases of IFCSA. The statutory framework is as drawn from the main sources of our laws
enunciated in the Judicature Act and the Constitution. These include the Constitution itself, the
Sexual Offences Act together with its Practice Rules, the Criminal Procedure Code, the Evidence
Act, the Victim Protection Act, The Children Act, The National Police Service Act, the Protection
Against Domestic Violence Act, and the relevant case law. Relevant international treaties,
conventions, and other international legal instruments are also discussed. The scope of the
framework includes investigation, identification of the offence, the trial process, adducing of
evidence and sentencing. The role of the victim in the FJS is also discussed as well as the place of
informal justice in the existing legal framework.
Chapter Four distinguishes IFCSA from child sexual abuse by a stranger by unpacking the various
issues a victim of IFCSA has to contend with in pursuit of justice. The specificities under
discussion are drawn from the analysis of the data gathered from the desk and field research. The
chapter therefore sets the stage for a discussion in the next chapter on the entry points available
for restorative justice as a way of offering a more comprehensive response to IFCSA.
Chapter Five wraps up the study by highlighting possible entry points for restorative justice in the
criminal justice system’s response to IFCSA. It identifies mechanisms, processes and values that
give as much support as possible to the victim and addresses the specificities of IFCSA. The
support includes enhancing their voice, visibility and participation in the criminal justice process
while at the same time alleviating their suffering and restoring them as far as it is possible, to the
pre abuse status. The proposed reforms are mainly to the court process but they will need the
support of the legislature and executive by way of legislative and policy intervention respectively.
The proposals call for synergy between the three arms of government for their impact to be
realized.
Chapter Six consists of the recommendations and conclusion. This includes a summary of the
research and findings together with pointers towards potential areas for further research.
49
50
CHAPTER TWO: THEORETICAL AND CONCEPTUAL FRAMEWORK
2.1 Introduction
This chapter establishes and analyzes the theoretical and conceptual discourses upon which the
research is anchored. As already stated, the overall aim of the study is to identify modalities of
delivering a more holistic justice to the victim of IFCSA. This aim resonates well with the theory
of restorative justice which is the lens through which the study has been examined. Kenya, like
many other nation states, is a pluralistic society with the formal justice system (FJS) operating
alongside the informal justice system (IJS). Restorative justice has many attributes that resonate
well with the IJS. It is for this reason that this study interrogates the concept of legal pluralism
with a view to identifying the values and processes that can enrich restorative justice, beyond the
FJS.
Any sound legal response to IFSCA must have due regard to relevant human rights principles.
This is because the principles have been incorporated in the law and are hence law. They include
the principle of the best interest of the child and access to justice which are both cardinal human
rights standards in relation to children. Interrogating the two human rights principles necessitates
a mention of human rights theories. The subject matter of this study is the victim of IFCSA who
is largely female while the perpetrator is in most cases male.150 The gender dynamics inherent in
the topic under research necessitates a discussion of feminism. An appraisal of the vulnerable child
victim’s positioning and needs is done through the vulnerability theory. In summary, this chapter
interrogates the theory of restorative justice against the backdrop of legal pluralism, human rights
standards, vulnerability theory and feminism.
The chapter is divided into nine parts. Part one discusses the historical background and meaning
of restorative justice as perceived by its various proponents. It also sheds light on the ongoing
debate on what restorative justice is and what it entails. The second part addresses the question as
to what or who is the subject of restoration. This is followed by the third part which looks at various
ways in which restorative justice has been put into practice in different parts of the world over
150
ICRH (n 12).
51
time. Part four discusses the justification given in favor of restorative justice and also looks at the
shortcomings of the concept as raised in various critiques. An interrogation of the extent to which
restorative justice has been applied to sexual offences takes place in part five, followed by a
discussion on how restorative theory interacts with feminism and vulnerability theory, respectfully.
This gives way to a discussion on the concept of legal pluralism in the next part. The relevance of
legal pluralism in this part is to lay basis for interrogating the modalities of informal justice that
are restorative in nature. Finally, the restorative processes and values to be applied in IFCSA must
resonate with the exigencies incidental to it and be measured against human rights standards. The
last part therefore discusses the conceptual basis of the human rights together with the rights of the
victim. The human rights lens is appropriate in ensuring the protection of the victim’s human
dignity while in pursuit for justice.
2.2.1 Background and Meaning of Restorative Justice
Restorative justice is said to be as old as humankind.151 It is believed to be the justice originally

known to mankind in the acephalous society, predating even retributive justice. In this society,
disputes were resolved through a restorative-based framework whose principal concern was to
satisfy the victim’s needs and restore their lost power and distorted status while at the same time
being just and beneficial to the offenders.152 The eclipsing of restorative justice by retributive
justice is associated with the evolution of the modern state. This was when the interests of the
victims began to be replaced by the interests of the state in conflict resolution. It is said that at this
stage, the King hoarded all interests including those of a crime victim. He became the paramount
crime victim, sustaining legally acknowledged, though symbolic, injuries and became entitled to
restitution in form of fines. The victim was thus ousted from a meaningful place in the justice
151
O O Elechi, Doing Justice Without the State; The Afikpo (Ehugbo) Nigeria Model (Taylor & Francis Group LLC
2006) 10.
152
T Gavrielides, ‘Restorative Practices: From the Early Societies to the 1970s’ (2011) Internet Journal of
Criminology 5.
<http://www.internetjournalofcriminology.com/gavrielides_restorative_practices_ijc_november_2011.pdf> accessed
16 July 2015.
52
process.153 This is what Nils Christie later refers to as ‘stealing the conflict’ from the victim by the
state machinery.154
In the local context, restorative justice is not a foreign concept as it existed under the African
traditional framework. It is evident in the South African concept of ‘Ubuntu’ which is Zulu for
‘humanness’ and was an important factor in the crystallization of perceptions that influenced all
social interactions including within the justice system.155 It is also the spirit behind the Uganda
Acholi concept of ‘Mato put’ which is a system of justice which aims at achieving forgiveness,
justice, and healing while ultimately reconciling parties and re-establishing relationships broken
due to a killing.156 In Northern Kenya, the Somalis have the traditional ‘maslaha’ system of dispute
resolution. This is a community based approach of resolving conflict based on compensation.157
Restorative justice therefore sat well with the African traditional communities as it resonated with
the traditional belief that all aspects of life, including, the supernatural, human behavior, and
justice, were interrelated. Justice therefore could not be dispensed in isolation but within the
context of other aspects of life. Consequently, law was not intended to merely sanction guilt, but
to ensure within the group.158 Although a lot of traditional mechanisms were restorative in nature,
retribution was not entirely unheard of. Some of the traditional dispute resolution mechanisms had
punitive outcomes including ostracizing and even capital punishment.159 However, like many other
phenomena in pre-colonial Africa, practice and conceptualization of the same has not been
153
A Skelton and M Sekhonyane, ‘Human Rights and Restorative Justice’ in G Johnstone and D Van Ness (eds)
Hand Book of restorative Justice, (Willan Publishing 2007) 580.
154
N Christie, ‘Conflict as Property’ in G Johnstone (ed) A Restorative Justice Reader, Texts, Sources, Context
(Willan Publishing 2003) 59.
155
A M Anderson, ‘Restorative Justice, the African philosophy of Ubuntu and the Diversion of Criminal
Prosecution’ (University of South Africa School of Law, 2003) < http://www.isrcl.org/Papers/Anderson.pdf>
accessed 16 July 2015.
156
Liu Institute of Global Issues et al, ‘Roco Wat I Acoli, Restoring Relations in Acholi‐
land: Traditional Approaches To Reintegration and Justice’ (2005) 54
<http://www.ligi.ubc.ca/sites/liu/files/Publications/JRP/15Sept2005_Roco_Wat_I_Acoli.pdf> accessed 5 August
2015.
157
C W Mwangi, ‘Women Refugees and Sexual Violence in Kakuma Camp, Kenya Invisible Rights, Justice,
Protracted Protection and Human Insecurity’ (2012) M A in Development Studies Thesis, International Institute of
Social studies the Hague, Netherlands, 2012) 21 <http://thesis.eur.nl/pub/13044/> accessed 24t July 2015.
158
S Mancuso, ‘African Law in Action’ (2014) 58 1 Journal of African Law 1, 3.
159
S Kinyanjui (n57).
53
documented. Reasons for the absence of records have been advanced as including lack of human,
financial and technological resources.160
The application of restorative justice in modern criminal justice systems is fairly recent. The first
use of the term in modern jurisprudence is traceable to Albert Eglash in 1958.161 The concept has
since rapidly attained global recognition. In Europe, the committee of Ministers of the Council of
Europe adopted a recommendation on the use of mediation in penal matters. Mediation is one of
restorative processes. In place now is a European Forum for Victim Offender Mediation and
Restorative Justice.162 The United Nations and its various agencies have also made substantial
input in the advancement of restorative justice. The UN Declaration of Basic Principles on the
Use of Restorative Justice Programs in Criminal Matters was adopted upon endorsement by the
Economic and Social Council (ECOSOC).163 The principles are designed to provide guidelines for
application of restorative justice with due regard to human rights standards for the victims and
perpetrators.164
The answer as to what exactly restorative justice is critical to this study. This is because its
existence often requires justifying especially in sexual offences. Its justification can only succeed
against a clear grasp of what it means. Van Ness and Strong have best described the complexity
of arriving at a universal definition by stating that there are as many answers as people asked.165
They compare it to the situation of a blindfolded man describing an elephant based on the part they
happen to be touching. Similarly, each proponent and critique of restorative justice has been said
to concentrate on the aspect that is of primary concern to them depending on the purpose for which
they seek the meaning. 166 This is further confounded by the fact that restorative justice is a concept
that is still evolving with new discoveries being made from time to time.167 Thus, what it was
160
J Sithole, ‘The Challenges Faced by African Libraries and Information Centres in Documenting and Preserving
Indigenous Knowledge’ (2007) 33 2 IFLA Journal 117-123.
161
Van Ness and Strong (n 46) 21.
162
The Secretariat, ‘European Forum for Victim Offender Mediation and Restorative Justice’
http://www.euforumrj.org/publications accessed 14 March 2015.
163
ECOSOC ‘Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters’ ECOSOC Res.
2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000).
164
165
Ibid 41.
166
Ibid 23.
167
Ibid 41.
54
perceived as in the early seventies may not necessarily be what it is perceived as today.168
Restorative justice may also mean different things over different geographical spaces and time
with its proponents and critics objectifying it in diverse ways as influenced by their respective
geographical settings. The upshot of the foregoing is that it is difficult to assign the term
‘restorative justice’ a universally acceptable definition.
Howard Zehr for instance bases his definition on the perception of crime as a violation of people
and relationships. To him, restorative justice is the kind of justice that brings together the victim,
offender and community in search of solutions which promote repair, reconciliation and
reassurance.169 Tony Marshall focuses on the procedural aspect and describes it as ‘a process
whereby all parties with a stake in a particular offense come together to resolve collectively how
to deal with the aftermath of the offense and its implications for the future’.170 Martin Wright
focuses on the utility value of restorative justice and describes it as a kind of response that does
not add to the harm caused by imposing further harm on the offender but rather restores the
situation. He states that restorative justice does not just focus on the outcome, but also ensures that
the process is humane to both the victim and the offender.171 There is however a consensus in all
the above definitions in that they all have a component of a victim centered response to crime.
This resonates to the overall aim of this study which is to center the needs of the victim in
responding to IFCSA.
Gerry Johnstone, summarizes the various definitions by stating that restorative justice has been
perceived as a set of values, a process and as a lifestyle.172 As a process, restorative justice provides
the ‘forum where all parties with a stake in the offence come together to resolve collectively how
to deal with its aftermath’.173 As a set of values, it calls for the injecting of attitudes that make the
criminal justice system more responsive to the needs of the victim. As a lifestyle, it advocates for
a holistic approach to life and relationships in everyday relationships, beyond the realms of
168
Ibid 31 – 38.
169
H Zehr, Changing Lenses; A New Focus for Crime and Justice (Herald Press 1990) 181.
170
Marshall (n 31).
171
M Wright, Justice for Victims and Offenders (Philadelphia: Open University Press, 1991) 112.
172
Johnstone (n 50) 1.
173
Marshall (n 31) 28.
55
crime.174 In this latter regard, it looks beyond the realms of law to culture, economics, and politics.
The study interrogates all three perceptions of restorative justice as a process, set of values of
restorative justice.
Whether perceived as a process, set of values, or lifestyle, the overriding concern of restorative
justice proponents, which resonates with the overall aim of the study, is the need to spread out the
focus of the justice system from the perpetrator, and include the victim. The main concern of
restorative justice is that, once a crime is established, the focus should not be solely on punishing
the offender, but on, inter alia, meeting the victim’s needs.175 The emphasis of restorative justice
is therefore the need to mete out justice in a manner that is best understood and embraced by the
victim. Van Ness and Strong define it as ‘a theory of justice that emphasizes repairing the harm
caused or revealed by criminal behavior and which is best accomplished through cooperative
processes that include all stakeholders.’176 This approach is viewed as having the potential of
enriching an appropriate alternative to the formal justice system.
In a bid to reconcile and condense the multiple perceptions of restorative justice, Gerry Johnstone
and Van Ness have identified its three specificities which they refer to as the three conceptions.177
These include encounter, reparative and transformative conceptions which bring out the core
features of restorative justice. The encounter conception focuses on the need for the victim to play
an active role in the response to the crime instead of leaving the process to the professionals.178
Encounter therefore calls for the direct and full inclusion of victims, offenders and community
members who have been touched by crime in the procedures that follow a crime.179 Inclusion
involves informing the victim about the process; allowing them to observe the proceedings and
make formal presentations in court during the proceedings.180 The rationale behind including the
victim in the justice process is that what the prosecutor may think is good for the public may be at
odds with the victims’ interest. According to Van Ness and Strong, ‘giving victims a formal role
174
175
G. Johnstone, Restorative Justice: Ideas, Values and Debates (Willan Publishing 2002) 1.
176
Van Ness and Strong (46) 43.
177
G Johnstone and D W Van Ness, ‘The Meaning of Restorative Justice’ in G Johnstone and D W Van Ness(eds)
Hand Book of Restorative Justice (WP 2007) 5.
178
Ibid 9.
179
180
Ibid 121.
56
in the criminal justice system results in both an explicit recognition that crime is an offense against
the victim and a distinction between the legal interests of the victim and the government’.181 Van
Ness proposes participation at all stages including investigation, plea bargaining, sentencing and
even after sentencing. In the criminal justice system, participation would include allowing legal
representation on behalf of the victim in form of watching brief. Inclusion has started taking root
182
in Kenya as seen from the enactment of the Victim Protection Act and in the rules issued by
the Chief Justice with regard to procedures of prosecuting offences under the Sexual Offences
Act.183 The contents of the Victim Protection Act and the SOA rules are discussed in the following
chapter.
The reparative conception is concerned with the need to go beyond merely inflicting pain to the
offender to repairing the harm done to the victim.184 The transformative conception on the other
hand is broader and more generalized as it challenges the status quo of social relations and response
to issues including crime. It advocates for use of restorative justice as a lifestyle. In this regard, it
is argued that human beings are ‘relational beings connected through intricate networks to others,
to all humanity and to our environment. The restorative nature of those relationships is guided by
a vision of transformation of people, structures and our very selves’.185
The encounter and reparative conceptualization address the concerns of restorative justice as a
process and as a set of values and are of relevance to this study. The entry points available for
encounter and reparation in the formal justice process are analyzed in in chapter five of this study.
2.2.2 Restoration
The principal goal of restorative justice is simply to restore something.186 The pertinent question
that naturally follows is what or who is being restored? The answer to this question addresses the
issue of the subject of restoration. This is important as it assists in pin pointing what can possibly
181
Ibid 132.
182
Victim Protection Act (n 37).
183
The Sexual Offences Rules of the Court, Legal Notice 101 of 2014.
184
185
Ibid 17.
186
SRGS on Violence Against Children, ‘Promoting Restorative Justice for Children’ (New York 2013) 1
<http://srsg.violenceagainstchildren.org/sites/default/files/publications_final/srsgvac_restorative_justice_for_childre
n_report.pdf accessed 14 March 2015.
57
be restored for a victim of IFCSA. This question has been comprehensively answered by Duff.187
One of the things to be restored according to Duff is the status quo of the victim before the
commission of the offence. This entails returning the victim to the position they were before the
harm was inflicted upon them. It also has to do with reintegration or assisting the victim and
offender overcome stigma and re-enter back into their communities. As to what a re-integrative
response entails, Van Ness states that firstly it includes prompt availability of services and
resources which he refers to as restorative encounters.188 This is intervention beyond the FJS to
the victims’ psycho-socio needs including their safety, recovery from the trauma and availability
of resources to rebuild their lives. This approach of course gives rise to concerns of stretching the
net of remedies too wide. Weitekamp refers to this concern as ‘widening the net of social
control’.189 There is need for caution on remedial boundaries to ensure that the system does not
result in taking over the victim’s entire life.
Duff rightfully acknowledges that it may not always be possible to reinstate the victim back to the
pre-harm status. This is especially so in instances where the wrong doing that occasions the victim
emotional pain and suffering is impossible to wipe out. In this case, Duff states that one can only
talk of reparation not restoration.190 This is usually the scenario in IFCSA whose victim finds
themselves in a unique situation which poses challenges in the application of restorative justice.
These limitations are discussed later in this chapter.191
The other subject of restoration is the damaged relationships.192 The relationships envisaged here
include the one between the victim and perpetrator and between the community and the perpetrator
and victims respectively. It would be ideal to interrogate the restoration of both the victim and the
perpetrator from all possible angles. The limitation in the scope of this research does not, however,
leave room for an interrogation of restoration of the relationship between the perpetrator and the
community. As stated earlier, the focus of this study is limited to the interests of the victim of
187
Duff (n 103) 382 - 397.
188
189
EGM Weitekamp, ‘Restitution: A New Paradigm of Criminal Justice or a New Way to Widen the System of
Social Control?’ (1989) Dissertation, University of Pennsylvania.
190
Duff (n 105) 384.
191
Part 2.2.5
192
Duff (n 105) 385.
58
IFCSA. As far as the damage to the relationship between the perpetrator and the victim is
concerned, restoration is easier said than done. There is the question whether one is capable of
restoring what never existed in the first place. If, for instance, the relationship between the victim
and the perpetrator was imbalanced before the offence, then working towards restoring it to what
it was before the offence would be a misnomer. Duff assists in resolving this dilemma by
distinguishing empirical or factual damage from normative damage. With the latter, the
relationship will be deemed to be in need of restoration even where those directly wronged do not
behave as if they have suffered any damage. The restoration of normative damage is hence
measured, not by what makes the parties feel better, but by what is normatively adequate. This he
summarizes as follows:
What needs restoring and what could conceivably be restored, is not so much any
material harm that was caused, as the relationships that were damaged by the wrong
doing; that damage must be understood in normative terms, as involving a flouting
or denial of normative bonds by which the relationship was defined.193
This distinction is especially important in IFCSA where the victim is a child. The restoration in
such cases is ordinarily negotiated on behalf of the child by an adult, who is usually the mother.
With the position of the woman in the African society being generally disadvantaged, 194 the
temptation to place the bar too low is a reality. There is therefore need to have a normative standard
against which restoration of relationships can be measured. In this study, the standard has its basis
on human rights as discussed in the last part of this chapter.195 Dealing with a child victim also
calls for creative ways of restoring the relationship between the victim and perpetrator like
focusing on the future more than the present so that the child is empowered enough to attain a
position where they can dictate the terms of engagement with the perpetrator in future.
193
Ibid 389.
194
Jaggger (n 18) 240.
195
Part 2.2.7.
59
2.2.3 Practice of Restorative Justice
Restorative justice has been described as practice led.196 The core focus of that practice is to place
the victim of an offence at the center of the process. This has been referred to as 'civilizing
justice'.197 It has been practiced through the application of various approaches all geared towards
healing the injury to the victim and community; facilitating active participation by the victims in
the justice process, and rethinking the roles and responsibilities of the government and
community.198This practice has taken various forms in different jurisdictions. Several proponents
of restorative justice have synthesized its practice in four main categories of the practice. This
includes Victim – Offender Mediation which has been used in North America, Norway, Finland
and England.199 The practice of mediation involves bringing the victim and perpetrator together
in the presence of a trained mediator with a view to talking about the crime and agreeing on steps
towards justice. Its expected outcome varies from an apology, restitution, to a mere explanation as
to why the perpetrator committed the crime together with the impact of the crime to the offender.200
The overall goal is to empower the participants, promote dialogue and encourage mutual problem
solving. Mediation is the most flexible mode as it can be carried out at any time including before,
during, and after trial. As in all mediation processes, its success or failure is largely dependent on
the goodwill of the parties. This takes the discussion back to a weakness that is often pointed out
by the critiques of restorative justice. It is claimed that restorative justice is based on the
presumption that the perpetrator will accept responsibility making it irrelevant where there is no
identifiable victim or admission of guilt by the perpetrator.201
Restorative justice is also practiced through conferencing. This is a procedure that was adopted by
the New Zealand government from a Maori practice in 1989 and thereafter in Australia and
elsewhere around the world. Conferencing involves a meeting of family members of the victim
196
Hudson et al, ‘Practice, Performance and Prospects for Restorative Justice’ (2002) 43 3 The British Journal of
Criminology 469, 475.
197
D J Cornwell, J M Wright and J Blad, Civilizing Criminal Justice: An International Restorative Agenda for Penal
Reform (Waterside Press Ltd 2013).
198
199
Ibid 27, 28.
200
Ibid 26.
201
Duff (n 105) 382.
60
and perpetrator and government representatives.202 Unlike mediation, it is led by a facilitator.
Circles is similar to conferencing. It has its root in aboriginal peace making processes and involves
an informal conversation around a circle comprising the lay community and professionals. 203 The
aim of the circle is to have the participants ventilate with a view to coming up with an appropriate
response to the offence. Closely related to conferencing and circle is the victim- offender panels.
This involves bringing together a group of victims and a group of offenders who are not each
other’s victims/offenders but linked to a common kind of crime. This is to assist the victim find
closure and create awareness amongst the offenders on the damage caused by their action. As
highlighted by Van Ness and Strong, it can be useful for a victim whose actual offender is either
not caught or caught but never convicted or somehow escaped the justice system.204
Whether through mediation, circle, conference, victim offender panels, or any other traditional or
customary aligned process, all the processes have a common focus; addressing and managing the
harm caused to the victim by the perpetrator. This management is closely tied to the question
answered earlier on what is being restored. It therefore usually includes restitution, apology,
making amends, shaming, and even punishment. Since a victim of IFCSA has unique needs, some
outcomes of restorative justice are more relevant to IFCSA than others. The most common
outcome is restitution. This involves discharging the offender’s debt to the victim through payment
of money or services to the victim.205 As a stand-alone remedy, it may give the wrong impression
in sexual offences including that of payment being for sexual services rendered. The impropriety
of such a conception is more pronounced where the victim is a child. Restitution may however be
in conjunction with imprisonment. This scenario however raises the question as to how an
incarcerated person can be able to raise funds to make any payment. It has been proposed that the
imprisoned perpetrator may be ordered to work while in jail.206 The arrangement so far in place in
the Kenyan prisons is for payment of extremely meager pay for prisoners.207 It would therefore
take a very long sentence for an imprisoned perpetrator to raise a meaningful amount. The other
202
A Morris and G Maxwell, ‘Restorative Justice in New Zealand: Family Group Conferences as a Case Study’ in G
Johnstone A Restorative Justice Reader: Texts, Sources, Context (Willan Publishers 2005) 201.
203
G Bazemore and M Umbreit, ‘A Comparison of Four Restorative Conferencing Models’ in G Johnstone A
Restorative Justice Reader: Texts, Sources, Context (Willan Publishers 2005) 233.
204
205
Johnstone, (n 50) 75.
206
207
Prisons Rules 1963 (KEN) Rule 19.
61
suggestion is for seizure of the imprisoned perpetrator’s property.208 This would make sense where
the perpetrator is a person of means but would be unworkable where the perpetrator is a pauper.
In IFCSA offences, restitution would be complicated by the relationship between the victim and
the perpetrator. Where for instance it is a parent/child relationship, question arise on the interest
of the siblings of the victim may have in relation to the payment.
Restitution alone is insufficient to heal wounds inflicted on a victim or to help them recover their
personal power especially in IFCSA cases. Other suggested ways through which the victim’s harm
can be redressed include through the perpetrator showing remorse, being exposed to some shame,
apologizing, or answering the victim’s questions in a face to face meeting.209 These, though
restorative, may have a punitive element. Shaming may be in the context of public exposure
designed to humiliate the perpetrator. Elechi gives an example of what Michalowski describes as
‘ritual satisfaction’.210 The essence is to take the perpetrator through some controlled public
ridicule in a manner that satisfies all parties involved. The process ensures that the perpetrator is
left bearing the stigma of the offence even as he is pardoned by the community. This is important
for sexual offences which often have the effect of transferring the associated shame and stigma to
the victim. Braithewaite211 and Karp212 however raise concerns on negative effects of shaming.
They distinguish between the raw shaming and ‘reintegrated shaming’. They recommend the latter
where the perpetrator is required to perform positive tasks that show the community they are
committed to positive behavior. He is therefore treated with enough dignity to enable him rejoin
the society at the end of the process.
Apology on the other hand involves the perpetrator acknowledging the wrong and showing
remorse. This has the effect of shifting the shame from the victim to the perpetrator. 213 The
perpetrator may also undertake to change his behavior or to stay away from certain places.214 This
208
Van Ness and Strong (n46) 94.
209
Johnstone, (n 50) 77.
210
Elechi (n 151) 19.
211
Braithwaite (n 54) 100-101.
212
D R Karp, ‘The New Debate About Shame in Criminal Justice: An Interactionist Account’ (2000) 21 3Justice
System Journal < http://www.restorativejustice.org/articlesdb/articles/2069> accessed 11 February/2015.
213
214
Ibid 87.
62
again resonates well with IFCSA where reconciliation may not be desirable.215 In such a case, it
may become crucial for the offending family member to be required to stay away from the victim
or contact them in a limited and/or supervised environment.
What is proposed in this research is to have a model where restorative justice is applied within or
closely with the FJS by interrogating aspects that are compatible with the system. This proposal is
not new as it echoes Wesley Cragg’s call for the retention of restorative conflict resolution within
the FJS. He asserts that the formal process does not have to be inconsistent with restorative virtues
of forgiveness, compassion, mercy and understanding. All he is opposed to is what he calls
‘punishment for punishment’s sake’. 216 This is the same position inferred by Duff who states that
much as an offender may need to be punished, the essence of that punishment should be to achieve
restoration. He talks of ‘restoration through retribution’. He is against just desserts retributivism
and asserts that restoration is not only compatible with retribution, it actually requires it.217
Admittedly, there are some aspects of restorative justice that may be incompatible with both the
formal justice framework and human rights standards. This is discussed in the next part.
From the foregoing, it is apparent that one does not have to choose between punishment and
restoration. It is possible for restorative justice to find room in the punitive FJS and vice versa. A
hybrid of the two, either a retributive process tempered with restorative values, or a restorative
process with a retributive outcome, may result in a creatively favorable response. In Kenya, there
has been legal reform towards this kind of response within the criminal justice process. This
emerging legal framework is discussed comprehensively in the next chapter.
2.2.4 Why Restorative Justice?
The relevance of restorative justice to this research is borne from the fact that the FJS has certain
shortfalls that work against the interests of the victims of crime. 218 A comprehensive discussion
on the form and nature of the FJS is found in the following chapter. In summary, it has been
described as ‘authoritarian’ in contrast to restorative justice, which has been presented as
215
Daly (n 30) 336.
216
W Cragg, Towards a Theory of Restorative Justice (Routledge 1992) 213 to 216.
217
Duff (n 105) 382.
218
Johnstone (n 50) 62.
63
‘emotionally intelligent justice’.219 This study does not however entirely agree with the
juxtaposition as the two are not mutually exclusive. As discussed earlier, restorative justice
processes and values are also found within the FJS.
One of the gaps in the FJS is its limitation with regard to the scope of victims, injuries and needs
it respond to. With regard to the victim, the scope is often limited to the person directly harmed by
the offender, also known as the complainant in the criminal procedure law in Kenya.220 Many
offences, including those related to IFCSA however involve both primary and secondary victims.
The primary victim is the abused child while the secondary victims are usually others indirectly
harmed by the child’s sexual abuse like the non- offending parents and relatives, siblings,
neighbors and friends. The injury suffered by these victims range from physical injury, financial
loss to emotional trauma.221 Victims of crime suffer psychological and relational damage as their
sense of autonomy, order and relatedness is destroyed.222 Repair to this damage should be an
overriding interest in deciding what to do about a crime. These diverse injuries give rise to different
needs which are identified by Zehr to include; the need for compensation, the need for answers to
basic questions such as why the crime happened to them, the need for opportunities to
communicate their emotions, the need for empowerment especially the return of their sense of
223
personal power, and the need to recover their security. These needs are unpacked in chapter
four of this study. The FJS has limited room for emotions and does not prioritize attendance to
those needs. The overriding interest of restorative justice on the other hand, includes considering
the damage to both the primary and secondary victims and the needs arising there from in the
response to crime.
The other need for restorative justice is understood by appreciating what a crime really entails.
Nils Christie views conflict as property.224 Christie states that the criminal justice system involves
theft of that conflict by the state from the individual victim. Once taken away from the victim, the
219
N Flynn, ‘Advancing Emotionally Intelligent Justice Within Public Life and Popular Culture’ [2013] Theoretical
Criminology. <http://www.restorativejustice.org/articlesdb/articles/11049> accessed 4 March 2014.
220
CPC (n 28) s 89.
221
222
Zehr (n 169) 195.
223
224
N Christie (n 154) 8.
64
offence is managed in a manner that best suits the state not the individual victim. The public
dimension of the crime hence becomes more important than the private dimension. This has been
referred to as the ‘aggrandizement and edification of the state, rather than the satisfaction of the
victims’.225 Gerry talks of ‘victim paternalism’ where the formal system convinces the victims that
what they expressly say they want is not really what they want, and that if they understood their
needs better, they would probably go for something different.226 Restorative justice plays the role
of keeping the conflict to its rightful owner and bringing the interests of the victim at the fore.
A distinguishing feature of the FJS under common law jurisdiction is its adversarial nature where
the prosecution and the defense are the protagonists while the judge is a neutral umpire. The role
of the judge is to adjudicate the conduct and state of mind of the perpetrator based on the
presentations by the two parties. Closely related to this adversarial orientation are the universally
acclaimed and constitutionally enshrined due process rights. 227 These include the right to bail,
presumption of innocence until proven guilty, the right to legal representation and even the right
to remain silent. These rights create an advantage accorded to the perpetrator against the victim
and the state. They are therefore, to a large extent, not in the interest of the victim and leave the
perpetrator with little pressure or incentive to accept responsibility under the framework of the
FJS. Again, with the consequences of being found guilty in the punitive system being quite severe,
perpetrators are unlikely to ‘own up’ and instead go to enormous lengths to avoid being
convicted.228
These rights are prone to abuse by professionals, especially defense lawyers, to polarize or frustrate
criminal proceedings through delays, undue regard to technicalities, and weakening the
prosecution’s case. This is primarily done through discrediting the evidence presented by the
witnesses including that of the victim and may effectively lead to what Zehr refers to as secondary
victimization in the criminal justice process.229 In this regard, Rapoport has propounded that it is
impossible to achieve justice for the victim through the adversarial legal system. In his view, the
225
D Cayley, The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives (House of
Anansi Press Inc 1998).
226
227
Constitution (n 2) Arts 48 to 51.
228
M Wright, Restoring Respect for Justice (Winchester: Waterside Press 1999) 102.
229
Zehr (n 104) 69.
65
practitioners of the system, with some exceptions, conceive of the system ‘as a zero-sum game,
where any gain by one side is balanced by a corresponding loss on the other’.230 He compares the
system to the concept of ‘free enterprise’ that conceive of social justice as based on the ‘primacy
of competition as a guarantee of a priori social equality’.231 Reconciliation in the FJS is therefore
less likely. Even where the process results in incarceration, sending the perpetrator to jail does not
necessarily heal the victim’s injury. Incarceration may aggravate the situation especially where it
is compounded by issues of financial support, guilt and family breakdown.232 The upshot of this is
that there is a gap left by the legalism associated with the adversarial system together with the
attendant due process rights that leaves the victim disadvantaged. Although restorative justice does
not advocate for disregard of the due process rights, the absence of professionals in most restorative
processes minimizes the chances of misuse of those rights. Even where professionals have
embraced restorative justice, they do so voluntarily hence with due sensitivity without the urge to
complicate the process with undue technicalities.
Restorative justice is also important in availing opportunities for victim participation in the justice
process. As discussed earlier in this chapter, whether through mediation, conferencing, circles or
Victim Impact Panels, restorative processes provide opportunities for a more engaging encounter
between the victim and the perpetrator. This is usually missing in the FJS where the victim is
relegated to a passive participant and at best in the membership of the rest of the witnesses. The
victim’s participation in the process is limited to what they know about the crime not on the impact
the crime has had on them. The community is also totally left out of the process unless they have
a legally sanctioned role to play as witnesses.233 There has been progress towards entrenching
restorative processes and values, especially enhancing victim participation within the FJS which
is discussed in detail in the next chapter. Wright is however dismissive of those kind of reforms as
he sees no hope of the victim’s interests being addressed within a punitive system.234 The position
of this study is to embrace any response that would improve the victim’s standing in the legal
process.
230
A Rapoport, Theories of Conflict Resolution and the Law. In Courts and Trials: A Multi-Disciplinary Approach
by M. L. Friedland (ed.) (University of Toronto Press 1975) 28.
231
Elechi (n 151) 36.
232
233
234
Wright, (n 228) 102.
66
With regard to the appropriate stage for the application of restorative justice to FJS, Tony Marshall
is of the view that the application should not be limited to any one stage but should be open to the
time most suitable for the victim. He opines that the timing should depend on the personal
characteristics of the victim especially in offences that are likely to involve intense emotions like
rape.235 This opinion is also shared by Mc Glynn et al who state that restorative interventions must
be both flexible and varied in application for it to be deemed as truly victim-centered. 236 This is
the same approach taken by this research as it explores entry points for application of restorative
justice at various stages of the justice process including sentencing. The possible entry points
include enhancing the victim’s visibility and participation throughout the process, obtaining the
commitment of the offender to restorative processes like reparation, and applying restorative
justice as a parallel process during the subsistence of the formal justice trial but without prejudice
to the outcome of the FJS. These entry points are identified in chapter five of this study which
interrogates the feasibility of applying restorative justice in the FJS in Kenya. The use of restorative
justice within the FJS is not entirely new. It is practiced in New Zealand, Canada and Australia
where restorative conferencing held within the framework of the FJS has an impact on sentences
meted out.237
Restorative justice is understood to be replete with certain values which are largely missing in the
FJS. The values have been classified into two broad categories by Van Ness and Strong. These are
operational values and normative values. The normative values include active responsibility to
make amends, peaceful social life to build harmony, respect and solidarity. Operational values
include amends, assistance, collaboration, empowerment, encounter, inclusion, moral education,
protection, reintegration and resolution.238 Of these, he highlights encounter, amends, reintegration
and inclusion as key. All these values target the victim and are therefore appropriate for filling the
gaps discussed above. Of importance to this study and therefore highlighted in chapter five, are
the operational values that are easily entrenched within the formal justice system.
235
Marshall (n 31) 25.
236
McGlynn et al. (n 119) 20.
237
Gavrielides, (n 152) 57.
238
67
Finally, restorative justice sits well with the African traditional justice system. The now entrenched
retributive justice was not a hall mark in African traditional system; restorative justice was the
more natural response. As discussed in part 2.2.1 above, a lot of the traditional African justice
concepts were guided by restorative values including restoration of relationships and reparation.239
It has been proposed that the widespread use of retribution is for want of other options. If
communities were offered an alternative that would guarantee moral vindication and security, they
would readily consider it as that is what they are naturally inclined to.240
Restorative justice is however not the magic potion for all the gaps in the FJS. It in fact comes
with concerns around its conceptual viability and its ability to sustain appropriate standards and in
its implementation.241 The above values and justification of restorative justice therefore exist
against a backdrop of challenges and criticism. Theo Gavrielides refers to the challenges as ‘fault
lines’ and summarizes the six main ones to include debates around: definition and meaning of
restorative justice; which and how many stakeholders should be involved in the process; where the
process should be implemented, whether it should be applied within or outside the FJS; whether it
is a new paradigm or merely complementary to the FJS model; whether restorative justice is an
alternative punishment or an alternative to punishment; and finally what the guiding principles of
restorative justice are and their flexibility.242 A major criticism of restorative justice, however, is
that it goes against the natural human instinct for revenge or just desserts It is also said to fail to
pay due regard to the proportionality of the offence and the response.243
Elsewhere, restorative justice has been criticized for merely being a set of high sounding ideals
that leave questions on how they can be applied in practice244 and for emphasizing on the outcomes
as opposed to the process. 245It has also been accused of making assumptions that every perpetrator
239
Kinyanjui, (n 57) 3.
240
241
K BrunildaPali, S Madsen, ‘Dangerous Liaisons?: A Feminist and Restorative Approach to Sexual Assault’
(2011) 14 1Temida) 49, 56 < http://www.doiserbia.nb.rs/img/doi/1450-6637/2011/1450-66371101049P.pdf>
accessed 27 January 2015.
242
Gavrielides, (n 152) 36 – 42.
243
Hudson et al (n 196) 470.
244
A Cossins, ‘Restorative Justice and Child Sex Offences: The Theory and the Practice’ (2008) 48 3The British
Journal of Criminology: 359, 360.
245
BrunilaldaPali (n 241) 50.
68
is 'a generous, empathetic, supportive and rational human spirit'.246 This presents a problem where
there is no identifiable victim and/or admission of guilt by the perpetrator. 247 The application of
restorative justice is hence limited to situations where both the victim and the perpetrator are able
and willing to respond restoratively.
Another source of criticism is that it focuses on individual conflict rather than crime as a problem
in the society. Harris particularly notes that placing emphasis on the need for the offender to make
things right, rather than on socio-economic reforms makes it appear as if crime is solely an
individual problem attributable to the weakness, sinfulness, or other deficiencies of individual
lawbreakers. It does not address the role of society, of structural and institutional forces that
promote crime and conflict.248
Finally, one of the most serious concerns raised about restorative justice revolves around its
appropriateness in serious crimes like sexual offences under which IFCSA falls. This is discussed
further in detail in the next part.
2.2.5 Restorative Justice in Sexual Offences

The appropriateness of restorative justice in response to sexual assault cases is one area which
remains contested and in which consensus is yet to be achieved.249 Restorative justice has been
applied in sexual offences in New Zealand and Australian State of South Australia but only in
response to youth sexual assault offences.250 Ardent proponents of restorative justice like Marshall
limit their recommendation for restorative justice only to certain cases. He is of the view that
restorative justice is unsuitable for serious violent cases.251 Reasons for giving restorative justice
a wide berth in sexual offences vary. It has been argued that offences involving a deeper conflict
like murder and rape cannot be compared to, for instance, offences against property. It is therefore
246
Daly, (n 30) 134.
247
Duff (n 105) 382.
248
M K Harris, ‘Alternative Visions in the Context of Contemporary Realities’ in P Arthur (ed), Justice: The
Restorative Vision: New Perspectives on Crime and Justice (1989)Occasional Papers of the MCC Canada Victim
Offender Ministries Program 32 Summarized at http://www.restorativejustice.org/articlesdb/articles/678 accesses 17
March 2015.
249
BrunildaPali (n 241) 50.
250
Daly (n 30) 336.
251
Elechi, (n 151) 7.
69
assumed that reconciliation and rehabilitation in case of the former is too difficult and complicated
to be left to restorative justice.252
The above assumption is not without logical basis. Ordinarily where a sexual offence is committed
especially against a child, the natural instinct is to respond in a manner that Myers refers to as
‘emotional and visceral’ which has the effect of impairing objectivity as all energy is directed at
punishing the perpetrator.253 It is believed that serious offences call for serious punitive measures
to censure behavior and protect the victim from further abuse, reduce likelihood of re offending
and reintegrate offender back into the society. Closely related to this is the fear of trivializing
serious crime. It is assumed that if cases are diverted from court to the informal systems, it will
appear that offenders are being treated too leniently and that offences are not being taken seriously
enough.
Annie Cossins’ problem with the use of restorative justice in sexual offences stems from a
conclusion that she draws to the effect that there is insufficient evidence to support the claim that
restorative justice is a superior form of justice.254 She draws this conclusion after analyzing two
studies: the first empirical study reported by Daly on the use of conferencing for juveniles charged
with a child sex offence, known as the Sexual Assault Archival Study (SAAS),255 and secondly,
restorative justice case studies reported by Daly and Curtis-Fawley that are used to support the use
of restorative justice for child sexual assault cases; and a comparison of restorative justice with
other reforms to the sexual assault trial.
Another concern for the application of restorative justice to sexual offences arises from the power
imbalance between the perpetrator and the victim in most sexual offences and especially in IFCSA.
This imbalance is said to expose the victim to the danger of having the offender manipulate the
process through exerting undue pressure to participate or agree on certain conclusions. Cossins
demonstrates the issue of the power imbalance by posing the question; ‘how possible it is to
252
UNGA Report of the Secretary General, ‘Promoting Restorative Justice for Children’. (New York 2013) 22. <
http://srsg.violenceagainstchildren.org/sites/default/files/publications_final/srsgvac_restorative_justice_for_children
_report.pdf> accessed 17 March 2015.
253
Myers (n 117) 1703.
254
Cossins (n 244) 359.
255
Daly (n 30).
70
achieve the philosophical ideals of restoration when bringing together an offender and a victim in
an informal meeting to deal with one person's exploitation of another?’256 Her main concern
appears to be with the process and especially its informal nature rather than the substance value of
restorative justice. As stated earlier however, this study is premised on the basis that restorative
justice can operate both within and without the FJS. Any power imbalance can be put in check by
the FJS. Preoccupation with its informal nature or power imbalance should therefore not be reason
to deter the application of restorative justice to sexual offences.
Other concerns of the use of restorative justice in sexual offences have to do with the risk of
compromising the safety of the victim and its apparent incompatibility with the ideals of the
women’s movement goal of removing offences related to violence against women from the private
to the public domain.257
This study has proceeded from a point of knowledge of the existence of the above stated concerns
of the applicability of restorative justice in sexual violence cases like IFCSA. It is for this reason
that the use of restorative justice is confined to the brand that can be accommodated within the
formal justice system. This is to ensure that there is a mechanism in place to monitor any excesses
that may result in the concerns discussed above.
Amidst the above criticism there is marked acceptance of the application of restorative justice in
sexual offences. Gerry Johnstone engages the issue by presenting an analogous scenario where
someone commits an indecent assault against a relative then offers a generous restitution, genuine
apology and agrees to undergo therapy. This satisfies the victim, who subsequently declines to
testify in court. Johnstone then poses the question whether the victim should be compelled to testify
in order to satisfy the public interest. His answer is in the negative.258 The victim in the analogy is
however an adult. His conclusion may or may not have been different if the victim was a child as
is the subject of this study.
256
Cossins (n 244) 361.
257
Brunildapali (n 241) 51.
258
Johnstone ( n 50).
71
As mentioned above, Daly undertook a study to compare the legal journey of nearly four hundred
sexual offence cases finalized in court or by a conference in terms of the penalties imposed and
the prevalence of reoffending. She concluded that the court is limiting in vindicating its victims
and also found the conferencing process less victimizing than the conventional process in sexual
offences.259 This conclusion resonates with that of other proponents who acclaim restorative justice
in sexual assault and domestic violence for the opportunity it avails to the victim to have their story
validated. It also assists the offender and the community to take responsibility and repair the
relationship respectively. Proponents also feature the general failure by the FJS to effectively
respond to sexual offences. The failure is manifested in, among other outcomes, the low
prosecution and conviction rates and the victim’s exposure to re victimization during
proceedings.260 The requirement of proof beyond reasonable doubt for an offence that takes place
in private particularly makes the justice process difficult for a victim of sexual offence. It is
therefore clear that the mere application of FJS with its ‘tough measures,’ like the tough sentences,
does not necessarily translate to an effective response to crime. On the contrary, Garland argues
that the tough measures are a hallmark of politically weak governments who have a tendency to
turn to ‘strong’ law even though the harsh penalties do not translate to less crime.261 Hudson holds
the same view as Garland on the failure by the FJS to respond effectively to sexual and racial crime
and adds that it is only reasonable for restorative justice to be given a chance. 262 This analysis is
useful in answering the research question on the extent to which the existing legal framework
sufficiently responds to the needs of an IFCSA victim. This is discussed comprehensively in
chapter three of this study.
Restorative justice is further credited with creating an atmosphere where crime is more easily
addressed within the family unit or small community away from rules of evidence and procedure.
Privacy, an important component of restorative justice resonates well with sexual offence victims
who may avoid the FJS for fear of publicity. The issue of privacy has however been seen as a
double edged sword due to the risk of privatization of gendered violence which would encourage
259
Daly (n 30) 336.
260
Brunildad (n 241) 52.
261
D Galland, ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36
British Journal of Criminology 445, 462.
262
Hudson (n 115) 438.
72
impunity.263 It may also come with the risk of creating a scenario where families can trivialize the
abuse or protect their males. Daly’s aforementioned study found that the private setting of
conferences was particularly useful for sexual offences between a victim and offender where there
is (was) a relationship. She however falls short of fully recommending restorative justice in sexual
offences as she remarks that ‘one can neither fully endorse nor disparage restorative processes in
responding to sexualized violence or other gendered harms’.264
From the foregoing, it is clear that the hurdles experienced by a victim of sexual assault in the FJS
call for a restorative intervention.265 There is therefore room, albeit limited, for considering
broader views as far as the place of restorative justice in sexual offences is concerned. As stated
above, this study explores opportunities for the entrenchment of restorative justice at all
appropriate stages of the formal justice system.
2.2.6 Restorative Justice and Feminism

It is impossible to discuss a subject like child incest without taking into account the feminist view-
point. Most of the IFCSA victims are female and the perpetrators are predominantly male.266
Mothers also play a critical role in responding to child sexual abuse within the family. This role is
discussed further in chapter four under the under the specificities of patriarchy and family impact.
Any viable legal response to IFCSA must also be examined through the gender lens and women’s
experiences as espoused by various feminist theories. Feminism is both a political ideology and a
legal theory.267
Like restorative justice and legal pluralism, feminism does not have a single definition. This is
because it exists in different strands and means different things to different people. It has hence
been said that ‘to talk of the feminist analysis of a given social phenomenon is to talk nonsense.’268
263
264
Daly (n 30) 2.
265
266
CA Ahlgren, (n 48) 486.
267
O M. Fiss, ‘What is Feminism’ (1994) 26 Ariz. St. L.J. 413, 414.
268
Daly (n 73) 501.
73
Feminist theories primarily advocate for the creation of a social order in which women's
experiences are brought to the fore as opposed to being suppressed.269 The general consensus
around feminism is that women suffer injustices because of their sex. Its proponents however part
ways on the reason behind the injustices and gender inequality. They also have varying suggestions
on ways out of the injustices. Classifications of feminist theories also vary. The most prominent
categories include the liberal feminist theory, the radical feminist theory, the Marxist feminist
theory and the cultural feminist theory. Each of them espouses a distinct strand which have been
summarized as the difference, different voice and dominance strands.270 The strands that are of
relevance to this research are radical feminism and cultural feminism.
The radical feminist theory also known as the dominance theory attributes sexual violence to
patriarchy that places women’s bodies at men’s dominion. Women and children are then deemed
to be men’s property available for, inter alia, sexual exploitation.271 From this view point, incest is
perceived as a social phenomenon brought about by inequalities between sexes and between adult
and children at multiple levels including economic, social and physical. This perception resonates
with the findings of this research on the impact of male domination in the patriarchal setting which
ultimately influences the manner in which IFCSA is responded to. This is analyzed in chapter four
of this research as one of the specificities of IFCSA.
The marked resistance by radical feminists against the use of restorative justice in gendered
violence offences cannot be overlooked in this research.272 As discussed in the previous part, the
primary concern of radical feminists is the risk of restorative justice processes and outcomes to
reinforce the power inequalities inherent in abusive relationships. They fear that this may lead to
possible re-victimization.273 They therefore deem retributive justice system as the only mode
capable of demonstrating a serious response to sexual offences.274
269
Ibid 498.
270
CR Sunstein, ‘Feminism and Legal Theory’ [1988] 101 Harv. L. Rev. 826, 827.
271
Ahlgren (n 48) 499.
272
Sunstein (n 270) 826.
273
Acorn (n 98) 224.
274
B Hudson, ‘Restorative Justice and Gendered Violence – Diversion or Effective Justice’ (2002) 42 British
Journal of Criminology 616–34, 629.
74
It is out of this concern that the entry points for restorative justice discussed in chapter five of this
research are limited to those that complement rather than replace retributive justice.
Cultural feminism, also known as the different voice strand, equally challenges patriarchal social
order. The main proponent of this strand is Carol Gilligan who presents a bifurcated lens in
analyzing women’s disadvantaged position. The first is the masculine voice characterized by rules
and principles and the other is feminine voice with the instinct to preserve relationships. She
contends that the masculine voice is the one that is recognized as the feminine one is suppressed
and regarded as the ‘other’. She advocates for placing greater value on feminine attributes of care
and relationships in appreciating human experiences. 275 She states that women value relationships
and connections which she refers to as the ‘ethic of care’. This is unlike men who appreciate the
abstract like justice, rights and formality.276
The main concern of the different voice strand is the non- recognition and down playing of the
innate feminine approach to issues. It advocates for bringing women’s concerns to the fore by
giving equal attention to attributes that matter to women like relationships and care as is accorded
the male centered attributes of power, privacy and independence.277 The nurturing nature may also
be the reason behind a woman covering up for her husband or choosing family cohesion over
pursuing justice.
This strand resonates with the call in chapter five for the application of therapeutic jurisprudence
and emotional intelligence through-out the justice process. These are identified as viable entry
points for the application of restorative justice in the criminal justice process. The beneficiary of
the therapeutic process is the victim of IFCSA, who is usually female. The different voice strand
is therefore the thread that connects vulnerability theory discussed hereunder to restorative justice.
This is to the extent that cultural feminism brings to the fore traits that expose the vulnerability of
the victim of IFCSA.
275
C Gilligan, In a Different Voice: Psychological Theory and Women's Development (Harvard 1982).
276
Ibid.
277
M Becker, ‘Patriarchy and Inequality: Towards a Substantive Feminism’ [1999] U. Chi. Legal F. 21, 50.
75
2.2.7 Restorative Justice and the Vulnerability Theory
There is a distinct difference between the dictionary meaning of the word ‘vulnerable’ and its use
in the vulnerability theory discourse. In common parlance, vulnerability refers to ‘particular
susceptibility to physical or emotional harm, coercion or other external sources of influence’.278
The term in the theory on the other hand is used to connote the continuous susceptibility to change
in both the bodily and social well-being that all human beings experience.279 Vulnerability theory
propounds that whereas it is common to have various groups recognized as vulnerable,
vulnerability is a universal attribute which affects everyone. The theory perceives human condition
as one of ‘continuous and universal vulnerability’.280 The only aspect that varies from one person
to another is the magnitude thereof. This is determined by an individual’s experiences based on
the quality and quantity of resources in their command.281 Vulnerability is hence not an inborn
quality of a person but a result of the relationship between an individual and their environment.282
The theory is relatively new but is steadily gaining momentum. Its main proponent is Martha
Albertson Fineman in her endeavor to respond to the limitations of equality.283 Fineman makes
reference to embodied and embedded differences in people that play a part in varying individual
vulnerability. The former refers to intrinsic variations among individuals like race and age while
the latter has to do with the variations in positioning in relationships whether socially,
economically or otherwise.284 Both the embedded and embodied differences are relevant to this
study. This is to the extent that the primary victim that is the subject of this study is a child who is
likely to be a subordinate player in the home structural arrangement. The victim’s vulnerability is
therefore escalated by their age and position in the family. The research calls upon the state to be
alive to this reality in responding to IFCSA at all stages of the justice system.
278
L A Weithorn, ‘A Constitutional Jurisprudence of Children's Vulnerability’ (2017) 69 Hastings L.J. 179, 190.
279
Fineman (n 69) 142.
280
Fineman (n 69) 134.
281
Fineman (n 71) 269.
282
N A Kohn, ‘Vulnerability Theory and the Role of Government’ (2014) 26 Yale J.L. & Feminism 1, 23.
283
Fineman (n 69) 134.
284
VB Strand and I Ikdahl, ‘Responding to Disadvantage and Inequality through Law’ (2017) 4 Oslo L. Rev. 124,
128.
76
Vulnerability theory is distinguishable from human rights. Whereas the latter deals with
‘vulnerable groups’ making vulnerability an attribute limited to a certain category of people,
vulnerability theory views it as inherent in all people.285 Further international human rights
prioritizes the concepts of equality and non-discrimination which are entrenched in all
international, regional and domestic human rights instruments. Vulnerability theory, on the other
hand, goes beyond the claim for equality to interrogate mechanisms and structures responsible for
the inequality.286 Martha Fineman summarizes vulnerability as focusing more on the ‘human’ part
than the ‘rights’ part.287
The vulnerability approach as espoused in the theory is useful in answering two of the research
questions in this study. These are with regard to the specificities of IFCSA and the entry points
available for the application of restorative justice in IFCSA cases. Just like feminism, vulnerability
theory is an important backdrop for the analysis of the specificities of IFCSA discussed in chapter
four of this research. This is because it challenges the idea of sameness of treatment in the face of
differences in context, differences in circumstances and abilities on the part of those whose
treatment is compared is overlooked or ignored.288 This echoes the research problem in this study
which centers around the similar treatment accorded to victims of IFCSA and victims of child
sexual abuse by a non- family member by the legal framework. The similar treatment is meted out
without due regard to the specificities that are unique to IFCSA. The vulnerability approach
facilitates the recognition of the distinctiveness in the social and economic positions of those
affected by IFSCA. This is what Fineman refers to as ‘inevitable inequality’ as the victim and
perpetrator are positioned differently in terms of bargaining power.289 The specificities are
therefore a direct consequence of the victim’s vulnerabilities. The vulnerability approach shifts
focus from the all too common group identity like race and gender to other forms of vulnerabilities,
as a basis for targeting social policy.290 This includes calling on the state to make policies and laws
that are responsive to the vulnerability of the victim of IFCSA.
285
Ibid 127.
286
Ibid 124.
287
Fineman (n 71) 255.
288
Ibid 251.
289
Fineman (n 69) 135.
290
Kohn (n 282) 4.
77
Any meaningful participation of the victim, as envisaged by restorative justice, requires support
of the victim which takes into cognizance their vulnerability. The relevance of vulnerability theory
in answering the question on the entry points available for application of restorative justice in
IFCSA cases is therefore found in its converse, which is resilience. This is the aptitude that an
individual has that enables them to recover from harm and setbacks affecting them.291 Building
resilience in individuals starts by placing them in relation to each other as humans then calling
upon the state to be responsive to their individual vulnerability. The theory of vulnerability
therefore prioritizes human vulnerability and dependency within State responsibility.292 It calls on
the state to actively assume responsibility in ensuring equality for citizens and others to whom it
owes some obligation.293 The state must therefore be appropriately structured to respond to
universal vulnerability. This is achieved through its institutions which must respond in such a way
that those with low resilience are enabled to achieve real equality.294
The resilience building institutions include schools, health facilities, courts, rehabilitation
institutions, prisons and police stations which are all established and maintained by the state.295
The theory calls for an analysis of state institutions through which resources are channeled to
ensure that the disadvantaged are not unduly privileged. It has been identified as an important tool
to put pressure on the state where there is absence of political will in the state in securing the
livelihood of certain categories of people.296 It has been criticized for not offering a specific
indication on how the state should share resources amongst individuals.297
The proposed restorative interventions discussed in chapter five of this study resonate with the
vulnerability approach in as it places the duty of enhancing resilience on the state. The
interventions are in three main areas first of which is aligning the entire justice process towards
more intentional embracing of therapeutic jurisprudence. The second level of intervention is at the
legislative level to facilitate the unlocking of any statutory barriers. Lastly are proposed policy
291
Fineman (n 69) 146.
292
Strand (n 284) 125.
293
Fineman (n 71) 256.
294
Ibid 269.
295
Fineman (n 71).
296
Strand (n 284) 130.
297
Kohn (n 282) 1.
78
interventions that the state needs to prioritize both to protect potential victims and avail long term
support to victims of IFCSA. The injection of restorative justice in IFCSA cases therefore requires
synergy from institutions of all three arms of government. Vulnerability approach can be used as
a basis for a form of welfare from the state. This could be useful in achieving the ideal of restorative
justice as a lifestyle where potential victims are empowered to avoid the abuse while those who
are unfortunate to fall victim have readily available support from relevant state institutions. This
reinforces their resilience and thereby facilitates their restoration.
2.2.8 Restorative Justice and Legal Pluralism

This study is premised on the assumption that an IFCSA offence triggers responses that transcend
the scope of the FJS. This assumption follows the commonly accepted view that the conventional
state law is not the only relevant and effective legal order in people’s lives.298 Other existing
institutions of normative ordering such as the home, neighborhood, workplace or business, also
provide avenues through which people experience justice. These multi- pronged fora operate as
alternatives to, parallel to, or at times alongside the FJS. For purposes of this study, these
alternatives shall be referred to as informal justice systems. Informal justice system has been
defined to encompass:
The resolution of disputes and the regulation of conduct by adjudication or the

assistance of a neutral third party that is not a part of the judiciary as established by
law and/or whose substantive, procedural or structural foundation is not primarily
based on statutory law.299
Restorative justice shares various common aspects with informal justice. Firstly, informal justice
practices are usually geared towards repairing harm even though they may have a component of
retribution. This is an important feature of restorative justice. Secondly, several restorative
processes have been said to have their roots in traditional informal justice.300 Thirdly, in many
non- western countries the memories of indigenous practices have given a thrust to acceptance of
restorative justice theory and practice.301 Informal justice is therefore able to facilitate restorative
298
ICHRP, ‘When Legal Worlds Overlap: Human Rights, State and Non-State Law’ (2009)
<http://www.ichrp.org/files/summaries/42/135_summary_en.pdf> accessed 20 February 2015.
299
UNDP (n 32) 8.
300
Kinyanjui (n 57) 1.
301
79
justice. It has been said that victims resort to informal justice for want of alternatives due to
delivery failure by the formal justice system for various reasons.302 Recourse to informal justice
systems is therefore more out of pragmatism and convenience rather than preference. In Kenya,
IFCSA engages with the informal justice mechanism beneath the legal radar and without direct
state approval. The next chapter discusses this phenomenon in greater detail.
This study is concerned with ways in which the FJS can be enriched by the informal justice’s
elastic and broad values and processes. For a clear understanding of the nexus between the
informal and the FJS, the concept of legal pluralism needs to be examined. The relevance of legal
pluralism at this stage is twofold. First, it serves to clarify that state law, which in this study is
largely referred to as the FJS, is not the only relevant legal order in people’s lives as it exists amidst
informal systems.303 Secondly, it provides a repository from which one can draw in constructing
discourses of legitimacy that may be used to promote and justify other forms of normative and
legal orders.304
Legal pluralism is traceable to 1772 in the promulgations by the East India Company when
application of religious laws in personal legal matters was allowed subject to the repugnancy
clause.305 Despite the relatively long history, the question as to what constitutes legal pluralism is
still an ongoing discourse. Its definition and scope is as contested as that of restorative justice.
Ann Griffiths demonstrates the nebulous nature of the concept by referring to it with such terms
as such as ‘mobile’ ‘contingent’, ‘spatialized’, ‘ multifaceted ‘ and ‘constantly in the making’. It
has generated a lot of controversy over the years and been used to defend various positions of
interest.306 The various perceptions of legal pluralism are hinged on differing definitions of what
law is, who makes it, who implements it, and its relationship to the state. Eugene Ehrlich for
instance holds that law is essentially social order and it can exist independent of the state.307
Fernanda Pirie also has a diminishing perception of what law is. It is an intellectual system
characterized by expressive and aspirational qualities and claims to promote order and justice. It
302
Ibid 12.
303
ICHRP, (n 298) s 2.7, 31.
304
A Griffiths (n 80) 194.
305
J Griffiths (n 79) 6.
306
A Griffith (n 80) 174.
307
E. Ehrlich, Fundamental Principles of the Sociology of Law (Harvard University Press) 24.
80
is delinked from government and can exist outside the state. 308 From his perception, it follows that
legal pluralism is capable of existing outside the state run systems.
Where law is understood in simple terms as ‘norms’ and ‘rules‘ and its initiator being the society,
then the ultimate determinant of what is right and how to act, and what is wrong and how not to
act; and the remedies for and consequences of such actions lies with the society. In this scenario,
legal pluralism is said to exist when a specific dispute or subject matter may be governed by
multiple norms, laws or forums that co-exist within a particular jurisdiction or country.309
For Salvatore, reference to law means state law. He however distinguishes this from the unofficial
law which he refers to as ‘spontaneous law’. The unofficial law may become ‘underground law’
under certain circumstances. He substantiates as follows:
This spontaneous law is unofficial but is not necessarily ‘underground’. It is

unofficial because it is not recognized as a law introduced by the state; it may
be prohibited or tolerated, but most of the time it is ignored. It becomes
‘underground law’ when it competes with a state law that claims supremacy. 310
Salvatore then gives an examples of the circumstances under which ‘underground’ law may thrive:
In rural areas, African customary law is applied. In areas closer to the cities and
in capital cities, and especially in the densely populated suburbs comprising huts
and shacks, state law is only partially enforced. Here traditional rules cannot be
effectively applied even if people feel culturally linked to them, as the urban
context is so different to that of the rural areas and thus does not permit a simple
transposition of the traditional ruling system. (…) People living in the cities
therefore tend to abandon their own native laws, but the official law does not
address their needs effectively. Such a situation creates a gap in the social
regulation system that is filled by the emergence of spontaneous legal orders
designed to regulate urban relations outside the official state framework.311
He concludes that ‘Underground’ law does not come from practice but from a spontaneous state
of affairs where people seek legal solutions that are all outside or in competition with the state
308
F Pirie, ‘Law before Government: Ideology and Aspiration’ (2010) 30 2Oxford Journal of Legal Studies 207, 227.
309
ICHRP (n 298) s 2.2, 2.
310
Mancuso (n 158) 6.
311
Ibid 9.
81
order, and which the state law is unable to control. Underground law is therefore prevalent in rural
area where state law is not yet effective, and in informal settlements near the urban areas.312
The above state of affairs described by Salvatore is more or less similar to the one prevailing
locally in response to IFCSA. Though a reading of the Sexual Offences Act313 together with the
Criminal Procedure Code314 leaves no room for settlement of IFCSA cases through informal justice
mechanisms, a lot of cases are reportedly finalized in the ‘underground’ law.315 The underground
law can hence not be ignored. This study therefore looks behind the veil of illegality to explore the
possibility of picking out values that the ‘underground’ law may enrich the FJS with its restorative
values and processes.
From his analysis of what law is, Salvatore perceives legal pluralism as ‘the encounter between
western legal culture based on written rules and the oral African tradition’ resulting in a hybrid of
western and subjugated African legal traditions.316 He then equates legal pluralism to ‘legal
syncretism’ which bears a nugatory overtone. Salvatore’s confinement of legal pluralism to the
western – African tradition dichotomy fails to address the existence of multiple plural systems
outside the traditional African setting or in situations where the population does not share common
traditional norms. In this regard Merry moves the conversation on legal pluralism from this
dichotomy and creates two distinct versions she refers to as the ‘classic legal pluralism’ and the
‘new legal pluralism’. The former is based on intersections of indigenous and European law while
the latter applies to other non- colonized societies as ‘plural normative orders’ found in virtually
all societies.317 Legal pluralism can therefore exist in any society including a multicultural society
as non- state law is not always cultural. In some places, it may arise from a combination of
traditional and contemporary influences. The classical legal pluralism is of more relevance to this
study by virtue of the fact that Kenya being a former colony inherited a plural legal system at
independence.318 African customary law is an important ingredient of the classical legal pluralism.
312
Ibid 5.
313
SOA (n 34) s 37.
314
CPC (n 28) s 137 N (a).
315
ICRH (n 12) 17.
316
Mancuso, (n 158) 12.
317
Merry (n 138) 873.
318
W Kamau, ‘Law, Pluralism and the Family in Kenya: Beyond Bifurcation of Formal Law and Custom’ (2009) 23
2 Int J Law Policy Family 133, 134.
82
Customary law is said to refer to ‘a collection of elastic, fluid and flexible rules that can be changed
quickly according to the circumstances’. A characteristic feature of these rules is that they are not
implemented by institutionalized or special organs. They also focus on conciliation rather than on
punishment.319
John Griffiths on the other hand examines legal pluralism with a societal lens. He sees the legal
organization of a society not existing in isolation but being congruent with its social organization.
From this stand point, he defines legal pluralism with reference to the social field as ‘the normative
heterogeneity attendant upon the fact that social action always takes place in a context of multiple,
overlapping social fields and in practice, dynamic conditions’.320 Legal pluralism, according to
John Griffith, is therefore a subset of normative pluralism. It has been said that:
If normative pluralism refers to a situation in which different sets of norms
or two or more institutionalized normative orders co-exist in the same time
space context, then legal pluralism is the species which includes those kinds
of sets of norms or normative orders that merit the appellation “legal” in a
given context321
John Griffith’s conceptualization of legal pluralism is however overly wide as it still encompasses
aspects of normative pluralism. He includes ‘all state of affairs for any social field in which
behavior pursuant to more than one legal order occurs’.322 Viewing legal pluralism as a social
rather than merely a legal phenomenon as Griffith does has the tendency to go overboard to include
every conceivable arrangement however insignificant. This study therefore heeds Merry’s call on
the need to distinguish between law and social life.323
A distinct feature in John Griffith’s conceptualization is his aversion to the practice of analyzing
legal pluralism against the backdrop of legal centralism. The latter refers to the framework that
recognizes law when it is administered by state institutions; exclusive, systematic and
hierarchically flowing from the sovereign to the bottom or vice versa.324 Under this framework,
319
Mancuso (n 163) 2.
320
J Griffith (n 77) 38.
321
W Twining, ‘Legal Pluralism’ (2010) World Bank Workshop on Legal Pluralism 4.
322
323
S E Merry (n 138) 880.
324
83
recognition of the state law is done to the exclusion of lesser normative orderings existing within
the community. These are orderings that may exist based on geographical, ethnic or religious
features and include church/mosque based forums, traditional models, the family or any other
grouping. They are subordinate to state institutions and organs. John Griffith finds the theory of
centralism obstructing and frustrating observation and development of legal theory. He appreciates
that the situation on the ground is more complicated and presents legal pluralism as ‘the fact’ and
centralism as ‘the myth’.325The role of legal pluralism according to John Griffin is therefore to
deconstruct the above myth and
To break the stranglehold of the idea that law is a single, unified and
exclusive hierarchical normative ordering depending from the power of the
state and from the legal illusion that the legal world actually looks like the
way such a conception requires it to look.326
John Griffin acknowledges that not all law is state law.327 This is the position held in this study.
The study goes further to recognize even the ‘underground law’ that finds its way, albeit without
state sanction, to be subject of interrogation in this study.
John Griffith’s analysis introduces another distinction of legal pluralism that closely resembles the
classical versus new legal pluralism. This is the ‘weak’ versus the ‘strong’ legal pluralism. The
latter is said to exist in situations where not all law is state law. The law is therefore neither
systematic nor uniform and it is not administered by a single set of state legal institutions. Weak
legal pluralism on the other hand arises where parallel legal regimes may co-exist but depend for
their legitimacy on the 'recognition' or accommodation accorded to them by the dominant state
legal order. Weak legal pluralism therefore starts from the standpoint that state law or state-
recognized law is the most important normative order, and all other norm-creating and enforcing
social fields, institutions and mechanisms are, either insignificant, subordinate or irrelevant. In
Kenya, legal pluralism mainly manifests itself as weak legal pluralism as the rest of the systems
have state recognition under the Constitution.328 It is said to be associated with colonial and post-
325
Ibid 4.
326
Ibid 38.
327
Ibid 5.
328
Constitution of Kenya (n 2) Art 159.
84
colonial legacies as opposed to co-existence within a social group of legal orders which do not
belong to a single system.329
John Griffith highlights the common features under which legal pluralism in the weak sense exists.
These include a politically superior national legal process, the existence of the alternative system
at the pleasure of the national system, which has power to abolish it and, lastly, in the event of a
conflict between the two, the state system prevails. The overall significant feature of legal
pluralism in the weak sense is that it exists under the framework and at the pleasure of the state
law. An example given of legal pluralism in the weak sense is where a system of religious law is
formally recognized and integrated into the state legal system
With the strong legal pluralism, the alternative system functions as 'an institutionalized and stable
normative order governing important social relations in a law-like way coexisting with, but
separate from, state law'.330
The foregoing confirms what has been said of legal pluralism; ‘It does not exist in a ‘typical’ form,
it may or may not have a basis in culture and tradition; the state may or may not recognize it, and
individuals may or may not be permitted to choose the law that is applicable to them by the
state’.331 This study finds Quane’s definition of legal pluralism most appropriate as it encompasses
all the above features. She defines it as ‘the co-existence de jure or de facto of different normative
legal orders within the same geographical and temporal space’.332 The inclusivity of this definition
is twofold. First it includes the earlier mentioned ‘underground’ systems. It therefore qualifies
those systems that are otherwise illegal, for discussion in this study by placing them under the
aegis of legal pluralism. Secondly, it removes the burden of having to identify the place of the state
in the concept of legal pluralism as the concept is described as being capable of existing
independently from the state.
329
J Griffiths (n 77) 8.
330
H Quane, ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing
or Something in Between?’ (2013) 33 4Oxford Journal of Legal Studies Oxford J Legal Studies 675, 680.
331
ICHRP (n 298) section 2.5, 29.
332
Quane (n 330) 676.
85
Regardless of the form legal pluralism manifests itself in; there are concerns around its viability
when tested against human rights standards. Some arguments hold that human rights and legal
pluralism are mutually reinforcing while others argue that they are inherently incompatible.333 The
spotlight is especially on traditional alternative dispute settlement where at times the line between
cover up and conflict resolution in cases involving children can be rather thin. The place of human
rights in legal pluralism and restorative justice in particular is addressed in the following part.
2.2.9 The Human Rights Perspective
Any discussion on the rights of a victim must begin with a clear conceptual understanding of who
a victim really is.334 The concept of victimology provides an appropriate framework for this
discussion. Victimology has been defined as ‘the scientific study of the physical, emotional, and
financial harm people suffer because of illegal activities’.335 Since the harm and the resultant needs
of the victims are diverse, victimology has been described as an:
Interdisciplinary field that benefits from the contributions of sociologists,

psychologists, social workers, political scientists, doctors, nurses, criminal justice
officials, lawyers, spiritual leaders, and other professionals, volunteers, advocates,
and activists.336
The concern of this study is victimology in the legal and human rights context. In this regard, the
study explores how victims are supposed to be treated by the professionals within the FJS including
the police, prosecutors, judicial officers and the community at large. It also looks at ways to
empower the victim in the adversarial system.337
Beniamin Mendelsohn referred to as ‘the father of victimology’338 campaigned for victims’ rights
from the standpoint of highlighting their plight in the criminal justice system.339 The pertinent
333
Ibid 677.
334
J Dignan, Understanding Victims and Restorative Justice (Open University Press 2005) 15.
335
A Karmen, Crime Victims An Introduction to Victimology (Wadsworth, Cengage Learning, 8th edn 2013) 2
<http://www.cengagebrain.com.au/content/9781285286624.pdf> accessed 15 July 2015.
336
Ibid 16.
337
Ibid 22.
338
J P J Dussich, ‘History, Overview and Analysis of American Victimology and Victim Services Education’ in
Proceedings of the First American Symposium on Victimology, (January 2003 Kansas City, Kansas) 4
<http://www.american-society-victimology.us/documents/SymposiumOnVictimologyJan2003.pdf> accessed 24
July 2015.
339
A Karmen (n 335) 15.
86
rights identified for a standard victim include the right to bring a perpetrator to speedy trial, the
right to appear throughout the trial including appeals, the right to be treated with dignity, respect,
courtesy and sensitivity, to be notified in advance of scheduled and rescheduled court proceedings,
to be provided with a separate waiting area from one used by the perpetrator at all stages of the
proceedings, to be informed of their rights just as a perpetrator is entitled, be informed of any
psychosocial assistance available, be entitled to restitution, be informed when the perpetrator is
released or escapes, be heard in any probation or plea bargaining process, insist on offender
undergoing a HIV test where bodily fluids capable of transferring HIV has been transferred.340
These above rights are all human rights and as stated earlier, they form the standard against which
the suitability of restorative justice in IFCSA cases is measured in this study. One major issue that
has dominated the discourse on human rights is the tension between the ‘force and appeal of human
rights, on the one hand, and their reasoned justification on the other’.341 The former is more
concerned with the need to embrace human rights for their utility value and finds details around
its theory unimportant. The latter on the other hand calls for an interrogation of the theoretical
basis of human rights. This includes addressing the question as to where these rights come from
and where they draw their validity from. This question has been pertinent since Jeremy Bentham
dismissed the concept of human rights being natural and God given as ‘miserable nonsense’. 342 It
is however not the intention of this study to get into the full discourse of theoretical foundations
of human rights. This part therefore consists of an overview of human rights but with specific
reference to the right to access to justice and its attendant rights, and the principle of the best
interest of the child. It will also concern itself with three aspects; the relevance of human rights
concept to this study; the perception of the universality of human rights and the viability of laying
claim on social economic rights.
The pertinence of human rights is heightened by the fact that the subject matter of this study is a
child within the family setting. Children are weak when it comes to bargaining for power within a
340
A W Burgess and A R Roberts, Crime and Victimology, (Jones and Bartlett Publishers) 20
<http://samples.jbpub.com/9780763772109/72109_Ch01_Roberts.pdf> accessed 15 July 2015.
341
S Amartya, ‘Elements of a Theory of Human Rights’ (2004) 32 4 Philosophy and Public Affairs 315, 317.
342
J Bentham, ‘Anarchical Fallacies; Being an Examination of the Declaration of Rights Issued during the French
Revolution’ (1792) para 100 < http://english.duke.edu/uploads/media_items/bentham-anarchical-
fallacies.original.pdf>accessed 18 March 2015.
87
group. Concerns have been raised over the disadvantaged position of weak members of a group
whose interests are more likely to be sacrificed in the event of a conflict between their interests
and those of the rest of the group. It has been said that ‘to sacrifice individual rights in the name
of group rights is, in fact, to serve the interests of the most powerful within the culture or the
society’.343 The relevance of human rights is to lay the basis for protecting the weaker members
of the group both within and without the conventional justice system in a legally plural setting.
This is not a new phenomenon as human rights standards have been used by the Special
Representative of the Secretary General on Violence against children (SRSG) in arriving at an
appropriate restorative approach in children’s cases. This is contained in her report on the
application of restorative justice to children’s cases.344
The report reiterates the importance of protecting the rights of the child accessing informal justice
and of restoring the harm caused to the child. It asserts that resorting to restorative justice should
not jeopardize children’s rights or preclude their right to simultaneously access the formal justice
system. These informal systems must be in line with international human rights standards, and
recognize that, when a case cannot be resolved one can resort to the formal system. Secondly, the
restorative process must avail a range of appropriate alternatives for the child’s rehabilitation and
reintegration. Thirdly, there must be a proper assessment of the processes and procedures used,
including an assessment of power relations, such as who selects the individuals to sit on the
mediation panel. Fourthly, the persons involved in the process must have capacity and knowledge
relating to children’s rights and child development and national legislation, including juvenile
justice laws and procedures and lastly, the right to appeal must be guaranteed so that there is
oversight by the formal system.345
The concerns of the SRSG are in line with the principle of the best interest of the child. This is one
of the general principles of the CRC in Article 3. The other three include: freedom from
discrimination in Article 12, the right to life in Article 6 and respect for the child’s views in Article
343
A Belden, ‘Human Rights Theory: Criteria, Boundaries, and Complexities’ (2009) 2 3International Review of
Qualitative Research. 407, 416 < http://www.jstor.org/stable/10.1525/irqr.2009.2.3.407> Accessed 08 December
2014.
344
UNGA Report of the Secretary General ‘Promoting Restorative Justice for Children’ (n 257) 26.
345
Ibid 27.
88
12. The principle is a running theme in both the CRC and ACRWC.346 It emphasizes that in all
actions concerning children including those undertaken by public institutions, administrative and
legislative authorities and courts of law, the best interest of the child shall be a primary
consideration. The principle therefore essentially refers to the well-being of the child which is
determined by due regard to the child’s age and circumstances. The Constitution of Kenya 2010347
and the Children Act348 also restate the concept by providing that a child’s best interest is of
paramount importance in every matter concerning the child. The fact that the principle of the best
interest of the child appears in one of the first chronological articles of the CRC has been
interpreted as evidence that it underpins all other provisions of the CRC.349 The essence of the best
interest of the child principle has been explained as to remind adults that children are important,
that their interests are different from those of adults, and that adults need to consider the impact of
their decisions for children as a top priority.350
No checklist or catalogue exists against which one can check whether or not an act is in the best
interest of the child. Each case is judged by its own circumstances with due regard to certain
variables like the age of the child, the relationship of the child to the perpetrator, the gravity of the
harm caused, the risk of future danger to the child, among many others. Of equal importance is the
reality of the child’s evolving interests with age. For instance, what may be in the interest of the
child at six years of age might cease to matter by the time the child turns ten years. Again, mobility
and exposure may alter a situation, such that what may be in the best interest of the child as they
attend a rural school in Kwale County may cease to be so when the same child is transferred to a
school in urban Mombasa County. That is why Ncube has proposed the need to distinguish
between ‘current interests’ and ‘future oriented interests’ of a child, as the two are different and
even capable of coming into conflict with each other. He clarifies that current interests are
formulated in relation to experiential considerations while future-oriented interests focus on
developmental considerations.351
346
Article 4.
347
Article 53 (2).
348
The Children Act 2001 (KEN) section 4.
349
M. Freeman (n 121) 6.
350
K Vandergrift, ‘Best Interest of the Child: Meaning and Application’ (Placeholder1 Conference Report held at
the University of Toronto, Faculty of Law, on February 27-28, 2009) 8.
351
Ibid. 3.
89
The best interest principle is said to be evolving as opposed to static. The evolution is said to be
hinged on ‘social science research on child development, the increasing participation of young
people in public life, and political and legal developments at all levels of government’.352 The fluid
nature of the principle arouses debate on the issue of universality of human rights. Questions are
raised whether the standards of persons who are geographically far removed can effectively be
applied to scrutinize local issues: Does a child in Kwale County, Kenya have identical ‘best
interests’ to one, say, in Copenhagen, Denmark? This study is of the viewpoint that there is need
to contextualize international standards to local realities as human rights can only be universal in
some but not all ways. A norm should be held as acceptable and within the ambit of human rights
as long as it does not constitute an offence under the particular jurisdiction. The researcher is aware
that some domestic laws may themselves be perceived as falling short of international human
rights standards especially on controversial topics such as abortion, euthanasia, same sex relations
and polygamy. The proposed balance would probably be to accept all norms recognized by local
jurisdictions to the extent that they are not in breach of jus cogens.
The vagueness and lack of a singular definition of the best interest principle avails the possibility
of manipulation by those with power to decide its scope.353 This gap is however curable by
applying the principles of indivisibility and interdependence of the provisions of the CRC. This
means that what amounts to the best interest of a child in every particular case ought to be
understood within the context of the totality of the entire spectrum of rights in the CRC and other
documents and instruments.
The issue of universality is further tested in respect of participatory rights of a child victim. In this
capacity, they are rights holders and therefore subjects of both the conventional and informal
justice systems as opposed to mere objects. The rights in Article 13 of the CRC advance this
position. It provides for the right to freedom of expression including freedom to seek, receive and
impart information and ideas of all kinds. A child with ability to form their own views also has the
right to freely express the same especially in matters affecting them. Once the views are expressed,
352
K Vandergrift, (n 350) 6.
353
Ibid 8.
90
they must be given due weight in accordance with the age and maturity of the child, especially in
judicial and administrative proceedings affecting them. The representation may be either direct, or
through a representative as may be allowed by the law. The concept of participatory rights of a
child is however relatively new in Africa.
Traditionally, children were deemed to belong to someone who was usually the patriarch of the
home. They were not expected to have an opinion separate from the patriarch. The traditional
African child has thus been described as a ‘victim of intergenerational power imbalance (...) in a
gerontocratic structure’ where the value of their opinion is directly proportional to their age.354
This study shall therefore be sensitive to the cultural realities of the geographical area under study
and will not strictly impose a western conceptualisation of the participatory rights of a child. As
Ncube argues, an African child could for instance sufficiently participate in decision making
through an intermediary like a grandmother without uttering a word.355 The child’s right to
participate in the processes affecting them is therefore not altogether inconsistent with African
customary norms as long as creative ways of incorporating the same are sought.
Apart from participatory rights, the other right that is of significant relevance to this study is the
victim’s right that binds the state to take all appropriate measures to promote physical and
psychological recovery and social reintegration of the child victim of intra-familial child sexual
abuse.356 The Committee on the Rights of the Child, in its general comment on the right of the
child to freedom from all violence, has suggested that the interest of a child victim should
encompass enforcement of judicial procedures in a child friendly way.357 This includes taking into
account the child’s personal situation, gender, disability and level of maturity, and handling the
matter with sensitivity throughout the justice process. The committee has also suggested options
for the regular criminal justice process including family conferences, alternative dispute settlement
and restorative justice with a special focus on rehabilitation and compensation of the child victims.
Even where the abuse is prosecuted through the regular criminal justice system, the committee
proposes the establishment of specialized units and procedures for child victims including
354
J W Wafula (n 125) 115.
355
C Himonga (n 126) 95.
356
CRC, Art 39.
357
General Comment No 13 (n 42).
91
specialized units within the police, prosecution, and judiciary with staff well-trained in the needs
and rights of children. It is clear that the committee favors a restorative and informal approach as
opposed to a purely punitive one in dealing with child victims of abuse.
The Committee’s above mentioned recommendations on the needs and welfare of child victims
oscillate around the traditional second generation economic and social rights. These include right
to medical attention, shelter and general livelihood. The other key right which is closely related
and dependent on the realization of economic and social rights is the right to access to justice to
all people. This is contained in Article 48 of the Constitution of Kenya. Children are entitled to
this right as much as adults. The right to access to justice does not merely mean physical access.
It has been unpacked in detail to include several incidentals.358 It has been argued that people
cannot access rights they have no knowledge of. Right of access to justice therefore includes the
right to know one’s rights. In the case of IFCSA, this would include the right for the child and/or
their family to know what constitutes a violation and their procedural rights vis-à-vis government
service providers as they seek intervention from various justice institutions. The victim, for
instance, has a right to know that in their quest for intervention, they are entitled to the consumer
protection enshrined in the constitution, which sets expectations from both public and private
entities in terms of service delivery. 359 Victims of IFCSA often seek intervention from a point of
vulnerability and disempowerment. The importance of their awareness of their procedural
entitlements cannot be overstated.
Apart from knowledge of their rights, the other components of access to justice are the physical
access to both conventional justice system institutions like the police service, the courts, and
children’s services, and the financial access to be able to shoulder the incidental costs like legal
costs and transport costs. Lastly, justice should be accessible expeditiously and without
unreasonable delay. Access to justice must of necessity encompass the right to access justice of
one’s choice, including restorative justice, whether through informal or conventional means. This
is in line with the broad definition given by Penal Reform International:
358
Mbote & Akech (n 131) 157.
359
Constitution of Kenya (n 2) Art 46.
92
Access to justice should be considered in its broad sense to encompass: access to a
fair and equitable set of laws; access to popular education about laws and legal
procedure; as well as access to formal courts and, if preferred in any particular case,
a dispute resolution forum based on restorative justice (both subject to appropriate
regulation in order to prevent abuse.360
Hindrances to access to justice have been said to be the kind “associated with time, manner and
place restrictions.361 Overcoming such hindrances involves financial implications which again
revolves around enforceability of rights of socio economic nature.The feasibility of socio
economic rights has been said to be highly contentious especially due to challenges of institutional
capacity to deliver on the part of the state.362 For instance, the main institution responsible for the
welfare of all children, in Kenya, including child victims of IFCSA, is the Department of Children
Services. This institution operates amidst a lot of human, financial and technical incapacities.363 It
is therefore unable to facilitate delivery of social economic related rights to the victim. Questions
have been asked as to whether rights that are not deliverable are actually rights. Amartya has
answered this question with the following reasoning:
Current unrealizability of any accepted human right, which can be promoted

through institutional or political change, does not, by itself, convert that claim into
a non-right. Even where the rights cannot be realized because of inadequate
institutionalization, then, to work for institutional expansion or reform can be a part
of the obligations generated by the recognition of these rights.364
The approach in this study shall therefore be to use the provisions of all the human rights standards
in the treaties, conventions, statutes and instruments that are legally binding to promote the rights
of the victims regardless of the prevailing institutional capacity to deliver.
360
Penal Reform International (n 130)
361
J Stevens, ‘A Review of Literature Prepared for Penal Reform International’, Traditional and Informal Justice
Systems in Africa, South Asia and the Caribbean. 1998 (Penal Reform International) 6.
362
Amartya (n 341) 317.
363
National Council for Children Services, Summary of the Outcome of Mapping and Assessing Kenya’s Child
Protection System; Strengths, Weaknesses and Recommendations (2010) para 3.2.1 http://ovcsupport.net accessed
19 March 2015.
364
Amartya (n 341) 320.
93
2.3 Conclusion
This chapter has demonstrated that restorative justice is a relevant field for the search of a
comprehensive response to IFCSA. The key player in IFCSA is a naturally vulnerable child who
is often female. This has necessitated an examination of restorative justice against the backdrop of
vulnerability theory and feminism. The social context within which IFCSA occurs cannot be
overlooked especially the community’s affinity towards informal justice mechanisms. As long as
the communities’ needs and preferences play a role in determining how they respond to crime, the
search for an appropriate legal response cannot possibly be confined within the FJS. Any
comprehensive response must of necessity engage the informal justice mechanisms. The
engagement is with a view to drawing lessons that are restorative in nature and diverting a limited
category of cases to IJS. This proposal is discussed in chapter five of this thesis. The thread that
ties the FJS and IJS is found within the concept of legal pluralism.
Finally, whether sought within the formal system or the informal justice systems, restorative justice
values and processes must be congruent with the victims’ needs as expressed in human rights
standards. Restorative values are by and large compatible with human rights standard as they are
concerned with giving the victim a voice and avoiding re-victimization. The said human rights
standard need however to be understood with due regard to the local context and circumstances.
The theoretical and conceptual foundation of this research is therefore restorative as examined
against the backdrop of vulnerability theory, feminism, legal pluralism and human rights standards.
This chapter has laid the basis for an answer to three research questions. The first is on the extent
to which restorative justice, as analyzed against the backdrop of feminism, vulnerability theory
legal pluralism and human rights standards, can be used as a tool to contribute towards achieving
an effective and innovative legal response to IFCSA. The discussion in this chapter has
demonstrated that restorative justice values, processes and lifestyles have potential to enrich the
legal response to IFCSA. The second question is on the specificities of IFCSA which is discussed
in chapter four of this study. The current chapter, in discussing vulnerability theory, has laid basis
to challenge uniformity of treatment between a child victim of sexual abuse by a stranger and an
IFCSA victim. This uniform treatment in disregard to the specificities is at the core of the research
problem of this study. The last foundation laid down in this chapter is with regard to the entry
94
points available for incorporation of restorative justice into the formal justice system in IFCSA
cases. This chapter has given pointers to IJS as a reservoir for restorative practices and values that
can enrich the FJS. It has also introduced the role of the state in the restoration of a victim of
IFCSA. The entry points are discussed in chapter five of this thesis.
95
CHAPTER THREE: THE OPERATING LEGAL FRAMEWORK
We shall not do you any harm”, said the District Commissioner to them later, “if
only you will agree to cooperate with us. We have brought a peaceful
administration to you and your people so that you may be happy. If any man ill-
treats you, we shall come to your rescue. But we will not allow you to ill-treat
others. We have a court of law where we judge cases and administer justice just as
it is done in my own country under a great queen”… Okonkwo and his fellow
prisoners were set free as soon as the fine was paid. The District Commissioner
spoke to them again about the great queen, and about peace and good governance.
But the men did not listen. They just sat and looked at him and his interpreter.365
3.1 Introduction
The above excerpt from the late Chinua Achebe’s novel, ‘Things Fall Apart', is set in a fictitious
village in Nigeria, known as Umofia, at the advent of colonialism. The lecture by the colonial
District Commissioner was given to the village elders shortly after their conviction and sentencing
for leading the villagers in the demolition of a church building erected in the village by the
colonialists. Though set in Nigeria, it reflects the manner in which the African Natives were
inducted into the current formal justice system (FJS) in the British colonies. An interrogation of
the current formal justice system, as the one required by this study, necessitates an understanding
of the country’s colonial history. This is to bring out the genesis and the circumstances under which
the system came into being and the effect it has had on the structure of the existing system.
As mentioned in chapter two, in pre-colonial Africa, different communities applied their respective
customs and traditions to resolve disputes without necessarily distinguishing between civil and
criminal disputes. All wrongs were harmonised as transgressions against the community. 366 With
the advent of colonialism, European laws were introduced into the colonies. This was done without
consultation of a large proportion of the consumer population, the natives, as they were primarily
meant to facilitate the European settlers. In the British colonies, the laws were enforced within the
African population through the concept of ‘indirect rule’ which involved rule by the colonialists
through the African loyalist chiefs. These English laws and the criminal justice system were
however crafted in England with the Englishman, and not the native African, in mind. Their
365
C Achebe, Things Fall Apart (1st Anchor Books edition, 1994) 142.
366
S Kinyanjui (n 57) 3.
96
primary aim was to enforce and promote the British supremacist ideology agenda, which was the
bedrock of colonialism.367
The enforcement of the new legal order has been described as being representative of the harshest
aspect of colonial rule enforced amongst the Africans.368 African customary law was hence
relegated to the periphery and applied in a limited way and only where it was not repugnant to
justice and morality and any written law. This set the stage for legal pluralism and its ramifications
on the structure of the existing legal framework. On one hand, and closely related to the English
system, were magistrates courts where serious offences were tried, while on the other hand the
African courts dealt with customary law matters including petty offences. Appeals from the
African courts lay in the English type courts.369 In summary therefore, the current Kenyan FJS and
its jurisprudence is grounded on English common law which is the legal tradition that evolved in
England after the Norman Conquest.370 It was not tailor made for the needs of the African on the
ground as aptly put:
We are the heirs, albeit by what you might think of as a bastard route, to a tradition
that gives a very powerful place to the judiciary: the common law system. It is a
flawed inheritance because it came to us via the colonial route.371
At independence, Kenya, like the rest of the former British colonies, retained the pluralistic
framework with the FJS operating alongside African customary law.372 The application of the latter
is however limited to the extent that it is applicable, not in conflict with written law, and not
‘repugnant to justice and morality’. The former of course ranks higher than the latter in the
367
S Coldham, ‘Criminal Justice in Commonwealth Africa: Trends and Prospects’ (2000) 44 (2) Journal of African
Law 219.
368
P O Ndege, ‘Colonialism and its Legacies in Kenya’ (2009) Fulbright – Hays Group Project Abroad Programme,
Moi University Main Campus <http://international.iupui.edu/kenya...rces/Colonialism-and-Legacies.pdf> accessed
on 28 November 2013.
369
Coldham (n 367) 220.
370
C Plucknett, A Concise History of Common Law (Liberty Fund 2012) 11-19
<https://muse.jhu.edu/books/9781614878902> accessed 19 September 2015.
371
W Mutunga, ‘The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court
Decisions’ (Inaugural Distinguished Lecture Series, University of Fort Hare, October 2014).
372
S I Aronson, ‘Crime and Development in Kenya: Emerging Trends and the Transnational Implications of
Political, Economic, and Social Instability’ < http://www.studentpulse.com/articles/278/crime-and-development-in-
kenya-emerging-trends-and-the-transnational-implications-of-political-economic-and-social-instability>, accessed
19 October 2013.
97
hierarchical order of legal force.373 Though, strictly speaking IFCSA is the preserve of the FJS,
the community’s affinity for resort to alternative dispute resolution under African customary law
remains. A good number of IFCSA cases are handled informally, albeit beneath the legal radar.
The informal therefore exists more in practice than in form and is more evident in chapter four
from the data collected in this research.
This chapter therefore discusses both the formal and informal legal framework with a special focus
on the statutory framework that comes into play as FJS responds to cases of IFCSA. The statutory
framework is as drawn from the main sources of our laws enunciated in the Judicature Act. 374
These include the Constitution, the Sexual Offences Act together with its Practice Rules, the
Criminal Procedure Code, the Evidence Act, the Victim Protection Act, the Children Act, The
National Police Service Act, the Protection Against Domestic Violence Act, and the relevant case
law. Relevant International treaties, conventions, Basic Principles and Guidelines are also
discussed. The scope of the framework includes investigation, identification of the offence, the
trial process, adducing of evidence and sentencing. The role of the victim in the FJS is also
discussed as well as the place of informal justice in the existing legal framework. The interrogation
is with a view to identify the gaps within the framework as it responds to IFCSA.
3.2 Investigation
Once an act of IFCSA has been detected, it is expected that the victim, or the person who first
becomes aware of the act, will set the justice system in motion. This is formally done by lodging
a complaint with the police. A complainant in any offence is ordinarily the victim of the crime. In
IFCSA cases, however, the concept of a complainant is perceived more widely to incorporate
persons other than the immediate victim including those not necessarily affected by the act. The
question as to who is the rightful complainant in an IFCSA case was the subject of deliberation in
P M M v Republic.375 The case was an appeal from the lower court against a conviction of
defilement of a ten year old girl by her father. During the trial the victim, in her unsworn statement
denied that her father had defiled her. She claimed that she had been asked by one ‘Mama Shiko’,
a neighbor, to implicate her father so that she could be taken to see her mother in the maternity
373
Judicature Act (1967) KEN
374
Ibid s 3.
375
P M M v Republic Nakuru High Court Criminal Appeal No 188 of 2010 [2011] eKLR.
98
hospital where she had gone to deliver a baby. In addition, the appellant and his wife (the victim’s
mother) both denied the allegations of incest against the appellant. The trial court nonetheless
found the father guilty of defilement and sentenced him. On appeal, he raised the question of
whether the case had a complainant and if so, who that complainant was. This was because both
the victim and her mother had denied any knowledge of the defilement.
The court held that a complainant does not have to be the victim as any concerned citizen of good
will, including a concerned neighbor, can be a legitimate complainant. In that case, the court noted
that it had taken the diligence of the concerned neighbors to uncover the abuse and they were
therefore the rightful complainants. The court further remarked that denial by the victim and the
attempt by both parents to conceal the act were not surprising as the offence of incest invokes
shame, and is taken to be a curse among most communities of Africa.376 This wide
conceptualization of a complainant is important in IFCSA cases where there is a high possibility
of cover up within the family. This approach is important to an IFCSA case involving vulnerable
child complainants who are prone to succumb to pressure from close family members to frustrate
the reporting, investigation and prosecution of a case. It also addresses a concern by feminists on
the inherent power imbalance between a victim of IFCSA and their perpetrator in a patriarchal
society while responding to IFCSA cases. This concern is discussed in chapters two and four of
this thesis.
Once a complaint is lodged, the next step in the FJS is the gathering of evidence through the
process of investigation. This is a crucial make or break stage in the criminal justice process as the
chances of a successful trial are determined by the nature and quality of the evidence gathered.
Investigation involves, inter alia, visiting the scene of crime, interviewing the victim and other
witnesses and taking samples for forensic analysis. The function of investigation is assigned to the
police by the National Police Service Act which spells out the functions of the Kenya Police
Service to include:
‘provision of assistance to the public when in need; maintenance of law and order;
investigation of crimes; collection of criminal intelligence; prevention and
376
Ibid 4.
99
detection crime; apprehension of offenders; and enforcement of all laws and
regulations with which it is charged…’377
The standard that must be adhered to by the police while carrying out the investigation is specified
in the Constitution and it includes ‘high standards of professionalism and discipline, transparency
and accountability, without corruption and with regard to human rights’.378 Investigation and
prosecution of crimes under the Constitution is a discretionary power of the Director of Public
Prosecutions.379 A complainant therefore has no express right to have their case investigated or
prosecuted. Though the Constitution gives a victim the right to institute a private prosecution, this
right is watered down by an overriding right vested in the DPP to take over and, subject to the
court’s approval, discontinue any privately instituted prosecution.380 The upshot of this is that
whether an IFCSA case is investigated and eventually prosecuted or not is beyond the control of
the victim or complainant as it is totally in the hands of the police and the DPP.
Instances of the police abdicating their investigating role are not uncommon. The legal implication
of this state of affairs was discussed at length in the class suit filed in the High Court in Meru by
several victims of defilement.381 The victims that were the subject of this petition were all female
which confirms the observation made throughout this research that a majority of sexual abuse
victims are female. In this case, eleven of the petitioners were victims of defilement and other
forms of sexual violence and child abuse which had taken place on diverse dates between the year
2008 and 2012. The first, sixth and eleventh petitioners were victims of IFCSA, having been
sexually assaulted by their father, uncle and step father respectfully. The petitioners’ case was that
despite reporting the violations at various police stations within Meru County, the police officers
had failed to conduct prompt, effective, proper and professional Investigation into their complaints.
The petitioners contended that due to the failure by the police, they had suffered grave,
unspeakable and immeasurable physical and psychological trauma as the perpetrators remained
free.
377
National Police Service Act (2011) KEN s 24.
378
Article 244.
379
Article 157.
380
Article 157 (6) (b) and (c).
381
C.K. (A Minor) & 11 Others v. Commissioner of Police Inspector-General of the National Police Service & 2
Others Meru High Court Petition No 8 of 2012 [2012] eKLR.
100
The high court while concurring with the petitioners held that the said failure of the police was a
violation of a number of fundamental rights and freedoms enshrined in the Constitution of Kenya
2010. This includes right to special protection of the victims as members of a vulnerable group,382
equal protection and benefit of the law and access to justice;383 dignity,384 security of the person, 385
freedom from discrimination;386 and freedom from being subjected to any form of violence either
from public or private sources or torture or cruel or degrading treatment.387 The court went further
to invoke several international treaties, conventions and standards including the Universal
Declaration of Human Rights,388 the United Nations Convention on the Rights of the Child;389 the
African Charter on the Rights and Welfare of the Child;390 and the African Charter on Human and
People’s Rights.391
The court summarized the net effect of failure to investigate the child sexual abuse cases as
follows;
…failure to commence the criminal justice process through investigation created a
climate of impunity for commission of sexual offences and in particular defilement.
This would create a situation where the perpetrators know they can commit crimes
against innocent children without fear of being apprehended and prosecuted. This
erodes the deterrent effect of the criminal justice process. The psychological harm
caused by failure to investigate was identified as self-doubt, self-loathe, self-blame,
and low self-esteem. The abdication of the police from this crucial role inevitably
hence deprived the claimant’s access to courts and lead to miscarriage of justice or
deny justice altogether.392
The court restated the position that once a report or complaint is lodged, it is the duty of the police
to ‘move with speed and promptly commence investigation and apprehend and interrogate the
perpetrators of the offence and the investigation must be conducted effectively, properly and
382
Article 20 (5) (b).
383
Article 48.
384
Article 28.
385
Article 29.
386
Article 27.
387
Article 29 (c).
388
Articles 1-8 and 10.
389
Art 2, 4, 19, 34 and 39.
390
Art 1, 3, 4, 16 and 27.
391
Article 2-7 and 18.
392
CK (Minor) & Others (n 381) 12.
101
professionally short thereof amounts to violation of fundamental rights of the complainant.’393
Further, the court asserted that the duty to conduct prompt, effective, proper, corrupt free and
professional investigations persists even where the police are faced with financial constraints.
Consequently, any demand for payment by the police as a precondition for assistance, whether for
fuel or P3 forms or for any other expense, was tantamount to unreasonably and unjustifiably
impeding justice and in contravention of the constitutional right to access to justice.394
The court’s decision in effect restated the proposition in vulnerability theory which holds the state
responsible for the performance of the institutions it establishes that create an expectation of
enhancement of resilience to the vulnerable. The importance of having functional resilience
building state institutions is discussed in chapter five of this thesis.
The obligation to investigate is even more compelling where the victim of crime is a child as is the
case in IFCSA due to their vulnerability. The Constitution enshrines the right for every child to be
protected from, inter alia, abuse, neglect, harmful cultural practices, and all forms of violence,
inhuman treatment and punishment.395 The same provision also states that a child’s best interest is
of paramount importance in every matter concerning the child. This right can only be sufficiently
enforced where mechanisms for prompt investigation are in place in case of infringement. This
constitutional provision reiterates the provisions of the CRC which calls for protection of the child
against torture and abuse.396 Though in common parlance ‘violence’ denotes physical force, the
Committee on the Rights of the Child has defined the term to mean ‘all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse.’397 The CRC stipulates how violence against children should be responded to. While
binding State Parties to take measures to protect children from all forms of abuse, including sexual
abuse, the Convention includes investigation as one of the measures:
1. States Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental
393
Ibid.
394
Articles 48 and 50.
395
Article 53 (1).
396
Article 16 CRC (n 4).
397
General Comment No 13 (n 42) para 1 (4).
102
violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s)
or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures
for the establishment of social programs to provide necessary support for the child
and for those who have the care of the child, as well as for other forms of prevention
and for identification, reporting, referral, investigation, treatment and follow-up of
instances of child maltreatment described heretofore, and, as appropriate, for
judicial involvement.398
The above is the core provision that addresses the manner in which violence against children
should be responded to. The Committee on the Rights of the Child has explicated the above right
by unpacking what an investigation of instances of violence against children should entail. The
committee has emphasized that implementation of article 19 is an immediate and unqualified
obligation of States parties. A State Party may therefore not be excused from its duty under this
article on the basis of its economic circumstance as all available resources must be utilized to the
maximum extent.399 As a whole, the CRC committee requires State Parties to undertake all possible
measures towards the realization of the rights of the child, paying special attention to the most
disadvantaged groups.400
Further, the committee has underscored that the investigations must be undertaken in a child rights-
based and child-sensitive approach by qualified professionals who have received role-specific and
comprehensive training. The procedures applied must be rigorous but child-sensitive to ensure that
violence is correctly identified and evidence gathered in support of the court proceedings. This
calls for treatment of the child victims in a child-friendly way throughout the justice process,
‘taking into account their personal situation, needs, age, gender, disability and level of maturity
and fully respecting their physical, mental and moral integrity’.401 In this regard, States Parties are
under an obligation to ensure that all persons who, within the context of their work, are responsible
398
Article 19.
399
General Comment No 13(n 42) para 65.
400
UN Committee on the Rights of the Child (CRC) Gen Comment no 5 (2003) ‘General Measures of
Implementation of the Convention on the Rights of the Child’ CRC/GC/2003/5 para 8.
401
Ibid para 54 (b).
103
for the prevention of, protection from, and reaction to violence and in the justice systems are
addressing the needs and respecting the rights of children.402
The need for extreme care in dealing with a child victim of violence is to avoid re-victimization
during investigation. The standard imposed on the state by the committee with regard to
investigation of child violence cases resonates with the core focus of vulnerability theory. This is
the expectation from the state to build its citizen’s resilience through its institutions. Child-
sensitive approach to investigation enhances resilience in a child victim of IFSCA. The converse
is true where the investigations are carried out without regard to sensitivities inherent in the child.
An important component of sensitive handling of a child victim during investigation is the need to
give due weight to the views of the child.403 This is accordance with the child’s right to form and
freely express their own views in all matters affecting them to the extent that they are able to do
so.404 According to the Committee, it is not for the child to prove their capacity to express their
opinion. It should be presumed that a child has the capacity to form and express their own views.405
Finally, in acknowledgment of the fact that much of the violence experienced by children,
including sexual abuse, takes place within a family context the committee stresses the necessity of
early intervention in families at the investigation stage where the children are exposed to violence
by family members.406 However, even in such situations, the obligation still rests on the State to
support and assist parents and other caregivers to secure, within their abilities and financial
capacities and with respect for the evolving capacities of the child, the living conditions necessary
for the child’s optimal development.407
The importance of the obligation of the police to investigate citizens’ complaints has also been
discussed in the case of R v Commissioner of Police & 3 Others( ex-parte Phylis Temwai Kipteyo).
This was an application for habeas corpus for the applicant’s husband, who had been detained and
402
Ibid para 5.
403
Ibid para 51.
404
Article 12
405
UN Committee on the Rights of the Child (CRC) Gen Comment No 12 (2009) ‘The Right of the Child to be
Heard’ CRC/C/GC/12 Para 20.
406
General comment No 13 (n 42) para 72 (d).
407
Articles 18 and 27.
104
tortured by military personnel during a security operation against the Sabaot Land Defense Force
in Mt Elgon. Though the court declined to issue the order for habeus corpus, it nonetheless stated
that ‘It is the duty of the state to inquire into any crime or suspected crime affecting any of its
subjects.’ It directed that the Attorney General, the Chief of General Staff and the Commissioner
of Police (the equivalent of the current Inspector General) to initiate an inquest into the
disappearance of the applicant’s husband.408
The duty to investigate sexual offences and the legal standards related to a policeman’s duty to
investigate has also been deliberated in courts of other jurisdiction in cases that the Meru case
made reference to. Though these foreign decisions are not binding on Kenyan courts, they are
important in persuading the courts on the parameters within which the duty to investigate should
be carried out. They also offer important standards against which the adequacy of the domestic
legal framework regarding investigation can be measured.
The first decision is in the South African case of Ghia Van Eeden (Formerly Nadel) v Minister of
Safety and Security. This involved a nineteen year old woman who had been sexually assaulted,
raped and robbed in Pretoria by one André Gregory Mohamed. The perpetrator was a serial rapist
who had escaped from police custody, during an identification parade, three months prior. At the
time of his escape, he was facing over twenty charges, including indecent assault, rape and armed
robbery. He resumed his criminal activities of violent sexual assault soon after his escape. One of
his victims, the appellant, instituted an action for damages against the State. Her main ground was
that members of the South African Police Service owed her a legal duty to ensure that Mohamed
did not escape hence causing her harm. The court of first instance found that the police did not
owe the appellant a positive legal duty to prevent harm. On appeal, the supreme court of Appeal
of South Africa held that the appellant was owed an active positive legal duty by the police to
ensure that Mohamed did not escape. In failing to do so and allowing him to escape from their
custody, the police were in breach of the applicant’s fundamental rights and freedoms.409 Though
this case was about escape from custody, the court’s opinion was that it was the failure to
408
In the Matter of an Application by Phylis Temwai Kipteyo for Leave to Apply for an Order of Habeaus Corpus on
Behalf of Patrick Kipteyo Sewui [2011] eKLR < http://kenyalaw.org/caselaw/cases/view/66168> accessed 8 July
2015.
409
Ghia Van Eeden (Formerly Nadel) v Minister of Safety and Security Case 194/2011 [2012] ZASCA 123 available
at <http://www.justice.gov.za/sca/judgments/sca_2002/2001_176.pdf> accessed 6 July 2015.
105
investigate and hold Mohamed to account with respect to his previous offences that had exposed
the applicant to harm.
The Inter-American Commission on Human Rights has also had the occasion to consider the scope
of the obligation to investigate in the case of Jessica Lenahan (Gonzales) et al v United States.
This was a petition against the government of the United States of America on behalf of Jessica
Lehnan Gonzalez and her deceased daughters. It was alleged that the police had failed to
sufficiently respond to her calls for help over several hours when she reported the abduction of her
three minor daughters by her estranged husband in violation of a restraining order. The three girls
were eventually found dead in the back of their father’s truck after the exchange of gunfire where
the father was also killed. The petitioners further accused the state of failing to investigate or
clarify the circumstances of the death of the girls. It also failed to provide her with an adequate
remedy for the failures of the police eleven years down the line. While considering the obligation
of the police to enforce a restraining order, the Inter-American Commission on Human Rights
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 Commission went on to imply that this duty to protect is heightened in the
case of vulnerable groups such as girl-children and it created a scenario of strict liability thereby
rendering the state’s intention in case of failure to comply is immaterial.410
The European Court of Human Rights has also severally deliberated on the importance of
investigation. In the case of MC v Bulgaria, the applicant had complained that Bulgarian
authorities had failed to effectively investigate the events surrounding her alleged rape at the age
of 14. Her allegations had been dismissed on the ground that there was no evidence that she had
resisted actively. The court made a finding that:-
The investigation of the applicant’s case, and in particular the approach taken by
the investigators and the prosecutors in the case fell short of the requirements
inherent in the States’ positive obligations-viewed in the light of the relevant
410
Jessica Lenahan (Gonzales) et al v United States Case 12.626 [2011] Report No.80/11, August, 17, 2011.
Available at< https://www.oas.org/.../USPU12626EN> accessed 6 July 2015.
106
modern standards in comparative and international law-to establish and apply
effectively a criminal-law system punishing all forms of rape and sexual abuse.411
In the case of CAS Romania, the complaint at the European Court of Human Rights was lodged
by the victim and his father. The former had been repeatedly raped and sexually assaulted at the
age of seven years. The gist of the complaint was on the nature, promptness and length of the
investigation by the Romanian police. The Romanian authorities’ defense included blaming the
victim’s parents for negligently failing to detect and report the abuse in time even after noticing
behavior changes and blood in his underpants. They also claimed that the victim himself had not
disclosed the abuse in time. The court found that the parents’ alleged negligence had no major
impact on the diligence of the police in their response to the reported facts. On the victim’s delay
in disclosing, the Court found that the authorities were not mindful of the particular vulnerability
of young people and the peculiar psychological concerns incidental to cases involving violent
sexual abuse of minors. These concerns may have resulted in the victim’s hesitation to report or
even describe the facts surrounding the abuse. In holding that an ineffective investigation of sexual
assault charges violates the Human Rights convention, the European Court of Human Rights
expounded on the duty to investigate as follows:
It (the investigation) should in principle be capable of leading to the establishment

of the facts of the case and to the identification and punishment of those
responsible. This is not an obligation of result, but one of means. The authorities
must have taken the reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness testimony, forensic
evidence, and so on. Any deficiency in the investigation which undermines its
ability to establish the cause of injuries or the identity of the persons responsible
will risk failing foul of this standard, and a requirement of promptness and
reasonable expedition is implicit in this context.412
Finally, the Inter-American Court of Human Rights is on record stating that poor investigation
influenced by discriminatory attitudes towards women by state officials is tantamount to an
infringement on the right to equality, non-discrimination, access to justice, and judicial
411
MC v Bulgaria Case no 39272/98, 2003 available at <http://hudoc.echr.coe.int/sites/eng-
press/pages/search.aspx?i=003-883968-908286# {"itemid": ["003-883968-908286"]}> accessed 6 July 2015.
412
CAS and CS v Romania ECHR 26692/05 [2012]. <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-
109741> accessed 6 July 2015.
107
protection.413 This was in the case of Gonzalez & Others (Cotton Field) v Mexica based on a claim
relating to the disappearance, torture, rape and subsequent murder of three young women nationals
of Mexico, two of whom were minors. Evidence was adduced to the effect that the state had taken
the disappearance lightly and at some point blamed the victims for their fate based on the way they
had dressed, the fact that they were alone without parental control.
Alongside the victim’s right to have their case investigated is the converse right of the perpetrator
encased in what is commonly known as due process rights. They are protected by the Constitution
as the right to access to justice to all and the right to fair trial.414 This protection starts during arrest,
through trial and includes several watertight principles which protect a suspect of an offence and,
by extension incarceration. A perpetrator has the right not to answer any questions put to them
during investigation in the exercise of their right to remain silent. They also have a right to legal
representation and, once arrested, they must be presented before a court of law before the expiry
of twenty four hours.415 The consequences of failure to do the latter is however not necessarily
fatal. This failure was deliberated in respect of a similar provision under the previous constitution
where the court observed as follows:
This court has noted that a delay of three days cannot be said to be inordinate taking
into account the fact that the appellant is the father of the complainant herein and
that there was also a need to secure medical report on the complainant. Further, this
court notes that the appellant's rights to a fair trial were never prejudiced by the said
delay.416
Where a perpetrator’s due process rights are breached during investigation, the trial court is not
duty bound to interrogate the violation. It is for the perpetrator to move the constitutional court in
a separate claim for a remedy. The violations do not also influence the outcome in the
determination of the perpetrator’s guilt. This position has been summarized as follows:
… it is not the duty of a trial court or an appellate court dealing with an appeal from
a trial court to go beyond the scope of the criminal trial and adjudicate on the
413
Gonzalez & Others (Cotton Field) v Mexico [2009] Inter-American Court of Human Rights Judgment of
November, 16, 2009 < http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_ing.pdf> accessed 6 July 2015.
414
Article 48.
415
Article 49.
416
Paul Mwangi -v- Republic Nakuru Court of Appeal Criminal Appeal No 35 of 2006 [2008] eKLR.
108
violations of the right to personal liberty which happened before the criminal court
assumed jurisdiction over the accused. However, the trial court can take cognizance
of such pre-charge violation of person liberty, if the violation is linked, to or affects
the criminal process. As an illustration, where the prolonged detention of a suspect
in police custody before being charged affects the fairness of the ensuing trial e.g.
where an accused has suffered trial related prejudice as a result of death of an
important defense witness in the meantime, or the witness has lost memory, in such
cases, the trial court could give the appropriate protection like an acquittal.
Otherwise the breach of a right to personal liberty of a suspect by police per se is
merely a breach of a civil right, though constitutional in nature, which is beyond
the statutory duty of a criminal court and which is by Section 72 (6) expressly
compensatable by damages.417
The above position was restated by the court in reference to the current constitution in Godfrey Oluoch
Ochuodha v Republic.418 In this case, the appellant complained to the trial court that his constitutional
rights had been violated after he was arrested on 15th June 2014 and taken to court two days later. The
court held that such violations do not have any bearing on the innocence or guilt of the accused and
may be vindicated by filing a separate petition under Article 22 of the Constitution.
From the foregoing, it is clear that investigation is a crucial stage of the FJS in the response to
crime especially sexual crime. Where it is not carried out or carried out below the expected
standards, it raises human rights issues which are challengeable in both the domestic and
international courts. The investigations must however be carried out with due regard to the due
process rights of the perpetrator. The tail end of an investigation is to establish whether the
complaint gives rise to any offence and whether there is sufficient evidence to charge the
perpetrator with the said offence.
3.3 Offences
The offences under which most IFCSA fall are codified in the Sexual Offences Act (SOA) and the
Children Act. Previously, all sexual offences were embodied in the Penal Code.419 Whereas the
Penal Code has a category of offences known as ‘offences against the person’, like murder,
manslaughter and assault, sexual offences under the code were classified under ‘offences against
morality’ alongside offences like bestiality and prostitution. The classification had the potential of
417
Julius Kamau Mbugua -v- Republic Nairobi Court of Appeal Criminal Appeal No 50 of 2008 [2010] eKLR.
418
Godfrey Oluoch Ochuodha –v- Republic Migori High Court Criminal Appeal Number 17 of 2015 [2015] eKLR
5.
419
Penal Code, 1930 (KEN) sections 139 to 145 and sections 147 to 150.
109
extending the stigma associated with victims of other crimes in that category to victims of sexual
assault. Apart from this conceptual misnomer, there were other gaps in the legislation of sexual
offences that necessitated the enactment of the SOA in 2006. First, the range of sexual offences
under the Penal Code was very limited with most non-penetrative sexual acts against children not
being criminalized. Secondly, the definitions of rape and defilement in the penal code were quite
antiquated as some of the language used was archaic such as ‘having carnal knowledge’ for
‘penetration’. Thirdly, the definition of rape under the penal code did not contemplate a male
victim or female perpetrator. Lastly, the code only provided for maximum sentences leaving the
lower limit to the unfettered discretion of judicial officers. There was also no legal framework to
ensure that the punishment handed down to the perpetrators matched the gravity of the crime. The
SOA which came into force on 21st July 2006 was therefore an improvement from the Penal
Code’s provisions on sexual offences as it has filled in the above gaps.
The SOA contains progressive provisions geared towards better protection and access to justice
for victims of sexual offences. A prominent feature of this Act is the imposition of stiff minimum
sentences proportionate to the age of the victim. For instance, defilement of a child of eleven years
or less attracts a minimum of life sentence. If the child is between twelve and fourteen years, the
minimum sentence is twenty five years imprisonment while defiling a teenager of sixteen or
seventeen years attracts a minimum sentence of fifteen years imprisonment.420 The challenge
incidental to these minimum sentences is highlighted later in this chapter. The SOA criminalises
all acts that amount to child sexual abuse as per the definition of WHO mentioned in chapter one.
The acts range from those that involve penetration into the child’s genital organs or anus, to
unlawfully and indecently touching a child’s sexual organs or manipulating their own or a third
party’s sexual organs.
There are many offences in the SOA that would amount to IFCSA. This part will however discuss
the three more common ones which include indecent assault, defilement and incest. The three also
encompass all IFCSA acts. The Act defines an indecent act as an unlawful and intentional act
which causes any contact between any part of the body of a person with the genital organs, breasts
or buttocks of another, excluding an act that causes penetration; or the exposure or display of any
420
Section 8.
110
pornographic material to any person against his or her will.421 With regard to indecent act with a
child, the element of consent is immaterial. Defilement on the other hand is defined as an act that
‘causes penetration with a child.’422 The penetration is by a genital to the genital organ including
the vagina and/or anus. It may be complete or partial.423 Defilement can therefore be said to be
equivalent to what rape is to an adult, with the point of departure being the age and the element of
consent. Defilement is essentially a strict liability offence as its definition does not include mens
rea.
Incest is said to occur where a person who commits an indecent act or an act which causes
penetration with a person who is to their knowledge, their daughter or son, granddaughter or
grandfather, sister or brother, mother or father, niece or nephew, aunt or uncle , grandmother or
grandfather. The scope of relationship includes half siblings, step parents and adoptive parents.
The minimum punishment for incest with a minor is a life imprisonment.424 For a charge of incest
to be sustainable, the prohibited relationship between the victim and the perpetrator must be
proved. The prohibited relationship is not so much biological as it is social. This was the inference
made by the court in BNM v Republic. In this case, the complainant’s mother had stated that the
perpetrator was not the biological father of the victim father but someone whom she referred to as
‘daddy’. He was hence the step father. While invoking the test of relationship outlined in section
22 (1) of SOA the appellate judge stated as follows:
..my own understanding is that ‘half father’ is a term which means exactly the same
as ‘step-father’ – it means one who is not a biological father of the child. Therefore
by dint of this S 22(1) of the Act the appellant being a step-father of the complainant
and one who stood in loquo parenthis (Latin for ‘in place of a parent) can legally
be charged and indeed convicted of the crime of incest with her. 425
This position was reiterated in M.K v Republic where a step father was convicted for the offence
of incest.426
421
Section 3.
422
Section 8(1).
423
Section 2.
424
Sections 20, 21 and 22.
425
BNM v Republic Mombasa High Court Criminal Appeal No 232 of 2009 [2011] eKLR 3.
426
MK v Republic Embu High Court Criminal Appeal No 171 of 2010 [2014] eKLR.
111
From its definition, it is clear that the offence of incest overlaps both the act of defilement as well
as an indecent assault. The courts have therefore held that where an indecent sexual assault is
proved, then the offence of incest is automatically proved if the perpetrator and the victim are
within the prohibited relationship. The court has further declared that it is superfluous to add an
alternative charge of indecent assault to a charge of incest.427 Charging a perpetrator with both
offences does not however necessarily render the charge defective. The court often deems it as a
mere irregularity curable under Section 382 of the Criminal Procedure Code.428 This section
provides that breaches of legal provisions that do not occasion a failure of justice are curable. What
amounts to failure of justice is a question of fact that varies from case to case because what amounts
to prejudice is a question of fact. The court has to look at the evidence and circumstances of each
case and come to a finding whether or not the breach resulted in a failure of justice and caused
prejudice to the accused. The bottom line, however, is that there should be no need of an alternative
count or a second separate count given that the definition of incest encompasses the major act of
penetration and the act of indecent assault.
The ingredients of the offences of defilement and incest have core similarities save that in the
offence of incest the victim and the suspect must be within a certain degree of prohibited
relationship. Where an abusive act involves penetration but there lacks a clear definition and proof
of the relationship to the required standard then the court has stated that the appropriate offence is
defilement.429 Therefore, the fact that one is charged with defilement and not incest does not
invalidate a charge or prejudice the accused person. In any event, both offences carry a mandatory
sentence of imprisonment for life.
In summary, there are three main distinctions between defilement and incest. The first one is with
regard to sentencing. As mentioned above, the age of the victim has a direct bearing on the
mandatory sentences in defilement while the age of the minor in the charge of incest is immaterial.
Once penetration or an indecent act is established, the material inquiry is the degree of kinship
427
BNM (n 425) 5.
428
J.O.D v Republic Kisumu High Court Criminal Appeal No 173 of 2008 [2010] eKLR 5.
429
C N v Republic Muranga High Court Criminal Appeal No 60 of 2013 [2014] eKLR 3.
112
between the perpetrator and their victim and not the minor’s actual age. The second distinction is
that, whereas in the case of defilement the prosecution must prove penetration, in the case of incest,
the prosecution does not have to do so as proving an indecent act is sufficient. It is the additional
element of the relationship between the accused and the child, and not the penetration that makes
the offence incest.430 Thirdly, the offence of incest can be committed against both an adult and a
child whereas the offence of defilement is strictly committed against a child.
As to the choice of offence to charge a perpetrator of IFCSA with, the courts have clarified that
there is nothing to preclude a perpetrator who has committed an incestuous act against a child from
being charged with defilement.431 However, a single incident cannot give rise to both incest and
defilement as it is impossible for one perpetrator to commit incest and defilement upon one and
the same victim. Where a perpetrator is charged with the two offences on the same set of facts, the
charge becomes bad for duplicity.432 Finally, where any of the three offences is not sufficiently
proved, courts have at times taken the liberty to convict a perpetrator for ‘attempting’ the offence.
This is in line with the provisions of the criminal procedure code which provides that when a
person is charged with an offence, they may still be convicted of having attempted to commit that
offence without having been specifically charged with the attempt. This was the approach in GMK
v Republic, where on examination, the victim was found with bruises on the labia majora which
the medical officer classified as "harm". The court found the perpetrator guilty of the offence of
attempted incest as he was also the victim’s uncle.433
Apart from the SOA, the Children Act also creates some offences in respect of acts that constitute
IFCSA. This statute was enacted in 2001 to consolidate all the previous statutes regarding children
and to domesticate the CRC, which Kenya had signed and ratified in 1990. It is therefore the
primary legislation setting down the obligations of all duty-bearers in the realization of the
children’s rights.434 The Act criminalises any wilful act or omission by a person who has parental
430
F O D v Republic Homabay High Court Criminal Appeal No 32 of 2014 [2014] eKLR 3.
431
J K K v Republic Nairobi High Court Criminal Appeal No 443 of 2010 [2014] eKLR para 11.
432
A. S. S. v Republic Malindi High Court Criminal Appeal No 64 of 2011 [2013] eKLR, paras 10 and 13.
433
GMK v Republic High Court Criminal Appeal No 26 of 2010 [2012] eKLR.
434
G Odongo, (n 135) 63.
113
responsibility, custody, charge or care of any child that amounts to the child being in need of care
and protection. Section 120 hence specifically states:
Any person who having parental responsibility, custody, charge or care of any child
and who—
(a)wilfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause
him unnecessary suffering or injury to health (including injury or loss of sight,
hearing, limb or organ of the body, and any mental derangement); or
(b) by any act or omission, knowingly or wilfully causes that child to become, or
contributes to his becoming, in need of care and protection, commits an offence and
is liable on conviction to a fine not exceeding two hundred thousand shillings, or to
imprisonment for a term not exceeding five years, or to both:
Provided that the court at any time in the course of proceedings for an offence under
this subsection, may direct that the person charged shall be charged with and tried
for an offence under the Penal Code, if the court is of the opinion that the acts or
omissions of the person charged are of a serious or aggravated nature.
From the foregoing, it is possible to charge some perpetrators of IFCSA under the Children Act.
Though the procedure under this Act is restorative in nature, as discussed in chapter two, the
sentences provided under the Act are way more lenient than the mandatory minimum sentences in
the SOA. This gap is one of the basis for recommendation for legislative intervention discussed in
chapter five of this study. Currently there are no policy guidelines on when to charge an IFCSA
perpetrator under the Children Act or under the SOA.
Finally, it is clear from the unpacking of the offences above that all sexual acts against children
result in strict liability offences. This raises an intricate scenario where the sexual act is done out
of an agreement between two children of more or less the same age. Who between the two should
be charged and should they also be subjected to the mandatory minimum sentences? The
constitutional court has deliberated on the issue of sexual acts between consenting teenagers. This
was in a public interest case filed on behalf of a sixteen year old boy charged with defilement of
his sixteen year old ‘girlfriend’ with whom he had had consensual sexual intercourse. The
constitutional court argued that one aim of the law criminalizing all sexual activity against and
amongst children is to achieve a worthy or important societal goal of protecting children from
engaging in premature and harmful sexual conduct. This is in view of the fact that children are
vulnerable and therefore in need of legal protection. The court declined to declare the provisions
114
criminalizing sexual activity amongst teenagers unconstitutional. The presiding judge however
remarked that it was important for child psychologists and other professionals to consider whether
or not there are other more appropriate and desirable measures in dealing with children in these
circumstances without having to resort to criminal proceedings.435 These are some of the
circumstances that are considered as entry points for the application of restorative processes in
chapter five of this research.
3.4 Procedure
The principal statute that regulates procedure for the conduct of criminal proceedings in Kenya is
the Criminal Procedure Code.436 It is one among the many colonial laws retained after
independence, having first come into force in Kenya in 1930. The dispute settlement procedure
provided under this code is adversarial. The adversarial system has been described as:
characterized by party control of the investigation and presentation of evidence and

argument, and by a passive decision maker who merely listens to both sides and
renders a decision based on what she has heard’.437
Under this system, on one side is the alleged perpetrator, referred to as the accused person. The
Constitution guarantees the perpetrator the right to swift disposal of their case in a public hearing
in which they are also entitled to representation at the state’s expense. During trial, the perpetrator
is presumed innocent until proven guilty and has a right to be released on bail.438 On the other
side is the prosecution representing ‘The Republic of Kenya’ as the power to prosecute all criminal
cases is vested in the Office of the Director of Public Prosecutions (ODPP) through state
prosecuting counsels.
Previously, prosecutions in the lower court, where all non- fatal IFCSA cases are heard, were
conducted by police prosecutors who were not lawyers. The police prosecutors were phased out
between 2009 and 2011 and replaced with trained lawyers employed full time in the office of the
435
CKW v AG & DPP Eldoret High Court Petition No 6 of 2013 [2014] eKLR.
436
Criminal Procedure Code (n 28).
437
E E Sward, ‘Values, Ideology, and the Evolution of the Adversary System’ (1989) 64 (2) (4) Indiana Law Journal
301. Available at:< http://www.repository.law.indiana.edu/ilj/vol64/iss2/4 > 302 accessed 1 October 2015.
438
Article 50.
115
Director of Public Prosecution.439 This has not necessarily improved standards. This is because the
minimum requirements for prosecutors are very low. No post bar admission experience is required.
Most of the prosecutors are recruited straight from law school.440 The inexperienced prosecutors
are often no match to the experienced defence counsel. This impacts quality of services rendered
at prosecution in all cases including IFCSA cases. Apart from the low entry level, low salaries at
the office of the DPP’s office result in high staff turn-over. Most officers move for greener pastures
with better paying government agencies after a brief stint at the DPP’s. 441 The resultant shortage
creates constant crisis as it is not uncommon to have one prosecutor man as many as three courts.
This interferes with the administration of justice.442In a relatively recent development, the DPP
has exercised his powers under this code to appoint special prosecutors from among practicing
lawyers to assist in the prosecution of sexual and gender-based violence offences including IFCSA.
The appointment was made upon recommendation and nomination of the appointees by leading
human rights organisations in Kenya. The main qualification was prior experience and
commitment in dealing with victims of sexual and gender-based violence. There are however only
sixteen special prosecutors in the entire Republic and their impact is yet to be felt.443
Officiating over the criminal dispute is a presiding magistrate who is the neutral umpire during the
trial. Traditionally, the victim’s sole role in the trial has been that of a witness alongside other
prosecution witnesses. They narrate the events surrounding the offence as guided by the prosecutor
in a process known as ‘examination in chief’. They are then cross-examined by the accused or
their lawyer, and may thereafter be re-examined by the prosecutor for any clarification. Their role
in the FJS ends at re-examination. Under the criminal procedure code, the prosecution is under no
obligation to consult the victim or give them any update thereafter including informing them of
the outcome of the case. The victim may however be represented by a lawyer who ‘watches brief’
439
ODPP, Strategic Plan (2011-2015) 3
<http://www.odpp.go.ke/images/docs/ODPP%20Strategic%20Plan%202011-2015.pdf> accessed 3 October 2015.
440
Interview with Tabitha Oyuya, Senior Assistant Director of Public Prosecutions in charge of Prosecutor’s training
Institution on 3 January 2019.
441
Editorial, ‘Stem DPP Office Exodus’ (Daily Nation, 16 November 2018) available at
https://www.nation.co.ke/oped/editorial/stem-DPP-office-exodus/440804-485030-090kbe/index.html accessed 19
December 2018.
442
Republic v Alice Chepkorir Koech and Another Kabarnet High Court Criminal Revision No 4 of 2018 [2018]
eKLR.
443
Appointed vide Kenya Gazette Notice No. 14724 dated the 10 October 2012.
<http://www.kenyalaw.org/newsletter1/20121019.php> accessed 2 November 2013.
116
on their behalf in order to safeguard their interests. However, the extent of participation by the
lawyer watching brief is at the discretion of the court and subject to the prosecutor’s willingness
to cooperate.444 This traditional role has however been transformed by the Victim Protection
Act.445 The Act provides for the participation of the victim in court proceedings including during
plea bargaining, bail hearing and sentencing through the victim impact statement. The victim is
expected to be heard before decisions affecting them are made. Further, the victim is to be
facilitated with legal and other relevant support services of his or her own choice. Where the victim
is vulnerable, the services are to be given at the State’s expense. The trial court is expected to set
the parameters of the victim’s participation. The victim is at liberty to either appear personally or
obtain legal representation. These rights must however not be prejudicial to the rights of the
accused person or be inconsistent with a fair and impartial trial. This was restated by the Court of
Appeal in the now landmark case of Veronica Gitahi and Another v Republic.446
The SOA, however, provides room for a special procedure where the court is dealing with a
vulnerable witness in need of protection.447 A child victim falls under this category.448 A person
declared a vulnerable witness enjoys certain privileges including allowing them to give evidence
under the protective cover of a witness protection box, or through an intermediary. An
intermediary is defined as:
any person authorized by a court, on account of his or her expertise or experience,
to give evidence on behalf of a vulnerable witness and may include a parent,
relative, psychologist, counselor, guardian, children’s officer or social worker’.449
In view of the possibilities of variance of interest of the child and that of their representative, the
rules provide that where the opinion of the victim and that of the parent are in conflict, then the
opinion of the victim prevails.450 Where the child is heard through a third party, it is critical that
the child’s views are presented accurately to the decision maker.
444
P Ambikapathy, ‘The Use of a Watching Brief as a Legal Tool for the Protection of Child Victims in the
Criminal Justice Process in Children as Witnesses’ (1991)
http://www.aic.gov.au/media_library/publications/proceedings/08/patmalar.pdf accessed on 27 November 2013.
445
Victim Protection Act (n 37) section 9 (2).
446
Veronica Gitahi & Another v Republic Mombasa Court of Appeal Criminal Appeal No 23 of 2016 [2016]
eKLR.
447
Section 31.
448
Section 2.
449
Ibid.
450
Rule 6 (4).
117
A vulnerable witness may also be allowed to testify privately ‘in camera’ as opposed to publicly
in open court. In addition, the Chief Justice has also developed rules pursuant to section 47A of
SOA that provide a more practical framework for responding to the needs of vulnerable witnesses
during court proceedings.451 The rules highlight the need for the court to maintain the victim’s
privacy,452 expeditious hearing of the case,453 appointment of an intermediary, and other special
considerations to a vulnerable witness.454 The rules, by extension, substantially enhance the
visibility of the victim in IFCSA.
The Criminal Procedure Code has an extensive procedure for plea bargaining and negotiations.455
It, however, expressly excludes the application of plea bargains and negotiations to offences under
the Sexual Offences Act, under which IFCSA offences fall. A case of IFCSA once started cannot
be concluded through negotiations or plea bargaining. It has to go the full stretch unless otherwise
withdrawn by the DPP through the powers vested in him by the Code.456 The ousting of plea
bargaining in sexual offences presents a statutory hurdle to the implication of restorative justice in
IFCSA cases. This is discussed in further detail in chapter five where proposals for law reform are
also made.
Where the perpetrator of an IFCSA offence is a minor, there is the option to follow the procedure
provided in the Children Act. The Act has established a Children’s Court, presided over by special
magistrates with exclusive original jurisdiction to hear and determine all criminal cases against
child offenders apart from murder. This means that IFCSA cases perpetrated by persons less than
eighteen years are heard in these courts. The procedure in these courts is less adversarial than in
the regular courts, but the child offender’s right to due process is retained. The outcomes in the
children’s court include diversion for various interventions.457 It is important to note that these
courts only handle cases of child offenders. Cases involving child victims of IFCSA are therefore
451
The Sexual Offences Rules of the Court, Legal Notice 101 of 2014.
452
Rule 2.
453
Rule 3.
454
Rules 6 and 7.
455
Section 137 N (a).
456
Sections 82 and 87.
457
Children Act 2001 (KEN) Section 191.
118
handled in ordinary courts unless the perpetrator is a minor. A child victim of IFCSA perpetrated
by an adult does not therefore enjoy access to the child friendly environment of the children’s court
where victim centered restorative processes are more easily implemented.
In addition to the provisions for responding to child offenders, the Children Act has a special non-
criminal procedure which is applied in respect of a category of children it refers to as ‘children in
need of care and protection’. This term refers to children in distress like those who have been or
face the threat of being abused in any way, and child offenders.458 Victims and child perpetrators
of IFCSA fall into this category. The Act provides for an elaborate mechanism and procedure on
how the law should respond to these children. This mechanism is outside the criminal justice
system with the uniqueness of regarding both a child victim and offender as ‘in need of care and
protection’ and refraining from treating a child offender as an ordinary suspected criminal. The
first step in dealing with children in need of care and protection is having them presented before a
children’s court by a Children’s Officer. A Children’s Officer is an officer in the Department of
Children’s Services mandated to implement the Children Act. The court has the power to make an
interim order for the temporary accommodation of the child in a place of safety or for their
temporary committal to the care of a fit person during the hearing and determination of the case.
It is the responsibility of the children’s officer to get the child in need of care and protection
medical attention if any is needed.459 Where the court is satisfied that a child is in need of care and
protection, it has wide powers on how to make a final determination on the issue. These powers
range from returning the child to their parent or guardian to committing the child to the care of a
person or institution suitable to the child’s needs and with due regard for the child’s best interest.
In addition the court may issue a supervision order over the child which entails placing the child
under the supervision of a children’s officer or an authorized officer whilst allowing the child to
remain in the care and possession of their parent, guardian, custodian or any other person or
institution.460
458
Ibid. Section 119.
459
Section 120.
460
Section 130.
119
Alongside the above orders, the court is empowered to order a parent whose child is in need of
care and protection to seek the assistance of a professional counselor. This procedure resonates
well with restorative justice as it focuses on addressing and managing the harm suffered by the
victim. A major concern with the procedure is the manner in which it responds to the persons
responsible for causing the child in need of care and protection. The sentence provided by the Act
is a fine not exceeding Kenya Shillings two hundred thousand or imprisonment for a term not
exceeding five years or both.461 The sentence does not take into consideration the nature or extent
of the abuse perpetrated. This means that an IFCSA processed under the Children Act would result
in the lenient sentence provided for under the Act. This is a slap on the wrist compared to the stiff
sentences provided under the Sexual Offences Act for similar acts.462 The relevance of the response
to abuse under this part of the Children Act to the search for entry points for restorative justice
together with the proposed statutory reform are expounded in chapter five of this thesis.
3.5 Evidence
The general framework within which evidence is gathered and adduced in court is contained in the
Evidence Act which was enacted just before independence in 1963. The Act consists of mandatory
rules which bind the court and whose disregard often forms grounds of appeal against an otherwise
straightforward conviction. It places the burden of proving that a particular offence has taken place
on the prosecution. The standard of proof in all criminal cases including IFCSA is beyond
reasonable doubt.463 Although as a general rule the evidence of a child must be corroborated by
independent evidence, the Act makes an exemption for sexual offence cases where the oral
evidence of the victim may satisfy the court, especially where it is supported by forensic
evidence.464 The Act generally gives the court wide powers to decide on what evidence is
admissible depending on whether it is relevant and based on facts. 465 This was the case in DWM
versus Republic where the Court of Appeal sustained the conviction of a father for incest. The
conviction was based on the uncorroborated evidence of his five year old daughter.466 Evidence
falling outside the boundaries set out in the Act is either disregarded or disallowed altogether.
461
Section 127.
462
SOA (n 34) Section 8.
463
Section 107.
464
Section 124.
465
Section 144.
466
D W M v Republic Kerugoya High Court Criminal Appeal No 185 of 2012 [2016] eKLR.
120
One issue that a trial court often grapples with revolves around the modalities of taking the
evidence of a child of tender years. The Children Act defines a child of tender years as one of ten
years or below.467 The Court of Appeal has restated that a child of tender years for purposes of
section 19 of the Oaths and Statutory Declarations is one below fourteen years. The age limit of
ten years given by the Children Act in its definition for tender age has been held to be one of
specific application to the Act and not of general application. Where such a child appears as a
witness, the court is duty bound to conduct a voire dire examination on the child before they take
oath. This is an examination conducted by the trial court in respect of a child witness to ascertain
three things. First, it seeks to establish whether the child understands the meaning of oath;
secondly, whether the child understands the duty to tell the truth and lastly whether the child
possesses sufficient knowledge to testify.468 Where a trial court forms an opinion that a child does
not understand the meaning of an oath, the child is not necessarily rendered an incompetent witness
or ineligible to testify. The child is allowed to give unsworn testimony especially where, in the
court’s opinion, they are sufficiently intelligent and understand the duty of speaking the truth.469
This kind of evidence is however insufficient and cannot be the sole basis for conviction of a
perpetrator if it remains uncorroborated by further material evidence.
Failure by the court to conduct the voire dire examination is almost fatal for the prosecution’s case
as the child’s evidence is rendered inadmissible. 470 In P.M.M v Republic, the victim was a seven
year old girl who had accused her father of sexual assault. The trial magistrate had failed to conduct
the voire dire examination. The appellate court judge while noting that the trial magistrate never
conducted voire dire examination of the complainant declared her evidence inadmissible and
incapable of being acted upon. The appeal was allowed for that reason. A good number of IFCSA
victims are children of tender years. The manner in which their evidence is adduced and taken
presents a pitfall in prosecuting IFCSA cases and often forms the basis of many appeals.
467
Section 2.
468
Muiruri v Republic Mombasa Court of Appeal Criminal Appeal No 84 of 2003 (1983) KLR 445.
469
BNM v Republic (n 425) 3.
470
PMM v Republic Nyeri High Court Criminal Appeal No 148 of 2007 [2009] eKLR.
121
In IFCSA, language touching on sex and sexuality is usually unavoidable. As discussed in chapter
four of this thesis, sex is perceived as a taboo subject in the sub-Saharan African region.471 This
notwithstanding, the child victim while giving evidence is required to describe private body parts
and sexual activity that they are either unfamiliar with or are too shy to mention. This creates a
degree of discomfort with the child preferring to use indirect language to describe the facts and
circumstances around the abuse. The court normally takes judicial notice of this fact. In BNM’s
case, the child had testified that the perpetrator had inserted his ‘finger’ in her private parts. The
court noted that a child of three years is unlikely to have formed enough vocabulary to enable her
use the word ‘penis’ and allowed the term ‘finger’ to mean and include ‘penis’.472 Similarly, In G
M K v R the court was lenient to a child who described sexual intercourse as tabia mbaya’ which
is Swahili for ‘bad manners’. The appellate judge remarked that:
tabia mbaya is a common expression which courts need to take judicial notice of
in sexual offences concerning minors, and more particularly in children of tender
age who have no experience and are not expected to know or understand at that age,
matters of sex, but have a general understanding that male adults or adolescents are
not supposed to touch them in their private parts, and if they do so, they are "guilty"
of ‘tabia mbaya’ behaving badly or ‘having bad manners.473
In fact, courts are more receptive to oral evidence adduced in simple child- like language than
where a child uses technical terms and hence appears coached. In Godfrey Oluoch Ochuodha v
Republic, the court observed that it is unlikely that a young child would use the word ‘sodomized’.
The court recommended that it would have been appropriate for the trial magistrate to record the
precise words uttered by the abused children during their evidence in chief to describe the acts
which the perpetrator was accused of doing. This would enable the court to determine whether the
act amounted to penetration within the meaning of the Sexual Offences Act.474 Similarly in
Samson Aginga Ayieyo v Republic, the learned magistrate had recorded that the child had stated in
her evidence in chief that she had been ‘defiled’. The Court of Appeal restated that the correct
approach is to use the words used by the witness. It noted that the word ‘defiled’ is a technical
term and it would therefore be improper to use such term when recording the evidence of a witness
471
K Lalor, (n 20) 844.
472
BNM v Republic (n 425).
473
G.M.K v Republic (n 433).
474
Godfrey Oluoch Ochuodha v Republic (n 418).
122
unless the witness himself or herself has used it.475 This was reiterated in Peter Kipchumba Too
v Republic where the appellate court became concerned that the trial magistrate had recorded one
of the victims as having used the word ‘defiled’ during his evidence in chief. The appellate court
noted that the term ‘defilement’ is a legal term connoting an offence and therefore not a statement
of fact. The court remarked that:
It is important for the trial court to avoid using legal terminologies and only record
statements of facts as provided in evidence. From the record, I am unable to state
with conviction that the evidence of PW-2 is explicit that there was penetration.476
As stated earlier in this chapter, the age of a victim of defilement and incest is material and
evidence on the same must be adduced. Evidence of age may be either from a medical officer who
examined the victim, or from oral evidence based on personal knowledge. The latter is acceptable
coming from a close relative like a parent or a guardian. 477 In a charge of defilement, the specific
age of the victim must be proved. This is because the sentence is commensurate to the age of the
child with the punishment getting harsher depending on how young the child is.478 In child incest,
however, all that the prosecution needs to prove is that the victim was at the material times below
the age of eighteen years. It is not uncommon to encounter child victims without a single document
in proof of their age. This is often a hurdle for the prosecution in proving the case beyond
reasonable doubt. In the case of Edward Shivanji Makanga v Republic, the prosecution was unable
to produce a birth certificate or an age assessment report to prove the victim’s age. The birth
certificate was said to be in the custody of the victim’s deceased mother. The victim gave oral
evidence on oath to the effect that she was born in 1996 and that at the time of the hearing she was
fourteen years old. This was corroborated by a letter written by the victim’s head teacher. However,
another prosecution witness testified that the victim was sixteen years old during the hearing.
Notwithstanding this contradiction, the court noted that the aspect of age that was important in a
charge of incest was that the victim was below eighteen years at the material time.479
475
Samson Aginga Ayieyo v Republic Kisumu Court of Appeal Criminal Appeal No 165 of 2006 [2006] eKLR 4.
476
Peter Kipchumba Too v Republic Eldoret High Court Criminal Appeal No 66 of 2012 [2014] eKLR 3.
477
A G v Republic Meru High Court Criminal Appeal No 257 of 2009 [2013] eKLR paras 19 and 20.
478
Section 8.
479
Edward Shivanji Makanga v Republic Nakuru High Court Criminal Appeal No 313 of 2010 [2015] eKLR 6.
123
Proof of a victim’s age through documentary evidence becomes more critical in border line cases
between a child and an adult where it might not be easy to figure out whether a child is say sixteen
or eighteen years old. However, in situations where the child is aged, say, three years, the fact of
the victim being a minor is obvious. In Wahome Chege v R, the court held that the evidence
adduced by the child victim and supported by the P3 form was sufficient to prove the age of the
child victim.480 This is further evident from the observations made by the court in the case of Joel
Sio Mwasi v R where the court stated that where there is consistency on the age of the minor it was
not necessary to call for a birth certificate or an age assessment report.481
Forensic medical evidence is crucial in sex offences. It is however difficult to procure in IFCSA
cases due to the fact that many of the cases are detected and/or reported late. The late detection
and its consequences have been discussed in chapter four. Where the medical evidence is
unavailable, weak or where a medical examination reveals nothing due to late detection of the
abuse, the court has tried as much as possible to rely on other available evidence. This includes
the oral evidence of the victim and witnesses which is used as basis for a finding as to whether or
not there has been a sexual act committed against the child victim.482 In Geoffrey Kioji v Republic,
the court remarked as follows:
Where available, medical evidence arising from examination of the accused and
linking him to the defilement, would be welcome. We however hasten to add that
such medical evidence is not mandatory or even the only evidence upon which an
accused person can properly be convicted for defilement. The court can convict if
it is satisfied that there is evidence beyond reasonable doubt that the defilement was
perpetrated by accused person. Indeed, under the proviso to section 124 of the
Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a
prosecution involving a sexual offence, on the evidence of the victim alone, if the
court believes the victim and records the reasons for such belief.483
In the earlier cited case of Godfrey Oluoch Ochuodha the court also had occasion to clarify the
weight of forensic evidence in determining the success of a sexual offence. In relying on the case
of Geoffrey Kioji, the court stated as follows:
480
Wahome Chege v Republic Nyeri Court of Appeal Criminal Appeal No 61 of 2014 [2014] eKLR.
481
Joel Sio Mwasi v Republic Voi High Court Criminal Appeal No 4 of 2014 [2014] eKLR.
482
FOD v R (n 431).
483
Geoffrey Kioji v Republic HC Criminal Appeal No 270 of 2010 (Nyeri) Unreported.
124
I reject Mr Nyagesoa’s suggestion that as spermatozoa were not taken from the
complainants, the offence was not proved. The offence in question concerns
penetration and not ejaculation. The absence of spermatozoa is not decisive in
proving defilement. 484
The above approach is favorable to IFCSA cases where abuse often takes place over a long period
and detected long after the medical evidence has been washed off.
Where IFCSA results in pregnancy, DNA evidence showing paternity of the child born out of the
act may be used to prove penetration. In this case, the evidence of paternity inescapably leads to
the conclusion that the appellant is the perpetrator. It is argued that the fact of the child being born
at the given time by the complainant indicates that there was penetration of her person at about the
time she alleges the said offence was committed against her.485 This approach is the rationale
behind Rule 11 of the Sexual Offences Rules of Court, 2014 which provides that:
where a person has been accused of committing an offence under the Act, and it is
alleged that a child has been born alive as a consequence of the commission of the
offence, the court may order the collecting of such samples in the form provided in
the schedule as may be required from the accused person and such samples may
undergo such tests as the court may order to determine whether or not the child is
the result of the commission of the alleged offence.
Where there is insufficient forensic evidence to prove penetration, a perpetrator may be found
guilty of indecent assault where it is not necessary to prove penetration. 486 For proof of indecent
act with a child, medical evidence is also not mandatory.487
Apart from evidence of facts, the Evidence Act also makes provision for the tendering of evidence
based on opinion. The only evidence that is admissible in this regard is that of experts skilled in a
particular field. In an IFCSA case, this may include a medical practitioner, a psychologist or an
education expert. Any other person who does not qualify as an expert but is in possession of non-
factual information, however useful, may not be admitted as a witness in court. This provision
484
Godfrey Oluoch (n 418) 3.
485
In M K v Republic (n 426).
486
Thumi v R Nakuru Court of Appeal Criminal Appeal No 36 of 1984 [2008] 1KLR (G & F).
487
Phidesio Nthiga Kithumbu v Republic Embu High Court Criminal Appeal No 67 of 2011 [2014] eKLR 4.
125
ousts the participation of the community gate keepers who may be seized of some information that
may be of indirect relevance to the case. Such information includes the family’s history and their
reputation in their society. Such information is however not admissible in the criminal justice
process. The consequences of excluding the community leaders by limiting the players in the
criminal justice process to the experts are discussed in chapter five of this study. The study
considers the limiting of the participants to eyewitnesses and experts a hindrance to the use of
restorative justice values and processes.
Cases of IFCSA often involve the need for one spouse (usually the mother) to testify against the
other. The general legal position in this regard is that a spouse is a competent but not a compellable
witness. The Evidence Act, however, makes an exception with regard to sexual offences.488 This
means that an unwilling spouse in an IFCSA case can still be compelled by the court to give
evidence. Despite the removal of this legal barrier, the reality on the ground is such that family
ties and issues of livelihood, the place of a wife in a patriarchal society and the power dynamics
inherent in gender relations, all make it difficult for spouses to testify against each other. These
specificities are unpacked and discussed in detail in chapter four of this study
Finally, the standard set by the Evidence Act for the admissibility of a perpetrator’s confession, is
very high. A statement may only be admitted as a confession during trial where it is made in court
before a judge or magistrate or elsewhere before a senior police officer who must not be the
investigating officer, and in the presence of a third party of the perpetrator’s choice. 489 This
stringent standard was put in place in 2003 to prevent the procurement of confessions from
perpetrators through coercion or undue influence. Although it protects the perpetrator’s due
process rights, it makes the chances of having an IFCSA perpetrator admit to the act, in a manner
that can lead to a conviction, even more remote.
3.6 Sentencing
Sentencing has been described as ‘the process stage in the criminal procedure at which a court of
law of competent jurisdiction makes an order, after convicting an offender as to the specific penalty
488
Section 127 (3).
489
Sections 25 to 27.
126
to be meted out.490 The different kinds of punishments in the FJS are outlined in Part VI of the
Penal Code. They include death, imprisonment, community service, detention, fine; forfeiture;
payment of compensation; and finding security to keep the peace and be of good behavior.491 The
applicable considerations in determining the nature and severity of punishment vary depending on
the circumstances of each case but they generally include the gravity of the offence, the offender,
and the purpose of the punishment.492 With regard to the purpose of punishment, the Kenyan courts
are more inclined towards deterrence as observed by the remarks of a former Chief Justice:
For my part, I am of the persuasion that all things being equal, it is in the very nature
of things that Courts in Kenya should find themselves laying more emphasis on
deterrence and on the protection of the public than on retribution and reformation.
This is in my view what is likely to produce best results in the fight against the
Criminal element.493
Sentencing Policy Guidelines have recently been put in place as a culmination of the work of a
task force established in June 2014.494 The Guidelines provide a ‘framework within which courts
can exercise their discretion during sentencing in a manner which is objective, impartial,
accountable, transparent and which would promote consistency and uniformity in the sentences
imposed’.495 These Guidelines provide principles underpinning the sentencing process which
include proportionality, equality, accountability, inclusiveness, respect for human rights and
adherence to domestic and international law.496
Apart from the Guidelines, there are other statutory provisions that are useful in sentencing. The
CPC for instance gives the court the liberty to call for evidence to assist in coming up with a
sentence.497 The court may also be guided by victim impact statements provided to the court under
490
Republic v Thomas Patrick Gilbert Cholmondeley Nairobi High Court Criminal Case No 55 of 2006 [2009]
eKLR 2.
491
Penal Code (n 420) section 24.
492
R v Cholmondley (n 491).
493
Mwendwa, CJ, ‘The Administration of Justice in Kenya’ (1970) as in quoted Kamaro Wanyingi v Republic
[2008] eKLR.
494
Task Force on Sentencing, Gazette Notice Number 4087.
495
The Judiciary, ‘Sentencing Policy Guidelines’ (2016) 2.1 p 11 Available at
https://www.judiciary.go.ke/download/sentencing-policy-guidelines/ accessed 4 December 2018.
496
Ibid p 13.
497
Section 216.
127
the SOA and Rules.498 The Penal code further provides that unless where it is expressly stated, a
person liable to imprisonment for life or any other shorter period may be sentenced to any shorter
term.499 As a general principal, where a penalty is prescribed for an offence, unless a contrary
intention appears, it means that the offence shall be punishable by a penalty not exceeding the
penalty prescribed.500 The SOA, however, only prescribes for minimum sentences which
effectively removes the court’s discretion to impose a shorter term. The sentences themselves are
harsh with most IFCSA offences being punishable by life imprisonment. The prescription of
minimum sentences under this Act was a direct response to the perceived lenient sentences given
to offenders under the penal code.501 This was rationalized in Daniel Kyalo Muema v Republic
where the court stated that:
The courts are under a duty to send a clear message to the accused, and to other
potential rapists and to the community. We are determined to protect the equality,
dignity and freedom of all women, and we shall show no mercy to those who seek
to invade those rights. 502
The court has on several occasions been required to decide on the constitutionality of mandatory
sentences as a fetter of the decisional independence of judges and judicial officers. It has been
argued that the principle is in contravention of Article 2(1) of the Constitution which asserts the
position of the Constitution as the supreme law and Article 160(1) of the Constitution which
provides that; ‘In the exercise of judicial authority, the judiciary, as constituted by Article 161,
shall be subject only to this Constitution and the law and shall not be subject to the control or
direction of any person or authority’. In Calvins Otieno Ochoo v R it was argued on behalf of the
appellant that the mandatory provisions in the SOA tie the hands of the judiciary in sentencing and
it is tantamount to the legislature dictating to the courts the sentence that should be imposed. 503
The provisions were said to constitute an infringement of the independence of the judiciary and
were hence unconstitutional. In its judgment, the court cited an earlier case of Joseph Njuguna
498
Section 33.
499
Section 26 (2) and (3).
500
Interpretation and General Provisions Act 1956 (KEN) Section 66 (1).
501
Calvins Otieno Ochoo v Republic HomaBay High Court Criminal Appeal No 48 of 2014 [2015] eKLR 6.
502
Daniel Kyalo Muema v Republic Nairobi Court of Appeal Criminal Appeal No 479 of 2007 [2009] eKLR 3.
503
Calvins Otieno (n 500) 5- 6.
128
Mwaura and Others v R504 relating to the constitutionality of mandatory death sentences in murder
cases and stated that ‘the legislature, as an expression of the public policy, makes a decision on
the penalty to be imposed for any offence and it was not for the judiciary to usurp that authority’.
It held that the exercise by the court of its duty to apply the law and the issue of mandatory
sentences was not an affront to the independence of the judiciary. In affirming the appellant’s
sentence, the court further held that it was bound by the holding in the Joseph Njuguna case
especially where the court stated that:
In our view, to say that there are other alternative sentences to the mandatory
imposition or application of the death sentence is a pedantic and preposterous
interpretation of the spirit and the letter of the Penal Code and the Constitution of
Kenya, 2010. If the people of Kenya intended in their wisdom, and their collective
will to outlaw the death sentence, then nothing could have been easier to do.505
The same issue arose in Yusuf Gitau Githanga v R506 where the court restated that though
sentencing is in the discretion of the court, where the minimum penalty is provided, the sentencing
court cannot deviate from the provisions of the law. The Court of Appeal sitting in Eldoret also
reiterated this position in David Kundu Simiyu v R where it was held, with respect to the minimum
sentences provided under the Sexual Offences Act, that:
Those are minimum sentences and parliament appears to give no discretion to the
court’s to impose sentences below those specified as the minimum. The provisions
accord the prime objectives of the act which is prevention and protection from
harm, from unlawful sexual act.507
The above position with regard to mandatory death sentence has however changed with the recent
Supreme Court decision in Francis Karioko Muruatetu & another v R. with the court declaring
mandatory death sentence unconstitutional.508Though the decision by the Supreme Court was with
specific reference to mandatory death sentences in murder cases, the Court of Appeal has extended
the principle of the unconstitutionality of mandatory minimum sentences to sentences under the
Sexual Offences Act.509
504
Joseph Njuguna Mwaura and Others v Republic Nairobi Court of Appeal Criminal Appeal No 5 of 2008 [2013]
eKLR.
505
Ibid 12.
506
Yusuf Gitau Githanga v Republic Nairobi High Court Criminal Appeal No 99 of 2013 [2015] eKLR.
507
David Kundu Simiyu v Republic Eldoret Court of Appeal Criminal Appeal No 8 of 2008 [2009] eKLR.
508
Francis Karioko Muruatetu & another v R Nairobi Supreme Court Petition No 15 of 2015 [2017] eKLR.
509
Evans Wanjala Wanyonyi v R Eldoret Court of Appeal Criminal Appeal No 312 of 2018 [2019] eKLR.
129
The point of interest in this study with regard to the imposition of statutory minimum sentences in
IFSCA offences is based on two concerns. First is whether these sentences translate into any
additional benefit to the victim. Second is the extent to which they resonate with restorative values,
processes and lifestyle which are the key focus of this research. This is unpacked later in chapter
five of this study.
As mentioned earlier in this chapter, the court has wider, though less draconian powers with regard
to sentencing under the Children Act. The court may invoke the Act in an IFCSA case to make
orders on the custody, care and control of a child victim in addition to sentencing the perpetrator.510
This is in line with the ACRWC which makes a proviso to the right for a child to live with their
parent. A child may be separated from their parent ‘upon a decision by a judicial authority
determined in accordance with the appropriate law and where such separation is in the best interest of
the child’.511 Separation of a child from their family environment must be a decision of last resort
and subject to the best interest principle.512 The Committee on the Rights of the Child has also
stated that, in cases of violence where a perpetrator doubles up as the primary caregiver,
intervention measures focusing on social and educational treatment and a restorative approach are
preferable to a purely punitive judicial involvement. This preference is however subject to the
severity of the violation and other factors, The Committee recommends for more effective
remedies, including compensation to victims and access to redress mechanisms.513
Where the offender is a child, the criminal justice process under the Children Act makes provision
for a variety of methods of dealing with the offenders at the end of the trial. This includes
discharging them with conditions, placing them on probation, committing the offender to the care
of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake
their care. Where the offender is above ten years and under fifteen years of age, they may be sent
to rehabilitation suitable to their needs, and where they are sixteen or seventeen years, they may
be sent to a Borstal Institution.514 The offender may also be ordered to pay a fine, compensation
510
P M M v Republic (n 469).
511
Organization of African Unity (OAU) ‘African Charter on the Rights and Welfare of the Child’ (11 July 1990,)
CAB/LEG/24.9/49 Article 19 (1).
512
Article 9 and art 20 para 1.
513
General Comment no 13 (n 42) para 56.
514
SOA (n 34) Section 8(7).
130
or costs, or all of them. They may also be placed under the care of a qualified counselor, an
educational institution or a vocational training program, or a probation hostel. Finally, they may
be ordered to perform community service. Corporal punishment is outlawed. The Sentencing
Guidelines places children under the category of offenders requiring further consideration before
sentencing. This includes relying on a probation officer’s report, seeking guidance from the
Children’s Act and paying due regard to the best interest of the child during the sentencing
process.515 The sentencing of child offenders under the Children Act and the Sentencing
Guidelines offenders is therefore restorative in nature.
3.7 Victim Protection in the Criminal Justice Process
As indicated above, the traditional place of the victim in the FJS is peripheral. The system only
regards the victim as a witness with no control over the process. The injured party is the state as
represented by the Office of the Director of Public Prosecutions.516 There has however been a
marked shift away from this traditional position in both the international and municipal legal
framework towards more focus on victim in the FJS.
In 1985 the United Nations (UN) General Assembly adopted the Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power.517 The Declaration defines ‘victims’ as
persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of
their fundamental rights, through acts or omissions that are in violation of criminal
laws operative within Member States, including those laws proscribing criminal
abuse of power.518
The Declaration provides for a broad category of persons who may be referred to as victims by
clarifying that one may be deemed as a victim:
..regardless of whether the perpetrator is identified, apprehended, prosecuted or
convicted and regardless of the familial relationship between the perpetrator and
515
Sentencing Guidelines (n 495) 37.
516
The Constitution of Kenya (n 2) Article 157(6).
517
UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, (1985) A/RES/40/34
<http://www.un.org/documents/ga/res/40/a40r034.htm > accessed 25 April 2015.
518
Ibid Annex 1.
131
the victim. The term "victim" also includes, where appropriate, the immediate
family or dependents of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization.519
Although the guidelines are geared to crimes emanating from economic and political power, they
are applicable to other offences as the above definition of a victim takes care of a broad spectrum
of victims including IFCSA victims. This broad category is important in the response to IFCSA
which produces both primary and secondary victims as discussed in chapter two.
The Declaration contains pragmatic provisions which are accommodative to the needs of the
victims. The Declaration highlights four guiding principles compatible with the needs of the
victims including access to justice and fair treatment, restitution, compensation and assistance.
These principles resonate with the features of restorative discussed in chapter two. 520 Access to
justice includes informing the victims of their role in and the status of the proceedings; allowing
them to give their views; providing them with legal services throughout the proceedings,
minimizing inconveniences, and delays and protecting their privacy and security. 521 Restitution is
offered as an option during sentencing.522 Compensation is by the state523 while the assistance
envisaged includes assistance for medical, psychosocial and handling by trained professionals.524
In addition, the UN’s Economic and Social Council requested the Secretary-General to convene
an intergovernmental expert group to develop guidelines on justice in matters involving child
victims and witnesses of crime in 2004. This led to the adoption of the UN Guidelines on Justice
in Matters involving Child Victims and Witnesses of Crime in 2005.525 The Guidelines have been
described as ‘a useful framework that could assist member states in enhancing the protection of
child victims and witnesses in the criminal justice system’.526 The preamble to the Guidelines states
519
Ibid Para 2.
520
Chapter Two para 2.2.2.
521
Basic Principles (n 517) Para 6.
522
Ibid Para 8.
523
Ibid Para 12.
524
Ibid Para 14, 15, 16 and 17.
525
UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, Resolution 2005/20
https://www.unodc.org/pdf/criminal_justice/Guidelines_on_Justice_in_Matters_involving_Child_Victims_and_Wit
nesses_of_Crime.pdf accessed 5 October 2015.
526
A Skelton (ed) Justice for Child Victims and Witnesses of Crime, (Pretoria University Law Press 2008) 1.
132
that participation of the child victim is crucial and asserts that justice for child victims and
witnesses of crime must be assured while safeguarding the rights of the accused person. The
Guidelines define child victims and witnesses as those below eighteen years irrespective of their
role in the offence or its prosecution.527
The objective of the Guidelines is to consolidate practices that enhance protection for the child
victim of crime in line with the CRC. This is to be achieved through a review of domestic laws,
procedures and policies and, giving guidance to the relevant professionals and others who assist
and support child victims especially those of sexual assault.528 The Guidelines acknowledge the
need to highlight certain special considerations including the vulnerability of children especially
girls, and the possibility of them suffering further victimization in pursuit of justice.529 They also
emphasize the need for due regard to the core principles of non- discrimination, human dignity,
best interest of the child and participation.530
The enhancement of the visibility of a child victim in the FJS resonates with the right of the child
to be heard.531 The Committee on the Rights of the Child has interpreted this right as exercisable
in all judicial and administrative proceedings affecting the child, including those of child victims
of physical and psychological violence, sexual abuse and other crimes. 532 This right has been
expounded to include ensuring that the hearing is held in an environment that is not intimidating,
hostile, insensitive or inappropriate for their age but in an accessible and child-appropriate setting.
The Committee has particularized this to include ‘provision and delivery of child-friendly
information, adequate support for self-advocacy, appropriately trained staff, design of court rooms,
clothing of judges and lawyers, sight screens, and separate waiting rooms’.533 It also calls for
juvenile or family specialized courts, police and prosecutor’s units, and criminal procedures for
child victims of violence. All professionals working with the children and involved in such cases
are expected to receive specific interdisciplinary training on the rights and needs of children of
527
UN Guidelines (n 529) Para 9.
528
Ibid Para 3 (9) (d).
529
Ibid Para 7.
530
Ibid Para 8.
531
CRC (n 4) Article13 and The Constitution of Kenya (n 2) Article 33.
532
General Comment No 12 (n 405) para 32.
533
Ibid Para 34.
133
different age groups, as well as on proceedings that are adapted to them. The right of the child
victim and witness is also includes the right to be informed about concerns such as availability of
health, psychological and social services, the role of a child victim and/or witness, the ways in
which “questioning” is conducted, existing support mechanisms in place for the child when
submitting a complaint and participating in investigations and court proceedings. Other critical
information useful to the victim includes the specific places and times of hearings, availability of
protective measures, the possibilities of reparation, and the provisions for appeal.534
The above Principles and Guidelines are not binding and at best are only of a persuasive force.
Basic Principles provide governments with overall guidance over a particular topic without
addressing the implementation of the principles.535 However, at the domestic level, Kenya has
made steps towards heeding to the international standards as is evident from recent pieces of
legislation that address the needs of the victim. This includes the Victim Protection Act536 and the
Protection Against Domestic Violence Act.537 The Victim Protection Act was enacted to give effect
to Article 50 (9) of the Constitution; particularly to provide for protection of victims of crime and
abuse of power, by providing them with better information and support services to provide for
their reparation and compensation. It was also meant to give protection to vulnerable victims.538
The objects and purposes of the Act are stated as, to recognize and give effect to the rights of
victims of crime by protecting their dignity through a combination of a number of restorative
measures. This includes providing the victim with better information, support services, reparations
and compensation from the offender. It also involves the establishment of programs for vulnerable
victims, supporting reconciliation in appropriate cases by means of a restorative justice response,
establishment of programs to prevent victimization at all levels of government including re-
victimization in the justice process, and promotion of co-operation between government
departments and other agencies involved in working with victims of crime.539
534
Ibid para 36.
535
D Van Ness ‘Proposed UN Basic Principles on Restorative Justice’
<http://www.restorativejustice.org/10fulltext/vanness7> accessed 17 August 2015.
536
The Victim Protection Act (n 37).
537
Protection Against Domestic Violence Act 2015 (KEN).
538
Victim Protection Act (n 37) Preamble.
539
Ibid section 3.
134
The Act provides for certain rights of the victims in the criminal Justice process including the right
to compensation, information, special consideration to child and vulnerable victims, prompt
release of their property held as exhibits, right to choose whether or not to participate in restorative
justice, right to participate in the trial process, and the right to privacy and confidentiality. 540
Finally, the Act also creates for a Victim Protection Board to advise the Cabinet Secretary on inter-
agency activities aimed at protecting victims of crime and the implementation of preventive,
protective and rehabilitative programs for victims of crime. The Board has the mandate to run the
Victim Protection Trust Fund to assist victims of crime.541
The Protection Against Domestic Violence Act generally provides for the protection and relief of
victims of domestic violence. Its focus on the family resonates with the recognition given to the
family in the constitution as the natural and fundamental unit of the society entitled to protection
and recognition by the state.542 The Act defines Domestic violence as violence against that person,
or threat of violence or of imminent danger to that person, by any other person with whom that
person is, or has been, in a domestic relationship.543 The domestic relationship envisaged by the
Act is broad as it goes beyond a relationship acquired through an existing marriage to relationships
based on a previous marriage, an engagement, co- parenting, close personal relationship, living in
the same household and being a family member544 A family member includes a spouse, a child
including an adopted child, a step-child and a foster child, a parent, a sibling; or a relative like
father, mother, grandfather, grandmother, stepmother, stepfather, father-in-law or mother-in-law;
uncle, aunt, uncle-in-law or aunt-in-law nephew, niece; or a cousin.545 The list of acts constituting
violence includes defilement, incest and sexual abuse.546 From the foregoing, it is clear that all
IFCSA offences can be classified as domestic violence and the victims of IFCSA are entitled to
protection under the PADVA.
540
Ibid sections 8, 9 and 10.
541
Ibid section 30.
542
The Constitution of Kenya (n 2) Article 45 (1).
543
Protection Against Domestic Violence Act (n 539) Section 3(2).
544
Ibid Section 4.
545
Section 5.
546
Section 3 (1).
135
PADVA is also a victim centered statute. Under the Act, the victim of Domestic Violence is
entitled to information on all relief measures available to them, including access to shelter, medical
assistance and the mechanism of pursuing the same.547 The Inspector General of Police is enjoined
by the Act to pay special attention to victims of domestic violence including training police officers
to deal with family related matters or domestic violence, facilitating the reporting process to enable
victims report to the police without fear and ensuring that complaints are processed expediently
and efficiently.548
Finally, the Act provides a mechanism where a victim, including a child victim, in a domestic
relationship with the perpetrator can apply for a protection order.549 A protection order on behalf
of a child may be made by a large category of persons including a parent or guardian, a children
officer, the Director of Children's Services, a police officer, a probation officer, a conciliator, social
welfare officer, a person acting on behalf of a religious institution or an NGO that deals with the
welfare of victims of domestic violence, a relative or a neighbor and any other person with the
leave of the court.550 This exhaustive list leaves no room for a situation where a child victim of
domestic violence may lack someone to intervene on their behalf. The court has powers to make
any order for the protection of the victim of domestic violence including an order restraining the
perpetrator from continuing with the abuse, requiring the perpetrator to stay away from the victim
make restitution to them in form of compensation.551
The above victim centered international standards and statutes, when appropriately woven into the
FJS provide appropriate entry points for restorative processes, values and outcomes. These entry
points are discussed in detail in chapter five of this study.
3.8 Informal Justice

From the discussion on legal pluralism in chapter two of this study, conceptualization of the justice
process in a typical IFCSA case is wider than exclusive reference to the FJS. It includes alternative
justice processes including the informal justice system (IJS). IJS in this study refers to ‘the
547
Section 6 (1) (a) and (b).
548
Section 6 (4).
549
Section 8.
550
Section 9.
551
Section 20.
136
resolution of disputes and the regulation of conduct by adjudication or the assistance of a neutral
third party that is not a part of the judiciary as established by law and/or whose substantive,
procedural or structural foundation is not primarily based on statutory law’.552 This is the broad
definition given in the recent UN commissioned publication on the study of informal justice.553
The CRC’s committee has set the stage for inviting the IJS into the legal responses to child abuse.
The committee has clarified that judicial involvement envisaged in responding to cases involving
child victims may consist of the following:
a) Differentiated and mediated responses such as family group conferencing,

alternative dispute-resolution mechanisms, restorative justice and kith and
kin agreements (where processes are human-rights respecting, accountable
and managed by trained facilitators);
b) Juvenile or family court intervention leading to a specific measure of child
protection;
c) Criminal law procedures, which must be strictly applied in order to abolish
the widespread practice of de jure or de facto impunity, in particular of State
actors;
d) Disciplinary or administrative proceedings against professionals for
neglectful or inappropriate behaviour in dealing with suspected cases of
child maltreatment (either internal proceedings in the context of
professional bodies for breaches of codes of ethics or standards of care, or
external proceedings);
e) Judicial orders to ensure compensation and rehabilitation for children who
have suffered from violence in its various forms.554
Other international standards that accommodate the application of informal justice are the Basic
Principles on the Use of Restorative Justice Programs in Criminal Matters. 555 The preamble states
that restorative justice initiatives draw from traditional and indigenous forms of justice. The
Principles define restorative justice as ‘any process in which the victim and the offender, and,
where appropriate, any other individuals or community members affected by a crime, participate
together actively in the resolution of matters arising from the crime, generally with the help of a
facilitator. Restorative processes may include mediation, conciliation, conferencing and
552
Chapter 2.1
553 UN Publication on Informal Justice (n 44) 75.
554
General Comment no 13 (n 42) para 55.
555
Basic Principles on the Use of Restorative Justice Programs in Criminal Matters. ECOSOC Resolution 2002/12
http://www.un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf accessed 6 October 2015.
137
sentencing circles’.556 A restorative outcome means an agreement reached as a result of a
restorative process. Restorative outcomes include responses and programs such as reparation,
restitution and community service, aimed at meeting the individual and collective needs and
responsibilities of the parties and achieving the reintegration of the victim and the offender.557
The Principles state that restorative justice may be applied at any stage subject to national
legislation.558 Restorative justice is however to be used only where there is sufficient evidence to
charge the offender and with the consent of both.559 It must also be applied with due consideration
to possible disparities due to power imbalance.560 In cases where restorative justice is not
achievable, the case is to be referred to CJS.561 The Principles recommend that results of
agreements emanating from restorative justice programs be judicially supervised or incorporated
into judicial decisions and have the same effect as any other judicial decision or judgment. 562
The standards enunciated by the Principles are not only applicable to the FJS but may be extended
to processes under IJS including customary processes. The Principles are however clear that their
application to the IJS is only limited to non- criminal fields.
At the domestic level, the Constitution of Kenya recognises the role of IJS. Article 159 vests
judicial authority in the people and goes on to lay down several guiding principles of judicial
authority. One of these principles is the use of alternative forms of dispute resolution including
reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The only
limitation to traditional dispute resolution mechanisms is that they should not contravene the Bill
of Rights or be repugnant to justice and morality or result in outcomes that are repugnant to justice
or morality or be inconsistent with the Constitution or any written law. The same article also states
that justice should be administered without undue regard to procedural technicalities. The absence
of procedural technicalities is a hallmark of informal justice.
556
Ibid Para 2.
557
Ibid Para 3.
558
Ibid Para 6.
559
Ibid Para 7.
560
Ibid Para 9.
561
Ibid Para 11.
562
Ibid Para 15.
138
There are growing structured initiatives to promote alternative justice systems pursuant to Article
159. The most recent is the Alternative Justice System (AJS) Task Force tasked to explore the
viability of the institutionalization of AJS as a complementary source of dispute resolution.563The
taskforce is working towards court annexed AJS which are semi- autonomous. The cases are
referred by the courts to the community elders for hearing and disposal with the consent of the
concerned parties. The system has been piloted in several court stations including Isiolo, Othaya,
Kangema, Kericho, Lodwar and Kitui. The criterion for choosing the pilots was based on the
interest of the individual judicial officers heading the court stations. Upon being referred to the
elders, the cases proceed with minimum interference from the FJS. The relevance of this initiative
in providing entry points for restorative justice in IFCSA cases is discussed in chapter five.
Apart from the above structured initiative, the courts have made attempts at embracing informal
justice in various cases including those arising from serious infractions like homicide. In the case
of R v. M Abdow Mohamed, the court allowed the withdrawal of a murder charge after the issue
was settled informally. The IJS here involved the meeting of the two families of the deceased and
the accused, followed by some form of compensation in the form of camels, goats and other
traditional ornaments which was paid to the deceased’s family. A ritual was also performed in
payment of the blood of the deceased to his family as provided for under Islamic Law and customs.
The family of the deceased was satisfied that the offence committed had been fully compensated
and wanted the murder charge withdrawn. The application for withdrawal was presented in court
by the prosecution who presented a written document from the deceased’s family indicating that
they were no longer interested in pursuing the case. The prosecutor also informed the court that
relevant witnesses were no longer willing to cooperate with the prosecution because of the
informal settlement. The judge noted that the ends of justice would be met by allowing rather than
disallowing the application for withdrawal and went ahead to allow the withdrawal.564 This
decision was highly criticized especially by the legal profession who deemed it as overstretching
the limits of Article 159 by applying it to a serious offence.565
563
Established by the former Chief Justice Willy Mutunga, under the Chairmanship of Professor Joel Ngugi, J and
gazetted on 4 March 2016.
564 Republic v Mohamed Abdow Mohamed Nairobi High Court Criminal Case No 86 of 2011 [2013] eKLR.
565
A Mboya, ‘The Bar: Challenges and Opportunities’ in YP Ghai and JC Ghai (eds) The Legal Profession and the
New Constitutional Order in Kenya (Strathmore University Press 2014) 251.
139
Though the constitution allows leeway for the application of informal justice, particular statutes
exclude its application in sexual offences. The SOA removes power from the victim in respect of
the decision as to whether the prosecution or investigation of a sexual offence should be
discontinued, and vests it in the DPP. A victim of IFCSA is therefore not legally at liberty to
volunteer out of the FJS in favour of IJS once the abuse has been reported. This effectively bars
diversion of an IFCSA case before it goes to court. Once the case goes to court, the victim again
has no say over its fate as it is only the court that holds the ultimate power to allow it to be dealt
in any other way other than as provided by the FJS, and this can only be done on the application
by the DPP, not the victim. Further, as already discussed above, the exclusion of plea bargains
from sexual offences means there is no legal entry point for diversion of an IFCSA case from FJS
to the IJS.
The other statutory provision that makes it impossible for IJS to be legally tenable in IFCSA cases
is the one that criminalises intentional interference with a scene of crime, or evidence relating to
the commission of a sexual offence. Such interference is punishable by imprisonment of up to
three years or to a fine of Kenya shillings one hundred thousand shillings or both. The interference
contemplated here includes tampering with a scene of crime and interference with or intimidation
of witnesses.566 In an IFCSA case, the victim is deemed as the principal scene of crime. Dealing
with them outside the mandate of the DPP may be deemed as interfering with the scene of crime.
The victim is also a witness. Engaging them in a process whose ultimate result is non-attendance
in court in the name of having privately resolved the matter with the perpetrator would amount to
a criminal offence.
The upshot of the above is that the field of the application of IJS in IFCSA is replete with legal
landmines. The statutory barriers have, however, not deterred the community or removed their
affinity to resort to IJS in IFCSA cases, albeit beneath the legal radar. It is estimated that up to
60% of these cases are handled by the IJS. Since this is a process that takes place outside the
formally recognised legal and institutional framework, it is impossible to obtain official data on
the same. The ICRH report found the practice pervasive enough to warrant a note in its final
566
SOA (n34) section 37.
140
recommendations about the need to engage IJS to improve the response to sexual violence.567 The
proposal in this report is to adopt IJS values and processes that may improve the legal response to
IFCSA and at the same time call for amendments to allow more meaningful engagement with IJS
in specific limited categories of IFCSA.
Finally, the emergence of the ‘Nyumba Kumi’ initiative might provide an additional forum for IJS.
It is a security system designed to create security awareness amongst citizens from the grassroots
level to the national level through ‘know your neighbor policy.’ 568 ’Nyumba Kumi’ is Swahili for
‘ten households’ though it is described more as a concept than as a number. The ultimate aspiration
of the initiative is the welfare of its members achieved through fostering peace by tackling security
concerns including gender based violence. The inclusion of gender based violence within the scope
of the initiative creates room for the handling of IFCSA cases. However, only time will tell the
role the ‘Nyumba Kumi’ initiative will play in responding to IFCSA as it is still in its infancy.
3.9 Conclusion
This chapter set out to interrogate the legal framework within which IFCSA is responded to. It has
analysed the statutory framework together with relevant case law. Relevant International treaties,
conventions, Basic Principles and Guidelines have also been discussed. The interrogation is with
a view to identify the gaps within the framework as it responds to IFCSA. The interrogation has
disclosed that Kenya is replete with legislation, binding treaties and standards of persuasive force
that are relevant in guiding a victim centered approach in the respond to sexual offences. Despite
the growing trend towards a more victim centered response, the current legal framework has failed
to facilitate the attainment of holistic justice to IFCSA victims. The institutions created by the legal
framework also lack capacity to effectively respond to the vulnerability from which IFCSA victims
engages them with the expectation of having their resilience built. The power relations incidental
to gendered violations like IFCSA also render the implementation of some laws problematic.
These gaps call for legislative intervention, more dynamic interpretation by the courts and
interrogation of the institutions mandated to deal with IFCSA victims at every stage of the justice
process.
567
ICRH Kenya (n 12) 158.
568
Nyumba Kumi Initiative < http://www.nyumbakumisecurity.com/index.php/about> accessed 14 August 2015.
141
Kenya being a pluralistic society, the place of the IJS in developing a more victim centered and
restorative response cannot be down played or ignored. As already stated, the intention of this
thesis is not to replace the formal with the informal justice system in seeking a restorative legal
response. The form of restorative justice envisaged is the one that is largely reliant on the formal
justice system to achieve a more holistic justice.569 This is through borrowing from IJS victim
centered restorative justice values and processes and considering the possibility of diverting a
limited category of IFCSA to IJS. Both entry points would require statutory amendments. These
are addressed in chapter five of this study.
569
L D Ross, ‘Paradigms Lost: Repairing the Harm of Paradigm Discourse in Restorative Justice’ (2006) 19
(4) Criminal Justice Studies 397-422.
142
CHAPTER FOUR: SPECIFICITIES OF IFCSA
4.1 Introduction
As stated in chapter one, this research focuses on IFCSA as opposed to child sexual abuse by non-
family members. The specific focus is based on a two prong hypothesis. The first is that IFCSA
thrives more under certain peculiar circumstances. The second is that, once it occurs, it gives rise
to equally peculiar interests and needs. These circumstances, needs and interests differ from those
pertaining to child sexual abuse by a stranger. Most IFCSA victims are of the female gender. Being
of tender years, they deal with the abuse from a point of low resilience from more than one front.
The multiple vulnerabilities compound the scope of the harm to the victims and their resultant
needs. This resonates with the theoretical underpinnings discussed in chapter two.
The greatest obstacle to access to justice by IFCSA victims is the failure by the legal system to
acknowledge that IFCSA occurs within a unique context. This context has the ability to
disempower a victim in pursuit of justice. It is this context that is unpacked in this part and
discussed as specificities of IFCSA. These include the influence of patriarchy, family set up,
livelihood, associated stigma and taboos, community expectations, and tension around the issue of
ownership of the conflict. A victim of IFCSA navigates the path to access to justice amidst these
specificities. This has been summarized as follows:
The child trapped in an abusive environment is faced with formidable tasks of
adaptation. She must find a way to preserve a sense of trust in people who are
untrustworthy, safety in a situation that is unsafe, control in a situation that is
terrifyingly unpredictable, power in a sense of helplessness.570
The above specificities have been identified by interrogating the sociocultural setting of IFCSA.
This has mainly been through the deduction of the responses obtained from the field research and
case law. The ultimate purpose of this chapter is to contextualize and characterize the salient
features of IFCSA. Contextualizing the specificities of IFCSA has a twofold role. First, it lays
basis to the proposition that IFCSA demands a more creative legal approach. Secondly, it
contributes in the realization of the main objective of this research which is determining whether
570
A Whittam and H Ehrat, ‘Justice Response or Alternative Resolution’ (Child Sexual Abuse: Conference
convened by the Australian Institute of Criminology, Adelaide, 1-2 May 2003).
143
there are realistic and relevant entry points for restorative justice discussed in the following
chapter.
From the outset, the obvious consensus observed from the data gathered across the board confirms
the hypothesis that a child victim of IFCSA is impacted differently from a child sexually abused
by a stranger. All the respondents interviewed were of the view that the impact on the former is
graver, more permanent, far reaching and complex than on the latter. This consensus is reflective
of the picture created by Ryan when he summarized the impact of IFCSA as ‘complex in emotional
and social aspects’.571 It is this complexity that is unpacked in this chapter with regard to the
circumstances under which it occurs, and the specificities that hinders an effective response.
This chapter begins with a general overview of the prevalence of IFCSA and the manner in which
it presents itself. This is followed by a discussion on its specificities, which include the
sociocultural factors under which it occurs, and the effect of the interaction of the socio cultural
factors with the legal process. These sociocultural factors include the influence of patriarchy in the
perception of IFCSA; complications around family ties; the question of the victim’s livelihood;
taboos and stigma around IFCSA; tensions around ownership of the conflict and who should have
control over it; the expectations of the general community and whether they are always at par with
those of the victim and/or their family; and the complications incidental to delayed detection or
disclosure of the abuse.
4.2 Prevalence
The Committee on the Rights of the Child has observed that in every place where sexual violence
has been studied, a substantial proportion of children are reportedly sexually harassed and violated
by people closest to them.572 Anyone with a propensity to abuse trust and cross boundaries,
whether male or female can be a perpetrator and any child, whether boy or girl, who finds
themselves under the care and control of such a person, may become a victim. On the
demographics of both the victims and the perpetrators, though the abuse cuts across the gender
571
B Ryan, et al (n 16).
UN Committee on the Rights of the Child ‘General comment 8’ The Right of the Child to Protection from
572
Corporal Punishment and Other Cruel or Degrading Forms of Punishment (2 March 2007) UN Doc CRC/C/GC/8.
144
divide, a majority of IFCSA victims are of the female gender.573 For instance, out of the fifteen
complainants in the finalized IFCSA cases sampled in Kwale, Naivasha and Mombasa court
registries, only three were boys. The age of the complainants ranged from four to seventeen years.
Of the thirty perpetrators encountered in this research in prison, police reports and case law, all
but one was male. The sole female perpetrator was a grandmother reported to have sexually
assaulted both her granddaughter and grandson.574
Though IFCSA cannot be categorized as rampant, most of the respondents interviewed confirmed
that there is a marked trend of children suffering from sexual abuse perpetrated by those closest to
them including family members. The officers from the Department of Children Services, Probation
and After Care Services and the Judiciary each estimated prevalence of IFCSA cases at 30% of all
the reported cases.575 These statistics have to be perceived against a background of improved
channels of communication resulting in rising reporting rates. A defense counsel who occasionally
volunteers to defend sexual and gender based violence cases on pro bono basis estimated the
regularity with which he encountered IFCSA related cases in the course of his work in the
following terms:
In court I’ve seen cases of this nature. Last week somebody was calling me to
represent her grandfather who had been accused of incest with the granddaughter.
Still last week I was in court when a very old man was doing his appeal before the
court of appeal still convicted of incest with a grandchild. And the other week I saw
a man of the same age defending himself before the Chief Magistrate’s court over
the same thing.576
The above estimation is not necessarily a true reflection of the reality on the ground as many
IFCSA incidents remain undetected and/or unreported.577 The bottom line however is that IFCSA
is prevalent enough to cause concern.578
573
Interview with Waswa, Sub County Probation Officer, Kwale County, (Kwale County Children’s Department
Office, 10 November 2016).
574
Group Interview with Sergeant Rozet Kusimba, Constable Wanjiru and Constable Hanifa, (Nyali police station
Gender Office, 30 November 2016).
575
Interview with various professionals including Judges, Magistrates, Children’s Officers, Probation Officers,
Police Officers and Lawyers on diverse dates and venues particularized in various places throughout this chapter.
576
Interview with Wahome Gikonyo, Advocate of the High Court of Kenya (Outspan, Nyeri, 10 December 2015).
577
Interview with Chege, Sub County Children’s Officer, Naivasha (Naivasha Children’s Office, 15 November
2016).
578
Interview with Okwengu, J, Judge of the Court of Appeal, Kenya (Supreme Court Building, 17 July 2017).
145
4.3 Complexity and Propensity for Misuse
A characteristic feature of IFCSA is its delayed detection. It has the propensity to persist for a
prolonged period of time before detection or disclosure. This is mainly due to specificities
discussed later in this chapter which hinder more than facilitate an expeditious response. Even
when detected, it is often by default, either through pregnancy,579 obvious difficulties in walking
or sitting,580 or change in their behaviour or performance in school581 among other abnormal
behaviour. Late detection has two overall effects. First it creates a wide gap in the delivery of
justice due to the difference between the actual number of cases on the ground and those that are
escalated to the authorities.582 Secondly, and of more concern to this study, the late detection
presents a nascent handicap that affects effective response to the case. This is because even after
the abuse is eventually detected, there is unwillingness to escalate it to relevant authorities.
Most of the IFCSA cases find their way to the authorities by default. For instance, the police may
receive a complaint for non-payment of a certain amount just for them to learn, in the course of
their investigation, that the amount in question is in respect of compensation for defilement of a
minor by a relative. The person making the report will be more concerned with the enforcement
of the settlement than lodging a defilement complaint with the police. Similarly, IFCSA may come
to the attention of a probation officer by default in the course of a social inquiry on the reasons
behind a child’s recidivism. In such cases, it may then emerge that the particular child is silently
dealing with the issue of IFCSA having either been a victim or a witness of the same within the
household.583 Disclosure may also be made unintentionally in the course of discussions on an
unrelated topic in a public forum. Okwengu, J shared her experience in women’s forums where
she would be addressing them on a topic like matrimonial property just for one woman to open up
on the challenges she is facing in her home, including IFCSA.584 Many other IFCSA cases are
unearthed at school by teachers as narrated by one of the respondents, a primary school teacher:
579
P.M.M. v Republic Nakuru High Court Criminal Appeal No 188 of 2010 [2010] eKLR 2.
580
S.N.T. v Republic Nyeri Court of Appeal Criminal Appeal No 20 of 2012 [2013] eKLR) para 4.
581
Interview with Chepkemboi, Primary School Teacher (Mombasa Cinemax 15 August 2013).
582
D Carson, ‘Therapeutic Jurisprudence and Adversarial Injustice: Questioning Limits’ (2002) 4(2) Western
Criminology Review, 124, 125.
583
Interview with Mombasa County Probation officer, (Probation Office at Forestry Department, Mombasa, 22 July
2013).
584
Interview with Okwengu, J (n 578).
146
One time I went to class and I found that …one of my very bright students who I
taught from class four up to five and I was with her in class six…I found her crying
and she looked in a bad state…during break I released the rest of the children to go
out and I was able to talk to this girl…she confided in me that she was a victim of
abuse…that her mother’s husband whom she called ‘uncle’ was having sex with
her and her sister at night when the mother goes for prayers and then buys her
yoghurt.585
Once an IFCSA is detected, there is a tendency to conceal it from the relevant authorities to avoid
‘bringing shame to the family’.586 In extreme cases, attempts to conceal might be through collusion
of both parents as was the case in PMM v Republic.587 Often times, one parent, usually the mother,
may want to take up the case on behalf of the child but becomes incapacitated because of direct or
indirect pressure from the extended family. Cover up is more likely where the victim is of tender
age as such children have no role in decision making throughout the process. For instance, the
child might be escorted to hospital or police station by the perpetrator himself. The perpetrator
then hovers around the child throughout to ensure that they give as little information as possible
to the professionals. Most of the times, perpetrators succeed in diverting investigations away from
their direction. In some rare instances, the relevant authorities may succeed in unearthing an
escorting perpetrator. This was the case in an incident reported at the Nyali Police Gender office.
A father had escorted his sixteen year old daughter to report the defilement by a teenage
neighbour’s son. In the course of the interview by the investigating officer, the daughter innocently
posed the question, ‘So it is wrong when (the sexual intercourse) is between me and a person other
than my father?’ It then became apparent from the question that the father had also been having
sexual intercourse with her. Further investigations revealed that the abuse had been going on since
the girl’s mother passed on when she was thirteen years old.588 Such occasions are rare as most of
the times, the offending adult family member is able to get away with the abuse by staying close
to the victim during the investigations.
Failure to disclose may at times be attributable to the victim’s own reluctance. This is especially
so where the victim is old enough to anticipate the overall consequences of disclosing the abuse.
585
Interview with Teacher Chepkemboi, (n 581).
586
Bofa Community Focused Group Discussion, (Kasemeni Sub County Headquarters, Kwale County, 30
September 2016).
587
P.M.M v Republic (n 579).
588
Nyali Police Gender Office (n 574).
147
The cover up is easily achievable because the responsibility of having the primary medical
document, commonly known as the P3 form, completed by a medical officer rests on the victim.
Where the victim makes a decision not to pursue the abuse even after it has been reported, they
simply collect the P3 form from the police station with no intention of having it completed by a
doctor or returning it to the police station. Since no further intervention can take place without the
P 3 form, the case collapses at that initial stage.
It is also possible for an older child victim to develop mixed emotions on how to respond to abuse
by a family member. They may be torn between the personal desire to get justice and the socialized
communal duty to appear loyal to the larger family no matter the cost. In PMM v Republic, the
judge seating on appeal highlighted the dilemma often faced by older victims of IFCSA by
reiterating the observation made earlier by the trial magistrate:
Many a victim of sexual abuse by relatives, and those close to them suffer from
trauma and self-denial. The victim is torn between denial of the occurrence in the
presence of the relative or friends (the father and the mother in this case), while
complaining quietly to third parties… that the father had serially defiled her.589
The internal conflict by the victim may also result in the delay of the institution of the case. The
delay may be as long as thirty years as in the case of JG.590 She made her disclosure by email, to
the researcher, thirty years later as follows:
I kindly wish to seek justice for myself for sexual abuse perpetrated against me
when I was between 3-4 years old. This was done to me by a person who is related
to my family (only my parents can explain our familial relations) as his home is an
immediate neighbor to our rural home. I am 31 years old and I have suffered
emotional stress over the years as a result of the sexual abuse. Unfortunately when
this happened to me as a child, I could not tell right from left, but over the years I
have been able to connect the evil actions done to me by this sex offender. My God
given conscience though as a child would make me fear this man and I can
remember trying to be disobedient but he would threaten me with his evil eyes and
local insult and he was far much older than my four years, he probably could have
been in his twenties then (my guess).591
589
P.M.M versus Republic (n 579) 3.
590
Pseudonym initials.
591
Email from JG to Author (26 January 2017).
148
Feedback from the Gender Recovery Center at the Coast General Hospital was to the effect that
many of the IFCSA reports were received long after the abuse. The frustration associated with the
delayed reporting was expressed by the Center’s legal officer in the following words.
From what we see at the center, you will find for instance a child has been defiled
for a period of say one year or six months but they are not speaking out… rarely
will they speak to someone. It is either if someone pounces on the act going on or
there is a pregnancy, or there is a Sexually Transmitted Infection, or for the boys
… they have problems with their rectums. So when they come in, then they’ll be
able to say that I am this way because this abuse has been going on. It is in very
few cases that they speak out and tell somebody what’s been going on but then
again even for those who speak out most of the time it is not to the parents, but to
a teacher or a friend, or a parent to a friend or someone else. ….. I don’t know why
children are not speaking out. Very few will speak out especially in the first
instance. What we’ve learnt is that most of them remain silent may be due to
intimidation.592
Even after eventually disclosing an abuse to the medical personnel, few victims desire to move to
the next level of reporting the same to the police. This has been attributed to a long standing culture
of fear of the police by the citizens.593 Most Kenyans prefer to maintain the rare essential contact
with the police and only when they feel they have no alternative. A police station is still viewed
by many as more of a place where criminals are taken than where victims go for assistance. Many
victims hence need a lot of persuasion to engage the police even after disclosing to the medical
personnel.594
From the discussion above, it is evident that many IFCSA cases are reported as a last resort and
often after a substantial delay. The delay comes with its own disadvantages and false starts. The
most prominent disadvantage is that the cases often have unwilling participants who reluctantly
attend court to testify as witnesses against their wish. Where the main witness is a child, the
unwilling adult participants may fail to produce the child in court and in some cases, ensure that
the child leaves the jurisdiction of the court altogether. This is a common phenomenon in Kwale
592
Interview with Elizabeth Aroka, Legal Officer, International Center for Reproductive Health (Coast General
Hospital Gender Recovery Center, 22 July 2013).
593
Ibid.
594
Ibid.
149
and Naivasha where the children disappear to Tanzania through the nearest border points of Lunga
Lunga and Namanga respectively. The children are only brought back when the case is finalized.595
When victims and their families feel overtly conflicted over reporting the abuse to the justice
system, it becomes even harder for third parties prepared to press on with the case to successfully
assist the prosecution procure a conviction. This was the case in Republic v Kennedy Muthama
where the IFCSA was initially reported by a teacher after the victim confided in her. The case
ended with an acquittal for insufficient evidence as the main witnesses, who were mainly family
members, failed to cooperate with the prosecution. In other instances, the independent witnesses
back off from the case for fear of intimidation by the immediate family members.
Other problems associated with late reporting include loss or compromise of evidence especially
forensic medical evidence which becomes hard or impossible to gather or preserve with time. As
a result, a victim of IFCSA normally has an arduous task in proving the case beyond reasonable
doubt. The effects of the delay are aggravated by the fact that most government agencies suffer
from underfunding which affects their capacity to effectively mitigate the delay. The most affected
are the National Police Service and the Department of Children Services. In Naivasha, for instance,
it is not an uncommon practice for the Investigating Officer to personally escort exhibits to the
Government Chemist in Nairobi, by public means and at their own cost.596
Apart from delay in reporting, the other feature which interferes with the ability to respond to
IFCSA objectively is its atrocious nature. This abuse usually presents itself in the most horrific
manner. At the Gender Desk at Nyali Police Station, the incidences of IFCSA included a case of a
two year old girl who sustained serious injuries after she was defiled by her biological father. In
another case reported in the same station, a father of eleven confessed to having continuously
defiled his fourth born daughter from the age of nine years until it was detected when she was
fifteen years. He described how he would tie something around her arm to prevent her from getting
pregnant. He later graduated to forcing her to take contraceptives under the guise that it was a
595
(n 573) and (n 577).
596
Group interview with Police Officers under Chief Inspector Mutinda, (Naivasha Divisional Police Headquarters,
15 November 2016).
150
doctor’s prescription to treat a chest problem. In his confession, the father blamed the devil for
misleading him. Unfortunately, the confession did not meet the statutory threshold and was not of
any value in court after he pleaded not guilty.597 In yet another atrocious act reported at the Coast
General Hospital Gender Recovery Unit, a four year old had to have her uterus evacuated after a
vicious sexual abuse by her biological father. Such atrocities create medical emergencies which
relegate the need for a legal response to the tail end of the list of priorities. Under such
circumstances, all the victim’s family wants is for their child to recover. Justice may not be a
spontaneous priority. They often have to be urged in that direction by a third party. 598
In some cases, the abuse may result in the pregnancy of the child victim. In such instances, the
priority becomes safe delivery and maintenance of the child and not necessarily recourse to law.
The family may find itself unable to handle all the emerging issues simultaneously. Apart from
realigning priorities, the atrocious nature has the potency to traumatize those who interact with the
case at various levels, including the professionals. As confirmed by an officer manning the gender
desk at Nyali police station, the trauma makes it difficult for the professional to handle the case
objectively. This is seen for instance by the urge to immediately arrest and charge the suspected
perpetrator before completion of the investigation. This often results in acquittals for lack of
sufficient evidence.599 All these difficulties are against a background of minimal budgetary
allocation for psycho social support of the victim.600 This is discussed in details in a later part of
this chapter.
The constitutional due process rights of the perpetrator present yet another frontier of challenges
in responding to IFCSA. As discussed in chapter three, bail pending trial is a constitutional right.
The right however presents unique practical difficulties in IFCSA cases at two levels. First and
foremost, the concept is not well understood by the public. When they hand over a suspect to the
police, they expect him to be tried and sent to jail. They do not expect to see him walking freely
597
Nyali Police Gender Office (n 574)
598
Interview with E Aroka (n 592).
599
Nyali police Gender Office (n 574).
600
Interview with C Muinde, Deputy County Coordinator, Department of Children Services (Tudor, Mombasa, 16
July 2013).
151
without going through a trial. They attribute his freedom during trial to corruption.601 This corrodes
their trust in the justice system. Secondly, in an IFCSA case, granting bail pending trial means
having the victim, the perpetrator and most of the witnesses under the same roof throughout the
pendency of the case. This is often not viable as it creates opportunity for intimidation of the victim
and the witnesses, which is a common reason behind the collapse of many IFCSA cases. All the
three officers from the Department of Children Services interviewed in this research were of the
opinion that bail pending trial in IFCSA cases presents a major challenge. The challenge was
summarized by a senior judge as follows:
On the issue of offences being bailable, in offences such as this one which involves
someone within the same family, I think the magistrate should also be able to
exercise their discretion. Much as there is right to bail, it is not something that
should be given blindly… where there is a good reason. I know they are still
innocent but where there is also this child who… like I came across a situation in
Nakuru where there was a child who was said to have been molested by the father,
then the child could not be taken back home because the father is on bond. Because
they do not have rescue centers, the child was taken to a children remand home.
The child stayed there and you know how these cases of ours, how they keep on
dragging and dragging and dragging. The child is there for about nine months just
waiting for this thing to end and acquiring odd behaviors and being treated like a
criminal because you are there with all manner of people. And at the same time
even when they are there, they can also be abused.602
A disturbing trend worth highlighting that was detected during data collection is the propensity to
misuse IFCSA through fabricated cases in order to achieve a certain end. All the professionals
interviewed reported having dealt with fabricated cases at some point in the course of their work.
The most common victims of tramped up charges are those with the least bargaining power in the
society including children, the aged and the poor.603 In Republic v D.K. the accused, a sixteen year
old minor had been charged with sodomizing his four year old brother. In the course of the
proceedings, the clinical officer testified that he could not find any medical evidence in support of
the alleged sexual assault. Upon cross examination, the four year old victim disclosed to the court
that his mother had instructed him to lie that his brother had sodomized him but he had actually
not done so. It then emerged that it was a case of a mother framing his teenage son, born out of
601
Interview with Edith Njeri, Naivasha Deputy Sub County Probation Officer (Naivasha Probation Office, 15
November 2016).
602
603
Interview with Inmate EHF (Shimo la Tewa Prison, Mombasa, 16 September 2016).
152
wedlock, so that he could be put away. The mother had remarried thrice and each of the husbands
did not want the teenage son to live with them.604 The prevalence of fabrication was further
confirmed by a prison warder at the Shimo la Tewa prison, who remarked that though many
inmates are rightfully incarcerated, there are many others who had been framed. He reasoned as
follows:
Initially, old people here at the Coast Region were branded as witches as a set up
for lynching so that their property could be taken away from them. Nowadays, all
they have to do is say that an old man has defiled the granddaughter. He is arrested
and charged. Even if he is given bail, he cannot afford it so they are sure he will die
in prison and they keep his property.605
The issue of fabrication of IFCSA is not within the scope of this study. The fact that it exists is
important to acknowledge even as appropriate and effective responses are explored. It is also a
pointer to an area in need of further research as identified at the recommendation section of this
study.
4.4 Influence of Patriarchy
IFCSA, its subsequent detection, disclosure and response thereto, all take place against an external
environment dominated by patriarchal norms. This reality forms the basis of discussion in this part.
Like many concepts, there is no convergence on the meaning of patriarchy especially among
feminists.606 In common parlance, patriarchy simply means ‘rule by the father’. It therefore refers
to a social organization in which a male is the head of the descent with kinship and title being
traced through the male line.607 It is applied to refer to the male domination in both public and
private spheres which ordains men as the ultimate decision makers. Feminists often use the term
‘patriarchy’ as a tool to describe the power relationship and parity between men and women in
order to assist in contextualizing women’s realities.608 Patriarchy may hence be described as a
604
Republic v DK, Naivasha Criminal Registry Sample case No 1 (details confidential but case summary on file with
the author).
605
Prison warden PW (Shimo la Tewa Prison, 16 September 2016).
606
H Barnette, Introduction to Feminist Jurisprudence (Cavendish Publishing Ltd, 1998) 57.
607
Collins English Dictionary (3rd edition, HaperCollins, 1991) 1143.
608
A Sultana, ‘Patriarchy and Women’s Subordination: A Theoretical Analysis’ [July 2010- June2011] The Arts
Faculty Journal 1, 2.
153
system which pervades both the structure of the society as well as the attitudes of the individual
members of that society.
Whereas structures can easily be undone, renegotiated and remade, attitudes are harder to change
or negotiate around as they have usually crystallized in people’s mindsets over generations.
Patriarchy is therefore a difficult status quo to alter or deal with. Patriarchal attitudes are,
undeniably, key in determining how societal issues are responded to. The family, as the basis social
institutional unit, has been described as ‘a brewery for patriarchal practices’ where its members
are socialized to unquestioningly accept sexually differentiated roles. 609 The family setting is
therefore one place where the effects of patriarchy are most felt. It then follows that IFCSA, being
a kind of abuse that takes place within the home, is enveloped in patriarchal considerations in both
the manner in which it is perceived by the society and the way it is ultimately responded to. This
is a reality that has to be reckoned with as a suitable response to IFCSA is sought.
As discussed in the previous chapter, Kenya is a pluralistic society with the common law based
FJS operating alongside the IJS. This is as a product of the country’s colonial heritage. The state
of pluralism has enhanced the role of patriarchy in the legal response to IFCSA. Though the
traditional justice system hardly exists in its original unadulterated form, its remnant is still largely
unfriendly to women especially victims of sexual violence. Whereas the African traditional system
is inherently and unpretentiously patriarchal, the existing formal system has also been described
as patriarchal by default. It is believed that the transition from the traditional to the western justice
system proceeded without the input of women during decolonization. Instead, local customs were
either transmitted through predominantly male tribal leaders or observed by male colonizers
resulting in women losing even the minimal rights previously accorded to them by African
customary law.610 The long term result of the above is a situation where women who engage the
justice system are trapped between formal western law and the African traditional cultural laws,
both of which have patriarchal inclinations.
609
M Kambarami, ‘Femininity, Sexuality and Culture: Patriarchy and Female Subordination in Zimbabwe (2006)
University of Fort Hare South Africa September (2006) 4 <http://www.arsrc.org/downloads/uhsss/kmabarami.pdf>
Accessed 18 April 2017.
610
K B Wester, ‘Violated: Women’s Human Rights in Sub-Saharan Africa’, Topical Review Digest: (2013) Human
Rights in Sub Saharan Africa 3.
154
The role played by patriarchy in IFCSA cases was evident in the case of YM, a fifteen year old
child victim impregnated by her biological father in her interview from a shelter. She narrated how
her father forcefully removed her from her aunt’s custody who had been raising her from infancy
since her mother’s death. The father took her to his home where he lived with his two wives but
defiled her every night for one year until she became pregnant. Her stepmothers knew of the abuse
but did not intervene. She confided in her elder sister only to learn that her sister had also been
abused by the same father resulting in the birth of her first born son. The sister was therefore also
a victim and could not intervene. It was then that she went to inform her teacher who reported to
the police.611 The domination of the father in the homestead coupled with the power imbalance
between the father and the females in the family kept the abuse from detection by relevant
authorities.
Patriarchy plays the role of an indirect gatekeeper in the responses to IFCSA. Its influence
determines whether an IFCSA case is reported or covered up. If reported, patriarchal
considerations play a critical role in the choice of forum for determination of the issue. Patriarchy
prefers handling IFCSA in a manner that assures the male in the family, including the perpetrator,
retention of their dominant role in the management of the conflict. Joel Ngugi, J summarized a
typical response to IFCSA in a patriarchal society as follows:
It is the patriarchal system that operates and they would prefer a system where the
actors feel they are in control so to that extent it is oppressive to women. They feel
if we go to that system you have more of a say and you can control it. In many cases
there is the issue of stigma especially for sexual offences cases and they feel that
going to the formal system is like washing dirty linen in public so we would rather
handle it in-house so they find their own mechanisms. It is oppressive because the
procedures are all aimed at covering up rather than dealing with it.612
The problem with the patriarchy-oriented approach is that its priority is not justice but the
preservation of patriarchal norms. A Child Rights Advocate described it as ‘power play’.613 The
611
Interview with Y M, Minor (Kebene Baby and Day Care Shelter Diani Kwale County, 28 June 2019).
612
Interview with Joel Ngugi, Judge of the High Court of Kenya and Chairman of the Task Force on Informal
Justice System (Judge’s Chambers, Kiambu Law Courts, 17 January 2017).
613
Interview with Allan Nyange, Defense Counsel, Kituo Cha Sheria (School of Law, Mombasa Campus, 22 July
2013).
155
male perpetrator is often engaged from the status he has enveloped himself in over time. This is
one of unquestioned authority characterized with fear by both the victim and those expected to
intervene on her behalf. This usually results in an outcome that is usually sympathetic to the
perpetrator. This is best illustrated by a mainstream media account of sixteen year old Clemence,
a victim of IFCSA perpetrated by her biological father:
In 2014, he defiled her again and again threatened to kill her if she ever informed
anyone of what goes on at home. However it was too much for her and she decided
to talk to her school headmistress, whose reaction made her regret opening up.
Clemence said that the headmistress told her that there was nothing she could do
because they feared her father. ‘It broke my heart that the person whom I thought
was going to protect and assist me turned me down. I felt like dying but remembered
I had siblings to take care of.’ She said. In a further bid to unshackle herself from
being a sex slave to her own father, she went to the police station and filed a
complaint. Instead of arresting her father, the officer in-charge called him and
informed him of the charges her daughter had lodged against him. ‘I think they later
met and my father bribed him against investigating the matter because he was never
arrested’, she said. However, the father pounced on her that evening, beating her
up to a point of temporarily losing her mind for three days.614
The ultimate fate of a woman and child who dares to assert their individuality in an IFCSA case
against the grain set by patriarchy presents itself in a complicated and uphill state of affairs for
both of them. Once in court, they have to give evidence against the male relative. This translates
into a tussle between herself and the entire extended family. She is seen as fighting the clan who
in turn ensure that she loses her place in the society. In the words of Okwengu, J, ‘the mother not
only stands to lose her means of livelihood, she also loses face’.615 This is illustrated in the case of
Machocho who had caught her husband defiling her daughter, as reported in the print media:
Machocho says she was banished from her husband’s family after declining to
accept money they offered to drop the case. ‘His family offered to do anything for
me as long as I dropped the allegations against their son. But I could not sleep
knowing I had sold justice for my daughter for some few coins.’ Machocho said.
She said her husband’s family distanced itself and she has been forced to endure
insults as long as the three daughters are safe.616
614
Malemba Mkongo, ‘Innocent Terrorized. I Wish I Could Kill My Dad For Raping Me: Rage of Incest Victims in
Taita Taveta The Star, (Friday 2 June 2017) 20.
615
616
The Star article (n 614) 21.
156
The isolation of a child alongside the mother may be more bearable than in situations where the
child has no mother to look up to for social support. In such cases, going against patriarchal norms
may result in permanent disruption of the child’s life and total loss of their identity as in the
following case narrated by the Mombasa Chief County Children’s Officer:
Maybe I give you a case that we did recently. There was this girl who was abused
by the father. After the father abused her then the matter came to our office through
the teacher and the father was arrested. Unfortunately he died while in custody at
Shimo la Tewa Prison. So when he died, now the family does not want anything to
do with that child. Like now that child, she has no family. She was an orphan, the
mother had died, now the father has died and the family is accusing her of killing
their father. They were saying there are some rites they could have done, they would
have conducted these rites and the case would have ended there but now the fact
that the child made the father go to Shimo (remand prison), the family feels that she
is responsible for the death of their father and want nothing to do with her. She lives
with the teacher. …She cannot even take an ID because she does not know where
to get the supporting documents. They were from the Luhyia community.617
The issue of patriarchy is further compounded by the question of the place of children in the
African society. The position is reflected in the ACRWC, albeit in good faith. The Charter places
on the African child certain duties and responsibilities towards the family. These include the duty
to:
(a) Work for the cohesion of the family, to respect his parents, superiors and elders
at all times and to assist them in case of need;
(b) Serve his national community by placing his physical and intellectual abilities
at its service;
(c) Preserve and strengthen social and national solidarity;
(d) Preserve and strengthen African cultural values in his relations with other
members of the society, in the spirit of tolerance, dialogue and consultation and to
contribute to the moral well-being of society;
(e) Preserve and strengthen the independence and the integrity of his country;
(f) Contribute to the best of his abilities at all times, and at all levels, to the
promotion and achieve.618
617
Interview with C Muinde (n 600).
618
Article 31.
157
The upshot of the above is that where the interests of the child conflict with those of the family or
community, then the interests of the patriarchal family are likely to prevail over those of the child.
The child is hence expected to abandon their personal interest in favor of those of the
community.619 Often times, whenever truth is sought on the occurrence of an IFCSA, it is the
adult’s version of events that is believed over that of the child.620 Where the child is believed, the
process that follows and the eventual outcome are anything but victim-centered as observed by
Mumbi Ngugi, J:
Judging by what I have observed in reconciliation of families of victims and

perpetrators of homicides (through traditional processes and cleansing rites) the
focus is on compensation to the family and clan of victims. It seems to me that in
certain communities, sexual abuse of children is not perceived as a serious offence,
and perpetrators may only be required to pay some compensation to the family of
the victim, with no involvement of the victim in the matter.621
The patriarchal expectations of the girl child are anything but child centered. During the
community forum discussion in Kwale, it came out clearly that the girl child in the African society
has the additional responsibility of maintaining her virginity for the sole purpose of enhancing and
preserving her value which ultimately accrues to her family. This standpoint was from participants
drawn from all the four communities represented in the forum who are a majority in Kwale County.
These include the Digo, Duruma, Kamba, and Taita.622 A girl’s chastity is therefore community
property but its preservation is the sole responsibility of the girl. An adolescent girl who engages
in sexual activity, regardless of the circumstances, is often deemed to have played a part in
seducing the man. When virginity is lost within reprehensible circumstances such as those that
pertain in IFCSA cases, the tendency is for patriarchy to take over and manage the conflict in a
manner designed to mitigate the damage incidental to loss of virginity. In such a case, the child’s
interests are relegated or totally ignored.
The overall impact of patriarchy therefore is that a family’s response to an incidence of IFCSA
largely depends on how it is perceived by the dominant male in that particular family or
619
J W Muyila, ‘African Values and the Rights of the Child: A view of the Dilemma and Prospects of Change’, in S
Lagoutte and N Svaneberg (eds.), Women and Children Rights, African Views (Karthala, 2011) 97.
620
621
Email from Mumbi Ngugi, J to author (16 June 2017).
622
Bofa Community Group (n 586).
158
community. Patriarchy shelters the male perpetrator. Where an IFCSA case receives the full
support of the father, it becomes easier for the rest of the family to cooperate fully thereby
increasing the likelihood of having the case reported and successfully prosecuted. This was
demonstrated in the case in Bora v Chirima Mwingo623 where the accused had defiled his twelve
year old niece and infected her with a sexually transmitted disease. The complainant’s father was
actively involved in the case to the extent of testifying against the perpetrator who was his
biological brother. Support of the non-offending male relatives in IFCSA cases is therefore a key
determinant of its outcome. Any response that disregards the impact of patriarchy is bound to be
inadequate.
4.5 Family Set Up
Closely related to patriarchy is the question of family set up. The family unit is given due legal
recognition by the major international declarations, covenants and treaties as the basic unit of the
society.624 This recognition is also highlighted by Kenya’s supreme law, the Constitution of Kenya,
2010 which adds that the family is the necessary basis for social order. 625 The law therefore
recognizes the family unit as an important safety net in the enjoyment of certain child related
human rights and freedoms. The African traditional social set up is acclaimed for its deep sense of
kinship.626 The onus of ensuring that the family unit remains cohesive is largely placed on the
mother. This cohesion is often attained at substantial sacrifice of individual rights. Those who
sacrifice most for the family are the women whose mothering role positions them at the forefront
in protecting and nurturing the children. Although it is incumbent on a mother to report when the
child is abused, her dual duty of ‘keeping the family together’ and acting as the agent of the child
is often in conflict. This gives rise to unique circumstances that call for an equally unique response.
The need to interrogate the family set up vis-a-vis IFCSA arises from the following two
perspectives. The first one is with regard to the relationship between the prevalence of IFCSA and
623
Republic v Bora Chirima Mwingo Kwale Resident Magistrates Court Criminal Case No 66 of 2015 (unreported).
624
UDHR Article 16(3), ICCPR Article 23 and ICESCR Article 10.ICESCR.
625
Constitution (n 2) Article 45(1).
626
A I Kanu, ‘Kinship in African Philosophy and the Issue of Development’ (2014) 1(9) IJHSSE 1
<www.arcjournals.org> accessed 15 June 2017.
159
the stability and organization of the family unit. The second is on the impact a legal response to
IFCSA has on existing family ties.
The correlation between prevalence of IFCSA and the stability of the family unit is borne from the
fact that IFCSA, by its very nature, is more likely to be calculated than by chance. This is because
it is perpetrated by someone already known to the child and not by a stranger waylaying a random
victim at the street corner. As already stated above, a majority of the perpetrators are male while
most of the victims are female. Certain fault lines within a family may affect the nature and quality
of the relationship between the girl child and the male relatives living in the home. These are the
kind of fault lines that disturb established structural organizations and boundaries. A disturbed set
up presents opportunities for breach of boundaries between the child and the adult family member
and presents a perpetrator to calculate how to take advantage of the weak boundary.
There are diverse reasons why a family may find its original structure disrupted. This includes the
death of the mother, leaving the father as the primary care giver of his children,627 the need for
one parent to work abroad,628 divorce or separation,629 or hospitalization of the mother.630 In
Republic v A.N.N., a case in Naivasha, the mother had left her two children aged five and ten years
old under the care of their father as she went to work in Qatar. The father took advantage of the
wife’s absence and sexually abused the two children. An inmate serving his sentence at Shimo la
Tewa Prison for defilement also attributed the events that led to his incarceration to the fact that
his wife had left the matrimonial home:
My wife ran away and left the children with her co wives. Then rumors started
going round that I was sleeping with my daughter. The witnesses who came to court
to testify were my wife, the sub chief, the Investigating Officer and Doctor. My
daughter also testified in camera and told the court that I had abused her. My
brothers are now taking care of my family.631
627
Republic v Omari Juma Kwale Resident Magistrates Court Criminal Case No 660 of 2014 (unreported).
628
Republic v A.N.N Naivasha sample case No 5 (details confidential but case summary on file with the author).
629
Interview with K H, Inmate Shimo la Tewa GK Prison (Shimo la Tewa Prison Premises, 16 September 2016).
630
P.M.M versus Republic (n 579).
631
Interview with inmate K H (n 629).
160
Matrimonial conflict within the family may also contribute to breach of boundaries ultimately
leading to IFCSA. In extreme cases, there are fathers who have been reported to defile their
daughters as a way of revenging against the wife for leaving him. S N narrated how after her
mother left the matrimonial home due to domestic violence, her father got her from her
grandparents’ home and started living with her in a single room with the intention of making her
play the wife’s role. He attempted to sexually assault her but she screamed and ran away in the
middle of the night. A Good Samaritan took her to the police station who took her to the children’s
court as a minor in need of care and protection.632
Where the conflict ends in divorce and remarriage, it introduces the concept of blended families.
This results in a situation where men increasingly live in the same household with close family
members who are not their blood relatives such as step children, step parents and step siblings.
This is another contributing factor to the prevalence of IFCSA.633 Closely related to the
phenomenon of blended families is the social set up where people live with their extended family
members like grandparents, uncles and cousins. This comes with sharing spaces and facilities
including the sleeping quarters leading to corrosion of boundaries between the child and the adult
relative.634 In one case reported at the Nyali police, the children were living with their grandparents
as their mother went to work abroad. The investigating officer explained the case as follows:
We also have another case where a grandmother has sexually assaulted an 11 year
old girl. The grandmother is fifty six years old. She used her fingers. The girl has a
younger brother. We decided to rescue both the boy and the girl. The girl is HIV
positive. We are suspecting it is not just the fingers. The grandfather might also be
abusing them. We have obtained an order for the grandfather to go for testing. The
mother works in the Middle East.635
For families living in the rural areas, many homes are in traditional African village set ups where
they share a compound or boundaries with their uncles, cousins, brothers, grandfathers. This
creates additional opportunities for covert liaisons. These liaisons are escalated by such communal
nocturnal village activities like weddings and matangas (funeral vigils).636 They create
632
Interview with S N, minor (Likoni Children’s Remand Home Likoni Mombasa, 28 June 2018).
633
Group Interview, Nyali Police (n 575).
634
Interview with Kwale Probation Officer (n 574).
635
Group Interview, Nyali Police (n 575).
636
161
opportunities and atmosphere to lure the younger members of the family, especially the females in
their teens, into sexual activity. In some communities at the Kenyan coast, intermarriage between
cousins is allowed. This has an effect in the way cousins relate to each other during adolescence.637
The organization of the family set up is hence visibly a key factor in the incubation of IFCSA and
must be a consideration in framing an appropriate response to the abuse.
It is impossible to legally respond to IFCSA without unsettling the structure of the concerned
family. The degree and extent thereof will vary from case to case. When a child is abused by a
stranger, they most likely have their family to fall back on for support, love, care and protection.
The support is available from the time of detection, reporting, prosecution until sentencing and
thereafter. However, in case of IFCSA, the child has to deal with the crisis of how to relate with
the person that they previously trusted and probably loved but who now has turned against them.
It therefore follows that IFCSA cases cannot be effectively responded to without due regard to the
effect of the response to the family unit. Y N narrated how her father warned her that if she told
anyone about the abuse, he would delete his name from her birth certificate and she would have to
look for another father.638
When the criminal justice process is set in motion in IFCSA cases, the other family members too,
often have to play a role. They may be called upon as witnesses, either for the prosecution or for
the accused. This creates opposing camps as some members side with the perpetrator while others
sympathize with the victim. The process inevitably disrupts the family and has the potential to
cause family break up and loss of relationships. This tension often spreads to the extended family.
During the hearing of Nadia’s case,639 the hostility between the two camps was so conspicuous
that the court agreed to grant orders to protect Nadia from the perpetrator’s ‘camp’ within the
family. All through this, the family usually has to deal with breach of their privacy and negative
public exposure as such incidences attract a lot of media attention.
637
Ibid.
638
Interview with Y M (n 611).
639
Republic v GN (n 27).
162
The tension around family ties does not end at sentencing. The kinship between the victim and the
perpetrator of IFCSA, being filial and permanent, cannot be erased by a jail sentence. Whereas a
divorce can legally terminate matrimonial ties, there is no known legal method of severing other
kinship relations. It is even more complex where the perpetrator is a father and the victim has other
siblings who have not been abused. The latter may side with the perpetrator creating more strain
in the family.640
The impact that a legal response has on the marriage is even more pronounced. A mother’s
cooperation with the legal system often marks the end of her marriage. Women often have to
weigh between the value they place on their children vis-à-vis their marriage. Often times, the
subsistence of the marriage is prioritized over seeking justice for the abused child. It is not
uncommon for the mother herself to hide the perpetrator from justice especially where he is her
husband. Most mothers prefer not to ‘spoil their home’ as observed by a Probation Officer:641
Some mothers are simply cold about it; as if nothing happened. They say, it could
have been worse, the child could have died. She has not died. She is still alive, why
should I make things worse by destroying my marriage? In that particular case, the
girl was an imbecile who had been defiled by her biological father.642
Pressure exerted on the woman by her in laws and the rest of the extended family also plays a
significant role in the manner in which IFCSA is responded to. Some women are evicted from
their homes by the extended family.643 This often follows the narrative in S.N.T. v Republic:644
At around 5:00 p.m. on the same day, while J, the complainant’s mother, was
cooking, she observed the complainant was having difficulties while in a sitting
position. Upon inquiring, the complainant informed her that the appellant had
sexual intercourse with her. J examined the complainant and noticed she had some
spermatozoa on the vagina. J told the court that when she confronted the appellant,
he refused to take the child to the hospital. J informed the appellant's mother and
other elders about the sexual assault. The appellant's mother forbade J from
disclosing the sexual assault to anybody else.
640
641
Interview with Naivasha Probation Officer (n 601).
642
Ibid.
643
Group Interview Nyali Police (n 574).
644
S.N.T v Republic (n 580).
163
The issue of family ties is complicated further in a polygamous setting. Apart from the now
magnified extended family pressure, the family members ordinarily take sides. The main division
is along the line of those who support the victim and those who support the perpetrator. The
division plays itself out even during jail visits. Pastor A, serving a prison sentence for an IFCSA
offence, confirmed that his two wives did not see eye to eye on the issue of his incarceration. The
wife who was the mother to the victim would never visit him. Her co wife and her son, on the other
hand, visited him regularly.645
The children of a family responding to IFCSA particularly suffer hardship both during trial and
where the perpetrator is incarcerated. The intricacies around concerns of family ties and the
hardship suffered by the children is well demonstrated in Republic v A.N.N.646 The children were
left in the sole custody of the father after the mother travelled to Saudi Arabia for greener pastures
when he routinely defiled them. They first reported to their paternal grandmother who told them
that the act was a secret and they should not tell anyone. The father continued to defile them every
night and morning before they left for school. He would defile one and make the other watch. In
addition, he showered and dressed in front of the children. In order to avoid further obstruction of
justice by perpetrator’s family, the children were relocated from their home in Kiambu to their
maternal home in Gilgil. This caused disruption of a life they had always known though it was out
of necessity. In addition, the request by the prosecution to have their father’s bond suspended was
granted. The suspension was upheld until the minors gave their testimony. The trial itself took
place in Naivasha and it therefore necessitated the children travelling severally from Gilgil to
Naivasha. The accused was eventually sentenced to life imprisonment.
In extreme cases where a father is incarcerated and the mother is deceased, the family unit
disintegrates completely and the children are left without a fixed address of abode. An IFCSA
inmate serving his sentence at the Shimo la Tewa Prison narrated the plight of his daughter as
follows:
645
Interview with M W Y, Inmate Shimo la Tewa GK Prison (Shimo la Tewa Prison Premises, 16 September 2016).
646
Republic v ANN (n 628).
164
When I was jailed, she (victim/daughter) was living with a teacher. She then left to
a friend’s in Nairobi, then she went to Nakuru to her maternal grandparents and
then back to Nairobi. I hear she is now in Malindi. We do not talk. My children are
suffering. Their mother is dead. They live in different places but I am not sure
where. They have no one to guide them. They dropped out of school. 647
Often times, IFCSA against older girls may result in pregnancy. The children born out of this
incestuous relationship complicate the dynamics of the family further. In the African tradition,
such children are generally unwanted. In the Luhya community a child of incest is a taboo child
and cannot be raised within the family. This was the case in Re Baby GTO alias Unknown Male
Child where the child case was voluntarily given up for adoption by his birth parents. The birth
mother, who was only fifteen years when she bore the child, had been defiled by her uncle leading
to conception of the child.648
Some effects of IFCSA on family ties are at times irreversible especially where the victim is an
adolescent girl and the perpetrator is her father. Where it goes on for a long period without
detection, the child may be irreversibly traumatized and even reach a stage where she accepts it as
a new ‘normal’. The ultimate impact of IFCSA on family ties is as brought out by a judicial officer:
Where one is violated by a stranger, they may overcome quickly through counseling
but this one who was being violated within the home doesn’t even know how to
relate to the mother. You see at times we even have the problem of the mother
blaming the child. There are some mothers who blame the children for example,
‘you took my man’, ‘enda utafute wako’ (go and look for your own man).649
The impact IFCSA has on family unit explains why its response is often shrouded in a conspiracy
of silence within the family. It is more likely to be covered up or dealt with away from the glare
of the open criminal justice system. This reality needs to be a primary consideration in crafting out
an appropriate restorative response. Victim WA acknowledged that on hindsight, she appreciates
that had her mother reported the abuse she went through in the hands of her uncles; there would
have been serious repercussions on her standing in the family:
647
Interview with Pastor A, Inmate Shimo la Tewa GK Prison (Shimo la Tewa Prison Premises, 16 September
2016).
648
In Re Baby GTO alias Unknown Male Child Mombasa High Court Adoption Cause No 14 of 2013 [2013] eKLR.
649
165
My mother would have ended up being the black sheep of the family. Nobody
would have accepted her anymore as a member of the family. Most people would
have been like why are you doing this to your cousins? Because they were really
her cousins.650
In the words of Willy Mutunga, CJ, ‘preserving amity and cohesion in the family is paramount
whenever one faces the two choices of retributive justice or restorative justice’.651 Though family
cohesion is important, it has to be seen as one of the many other needs and interests that a victim
of IFCSA has. It can therefore not be a reason for trouncing the other rights of the victim.
Responding to IFCSA is therefore a delicate balancing act as far as managing family ties is
concerned.
4.6 The victim’s livelihood

Closely related to family ties is the question of the livelihood of the victim and their family.
Livelihood refers to the means of securing the necessities of life including food, clothing, shelter,
education, and other needs.652 Livelihood therefore goes hand in hand with economic
empowerment. A child falls in the position described as ‘dependency based vulnerability’ where
they rely on others to meet their needs.653 They lack independence as far as livelihood is concerned.
Livelihood therefore has a strong bearing on the trajectory of an IFCSA. This includes whether
and when it will be disclosed, to what extent, and whether the family will submit itself to and
cooperate with the institutions of justice.
As is apparent from the discussion on family ties above, the parent who is more affected by the
ramifications of IFCSA is the mother. It is her livelihood therefore that calls for interrogation.
Despite being amongst the most hardworking in the world, two thirds of the world’s poor are
women.654 Patriarchal structures and attitudes discussed above have been identified as great
650
Interview with WA (pseudonym), victim of IFCSA (Rainbow Estate, 3 July 2013).
651
Email from Willy Mutunga, then Chief Justice of the Republic of Kenya, to author (13 May 2016).
652
Oxford Dictionaries, http://oxforddictionaries.com/definition/english/livelihood, accessed on 14 October 2013.
653
L A Weithorn, (n 283) 185.
654
L Maloiy, ‘Patriarchy and the Control of Resources: Contributing Factors to the Feminization of Poverty in
Kenya’ (African Economic Conference, Kinshasa DRC (2-4 November 2015) 1
https://www.afdb.org/uploads/tx_llafdbpapers/Patriarchy_and_the_control_of_resources-
_Contributing_factors_to_the_feminization_of_poverty_in_Kenya_.pdf accessed 23 August 2017.
166
contributors to the feminization of poverty.655 In Kenya, as in most of sub Saharan Africa, women
rarely have control of the means of livelihood. It is no wonder that poverty has been said to wear
the ‘face of a woman’.656 The males within the family are often the providers and bread-winners.
A lot of women also owe their access to basic necessities like the roof over their heads and medical
insurance to their husbands. This may be due to the fact that the home is in the husband’s ancestral
home where the wife’s interest over the matrimonial home is more complicated than clear, or by
virtue of the fact that the husband is the one who pays the rent. In a place like Naivasha, many
families, especially in the flower farms, are housed by the employer. Where the man is the one
assigned the house by his employer, the mother enjoys the shelter at the pleasure of both her
husband and his employer.657
When the provider doubles up as the perpetrator, the victim’s livelihood becomes a major concern
especially where the criminal justice system results in incarceration. A research by Lalor on child
sexual abuse in Kenya and Tanzania658 has hence observed that children are less likely to report
where they are anxious of the effect incarceration of the perpetrator on the family’s livelihood.
The concern of the victim’s livelihood is even more profound in a developing country like Kenya
where state welfare is unknown or erratic.659 It is in this light that Kisanga observes that the
protection of children from child sexual abuse within the family is closely tied to economic
empowerment of women.660
A child rights advocate working at the Coast General Hospital Gender Based Violence Recovery
Center (GBVRC) narrated how she frequently witnessed victims and their mothers agonize over
the dilemma of their livelihood upon being advised to report the sexual abuse to the police. This
would be verbalized in statements such as, ‘even if I report and he is convicted, what happens to
me and my children…how do I feed the other children and how does it help the child who was
655
Ibid 7.
656
A Jaggger, (n 18) 240.
657
Group Interview Naivasha Police (n 596).
658
K Lalor, (n 20) 833.
659
There exists a National Plan of Action for Orphans and Vulnerable children but this program does not include
victims of IFCSA < http://www.ovcsupport.net/s/library.php?lk=demographic+factors> accessed on 17 October
2013.
660
F Kisanga et al, (n 6) 482.
167
defiled?’ or a child will be heard wondering aloud, ‘Now if I report my dad, who will look after
my mother…’ 661
When a victim of IFCSA is forced to engage the formal justice system against their deeply
entrenched concerns about their livelihood, their likelihood of turning into a hostile witness is high.
This is a witness who intentionally gives evidence totally different from what they initially
recorded when reporting the offence in order to frustrate the case.662 Evidence given by a witness
who is declared hostile has no value. Where the victim, who is the usually the only eye witness in
an IFCSA case, is declared a hostile witness, a likely result is the collapse of the case and
subsequent acquittal of the perpetrator.
The issue of livelihood was also played a major role in WA’s family’s decision not to report her
sexual abuse as a child by her two uncles. The uncles were truck drivers who supported her family
financially. Reporting the abuse would have meant threatening the whole family’s livelihood. WA
was left to deal with the abuse the best way she could as a child. She rationalized the family’s
situation as follows:
IFCSA is very common but I think the problem is mainly because the family also
depends on those same … it could be a stepfather….if a woman who is desperate
gets married and the stepfather takes advantage of her daughter…she cannot kick
out the man because maybe she needs the man….. For example with us it was really
tight when we were growing up and so when my uncles used to come they would
bring something. They used to be truck drivers. So they would bring food and all
that stuff. I have a feeling like right now when I sit back I have feeling they were
taking advantage of that because my mum could not like tell them off because they
were like really helpful. …My mother relied on his cousins who were abusing me
for financial support. When I complained, nothing was done to them. I developed
my own coping mechanisms. Whenever they came to visit, I hid away from them.663
It is common for issues of livelihood to come to the fore in court during the trial of IFCSA cases
such as the case of thirteen year old NN discussed at the introductory part of this thesis.664
Fortunately for NN, the Department of Children Services was able to trace a maternal uncle in
661
662
Evidence Act, 1963 (KEN) Section 161.
663
Interview with WA (n 650).
664
Republic v GN (n 27).
168
Tanzania who volunteered to take over parental responsibility. The issue of livelihood however
necessitated the transplanting of NN from her friends and life she had always known, to a foreign
country. Not all victims have traceable benefactors. For them, responding to IFCSA is usually at
a very high cost to them and their families.
Pursuing the prosecution of a criminal case also comes with some financial cost for any victim.
The cost is both hidden and direct and it impacts on the victim’s livelihood. The Legal Officer at
the Gender Recovery Center expounded on the financial implication of pursuing justice as follows:
A majority of cases you are seeing here are from victims in the low economic strata.
…getting that transport to come and report this matter is a challenge. So you can
imagine a situation where they still have to go to probably a police station and to
court and all that. And at times they are told enda urudi, enda urudi. (go then come
back later). Sometimes they just decide, what is in it for me? So they decide to give
up because they are looking at what they are putting in terms of their finances what
they are losing out in the process of walking up and down. You can imagine if it is
someone who sells viazi karai (deep fried potatoes) in the streets. They are thinking,
‘when I am out am pursuing my case, my business is at a stand-still.’ In any case,
most of them still do not have much faith in the justice system. So they look at it
and say, ‘after all I might do all these things and in the end I might not get justice.
Why should I follow it up as much as I should?’ So the person abandons the case.665
Just like family ties, the concern of livelihood is equally magnified in a polygamous setting where
the offending father is the primary bread winner of a large family. A case in point is that of HK,
incarcerated at Shimo la Tewa prison for an IFCSA offence. His family of three wives and nine
children were suffering with most of the children dropping out of school. The family was largely
left under the care of the perpetrator’s brothers who were also struggling to look after their own
polygamous families.666
In an ideal situation, the concern of IFCSA’s livelihood is cushioned by the state’s intervention.
In the Kenyan situation, however, there is no demonstrable goodwill from the State. Despite the
enactment of the Victim Protection Act that establishes the Victim Protection Fund, the reality on
665
666
Interview with inmate K H (n 629).
169
the ground is that the state has no budgetary allocation for victims. 667 The Witness Protection
Agency established under the Witness Protection Act may also play a part in alleviating the
livelihood needs of the mother in her capacity as the witness. 668 However, despite the
decentralization of the Agency to the Coast region, none of the professionals interviewed in the
three regions were familiar with the office or the workings of the Agency. The Department of
Children Services, in whose docket IFCSA victims primarily fall, is underfunded and neglected
by the state. Where funds are allocated, they are supposed to be released from the consolidated
fund quarterly in advance. It is however not uncommon for funds to reach the regional offices after
an inordinate delay. The Children’s Officer in Naivasha, for instance, confirmed that they had
received their 2016 second quarter allocation in October and painted a gloomy picture of their state
of funding as follows.
We have no money for emergencies. We usually mobilize resources from partners

like Red Cross like for resources needed for transportation and reintegration. As
for vehicles, we share with the Probation Department….. We are not consulted
when the budget is prepared in Nairobi. Money is supposed to be sent every quarter
but it always arrives late.669
The upshot of above is that the price a mother and child victim pay to maintain their autonomy
and pursue formal justice in cases of IFCSA is normally very high. Most therefore prefer not to
pursue the cases as demonstrated by the experiences of a judicial officer with over thirty years’
experience on the Kenyan bench, Okwengu, J:
You find that many times these cases are not reported because at times the woman
is in a dilemma. At times the woman is not working; she depends on the man and
if you report, the only thing they are aware of is that the man will be arrested and
taken to court and jailed. Then what? You are there with the child and you also have
no one to take care of you. So it is sort of a catch twenty two situation where you
really want to do something but you don’t know what to do……I’ve had a situation
where the woman was asking me, ‘what do I do?’ and I could not really answer her.
I knew that it is something that should be reported but then given all these other
dynamics, I couldn’t tell her to report. I told her, ‘…you just have to think, these
are the options but you just have to decide on what to do because I know what you
are going through and I know it is not an easy decision to make’.670
667
668
Section 31.
669
Interview with Naivasha Children Officer (n 577).
670
170
There are few privately sponsored Rescue Centers which have been established in Naivasha,
Kwale and Mombasa. None has the capacity of holding more than one hundred children at a go.
Their existence has however not totally ameliorated the problem of livelihood. This is because
IFCSA, by its very nature, generates multiple victims with diverse and at times conflicting
interests. Apart from the abused child, there is the mother and the victim’s siblings. The rescue
centers’ sole concern is the safety of the primary victim. This therefore means that even where a
child victim is accommodated in a Rescue Center, the livelihood of the mother and the non-affected
children remains outstanding.671 Other livelihood issues that are not catered for by the Rescue
Centers include the victim’s education. The Centers are also provisional in nature pending a
permanent intervention by the state and do not take up the children on permanent basis. 672 In
Mombasa County, the longest period the rescue center can house a child is six months after which
they must leave.673
At the core of the issue of the victims’ livelihood is the government’s over reliance on the goodwill
of Non-Governmental Organizations at many levels. This has resulted in the privatization or total
neglect of state facilities designated to cater for children in need of care and protection. Many of
them exist only by name. Services are only available in private institutions which are few and often
beyond the reach of most victims.674
The gap left by the state as far as the livelihood of an IFCSA victim is a key concern of the
proponents of vulnerability theory as discussed in chapter two of this thesis. The solution is
discussed in chapter five under the discussion on the possible entry points of restorative justice.
Suffice it to say, the issue of the victim’s livelihood is a primary consideration in crafting an
appropriate restorative response to IFCSA.
671
Ibid.
672
Group Interview Naivasha Police (n 596).
673
Interview with C Muinde (n 600).
674
Ibid.
171
4.7 Beliefs, Taboo, and Stigma
Sex is generally considered a taboo subject in most communities in the sub Saharan African
region.675 The subject is rarely openly discussed and has many myths associated with it. The
mystery around sex as a subject impacts IFCSA in two ways. First, some myths around it are used
to instigate or justify IFCSA and secondly, other myths act as a hindrance to an objective response
to IFCSA.
With regard to taboo as an instigator, the most common myth is the cultural belief that one can
find solutions to a myriad of problems by having sex with children. The most accessible children
are those within the family which makes them easy prey to adults within the homestead. 676 For
instance, in R v Nyawa Dongoi Mvurya the accused was charged with defilement of his two
daughters, aged fifteen and seventeen years old respectively. The defilement was pursuant to
instructions from a witchdoctor, as part of a prescription for various problems in the family. The
first problem was financial. One of the daughters had been sent home from school as she did not
have a geometry set. The father, who was unemployed, believed the local witchdoctor could offer
a solution and went to consult him in the presence of his daughter. The witchdoctor advised the
father to have sex with the daughter and thereafter bath with water spiked with some herbs. This
was guaranteed to help him find money to buy the geometry set. The other problem sought to be
solved through the incest was the need to perform well in school. Upon further investigation, it
was discovered that the father had also sexually assaulted his other daughter, on the same
witchdoctor’s advice, in order to guarantee a good performance in her examinations.677
Other common myths include the belief in some communities that the father must be the first to
enjoy the ‘first fruits’ of the daughter’s virginity before she loses it to anyone else.678 There is also
the unfounded belief that sexual intercourse with a child cures a myriad of chronic diseases
especially HIV. This has been one of the reasons behind grandparents preying on their
675
Lalor (n 20) see recommendations at the end of the unpagenated publication.
676
Bofa Community Focused Group Forum (n 586).
677
Republic v Nyawa Dongoi Mvurya Kwale Resident Magistrates Court Criminal Case No 1262 of2014
(unreported).
678
172
granddaughters.679 Absurd as the association of child incest with witchcraft may seem, it is still a
fact that cannot be ignored in seeking an appropriate response.
As earlier mentioned, the fact that sex as a topic is associated with taboo and secrecy in the African
culture, has an impact on the manner in which IFCSA is responded to. This taboo hallmark is
magnified where sex has to be discussed in the context of deviation from social and moral norms.
IFCSA represents one of the highest forms of such deviation. IFCSA’s association with mystic
beliefs and taboos translates into the stigmatization of all the parties involved. These include the
unborn. In a number of communities in Kenya any child born out of an incestuous relationship is
considered cursed and capable of bringing bad luck on anyone who raises them. Such children are
usually abandoned or given up for adoption to be raised away from the community. 680 The
stigmatization in turn has the potential to impede an objective response. In the words of the
presiding judge in PMM v R, ‘the offence of incest invokes shame, and is taken to be a curse among
most communities of Africa’.681 When faced with the reality of stigma, most victims and/or their
families prefer to keep the abuse to themselves. It is therefore no wonder that none of the three
adult victims of IFCSA interviewed in this research had the courage to immediately report the
abuse to anyone including their family members. Victim DSB was repeatedly defiled by her older
cousin who lived with them for a period of five years since the age of six years. This happened
while her mother slept in the adjoining room. She stated that she chose to remain silent as she felt
that the mother could not handle this grave taboo issue as she was at the time battling schizophrenia
and HIV related ailments.682 Victim JG was severally defiled by a cousin who lived in the same
neighborhood in the village. She too never reported as she feared that the mother would ‘collapse’
if she learnt of the abuse. This was despite the fact that she had the opportunity to inform the
mother when she complained of pain while taking a bath.683 Victim WA, on the other hand was
defiled by her uncles who frequently visited her home. On the reason why she failed to tell anyone
about the abuse, she simply stated that ‘you do not talk of such things’.684
679
680
In Western Kenya, there is a home established specifically for the rescue of children born out of incestuous
relationships <http://www.janddchildrenscentre.org/what-we-do> accessed on 16 October 2013.
681
PMM v Republic (n 583).
682
Interview with DSB (Pseudonym), victim of IFCSA (Nairobi, 20 February 2016).
683
Interview with JG (Pseudonym), victim of IFCSA (by phone, 26 January 2017).
684
173
The stigma is not confined to the community. It is detectable even at the level of professionals.
This is discernable from the attitude of the service providers. Upon receiving the report of an
IFCSA incident, their initial reaction often betrays their deep seated attitudes. This usually takes
the form of insensitive expressions of disbelief designed to discourage the victim from pursuing
the shameful issue further. The Mombasa based child rights advocate gave the example of a nurse
who would ask an IFCSA victim, ‘Why are you telling such lies about your father?’ or the police
officer warning another IFCSA victim, ‘if this story ends up being false you shall be jailed’.685 The
community and professionals are therefore more enthusiastic about abuses by strangers than those
by members of the family because the former has less stigma.686 The reality of the increased stigma
attached to IFCSA must be acknowledged in developing a viable restorative response to these
cases. This calls for a rethinking of the scope of application of restorative justice, not just as a
process or set of values, but as a lifestyle.
4.8 Community Expectations
A typical response by the larger community of an IFCSA incidence usually takes the form of the
following media report:
There was drama in Kilgoris when a group of women stormed the home of a
middle-aged man believed to have impregnated his sixteen year old daughter. The
women marched into the homestead of Samson Momposh whose daughter is
nursing a one month old baby. Momposh is alleged to have slept with the standard
six pupil and fathered her child, an allegation he denied. His wife and daughter fell
pregnant at the same time and are both nursing babies of almost the same age
alleged to have been fathered by Momposh. The women, armed with pangas
(machetes) marched Momposh to the Kilgoris police station six kilometers away
and handed him over to the police officers. The man was remanded in custody and
is set to appear in court next Tuesday. DNA samples have been collected from
685
686
Ibid.
174
father and daughter and have been sent to the labs in order to establish the veracity
of the allegations.687
There is a general assumption that the expectations of victims of IFCSA and their families
correspond with those of the larger community. The above account, though reported as any other
sensational news feature by the media, chronicles a typical scenario of the differentiated way in
which IFCSA cases are perceived by the family and the community at large. As is evident in this
story, the response of families immediately affected by IFCSA is often at variance with that of
unaffected third parties. To the latter, it immediately evokes outrage and a range of other strong
emotions directed at the perpetrator whom they feel should be subjected to severe punishment.
IFCSA is usually less likely to be voluntarily disclosed by the victim and their family than child
sexual abuse by a stranger. As discussed earlier, the more natural response by the family is to
manage it in a way that will best mitigate incidental loss and damage. This may include sweeping
the incident under the carpet altogether. These multiple interests relegate the punishment of the
perpetrator lower on the list of priorities. It is therefore not a wonder that the offence in the
Momposh case above was reported by ‘a group of women’ and not the primary victim or her
mother. This was after curious neighbors figured out a sexual abuse following a pregnancy whose
paternity the rest of the family appeared not keen on following up. 688
The expectation of the general community, on the other hand, is inclined more towards an overt
public condemnation of the act followed by severe punishment to the offender. 689 This resonates
more with the FJS whose main goal has been described as to ‘serve and visit opprobrium and moral
reprehensions on offenders who engage in morally impermissible exploitation of gullible
children’.690 The expectation of the community is therefore often at cross purposes with the
immediate interests of the victim and their family. The family may not be too eager to escalate the
case to the FJS as the system does not come with economic or social support for the family. It is
687
Standard Digital News report of 6th October, 2013 on
http://www.standardmedia.co.ke/mobile/ktn/watch/2000070588/a-man-slept-with-her-standard-six-pupil-daughter-
and-fathered-her-child. Accessed 6 October 2013.
688
Ibid.
689
B Naylor, ‘Effective Justice for Victims of Sexual Assault: Taking Up the Debate on Alternative Pathways’
(2010) 33(3) UNSW Law Journal 662, 666.
http://www.unswlawjournal.unsw.edu.au/sites/default/files/28_naylor_2010.pdf accessed 22 February 2017.
690
Email from Willy Mutunga, CJ (n 651).
175
therefore a specificity of IFCSA that they are often disclosed and reported by persons other than
the concerned family members. The outsiders therefore usually appear more zealous in having the
case prosecuted than the family members. The effect of the disparity between the expectation of
the family and that of the outsiders complicates the trial process as discussed earlier in this chapter.
This leads to the pertinent question discussed here below on who really owns an IFCSA conflict.
4.9 Whose Conflict?

As discussed in the previous chapter, there has been a notable shift with regard to the place of the
victim of crime in the justice process.691 The parties in a criminal case have however remained the
state and the perpetrator, the place of the victim and their family in an IFCSA setting often creates
tension vis-a-vis the role of the state. In the words of Joel Ngugi, J, a conflict such as IFCSA does
not exclusively belong to the state but is an ‘inclusive dialogic decision making process in which
the judicial officer is taking part’.692 The tendency, however, is for the state to claim total
ownership of the conflict. As discussed in chapter two of this research, Nils Christie, a proponent
of restorative justice, perceives conflict as property capable of being stolen. He argues that the
criminal justice system plays the role of facilitating the taking away of the conflict from the parties
who are directly involved to other parties.693 He reckons that the state steals the conflict from the
complainant. The confiscation of the conflict is not only at the conceptual level. The location,
venue and setting where the conflict is ultimately designated are usually alien and far removed
from the world of the victim and their families. As state organs of dispute resolution, they are
designed to mechanically resolve compartmentalized disputes between private parties whether on
property, contract, tort, or between the government and an individual concerning allegations of
criminal wrongdoing or regulatory violations.694 They are, by their very nature, incapable of
resolving complex issues that give rise to claims that cut across the various compartments of the
formal court system in one sitting. This is the nature of most conflicts in any given society. For
instance, a land dispute may give rise to a murder case or defilement case give rise to child
maintenance and custody dispute. However the compartmentalized formal court system only deals
691
Veronica Gitahi v Republic (n 447) and VPA (n 37).
692
Interview with Joel Ngugi J (n 612).
693
N Christie, ‘Conflict As Property’ (n 154).
694
B J Winick, ‘Therapeutic Jurisprudence and Problem Solving Courts’, (2002) 30 (3) Fordham Urban Law Journal
1055.
http://aupa.wrlc.org/bitstream/handle/11204/4218/Therapeutic%20Jurisprudence%20and%20Problem%20Solving%
20Courts.pdf?sequence=1 accessed 22 February 2017.
176
with single issues presented before it in a legally cognizable way and in a singular manner without
going deeper to interrogate underlying social problems. The formal system is also tedious and
provides limited opportunities for participation by the protagonists of the conflict.695
Faced with the above circumstances, a natural reaction by the protagonists is resistance to handing
over the conflict to the formal justice system and an inclination to hoard it. Upon retaining the
conflict, they deal with it in their own way. This includes sweeping it under the carpet or resulting
to traditional dispute resolution mechanisms which they deem ‘free from lawyers, their law, and
the law system of the capital’.696
Other factors that incline the victim and their family towards retaining the conflict within the
informal circles include the assurance of more direct participation both in the process and in
designing the final settlements, and the opportunity for more direct dialogue and reconciliation.
The children’s officer in Mombasa gave the example of the case where the perpetrator died in
remand prison awaiting trial for sexually assaulting his sixteen year old daughter. The family
immediately blamed the victim and declared her an outcast. They were convinced that the
perpetrator’s death would have been avoided had they been allowed to resolve the issue their own
way, away from the formal justice system.697
Other factors that favor retention of the conflict by the family include the need to control the flow
of confidential information since no public records are kept and the informal system has no
mechanism to subpoena a lot of information. Further, the end result of the informal process is more
likely to translate to more flexibility in designing creative settlements that are more familiar to the
victim’s family than the one meted out by the courts. The fact that the outcomes are not backed by
enforcement mechanisms like incarceration puts the family more at ease. For these reasons, they
may be more resistant to surrendering the management process and the outcome of the conflict to
the formal system that does not only resonate with their priorities. Whereas the state’s ultimate
695
Interview with Joel Ngugi, J (n 612).
696
W Mutunga, ‘The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court
Decisions’ (n 377).
697
C Muinde, Children’s Officer Mombasa (n 600).
177
goal is to punish the perpetrator, the family’s priority is to retain custody and control of the conflict
in order to manage it in a way that is meaningful and beneficial to them as a family unit.698
The tension around the ownership of the conflict between the state and the concerned family is
therefore bound to be more pronounced in IFCSA cases. Where, for instance, the child is of tender
years, the family may feel that jailing the perpetrator may result in no direct satisfaction to the
child victim.699 The family may then opt to spare the child victim from the rigorous court process
and instead exclusively focus on the healing of the child through psycho-social and medical
support. Thirteen year old SN who was interviewed from a children’s home where she was being
sheltered after a stranger picked her from the stranded in the streets while on the run from her
abusive father, had no interest in having her father prosecuted . All she was interested in was
reuniting with her grandparents.700 An adult victim of IFCSA who gets a belated opportunity to
report an IFCSA incident in their adulthood may also opt to keep the conflict away from the formal
justice process. In a discussion between the writer and DSB on whether JG should seek formal
justice against the relative who had defiled her during her childhood thirty years earlier, DSB
advised that JG should consider concentrating on healing instead of having the perpetrator
investigated and prosecuted as it would not add much direct value to JG.701
The question of ownership of the conflict was indirectly discussed by the court in PMM versus
Republic.702 The court was called upon to make a determination on the consequences of lack of
cooperation by the immediate victims of IFCSA during trial. This was an appeal against a
conviction where the appellant had been charged with defiling his ten year old daughter. The
appellant's main ground of appeal was that the case was not sustainable as it had no complainant.
He based this ground on the evidence of his daughter, the victim, who during trial gave an unsworn
statement and denied that her father had defiled her. She stated that she had been asked by their
neighbor, ‘Mama Shiko’ to say that her father had defiled her so that she could be taken to see her
mother in the hospital. Her mother had gone to the maternity hospital to deliver a baby. The court
698
699
Interview with Naivasha Children’s officer (n 577).
700
Interview with SN (n 632).
701
Interview with DSB and JG (n 682 and n 683 respectively).
702
PMM versus Republic (n 579).
178
observed that, many victims of sexual abuse, by relatives, and those close to them, suffer from
trauma and self-denial. Such a victim is hence torn between denial in the presence of the relative
or friends (the father and the mother in this case), while complaining quietly to third parties, (Mama
Shiko). The appellant further raised the question of who the actual complainant in the case was in
the light of the fact that the victim had denied having been defiled by him. In answer to this
question, the court found that the complainant does not have to be the victim. It identified a
complainant as follows:
The complainant is any concerned citizen of good will. A neighbor concerned with
the fact the child or children are habitually locked in the house by a single parent,
or parents without food, or denied to go to school, or that they are battered. Such
neighbors, or witness to a hit and run accident, are all legitimate complainants. In
this case, the complainants were the victim\'s and the appellant\'s neighbors, ladies
who were concerned that a child was being defiled by the father, the appellant.703
The above finding is a clear demonstration of the formal justice system’s attitude towards
ownership of the conflict. It does not belong to the protagonists or the family. The conflict belongs
to the system. This position does not always resonate well with that of the immediate family. This
tension is often the cause of the difference in expectation the community and the immediate family
as discussed above.
4.10 The Up Shot
Interrogating IFCSA with regard to its prevalence, and its interaction with patriarchy, family set
up, livelihood, taboo and stigma, community expectations, and the question of ownership of the
conflict, is useful in the exploration of a more comprehensive response to the abuse. The
specificities in particular assist in the identification of the handicaps that come in the way of an
effective response. These are the same handicaps that propel victims and their families towards the
path of least resistance. This may take the form of either sweeping the incident under the carpet,
or outright complicity and acquiescence by those supposed to report the offence. The handicaps
have the overall effect of complicating the reporting, investigation and prosecution of IFCSA
703
Ibid 3.
179
cases. This justifies more the need to explore restorative justice both within the formal and
informal systems.
From the discussion throughout this chapter, it is no wonder that one question answered uniformly
by all the respondents in this study was on whether a victim of IFCSA is impacted differently from
a victim of child sexual abuse by a stranger. All the respondents were of the view that the impact
on the former is graver, more permanent, far reaching and complex than on the latter. This response
is reflective of the picture created by Ryan when he summarized the impact of IFCSA as ‘complex
in emotional and social aspects’.704 Professor Ngugi summarized it as follows:
There are three dangers for child victims especially in familial settings. There is of
course the re victimization by the justice system which everybody talks about and
that we can mitigate through how we handle court though you cannot eliminate it.
It’s a fact. Then there is re victimization through the stigma. The third one is re
victimization through denial of livelihood or abandonment that happens as a result
of the offender being incarcerated. Because it has implications for not just the
victim but for the victim’s family etc. So when you look at it through the lens of
the formal justice system it seems that justice has been done but it is done from a
very narrow perspective; a state-centric perspective.705
This chapter has distinguished IFCSA from child sexual abuse by a non-family member by
unpacking the various issues a victim of IFCSA has to contend with in pursuit of justice. It is clear
from the foregoing that an IFCSA victim encounters unique experiences. Whereas the shock effect
of abuse by a stranger is likely to trigger an immediate and seamless resort to the formal justice
process, the specificities discussed above have a cumulative opposite effect. The pertinent
question then is, whether the elasticity of restorative justice can adequately accommodate these
specificities. This chapter has therefore set the stage for a discussion in the next chapter on the
entry points available for restorative justice as a way of offering a more comprehensive response
to IFCSA.
704
B Ryan et al (n 16).
705
180
CHAPTER FIVE: ENTRY POINTS FOR RESTORATIVE JUSTICE IN IFSCA CASES
5.1 Introduction
There are three discernible deductions that stem from the last three chapters. The first and most
obvious is that IFCSA possesses peculiar specificities that distinguish it from child sexual abuse
by a non- family member. Secondly, the legal framework under which IFCSA is responded to, is
riddled with structural and institutional flaws that have led to notable deficiencies and procedural
gaps. The framework is hence incapable of delivering holistic justice to the victim of IFCSA. The
third is that IFCSA occurs within the context of a pluralistic legal and normative order. The
communities’ notable enduring affinity for IJS in IFCSA cases is a reality.
The deficiencies and gaps in the FJS are not the sole reason for the community’s affinity to IJS. It
is therefore not the intention of this study to advance IJS as the panacea for all the shortfalls in the
justice system. The study does not also propose the replacement of the FJS with IJS since the latter
also has its own challenges. The point is that the level of confidence IJS enjoys from the
community, even amidst the question of its legitimacy and legality, cannot be overlooked. This
study considers IJS as a viable organic ground for prospecting restorative responses to IFSCA. The
prevailing legal pluralism discussed in chapter two, lays a basis for interrogating the modalities of
IJS that are restorative in nature. The discussion on the opportunities available for restorative
justice is therefore not limited to the FJS.
This chapter wraps up the study by highlighting possible entry points for restorative justice in the
formal criminal justice system’s response to IFCSA. It identifies mechanisms, processes and
values that give as much support as possible to the victim by addressing the specificities of IFCSA.
The support includes enhancing their voice, visibility and participation in the criminal justice
process while at the same time alleviating their suffering and restoring them as much as possible.
The proposed reforms mainly relate to the court process but they require the support of the
legislature and executive by way of legislative and policy intervention respectively. The proposals
therefore call for synergy between the three arms of government for their impact to be realized.
The chapter comprises three main parts. The first part discusses specific opportunities in the justice
process that would lead to a more restorative response. These primarily include aligning the court
181
towards more intentional embracing of therapeutic jurisprudence, and candidly incorporating
certain IJS values, processes and outcomes that are restorative in nature. It also discusses the
possibilities of diverting certain categories of IFCSA to IJS and the need to continuously engaging
with community at all possible phases of the justice process.
The last two parts of the chapter discuss the support systems that need to be put in place to facilitate
the more substantive proposals in the criminal justice process. One part addresses the legislative
intervention that will be required to unlock the barriers to restorative justice in IFCSA. The last
part of the chapter discusses policy interventions that the resilience building state institutions need
to prioritize both to protect potential victims and avail long term support to victims of IFCSA.
5.2 The Justice Process

The hallmark of restorative justice envisaged in this study is the centering of the victim’s role and
interests throughout the criminal justice process. This resonates with Tony Marshall’s
conceptualization of restorative justice as ‘a process whereby all parties with a stake in a particular
offense come together to resolve collectively how to deal with the aftermath of the offense and its
implications for the future’.706 The process, from investigation to sentencing, is therefore as
important as the outcome. This position is supported by the feedback of all the respondents
interviewed in this study and those that attended the focus group discussions, who unanimously
confirmed that they all aspired to a holistic justice process in IFCSA cases. The holistic approach
was unpacked in different ways by various respondents. Some felt it entailed going beyond the
simple goal of working towards the incarceration of the perpetrator.707 It was also perceived to
include ‘giving a listening ear and getting a true picture about the whole thing to enable one make
a decision’.708 Others were in favor of a situation where the two parties, the victim and the offender
‘go away satisfied with the victim getting real justice by recovering what they lost’.709
The above aspirations resonate with the aspect of restorative justice that is concerned with the
value added to the victim beyond the lengthy prison sentence meted out to the perpetrator. This
includes incorporating restorative justice through the intentional infusion of values, attitudes and
ideals that make the criminal justice system more responsive to the needs of the victim. These are
706
T Marshall, ‘Restorative Justice: An Over View’ (n 31).
707
Interview with Advocate A Nyange (n 613).
708
Interview with Teacher Chepkemboi (n 581).
709
Interview with Advocate Wahome Gikonyo (n 576).
182
what Van Ness and Strong refer to as operational values as they impact both the process and
outcome of the justice system. They include initiatives to make amends, extending assistance and
empowerment to the victim, facilitating encounter between victim and perpetrator where
necessary, participation of the victim in the justice process, protection of the victim, and their
reintegration, among others.710 All these values target the victim and are therefore appropriate for
filling the gaps discussed in chapter three and thereby assist the IFCSA victim experience justice.
This part begins with a discussion on the place of therapeutic processes in applying restorative
justice in IFCSA cases. It then highlights restorative attributes that the justice system can learn
from informal justice system including accessibility, quick disposal of cases and dispensation of
restorative outcomes. The section also makes a case for the possibility of diverting a limited
category of IFCSA to restorative informal systems. It concludes with a discussion on the need for
the justice system to widen its circle of engagement beyond the professionals to community
gatekeepers for enhancement of restorative justice.
5.2.1 Therapeutic Processes as Instruments of Restorative Justice

From the specificities discussed in chapter four of this study, it is evident that IFCSA is an
infraction that is bound to be accompanied by heightened emotions at all stages. For a start,
responding to it demands a cultural and attitudinal shift by all the professionals involved. This shift
must be evident throughout the entire process. The response should in particular deliberately avoid
appearing ‘as disempowering as the sexual abuse itself’.711
Unfortunately there is hardly any room for emotions in the traditional FJS. If anything, it is more
likely to impede rather than facilitate a victim’s emotional recovery through secondary
victimization. There is therefore need for a carefully thought out and crafted process devoid of the
negative effects of the rigid conventional adversarial system. One way of fostering sensitivity to
the victim’s circumstances is through the application of what has been described as ‘inter personal
710
D W Van Ness and K H Strong (n 46) 48.
711
G M Spies, ‘Restorative Justice: A Way to Support the Healing Process of a Child Exposed to Incest‘(2009)
22(1) Acta Criminologica 1, 21.
183
and intra personal skills for understanding and managing emotions’.712 This refers to the use of
‘emotional intelligence’ in the FJS which acknowledges the role of emotions in problem solving.713
The practices that amount to emotional intelligence vary with the circumstances of each case. In
general however, they include ‘the verbal and nonverbal appraisal and expression of emotions, the
regulation of emotions in the self and others, and the utilization of emotional content in problem
solving’.714 Emotional intelligence is encapsulated in the emerging concept of therapeutic
jurisprudence which is largely perceived as ‘an approach rather than a theory’.715 It is for this
reason that it is discussed in this part rather than in chapter two under theoretical framework. The
therapeutic jurisprudence approach is premised on the observation that the way the law is
implemented and operates can either, increase, decrease, or have a neutral effect on a victim’s
psychological wellbeing. Simply put, it acknowledges that law can affect wellbeing. It therefore
proposes that social scientists should identify laws, processes and procedures that enhance
wellbeing.716 Christopher Slobogin expounds further that the emphasis of therapeutic
jurisprudence is to study ‘the extent to which a legal rule or practice promotes the psychological
or physical well-being of the people it affects’.717 The main concerns of therapeutic jurisprudence
are said to include inter alia:
the nature and role of the interactions between the judge and the parties to the
conflict, the role of empathy, the psychology of procedural justice and behavioral
contracting, the forms of coercion and their effect on defendants' behavior and
treatment outcomes, the role of counsel and their ambivalent relationship to the
courts.718
Therapeutic justice is traditionally mainly practiced in drug treatment courts, juvenile drug courts,
teen or youth courts, domestic violence and mental health courts.719 It is however an ideal model
712
M S King, ‘Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice’ (2008)
34 32(3) MelbULawRw 1096.
713
Ibid 1097.
714
Ibid 1099.
715
Ibid.
716
A Birgden, ‘Therapeutic Jurisprudence and "Good Lives": A Rehabilitative Framework for Corrections' (2002)
37(2) Australian Psychologist 180, 182.
717
C Slobogin, ‘Therapeutic Jurisprudence: Five Dilemmas to Ponder," in Wexler and Winick, eds., Law in a
Therapeutic Key, (Durham, North Carolina: Carolina Academic Press 1996) 775.
718
A Freiberg, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism’ (2002), 20
Law Context: A Socio-Legal J. 6 11-12 (accessed 9 April 2018).
719
Ibid 12.
184
of responding to vulnerable persons in the FJS such as IFCSA victims. Its place in restorative
justice was highlighted by one of the respondents in this study as follows:
There is some empirical evidence that suggests that when you have certain kinds of
hearings that are therapeutic, overall, though difficult to quantify, it leads to certain
improvements in the system. One, it is more likely that a restorative system is going
to lead to a less stigmatization of the mother and the immediate family because the
goals of the restorative system will become clear rather than that the mother and
the victim are ganging up to send the offender/ our son to jail. Restorative justice
is about feeling what has happened as a social conflict, so harm has happened and
someone needs to be restored for the harm and the relationships to be restored. It
does not exclude retribution but it provides for the restoration of the relationship
with the offender, victim and community. For me that process is an important one
in terms of re-centering the relationships of those who are left behind even if the
offender goes to jail. This should be done by the criminal justice system. This
should be during the trial. It is part of the process. In fact if it is done correctly, it
is the process.720
The common denominator between therapeutic jurisprudence and restorative justice is their
common goal of practical problem solving as opposed to focusing on a pre-determined result of
say incarceration or other punishment. Use of therapeutic processes guarantees a restorative
outcome as most restorative values are therapeutic in nature.
The implementers of therapeutic justice are the professionals involved in IFCSA. Whether aware
of it or not, they are called upon to be ‘therapeutic agents, affecting the mental health and
psychological wellbeing of the people they encounter in the legal setting’. 721 There is therefore
need to pay due attention to and invest in relevant training of these professionals. Those on the
front line in the response to IFCSA include officers from the police service, probation and aftercare
service, department of children services and the judiciary. The training should focus on
empowering them to consider all the dimensions of an IFCSA conflict and handle it with the
requisite emotional intelligence. IFCSA cases can take their toll on professionals involved. For
this reason, the training should also include regular debriefing to avoid the scenario described by
a judge:
When the professionals are ignored, they will not be able to focus on applying the
relatively new restorative justice. They operate on auto pilot or avoid the cases
720
Interview with Joel Ngugi, (n 612).
721
M S King (n 712).
185
altogether. They therefore need continuous and structured counseling. I used to
avoid sexual offences involving children because most of the times they cannot
talk, cannot express themselves. Their evidence many times has already been
interfered with. I used to find it very frustrating because at the end of the day many
times you find that one way or another the perpetrator is escaping. And the person
is escaping and you are so sure they did it. But then you know the law is the law.
Honestly I just used to avoid them. When I’m in a position where I can allocate I
just avoid them. It is traumatizing to handle them. It’s traumatizing especially when
it involves a family member.722
Application of therapeutic justice is expected to benefit the victim by giving them more voice and
agency and being taken seriously by all the professionals they encounter. Ultimately, the resultant
therapeutic process should be one where the victim’s voice is heard especially with regard to what
happened to them and the impact it has had on them, while at the same time bringing the perpetrator
to censure and condemnation for the wrongful act.
Equally important to therapeutic practices is the need for the courts to acknowledge the low
resilience of an IFCSA victim under the emerging concept of vulnerability jurisdiction. This is the
jurisdiction that empowers the courts to use its powers to disrupt exploitative relationships by
invoking its inherent jurisdiction. The disruption is aimed at safeguarding individual autonomy
rights of the victim in situations where failure to intervene would hinder effective exercise of those
rights.723 Such intervention is critical in IFCSA cases which usually take place in a situation of
unequal power play between the perpetrator and the victims due to the existing familial and age
relationship. When the court remains far removed in the strict adversarial setting, the victim’s
rights remain unsafeguarded.
In a nutshell therefore, embracing therapeutic practices and the resultant shift in mindset and
attitude by the professionals is a feasible entry point for restorative justice in IFCSA cases. It also
addresses a primary concern of radical feminists which is the potential for restorative justice
processes and outcomes to reinforce the power imbalance inherent in abusive relationships like
IFCSA.724
722
Interview with Okwengu, (n 578).
723
M Hall, ‘The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court’ (2016)
2 Can. J. Comp. & Contemp. L. 185, 186.
724
Acorn (n 98) 224.
186
5.2.2 Lessons on Restorative Justice Discernible from IJS
Restorative justice must of necessity address the question as to what is to be restored. The view
point of Duff and Van Ness on the subject of restoration are discussed in chapter two of this thesis.
The main issues for restoration include the victim’s status quo to the pre abuse state, overcoming
the associated stigma, and where possible, restoration of relationships.725 These levels of
restoration require an interrogation, of both the process and value system involved in responding
to IFSCA, beyond the FJS. The general idea of involving IJS in responding to IFCSA is repulsive
to many especially feminists as admitted in chapter two of this study. This however does not mean
that IJS is entirely without anything to offer to the FJS as not all IJS systems are repugnant to
justice and morality. In fact, when it comes to processes, IJS offers useful lessons for the FJS. As
pointed out in chapter three of this thesis, the community has an affinity to informal justice
mechanisms. A major factor of this affinity is the restorative orientation of most informal systems
in terms of processes and outcomes. It is in these restorative processes and outcomes that this study
sees a learning opportunity for the FJS.
The proposition made in this study is for the need to isolate and adopt IJS attributes for purposes
of infusing them into the FJS with a view to crafting a response that is more victim-centered. The
adoption and infusion of attributes from IJS was described by one of the respondents in this
research as a process that ‘will involve a blend of loosening and fastening; formalizing the informal
while informalizing the formal’.726 In identifying these attributes, resort has to be made to the
reasons for attraction of IJS by the community. These are discussed in chapter four and categorized
into benign and oppressive. The latter include those that leave the victim’s family with no choice
but to engage the IJS. The main ones under this category are the influence of patriarchy and the
stigma associated with IFCSA. It is the benign attractions, however, that this part shall focus on.
These are the attractions based on their convenience. They include accessibility, quick disposal of
cases, familiarity with the system, and desirable outcomes.
With regard to accessibility, IJS resonates more with the populace because it is geographically
closer to them than the courts and other FJS institutions. This is evidenced by the fact that every
725
Duff (n 103 382-397 and Van Ness & Strong (n 44) 105.
726
187
time a new court is established in a particular geographical location, the number of reported crimes
from that area rises. 727 The rise is attributed to the close proximity of the court. It is safe to assume
that the conflicts still existed before the construction of the court but they were resolved elsewhere.
A starting point for restorative justice for victims of IFCSA would be therefore to take justice as
close to the people as possible. This includes the granting of equal opportunities and liberties to
the parties to a dispute in a manner that benefits all including the least advantaged. 728 Access to
holistic justice is all encompassing and goes beyond the provision of physical buildings. The
design, facilities and operating times of the institutions must be user friendly to IFCSA victims.729
An institution’s image is therefore an important aspect of access to justice. All the institutions of
justice have a duty to ensure that their institutional image, ambience and operations are non-
intimidating and in touch with the people. Institutional image is especially important for courts
and police stations which are historically deemed as oppressive places to be avoided and far
removed from people’s experiences.730
Access to justice also demands that the justice system must as much as possible be presented in a
manner familiar to the community and resonates with what is known to them, especially the
language and the rituals. Where justice is presented in an elitist manner, there develops mistrust
between the organs of justice and the community. It is for this reason that most people still regard
the state with a lot of skepticism and only deal with it when it is absolutely necessary. They look
for every opportunity to resolve their issues without having to interact with the state. The more
formal the system is the more skeptical they are about it. This explains why most people feel more
comfortable going to the Chief, or the County Commissioner as opposed to the court as they find
the processes of the former more informal compared to those of the latter.
It is no wonder that WA, who was abused as a child was somehow glad that her case was never
taken to court. She explained that ‘attending court for me would have been traumatizing… for me
it’s more like rehearsing a lie every single day. Different people would be there joining in and
everybody gets to know what’s happening. For me privacy is very important’.731 The possibility
of hearing the perpetrator deny what she knew to be the truth over and over again is what was
727
Ibid.
728
S Omondi, (n 128) 106.
729
Ibid.
730
731
Interview with Victim WA (n 650).
188
unbearable. Availing easily accessible institutions of justice that resonate with the reality of the
victims of IFCSA is the starting point of restoring the victim. IJS provides insight into an ideal
model of institutions of access to justice especially the courts.
The factor of better time management and swift disposal of cases in the IJS is evidenced by the
fact that most of its cases are concluded in a single sitting. Though it is not practical to expect
courts to finalize all IFCSA cases in one sitting, the efficiency of IJS is an attribute the FJS can
aspire to for a more restorative outcome of IFCSA cases. On average, an IFCSA case takes about
two years to conclude. It often takes longer as explained by a defense counsel:
Length of time taken varies from case to case and from one magistrate to another.
Like now I’m handling one, though not a relative, an immediate neighbor; it has
taken the last five years. The magistrate was transferred. The one who took over
ordered the proceedings to be typed which took long. Then it was done wrongly
and court ordered it be corrected. The reason given for typing to take long was
shortage of staff. The moment they were typed, the magistrate was vetted out.732
Prolonged court attendance has its adverse effects as the child victim is said to be constantly
reminded of the wrong instead of concentrating on recovery.733 IFCSA cases should be heard and
determined within the shortest time possible. It may not be heard in a single sitting but it should
be prioritized and heard back to back. This is not alien to the formal justice system. It has already
been applied in the hearing and disposal of Election Petitions.734 In addition, in the wake of public
outcry on the inordinate delay in prosecuting corruption cases, the Chief Justice of the Republic
of Kenya issued a Practice Direction for back to back hearing of all corruption related cases. 735
The prioritization given to election and corruption cases should be extended to IFCSA cases.
Hearing cases on reserved, less busy days, like over the weekends when the rest of the courts are
not in session may also enhance quicker disposal of IFCSA cases, amongst other possible
adjustments.736 Having the cases on Saturdays may however raise some issues with those who
regard it as their day of worship. This is in the light of the Court of Appeal decision declaring
732
Interview with W Gikonyo (n 576).
733
Group interview with Naivasha Police Officers (n 596).
734
The Elections (Parliamentary and County) Petition Rules, 2017.
735
CJ Practice Direction, Kenya Gazette Vol. CXX—No. 85 dated 20th July, 2018 Gazette Notice No. 7262 dated
the 26th June, 2018.
736
Saturday courts for SGBV cases were successful in Sierra Leone.
http://www.undp.org/content/undp/en/home/presscenter/articles/2012/03/07/sierra-leone-saturday-courts-tackle-
gender-based-violence-case-back-log-.html accessed on 27/11/13.
189
compulsory Saturday classes in public schools unconstitutional. The court found that it amounted
to discrimination of Adventists.737 Other adjustments that might enhance expeditious disposal
might include transferring all IFCSA cases to Children’s courts which are less busy. This would
require legislative intervention as discussed later in this chapter. A more long term solution would
be building more courts closer to the people and, where possible, establish mobile courts. This
measure is however less attainable in the light of often cited budgetary constraints within the
judiciary.738
Another restorative attribute of the IJS that makes it more attractive than FJS in the eyes of the
community is its ability to resolve complex matters as a whole without splitting them into different
disciplines of law. This is much unlike the FJS which deals with issues singularly in a legally
cognizable way. It does not bother to go into the core of the issue or deal with incidental issues if
they do not belong to that particular area of law. For instance, an IFCSA may first be presented in
court as a matrimonial case with the abuse mentioned as one of the grounds for divorce. Where
this happens, the two issues are immediately separated and taken to different courts to go through
different processes. The outcomes may even be different. In IJS however, the matrimonial issue
and the abuse would be dealt with simultaneously. This is something that FJS can learn from IJS
for a more restorative and victim centered response. Though it would not be reasonable to expect
a family court to hear and determine an IFCSA case during a divorce hearing, courts should not
overlook such circumstances. The least they can do is to have synergy between the two or more
involved courts in order to minimize inconvenience to the victim for instance in terms of court
attendance.
Lastly, though restorative outcomes like, reconciliation, apology, and compensation exist in FJS,
they are more replete in IJS. They are a main attraction to the community in IFCSA cases. This is
because they are more meaningful to the community and resonate more with them than the
incarceration of the perpetrator. It has also been argued that where the child victim is too young,
no direct benefit accrues to them in jailing the perpetrator. This is because the child might not be
737
Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others Nairobi Court of
Appeal Civil Appeal No 172 of 2014 [2017 eKLR.
738
S Namusyule and L Mueni. , Impact of Judiciary Budget Cut’ available at https://www.judiciary.go.ke/impact-of-
judiciary-budget-cut/ accessed 18 December 2018.
190
mature enough to appreciate the value of incarceration.739 One of the respondents highlighted the
difference in the two outcomes by lamenting:
Unfortunately for most of these people (professionals), their expectation is only

one, conviction. But even after sentencing the accused to twenty years, this minor
goes away with nothing. But for me a conviction should not be the only expectation
or goal of justice.740
Reconciliation is particularly relevant in IFCSA because the infraction involves family ties that
cannot be wished away or dissolved through a legal process. Even where the perpetrator is jailed,
they are eventually released back to the same family at the end of their jail term. Reconciliation
is a significant aspect of restorative justice as it addresses restoration of relationships by dealing
with hatred and enmity. The success of reconciliation in FJS depends on how it is structured. The
most viable way is to organize for it within the criminal trial process under the court’s supervision.
The reconciliation should not be limited to the victim and the perpetrator. It should involve the
entire family who will most likely have taken sides with some siding with the perpetrator and
others with the victim. The court’s role can be to receive reports of any initiative of supervised
reconciliation. Such reports may, should the courts deem appropriate, inform sentencing.
This study is well aware of the fact that reconciliation in IFCSA cases may be frowned upon owing
to the assumption that it is geared towards giving the perpetrator a soft landing. For avoidance of
doubt, the study does not advocate for reconciliation as an alternative to the perpetrator’s
incarceration. Reconciliation does not also necessarily imply that the victim and the perpetrator
must continue to live under the same roof. This study recommends reconciliation alongside
retribution.
The timing of the reconciliation is critical. It should not be embarked on when the event is still
fresh in mind of the victim and their family. It should only be considered when the victim, the
perpetrator and the entire family are ready for it. An even more appropriate case for reconciliation
is where the victim has grown to adulthood and there is no bad blood between them and the
perpetrator. In one case encountered in this study, the relationship between the perpetrator and the
victim was such that the latter was even visiting the former, her biological father, in prison where
739
Interview with Probation Officer Naivasha (n 601).
740
Interview with Wahome Gikonyo (n 576).
191
he was serving a fifteen year jail term for defiling her.741 Reconciliation should therefore be
embraced in appropriate cases. It does not have to take place during the pendency of the court case.
It may take place after incarceration under the supervision of prison officers or counselors attached
to the prisons department. Supervision is important as reconciliation has potential for abuse
through coercion and undue influence due to unequal power balance between the two parties. This
study however concedes that reconciliation might not be possible in all cases.
Closely related to reconciliation, as a restorative outcome, is apology. Many victims long to hear
the perpetrator own the violation and say ‘I am sorry’.742 This was expressed by one of the victims
who was sexually assaulted by her uncles as a child. The perpetrators were long dead as of the date
of the interview but she had this to say of the outcome she would have desired:
If they did stay alive...for me, them to bear that responsibility would be the biggest,
biggest factor for me. To accept that they have a problem, to accept that what they
did was wrong and apologize. To look at me and the tell me and to really mean
what they say. I think that would be enough unless they repeat it.743
Apology is a common outcome in IJS but rarely provided for in FJS. It is however possible to still
inject it in the FJS process. Like reconciliation, it can be introduced at any stage of the justice
process. This may be in court, at the police station, or even in prison during incarceration. The
form and setting should depend on the parties. In the court room, an appropriate time might be
immediately after the victim impact statement. It may also be made at sentencing especially during
mitigation. The apology can be considered when computing the sentence. The apology may be
given in writing, by hand or electronically or made orally. It can be made by the perpetrator directly
or through a third party like a community or religious leader. Some IFCSA victims have received
their apologies publicly through the media over the radio. A Kenyan Vernacular Radio Station,
Kameme Fm, aired a program every Saturday morning in 2016 and 2017 by the name Muiguithania
which is a kikuyu word for Conciliator. Part of the show focused on mending relationships of
family members ripped apart by intra-familial crime resulting in the incarceration of some of the
family members. The role of the Radio Station was to facilitate an encounter between the victim,
or their representative, and the perpetrator either physically or on air. A discussion on the
741
Interview with Inmate K H (n 629).
742
743
Ibid.
192
circumstances surrounding the crime would then take place live on air. Most of the encounters
ended with an apology by the perpetrator. Many of the cases involved child sexual abuse by family
members. The child victims’ identity was concealed to protect their privacy. The initiative was
geared towards healing relationships and bringing closure even as the perpetrator continued
serving their sentence.744 Such an initiative may however not be appropriate in all cases as some
victims may prefer their apologies tendered in private or even want none at all.
The ultimate attraction of IJS in IFCSA cases is the outcome of compensation which is typically
absent from the formal FJS.745 This often takes the form of monetary compensation.
Compensation, as a form of reparation is an important restorative value. It eases financial burden
where the victim incurs monetary loss especially through medical expenses. It can also be applied
towards the victim’s future needs. Compensation goes beyond infliction of pain to the perpetrator
by answering the question, ‘What does the system have for the victim?’ It therefore attempts to, as
much as possible, restore the victim back to the pre violation status. Given between a system that
simply incarcerates and one where some payment is made, the community prefers the latter. This
is another outcome that FJS may wish to consider in IFCSA cases.
Certain concerns have been raised on the viability of compensation as an outcome in IFCSA cases.
First and foremost, it may not always be to the detriment of the perpetrator. For instance it may
make a difference to an impecunious perpetrator but have little or no effect to a wealthy one. Again,
some compensation may be paid by relatives from a community kitty leaving the perpetrator free
of the expected weight of the financial burden.746 Secondly, there is a valid fear of compensation
in IFCSA cases being commercialized as has happened to other cultural fines and payments like
Malu and dowry. Malu is a traditional fine payable, among the Mijikenda community of coastal
Kenya, by a man found guilty of seducing another man’s wife. There are instances where it has
been abused through set ups and extortion.747 Lastly, the line between an out of court settlement
in an IFCSA case, and blackmail can at times be thin. This was explained by an incarcerated
convict who had been offered a chance by the family to pay compensation as consideration for not
744
Ruiru, ‘Gathoni WaMuchomba’ http://www.ruiru.co.ke/places/kenya/kiambu-county/ruiru/people/gathoni-
wamuchomba/ accessed 24 January 2019.
745
Interview with Stephen Gitau, Kwale County Coordinator of Children Services (Author’s office in Mombasa on
14 April 2013).
746
Interview with Probation Officer, Naivasha (n 601).
747
Waki J in Ngoka v Madzomba Mombasa High Court Civil Appeal No 49 of 1999 [2002] eKLR.
193
reporting the case. He reportedly declined because he felt that what he was being asked for was a
bribe yet he knew he had not done anything.748
The concept of compensation in sexual offences is all the same not unheard of. It is practiced in
the United States under the head of Civil Settlement in rape cases. In this case, a complainant in a
rape case files a separate case in tort for sexual assault. When the tort case is settled, it is normally
on condition that the criminal case is withdrawn. 749 It however mainly applies to adults. It remains
untested in IFCSA cases where it may present practical challenges. For instance where the
perpetrator is the father, requiring him to transfer his money to the child victim by way of civil
compensation may impoverish the family and secure no immediate restitution for the child. It may
even disproportionately favor the child in relation to other children in the same family, and disturb
family cohesion no less than the family economy.750 Such a scenario would negate the very essence
of restorative justice. The perpetrator may also not have the ability to pay any compensation. In
the light of these complications the most viable option is to draw the compensation from the Victim
Protection Fund.751
Compensation would however be less complicated to implement where the IFCSA perpetrator is
someone other than the parent or guardian of the victim. In such a case, it can be paid into a trust
managed by the court or Department of Children Services until the child attains the age of eighteen
years. Periodic payments may however be released to cater for needs such as medical treatment or
education, or any other need that may serve the best interest of the child. Payment of the
compensation may then be used as a mitigating factor in sentencing.752 Currently, the Department
of Children Services has no mandate to manage any funds on behalf of child victims. The
realization of this proposal requires intervention at policy and statutory level. The establishment
of the nexus between compensation and length of custodial sentence would also require
amendment of the Sexual Offences Act which prescribes minimum sentences in sexual offences.
748
Interview with A K, Inmate Shimo la Tewa GK Prison (Shimo la Tewa Prison Premises, 16 September 2016).
749
W Hubbard, ‘Civil Settlement During Rape Prosecutions’ (1999) 66 University of Chicago Law Review 1231,
1232.
750
B. M. Dickens, ‘Legal Responses to Child Abuse’ (n 91).
751
Victim Protection Act (n 37) Sections 23-28.
752
Sentencing Policy Guidelines (n 495).
194
The nature of these statutory and policy interventions are discussed in the second and third parts
of this chapter respectively.
5.2.3 Diversion of Certain Categories of IFCSA

As mentioned in chapter three of this research, the Task Force on Alternative Justice System
established by the judiciary has commenced several pilot initiatives for diversion of cases to the
informal justice system. The degree of success in the use of alternative justice varies from one
region to the other. In regions where traditional dispute resolution systems are on the decline, the
authority of the elders is not always assured. Use of alternative justice in such regions is usually
challenging. On the other hand, in regions where traditional dispute resolution systems are deeply
entrenched, the courts are easily able to use the pre-existing panel of elders. The down side of this
arrangement is that the pre-existing panels are more difficult to monitor, guide or train. The general
test used by the courts to determine whether the elders can assume jurisdiction over a case or not
is whether the referral is in the interest of the victim. Where the victim of a crime does not either
voluntarily accept to participate in the process or cannot legally consent to participation then the
elders do not have jurisdiction.
Generally, the very thought of handling IFCSA cases in any other forum other than the court is
frowned upon and deemed as tantamount to letting the perpetrator get away crime. In particular,
any association of a legal response to IFCSA that involves IJS invokes a serious backlash. The
backlash is from diverse quarters including the FJS, the governance system, and the political
system. The issue of expanding diversion to any new area needs to be approached cautiously as
advised by the chairman of the Taskforce on Alternative Justice Systems:
If today there was a headline, RAPE CASE TAKEN TO WAZEE (elders), the next
day the Chief Justice will be saying, ‘No, you cannot do this.’ There would be
demonstration by (Federation of Women Lawyers, (FIDA). The next thing you
would be having parliamentarians making noise. We would have done a disservice
to the Alternative Justice System (AJS). In the short term, we need to seek to avoid
the backlash so that we do not nip it in the bud before it is fully developed and
before people have understood because many people have not taken the time to
understand, first and for most the reality that is the lived reality of a majority of our
people so that even when you formally deny it and come up with laws that formally
say that it should not operate, it just goes underground, and when it goes
underground often, it exists in a way that is more oppressive to a majority of people
especially women and children. And if you want to protect women and children,
we need to regulate them. When they are underground we cannot see them so we
195
cannot regulate them. For me the strategy would be to cultivate them in a way that
it will bring more understanding to more people so that it can intersect with FJS in
ways that are much more understood.753
The closest the Task force has gone in involving the elders in sexual offences is through the
impartation of knowledge and skills in capacity building trainings. The elders are trained on basic
issues like principles of human rights and the Constitution. The rights of women and children are
emphasized in these trainings as they are generally not prioritized in the traditional African setting.
Traditionally, these two categories are expected to follow proceedings passively. Emphasizing on
their rights creates awareness for the elders and enables them to take a human rights approach in
responding to cases on women and children brought to their attention.754 When these players are
seized of the relevant information, they are able to have more informed, frank and constructive
conversations around any subject including IFCSA. When persons who are esteemed in the society
openly discuss a subject that is seen as taboo, it has the added advantage of minimizing the stigma
around the issue. This may eventually translate into influencing the community to more freely
engage the FJS in matters of IFCSA.
This study has identified two types of IFCSA with the potential for possible diversion to IJS with
minimal backlash. The first one is where the victim and the perpetrator are both below eighteen
years. The second is where the IFCSA takes place between two related youths without a substantial
age difference between them and without use of coercion. The two considerations are therefore
absence of coercion and age difference. The second one is referred to by Kisanga et al as the
‘curious consenting youth’.755
With regard to the first type, where for instance a thirteen year old defiles his twelve year old
cousin, the case is usually handled under the Children’s Act as opposed to the Sexual Offences
Act. The former has entry points for diversion as seen from the variety of orders the court is
empowered to make as discussed in chapter three of this study. The Children Act gives wide
discretion to the court when dealing with child offenders including options of discharging,
probation, rehabilitation, parental guidance and counselling. These options are flexible enough to
753
754
Interview with C Muinde, Children’s Officer, Mombasa (n 600).
755
F Kisanga et al, (n 6).
196
involve informal justice players especially in rehabilitation and counselling. This would eventually
benefit the victim by avoiding the protracted adversarial process which often leads to re-
victimization.
With the curious consenting adult, the perpetrator may or may not be a minor but the age between
the perpetrator and the victim must not be substantial. For instance, there may be a case of a
nineteen year old having non-coercive sexual intercourse with their seventeen year old cousin or
niece. The use of the term ‘non-coercive’ as opposed to ‘consensual’ is deliberate as strictly
speaking, a child below eighteen years is incapable of consenting to sexual activity in Kenya. This
study proposes that such cases should be diverted to alternative justice for determination in a
manner that will result in a restorative outcome without incarceration. The rationale is that it is
improper to take the minor through the criminal justice process for applying their discretion to
participate in a developmental process of misguided discovery. What the two lack is direction and
sometimes understanding but should not automatically be submitted to the criminal justice process.
Outside the above two categories, there should be room for IJS processes to run alongside FJS in
appropriate cases provided it is not against the best interest of the child victim. An example of an
ideal scenario is where the perpetrator admits the offence or some elements of it and is willing to
submit themselves to both systems. They may for instance desire to engage the IJS for rituals to
accept them back to their community after engaging in IFCSA. The resort to IJS may also be
necessitated by the need to conduct rituals over a child borne out of the incestuous relationship.
Such collaboration should be embraced by the courts as it has the potential for a restorative
outcome. The outcome of the IJS can then be submitted to the FJS and used as a basis for plea
bargain and in arriving at a reduced sentence. This recommendation would necessitate amendment
of the criminal procedure code to extend the application of plea bargains to sexual offences. It
would also necessitate the amendment of the Sexual Offences Act in respect of imposition of
minimum sentences. The amendments would grant greater discretion to the presiding magistrate
in deciding the value of the IJS outcome vis-a-vis the sentence. The widening of the discretion
might result in quicker disposal of IFCSA cases and shorten the FJS process.
The process of having IJS working alongside FJS would result in a fluid and hard to define system.
It is however more progressive than the dogmatic hard stance of totally shunning the role of IJS in
IFCSA cases. The only consideration is that the same should, at all times, fall within the parameters
197
set out in Article 159 of the Constitution on the applicability of alternative dispute settlement
methods.
At a practical level, the main players in determining whether an IFCSA case should be diverted
would be the Sexual and Gender Based Violence Division of the Office of the Director for Public
Prosecutions (ODPP) in consultation with the Director for Children Services. The role of the latter
would be to carry out a social inquiry to ascertain the circumstances surrounding each incident. It
would be important to have a policy guideline from the DPP’s office directing investigators to
work in consultation with the children’s department right from the beginning in all IFCSA cases.
This study is alive to the limitations of IJS. First and foremost, it operates without reference to
other agencies that are core in responding to IFCSA. For instance IJS is not always keen on the
medical component of sexual abuse as they prefer to proceed silently. The study further confirmed
that the IJS representatives are people with no prior training in any field relevant to adjudication
of cases. Their propensity to occasionally come up with repugnant outcomes can therefore not be
ignored.
The other limitation is lack of uniformity in IJS within the country. It varies from one region to
another and it depends on whether it is in a multi ethnic urban setting or a mono ethnic rural setting.
There are some societies where IJS is deeply entrenched and therefore clear. Such societies know
before-hand exactly what happens in case of a certain infraction. There are some however who
may talk about customary settlement of disputes but no one is exactly sure what those customs are.
This has the potential for generating contradicting jurisprudence. The other danger of informal
justice system is its tendency to prioritize the interests of the community above those of the
individual. Whereas FJS is state centered, IJS is community centered. The best interests of the
child in IFCSA are hence not necessarily prioritized.756
The above limitations should however not be reason to totally dismiss the role of IJS in resolving
IFCSA cases. This is especially so since IJS is recommended to the extent that it is compatible to
FJS and not as its substitute. The solution to these limitations lie in having IJS closely supervised
by the courts and the interests of the child victim represented by a guardian throughout the process
756
Interview with Hon J Gandani, Principal Magistrate, (Mombasa Law Courts, 27 th July 2013).
198
in the same way as is the case in adoption proceedings.757 The supervision includes ensuring that
any rituals and other outcomes are not in conflict with the best interest of the child. In this way,
the victim will be able to enjoy the restorative values and processes peculiar to IJS with the
patriarchal concerns validly raised by feminists under close supervision.
In conclusion, diversion of any category of IFCSA needs to be preceded by policy and law reform.
As highlighted in chapter three, the dogmatic legal terrain within which IFCSA is responded to
impedes any form of creative intervention like diversion in appropriate cases. The legal bottlenecks
that need to be opened up in order to facilitate restorative responses include amendment of the
laws that have the effect of removing discretion to judicial officers with regard to sexual offences
specifically on minimum sentences. In need of amendment too is the law on plea bargain, age of
consent, the law limiting the jurisdiction of the |Children’s Court and the law and policy on the
mandate of the Department of Children Services. These amendments are discussed in the second
part of this chapter.
5.2.4 Need for Continuous Engagement with the Community

A key specificity discussed in chapter four is the tension around the issue of ownership of the
conflict in IFCSA cases. This is not peculiar to IFCSA cases as seen from the discussion in chapter
two of this study regarding Nils Christie’s presentation of conflict as property capable of being
stolen by the state.758 It is however more pronounced in IFCSA cases where, once reported, it
becomes strictly a matter between the state, the victim and the perpetrator. Every other person,
apart from witnesses and professionals, is excluded from the process. The main professionals
include lawyers, police, probation officers, children officers and judicial officers who usually
outnumber the victim and their families in any particular case. The problem is that these
professionals are often persons unknown and unfamiliar to the victim. The child victim therefore
goes through the criminal justice process closely surrounded by strangers. This arrangement
ignores the fact that IFCSA like other crimes, takes place within a pluralistic society where more
than one normative and legal orders co- exist. This study proposes the need to give more room for
participation of persons, other than the professionals, who are familiar to the victim. Such persons
757
Section 164.
758
N Christie (n 154) 8.
199
can be drawn from the IJS in regions where the role of community elders is recognized. As the
study has revealed, IJS is managed by persons of high repute and social influence within the
community. Apart from their presence offering a familiar front to the victim, these persons can be
of invaluable assistance within the FJS at various stages. They have the advantage of being able to
interact more closely with the victims, and hence more easily win their confidence than the
professionals are able to. They can, for instance, play a role in gathering the much elusive evidence
for use in the FJS, in procuring relevant witnesses to attend court, in inputting the sentencing and
in assisting in having the victim restored.
It is important for the immediate community to feel they have a stake in a conflict through active
recognition of their role and where possible, inclusion in the justice process. For a start, their role
in the identification of the perpetrators, arrest of the suspect and investigation of the IFCSA
offences can be more acknowledged and recognized. When a community feels involved from the
word go, they more readily volunteer information which often leads to the arrest and successful
prosecution of the perpetrator. The converse is true. When a community does not identify with a
process, they can resort to a conspiracy of silence. This makes it harder for the professionals to
successfully prosecute the case in court. In the isolated cases where the community has been
involved, the results have been useful to the FJS. In one case, a community elder explained with
pride the role he played in the arrest of a perpetrator of child sexual abuse by setting a trap for the
perpetrator who was a person known to the victim:
We gave the boy three pairs of trousers to wear and advised him to undress slowly.
When he was called upstairs, he started removing the trousers one by one slowly as
we had advised him. We caught them red handed when the boy had just removed
the third trouser.759
Community leaders also played a role in Republic v Nyawa Dongoi Mvurya. The IFCSA case had
been reported to the village Chairman. On weighing its complexity, he referred the victim’s family
to a local Child Rights Organization which in turn involved the Department of Children Services
who reported the case to Lunga Lunga Police Station and referred the victim to Msambweni
District Hospital.760 This is a perfect example of the benefit of IJS working closely with the FJS.
759
Interview with village elder, Old Town Mombasa (At Author’s office 22 July 2013).
760
(n 577).
200
Community leaders can also assist the FJS in understanding the harm caused by a particular IFCSA
act to the individual victim, their family and the community at large. This information can assist
the court in the victim impact assessment before sentencing. Although section 33 of the Sexual
Offences Act does not specify who should produce victim impact statement report, traditionally,
the court only considers the reports by professionals or the child victim. The court can take
advantage of the non- specification in the statute to bring on board community leaders and gate
keepers to give their input. The report by IJS can be oral or written highlighting the social impact
of the abuse on the victim, the state of the victims’ livelihood, their family situation and how the
abuse has been perceived by the community. Such a report can then be considered alongside any
that may be filed by professionals like children officers, probation officers, and counselors. This
would leave the court with a bigger and more credible picture of the issue before it and pronounce
an outcome that resonates with the needs of the victim and the community they belong to.
Involving the community in the FJS has other benefits beyond creating a familiarized atmosphere
for the victim. It makes it easier for the victim to be integrated into the community and publicly
assigns the shame and blame rightfully to the perpetrator at the end of the trial process. This was
well captured by the Judge:
The rest of the community may not even sympathize… the way they talk and look
at you thereafter it becomes like you are now like an outcast. But if communities
are involved…the taboo related stigma will be to the rightful person, the perpetrator
who will be treated as an outcast and if the IFCSA results in a pregnancy, the
child born in that kind of situation is taken elsewhere as the child cannot be brought
up in that same family. This can help people stop engaging in it because they know
that if this comes out, it is such a taboo that I’ll be an outcast in the community. So
being an outcast in the community is such a big punishment that it is a big
deterrent.761
Involvement of community leaders might also create pressure to a perpetrator to acknowledge their
wrongdoing and take responsibility for their actions. This may lessen the psychological burden on
a victim who often condemns themselves as somehow to blame for the violence against them. 762
761
Interview with Okwengu J (n 578).
762
Email from Mumbi Ngugi, J (n 621).
201
At a practical level, a good entry point for identifying non- professionals who can assist the FJS is
through the court users committee. These are organs of the National Council on the Administration
of Justice created under section 34 of the Judicial Service Act. They comprise all court users
including non- legal community players. They provide an avenue for consultation on issues around
administration of justice in order to improve performance and service delivery. This is in response
to the need to coordinate responses to criminal and other justice issues by the Judiciary.
Community leaders are represented in these committees which provide an entry point for
participation of ordinary members of the public in the justice processes. They form a ready pool
and point of contact for non- professionals whenever their input is needed in an IFCSA case.
5.3 Legislative Intervention
As mentioned severally in this thesis, accommodating restorative justice practices and values will
require rethinking the criminal justice legislative framework. This resonates with the goal of
therapeutic jurisprudence which is to redesign law in order to minimize its anti-therapeutic effects
and increase its therapeutic potential.763 The need for legislative intervention is best captured by
the immediate former Chief Justice when expounding on the entry points available for restorative
justice during the interview with the author:
These extra-judicial methods may have a role to play in the expeditious resolution
of the family conflicts without the trammels and formalities that characterize the
inherited legal tradition. It should be remembered that a laborious and drawn out
court process itself may stigmatize and traumatize a child victim. There is therefore
need for a mental shift and a rethink of criminal justice processes as a business
between the state and the offender only. So we must rethink all the laws in our
statute books and their common law provenance to reformulate them to comport
with our national values and principles.764
The following part discusses the legislative intervention required to make the criminal justice more
amenable to the application of restorative justice.
5.3.1 The Children Act
763
B J Winick, ‘Therapeutic Jurisprudence and Problem Solving Courts’ (n 694) 1063.
764
Email from Willy Mutunga, (n 651).
202
The Children Act establishes a children’s court which has limited jurisdiction. In criminal cases,
the court has jurisdiction to handle all cases where the perpetrator is a minor, apart from instances
where they are charged with murder or alongside an adult.765 The only instance where adult
perpetrators are tried in the children’s court is where they are charged for an offence under the
Children Act.766 All other cases including those involving child victims are tried in the ordinary
courts. The children’s courts are more child-friendly. They are obligated by the law to sit in a
separate building or rooms, or at different times, from those in which other courts are held. They
also maintain privacy by excluding third parties from the proceedings.767 IFCSA cases only fall
under the jurisdiction of the children’s court where the perpetrator is below eighteen years. The
rest are handled in the ordinary courts. This therefore means that a lot of IFCSA victims miss out
on the much needed protection when their cases proceed away from the children’s courts. They
equally miss out on having their cases heard by a judicial officer who is appointed, and often
trained, to handle children’s cases as is the case with the judicial officers in the children’s courts.768
An amendment of the Children Act to expand the jurisdiction of the children’s court to include all
cases involving child victims would therefore be useful in enhancing protection of IFCSA victims.
The children’s court would also be an ideal setting to apply the therapeutic values discussed at the
beginning of this chapter. An alternative amendment would be to restate all offences in the Sexual
Offences Act involving children as victims, in the Children Act. This would then place them
directly under the jurisdiction of the Children’s court. Even with the amendment, the benefit of a
children’s court would only be optimized if it is manned by judicial officers whose appointment is
well thought out. This was well unpacked by Okwengu, J:
With courts, I belong to the old school. I do not agree with what has been done in
the judiciary where every magistrate is a children’s magistrate. I don’t think that
works very well. Children’s magistrates need to be specialized magistrates who
really understand issues of children and are really able to relate to children and have
a heart for it. For example there is a magistrate in Nakuru who is doing very well
in the children’s court there. We also have two or three here who are in the
children’s court who are doing very well. They exhibit that passion. That’s the kind
of thing I would expect of the children’s court. But where you are having this
business of every magistrate being a children’s magistrate, they are not interested
765
Section 73.
766
Section 73 (c).
767
Section 74.
768
Section 73 (d) (2).
203
in those cases. They are more interested in the big cases which either have
interesting legal issues or provide more exposure for them or they are like me and
find them frustrating and would rather give them to someone else. In Nakuru they
had a very good system whereby any matter involving a child would go to a
particular court even when the accused is an adult and victim is a child. The system
was working very well then another Chief Magistrate went there and decided that
all serious offences will go to court number one. The advantage of specialized
courts is, one, they move faster there so you are not keeping them for too long;
whether they are offenders or witnesses. Secondly, there is that professional way of
approaching the issue. It is child centered. In case of child incest cases, they can be
heard in these children’s courts with specialized magistrates/personnel and a child
friendly environment.769
A more far reaching statutory intervention would be the creation of special courts for IFCSA cases
only. This would be something akin to the existing anti- corruption courts that deal specifically
with economic crimes and maritime courts. The general feeling, as captured by a legal practitioner,
is that this is well overdue:
We have a children’s court, we have an anti- corruption, we have a land judicial,

we have a labor but we don’t a special court that is sensitive to the issues or factors
that are of concern to the victim or even to the perpetrators. For me the purposes of
for example having a labor court is to expeditiously determine cases but then we do
not have a court that would expeditiously determine sexual related cases or such
like cases. So for me I think that is one thing that I think needs to be put in place.770
It has however been argued that the work load of IFCSA cases does not justify the establishment
of special courts.771 This study therefore proposes the amendments that will allow all IFCSA cases
to be heard in children’s courts as opposed to creation of specialized IFCSA courts.
Once the IFCSA case is in the children’s court, recognition of the child victim as a vulnerable
person can give them additional protection. Though both the Victim Protection Act and Sexual
Offences Act provide for vulnerable victims/witnesses, the identification of the same is left purely
to the discretion of the court.772 There is need for statutory intervention to confer an automatic
right to an IFCSA victim the status of a vulnerable witness. This will allow the court to treat them
as such right from the time of plea and to avail them benefits they are entitled to. 773 The
769
770
Interview with Allan (n 613).
771
772
S 17 VPA and s 31 SOA.
773
SOA (n 34) Section 31 (4).
204
presumption should be that they need protection and support unless the children’s department
states otherwise. Having IFCSA cases heard and determined in the children’s court would
guarantee their privacy which is an important component of restorative justice.774
This study has divulged that due to the influence of patriarchy and associated stigma, many IFCSA
cases are detected and/or reported by non- family members like teachers and neighbors. It is
reasonable to imagine that many cases go unreported. There is no mandatory obligation on anyone
with knowledge of the existence of a case of child abuse to report the offence. The Children Act
provides that ‘any person who has reasonable cause to believe that a child is in need of care and
protection may report the matter to the nearest authorized officer’.775 Making reporting of IFCSA
cases a mandatory duty would contribute in assisting IFCSA victims access justice as those who
deal with the children more closely like teachers, will be more cautious as they will not have the
luxury of opting to ignore the abuse. The mandatory duty to report has been enacted in other
jurisdictions where relevant statutes impose a duty on all public authorities that work with children
and families to support parents and custodians and must refer the child and the family to the child
welfare services where necessary.776
Attaining the uniformity of having all IFCSA cases heard in the child friendly children’s court will
require harmonization and synchronization of offences in the Children Act with similar ones under
the Sexual Offences Act. As discussed in chapter three of this study, the Children Act classifies
abused children like IFCSA victims as ‘children in need of care and protection’.777 The penalty for
cruelty to and neglect of children under the Children Act is a fine not exceeding two hundred
thousand shillings, or to imprisonment for a term not exceeding five years, or to both. This is too
lenient compared to sentences for similar acts in the Sexual Offences Act which range between ten
years and life imprisonment. The harmonization will be achieved through amendment of the
Children Act to enhance the sentences the Children Act.
774
Daly (n30) 2.
775
Section 120 (1).
776
Child Welfare Act, 2007 (FINLAND) section 2 (2).
777
SOA section 119 (1) (n).
205
5.3.2 Age of Consent
Whereas IFCSA is undeniably an extremely reprehensible act, the circumstances under which it
takes place vary. In practice, therefore, it is possible to unpack various categories of victims based
on the gravity and circumstances of the act. The main variants as far as gravity is concerned are
the relationship between the victim and the perpetrator, their age difference, and the use or absence
of force, coercion or undue influence. Some categories of IFCSA may be more amenable to a
restorative response than others. Unfortunately, the legal framework makes no recognition of these
variations. The law is particularly rigid on the age of consent as anyone below the age of eighteen
years is deemed a child. The age of consent is the minimum legal age at which a person is
considered to possess the necessary maturity to competently consent to sex. Just like the minimum
age of criminal responsibility, there is no universally accepted age of consent. In Kenya it is
eighteen years. Any person below the age of eighteen years is a child hence incapable of giving
consent to sexual activity. Whenever it happens, one of them, usually the male, is charged with a
sexual offence. According to Ngugi, J, this is based on strict dogma that does not add value:
I feel strongly that our justice system is oppressive in denying agency to people
who actually have agency because we are very categorical and dogmatic about it.
We say a child under eighteen years cannot give consent and therefore we assume
that because they cannot give consent they have no agency whatsoever but those
are two different things. We have to loosen on dogmas.778
In the context of IFCSA, the complication arises where adolescents or young adults who are
related, mutually agree to have sex. This category of non- coercive adolescent sex between close
relatives needs to be isolated and responded to separately. Much as, legally speaking, a person
under eighteen years is incapable of consenting to sexual activity, it is critical to acknowledge that
some of the IFCSA may be carried out pursuant to an agreement between the parties concerned. It
is not unheard of for say, a sixteen year old engaging in non- coercive, ‘consensual’ sexual activity
with their nineteen year old uncle or cousin. Under the FJS, this amounts to defilement punishable
by a minimum sentence of fifteen years imprisonment as the sixteen year old is deemed to be
legally incapable of consenting to sexual activity.779 When such a case is processed through the
778
779
SOA (n 34) Section 8(4).
206
FJS, chances of procuring the cooperation of a victim who perceives the act as having been
‘consensual’ are minimal. A reasonable approach in this case would be to divert the case to the IJS
as proposed earlier in this chapter. This is however is not possible within the rigid legal framework
that is categorical on the legal capacity of a person below eighteen to consent to sex. There is hence
need to unpack and categorize IFCSA based on the age of the child and the circumstances
surrounding the sexual encounter. The legislative intervention above will, inter alia, create more
opportunities for diversion as proposed in part one of this chapter.
The recommendation to unpack and categorize IFCSA is not original to this study. A similar
approach was alluded to in respect of general child sexual abuse by Kisanga in his report on
‘Parents’ Experiences of Reporting Child Sexual Abuse in Urban Tanzania.780 In his study, he
came up with four categories of victims of child sexual abuse. These include ‘the innocent child’,
who is the vulnerable young child exposed to an adult perpetrator; ‘the forced sex youth’ who is
an older child who finds themselves in a compromising situation then gets overpowered by the
adult perpetrator, ‘the consenting curious youth’, who finds themselves engaging in sexual activity
with a peer, and ‘the transactional sex youth’ who engages in sexual activity for favors. He calls
for a more reconciled notion of childhood when dealing with ‘the consenting curious youth’. When
confronted with the facts, the youth denies the occurrence of the sexual abuse and often refuses to
participate in the court process.781 He opines that when it comes to the curious consenting youth,
having a law forbidding sex before the age of eighteen can be perceived as too rigid, especially if
the perpetrator is of an age mate. The decision to prosecute in these circumstances usually comes
from the parents of the girl who rush to the law for fear of losing parental control.
Using the above categorization, the example of the sixteen year old child would fall in the category
of ‘the curious consenting youth’ in respect of which this study proposes a diversion to the IJS. It
is with regard to the curious consenting youth that the age of consent should be interrogated. The
Court of Appeal has also posed the question as to ‘whether it is proper for courts to enforce with
mindless zeal that which offends all notions of rationality and proportionality’ in reference to
780
F Kisanga, et al (n 6).
781
Ibid 487.
207
imprisonment of a young man for discretional sexual intercourse with her slightly younger teenage
girlfriend.782
Some respondents in this research proposed that the age should be revised within the range of
fourteen to sixteen years.783 This is however a sensitive topic in Kenya and it has previously raised
public outcry and should hence be approached cautiously.784 It is for this reason that Okwengu J
cautioned that:
It is not about going to parliament and presenting a law. You need first to make
people understand that we have a problem and what the problem is before you come
up with the law. When it is rejected, going back to convince people will not be
easy.785
This particular amendment should hence be preceded by intense civic education in the community
followed by consensus building. In the alternative, a more acceptable approach would be to grant
wider discretion to the courts dealing with two children engaging in discretional sexual activity
intercourse and even extend to ‘perpetrators’ aged up to twenty one years. The discretion would
allow the court to avoid the unfair consequences that are inherent in n critical enforcement of the
Sexual Offences Act by considering the circumstances of each case. This would of course require
amendment of the Sexual Offences Act.
5.2.3 Plea Bargain and Minimum Sentences
The implementation of restorative outcomes discussed above in part 5.2.2 above requires the
application of wide discretionary powers by a judicial officers at the time of sentencing. This brings
to the fore the twin issues of plea bargain and minimum sentences. Although addressed in different
statutes, the two are interrelated as a plea bargain is meant to lead to a reduced sentence.
Unfortunately, the use of both in sexual offences is fettered by statute due to historical reasons.
One mischief that necessitated the enactment of the Sexual Offences Act was the meting out of
very lenient sentences that were not proportional to the gravity of the sexual offence. This was
remedied through the imposition of minimum sentences. The minimum sentences do therefore
782
Eliud Waweru Wambui v Republic Nairobi Court of Appeal Criminal Appeal No 102 of 2016 (unreported)
783
Group Interview Nyali Police Station (n 574).
784
R Odhiambo, ‘Law Proposes Reduction of Consensual Sex Age from 18 to 16’ http://www.the-
star.co.ke/news/2016/12/20/law-proposes-reduction-of-consensual-sex-age-from-18-to-16_c1476072 accessed 30
January 2017.
785
208
have their place and are justifiable in extreme cases for example involving children of tender years
defiled by those much older adults. Imposition of minimum sentences however extinguished the
judicial officers’ discretion in sentencing offences under the Sexual Offences Act. 786 Plea
bargaining is, on the other hand, prohibited by the Criminal Procedure Code with regard to sexual
offences for similar reasons.787 The combined effect of ousting plea bargain and imposing
mandatory minimum sentences in sexual offences has been viewed as counter- productive by some
critics:
The categorical exclusion of sexual offences from plea bargaining and sentencing
is part of our dogmatic thinking and thinking that the more dogmas we have the
more effective our legal system will be but time has proved us wrong. It does not
necessarily bring efficiency or effectiveness in our systems.788
The two have the effect of denying courts the opportunity of intervening in deserving
circumstances like the above discussed consenting curious youth who engages in non-coercive
sexual acts with a relative of the same age group. These have been referred to as ‘victims who are
not really victims’. The Sentencing Guidelines encourage judicial officers to infuse restorative
justice values in the sentencing process.789 This however remains out of reach for IFCSA and other
offences under the Sexual Offences Act as they are insulated by the minimum mandatory
sentences. Removal of the legal barrier to discretion in sexual offences will avail the court
opportunities to respond to IFCSA creatively as discussed in part one of this chapter. One victim
proposed that the punishment should be calibrated around such considerations as the gravity of the
offence, the age of the victim and the surrounding circumstances.790 This view is strongly
supported by Okwengu, J who argued as follows:
It is the court that gets to understand the circumstances of the offence and it is the
one to weigh and decide the right sentence to impose. Removing discretion from
the court and handing it over to the legislature is tantamount to interfering with the
court system. I have come across many young people serving sentences of twenty
years and more because of sexual offences. Many of them are young adults,
eighteen, nineteen, twenty to twenty one years and the girl may be seventeen,
sixteen. At times even a fifteen year old can look big. Those are the people who are
786
N Ndungu, ‘Legislating Against Sexual Violence in Kenya: An Interview with the Hon. Njoki Ndungu.’
Available at https://www.ncbi.nlm.nih.gov/pubmed/17512386 accessed 7 May 2018.
787
Section 137.
788
789
Sentencing Policy Guidelines (n 495).
790
209
landing in prison with those long sentences. If we are not careful we might end up
losing some age group there that is landing in prison. And now, what is the purpose
of those sentences? It is just to lock them up and completely forget them or are we
trying to rehabilitate them when they are in prison or are we trying to protect the
victims? I do not quite understand those long sentences. I think there should be
some measure of discretion.791
There is therefore need for amendment to enable the court distinguish the various categories of
child abuse as proposed by Kisanga. It will then consider such issues as the age difference and
absence of coercion in some IFCSA cases that may then benefit from restorative outcomes beyond
incarceration.
5.3.4 Bail
Bail is a constitutional right in Kenya.792 Any attempt at limiting this constitutional right would be
null and void ab initio. The victim on the other hand also has an equally important right to
protection from re-victimization during the trial process. There is therefore need to ensure that the
legal framework sufficiently balances the two rights. A major apprehension by radical feminists
with regard to use of restorative justice in sexual offences is the possibility of re-victimization.793
One of the ways in which a victim of IFCSA may feel re-victimized is through constant encounter
with the perpetrator during trial. The rest of the community including potential witnesses may also
feel intimidated and conflicted when they see the victim and the perpetrator in the same
environment soon after taking plea and during the pendency of the case. It would be important for
the victim and the community to be sufficiently involved in the proceedings preceding bail
decisions in IFCSA cases. One of the possible channels of involving them victim is through a
social inquiry. Unfortunately this is not a mandatory requirement. A statutory amendment to make
social inquiry a mandatory precondition for every bail determination in IFCSA cases would rectify
this concern.
The Bail/Bond Policy Guidelines provide for bail hearings where the prosecution opposes a bail
application or where the court deems it fit.794 The bail hearing involves enquiring into the
791
792
Article 49 1(h).
793
Acorn (98) 224.
794
Judiciary, Bail and Bond Policy Guidelines, Policy Direction 4.25 available at
https://www.judiciary.go.ke/download/bail-and-bond-policy-guidelines/ (accessed 7 May 2018).
210
circumstances of the accused. Bail can then be denied if the court makes a finding that there are
compelling reasons to do so. One of the compelling reasons is where the accused is found capable
of endangering the safety of the victim, any individual or the public.795 In IFCSA cases, the accused
normally has the opportunity and means to endanger the life of the victim as they are often
members of the same household. This study therefore proposes statutory intervention that makes
bail hearing compulsory in all IFCSA cases.
The other area in need of statutory intervention in bail procedure is the role of the Department of
Children Services. This study proposes a more central role for them than the peripheral one they
currently play. In the policy, the department only features with regard to the single duty of
supervising remand homes and places of safe custody.796 The Bail Report for instance is solely
prepared by Officers of Probation and After Care Services without necessarily the input of children
officers even in cases involving children. Statutory intervention making it compulsory for
probation officers to procure the input of children’s department in pre bail hearings involving
IFCSA cases will ensure that the child’s best interests are well captured in the bail report. This is
because the child’s interests are not always represented by the adults in the family who are usually
the target respondents in the enquiry by probation officers.
On the issue of bail terms and conditions, the court has power to require an accused person to move
from their usual residence duration of the trial as a bail condition.797 This power is exercised at the
discretion of the judicial officer. This study proposes that the condition should be mandatory in
IFCSA cases. This will ensure that the child victim is not burdened with the inconvenience of
being relocated away from the home to avoid being in the same household with the perpetrating
relative. This is especially important because it is not unusual for child victims to be kept in police
stations or remand homes together with children in conflict with the law without arrangements for
formal education. When the case drags on for long, they miss school for a long time. 798 This was
the plight suffered by child victims YM and SN who could not continue staying at home during
the pendency of their case for their own protection.799 The Department of children services should
also play a statutorily recognized role in bail supervision in IFCSA cases to ensure there is no
795
Ibid Policy Direction 4.26 (a) d
796
Ibid, Policy Direction 6.27.
797
Ibid Policy Direction 4.31.
798
Interview with Probation officer, Kwale (n 573).
799
(n611) and (n632).
211
interference. For example a perpetrator may be excluded from a residence he shares with a victim
but still pursue them in school.
The impact of the statutory intervention will ultimately depend on the support given to these
resilience building institutions by the executive through budgetary allocations, policies and overall
political will. This is the gist of the discussion in the following part.
5.4 Executive Intervention
As highlighted in chapter four of this study, IFCSA is an atrocious act that leaves in its trail great
harm to the victim and their families. The harm ranges from physical bodily harm, psychological
harm, compromised security and deprivation of livelihood. It is not possible to comprehensively
discuss restorative justice without prioritizing the need to redress the harm to the victim. There
has been a trend of moving away from entirely focusing on punishing the offender towards
consolidating the rights and interests of the victim. This is the spirit behind the recently enacted
Victim Protection Act which has a plethora of restorative rights for victims. It provides a blanket
right to be secured from further harm at the earliest possible stage. This includes sheltering the
victim in a safe house, providing them with food and shelter until their safety is guaranteed,
providing them with urgent medical treatment and psychosocial support.800 The Act also creates a
Board that is mandated to advise the Cabinet Secretary concerned on inter-agency activities aimed
at protecting victims of crime and the implementation of preventive, protective and rehabilitative
programs for victims of crime.801 As far as the implementation of the rights of the victims is
concerned, the Board is mandated to provide support services to the victim to enable them deal
with physical injury and emotional trauma, access and participate in the criminal justice process,
participate in restorative justice to obtain reparations, and cope with problems associated with
victimization.802
On the face of it, the courts are now substantially equipped with a legal framework together with
a body to give directions to for the protection of the rights of all victims. It is however apparent
800
Section 11.
801
Section 32.
802
Section 14.
212
from this study that restoring a victim of IFSCA requires much more than a legal framework and
institutions. There is need to strengthen institutions responsible for building and sustaining the
resilience of IFCSA victims. This need resonates with the goal of vulnerability theory which calls
on the state to make policies which focus on people on the basis of their vulnerability to a specific
threat.803 There is also need for political will which is should be evident from the budgetary
allocation, prioritization and by the policies put in place by the executive on matters regarding the
health, security and welfare of victims. Actualizing the restoration of an IFCSA victim therefore
requires both creativity and commitment of resources by the state.
Article 19 of the CRC already mandates Party States to:

take all appropriate legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.
The Convention goes further to unpack the measures to include provision of effective procedures
for the establishment of social programs to support the child and for those who have the care of
the child, as well as treatment and follow up. A call to the executive to take up the role of
supporting the legal framework by providing the necessary resources is hence not far- fetched, or
out of order. These are the kind of interventions that Dignan refers to as restorative justice practices
and policies’.804 They are the subject of discussion in this part through addressing the policy gaps
in the health, safety, lifestyle and institutions needed to restore IFSCA victims.
5.4.1 Restoration of Health

IFCSA commonly carries with it substantial psychological and physical suffering to the victim.
The common denominator in all IFCSA cases is the health concerns arising from each case. They
vary in degree of gravity but they are a certain corollary. This study perceives the concept of health
broadly as per the definition of the World Health Organization (WHO). It describes health as a
state of complete physical, mental, and social well-being and not merely the absence of disease or
803
N A Kohn (n 282) 23.
804
J Dignan, (n 334) 3.
213
infirmity.805 The health of an IFCSA victim that is the subject of restoration in this study includes
their physical, mental and psychological wellbeing.
IFCSA victims usually require immediate medical attention as their health concerns often involve
grievous bodily harm and pregnancy. The most accessible institutions to them are government
sponsored health facilities. These are usually poorly maintained and in less than satisfactory
condition.806 They are also understaffed which prolongs the waiting period before they are
eventually attended to. As much as the treatment in the public health facilities is free or affordable,
accessing treatment is bedeviled by many challenges. Taking the example of the main public health
care facility in the coast region, the Coast General, it is not uncommon to find an IFCSA victim
referred for medical investigation or surgical procedures that are not immediately available in that
institution. The reason for the non- availability ranges from breakdown of equipment to delayed
procurement of laboratory agents. In such cases, the victim must go to a private hospital at their
own cost. The many who cannot afford go home unattended and at times live with life-long
complications.807
The issue of inadequate medical facilities and personnel is compounded by the fact that IFCSA
cases compete for attention with other health issues which are rated as more of emergencies.
IFCSA health cases are therefore relegated on the priority list as explained by a staff member of a
Gender Based Violence Recovery Center:
If an accident victim is wheeled to a casualty and finds a child who has been
sexually abused by the father being attended to, most likely the child will have to
step out. It is not considered an emergency although urgent medical treatment is
important even for preservation of evidence.808
Apart from the physical health, psychosocial support is critical in IFCSA cases. Some of the
psychological harm of IFCSA may remain unnoticed for years only to be detected later on in adult
hood through change in personality or character.809 When provided, the victims have to travel long
distances, at their own cost, to access the services. The services are also not available until full
805
Available at http://www.who.int/governance/eb/who_constitution_en.pdf accessed 7 May 2018.
806
R Muga, P Kizito, M Mbayah, and T Gakuruh, ‘Overview of the Health System in Kenya’ (2005) Demographic
and Health Surveys Available at https://dhsprogram.com/pubs/pdf/spa8/02chapter2.pdf accessed 7 May 2018.
807
Interview with C Muinde, Children’s Officer Mombasa (n 600).
808
Interview with Elizabeth Aroka, (n 592).
809
Interview with Advocate Allan Nyange (n 613).
214
recovery due to the need for the same support to be offered to new cases. The major challenge
however is the fact that trauma counseling at the public facilities is only available to the primary
victims. This means that in case of IFSCA, the affected parents and siblings are left out. This is
despite the fact that there may be instances where a family member’s trauma may be even more
pronounced than the primary victim’s. Often times the mother and the siblings of the victim
naturally get traumatized. Due to the gendered nature of the abuse and the influence of patriarchy,
the mother is usually more affected especially where the perpetrator is her husband or a relative
from the husband’s side of the family. When the mother is affected psychologically, the entire
family is impacted. This category is left out of the recovery process due to omission by the state.
Isolated initiatives have been made to improve access to medical health through private public
partnerships between the government and private entities. One success story is the partnership
between the Ministry of Health, and the International Center for Reproductive Health. This has
resulted in a Gender Based Violence Recovery Center (GBVRC) at the Coast Referral and General
Hospital in Mombasa established in 2006. This single unit serves a population of over two million
residents. It was, however, an initiative of the International Center for Reproductive Health not the
government of Kenya. The Ministry of Health only provided an old kitchen for renovation and use
and also seconded some staff. The facility was otherwise fully equipped by ICRH. Save for these
kind of initiatives, it is clear that the government does not, on its own, prioritize sexual offences
including IFCSA.810
The primary responsibility to provide health care for victims of violence including IFCSA rests on
the state. It is incumbent on the state to ensure that health facilities are accessible to all residents
on need basis. Relying on the goodwill of donors for healthcare of IFCSA has resulted in
unplanned haphazard centers. Whereas they are useful in serving victims within their immediate
reach, it does very little in addressing the health restoration needs of IFCSA victims at the national
level. Without commitment by the executive to provide adequately equipped and accessible health
facilities, the journey of restoration and holistic justice for an IFCSA victim can hardly commence.
810
Interview with Advocate Elizabeth Aroka (n 592).
215
5.4.2 Restoration of the Victim’s Safety
When presented with the question, ‘According to you, what is justice for the victim?’ two of the
respondents stated that it is securing the safety of the IFCSA victim by taking them to a shelter so
that they are never abused again.811 The situation regarding the state’s commitment towards
ensuring the safety of an IFCSA victim is as wanting as the health situation discussed above. By
virtue of the fact that IFCSA takes place within the home, the place ceases to be a safe haven
especially for the victim during the pendency of the case. The very person who was expected to
protect the child becomes the violator. There is therefore need for innovation of creative ways to
guarantee the safety of the child victim. For now, state owned shelters for IFCSA victims are non-
existent and wishful thinking as wished for by a senior judge:
I wish the government had something like we have in developed countries whereby
the child will be given some kind of protection and completely removed from that
environment, taken to some other place and given a second chance to overcome
that problem and start afresh somewhere else. When the child is in a rescue center
she finds others and gets comfort as you find others who are like you, you are not
alone, you are able to share with them and hopefully when you get that help to be
able to get back on your feet, you are able to develop some confidence in yourself
and you can move on. This is of course at the expense of family ties.812
The lack of Safe Houses and Shelters becomes problematic immediately an IFSCA offence is
detected and/or reported. When thirteen year old SN escaped from her abusive father’s house, she
met a stranger whom she asked for direction to the bus station. The stranger instead took her to the
police station. The police kept her locked up in the cells for two days as they had nowhere else to
take her. She shared the cell with adult female suspects, one of whom she learnt was alleged to
have stolen.813 Fifteen year old YM was also held in a police station for four days as she could not
go back home after her father’s arrest. Though she was five months pregnant, she slept on the bare
floor and shared her cell with among others, an adult female murder suspect:
We were two girls and one woman in that police cell. This woman had two
children. The girl in the cell had also been defiled by her father. The woman with
811
Group Interview at Nyali Police Station (n 574).
812
813
Interview with SN (n 632).
216
two children was there because she had killed her husband. I used to pray that I be
released from the cells.814
The few children’s homes that exist are privately owned and only offer short term accommodation
to children found to be in need of care and protection most of whom are those found begging. 815
In fact, many IFCSA victims like SN are placed in remand homes where they share facilities with
children in conflict with the law.816 Just as in the case of healthcare, the state relies on private
organizations, churches and charitable Non- Governmental Organizations for provision of shelters
and safe houses for IFCSA victims. The problem of relying on the private sector is that their homes
can close down with little or no notice as they do not rely on government funding. The ideal
situation is that every county should have at least one rescue center. Where none exists, a proposal
for partnership with existing privately run centers has been found to be a viable option as explained
by a children’s officer:
The government should provide existing centers with financial support pending the
construction of one. Government should ensure either there is a rescue center or
they support existing rescue centers and also ensure that the capacity is expanded….
like the one we have here in Tudor, ‘Mahali Pa Usalama’ (place of safety) can have
even more than one hundred children. There are enough facilities but the funds also
become a challenge. They are supported by the Catholic Church and the church can
only support up a certain level. So the government can decide that they are not
going to develop a facility but they will be supporting them. Like for every child
who comes they will take care of one, two, three for example education etc.817
Another viable proposal made in this study for the safety of IFCSA victims, in lieu of shelters, is
a system of fostering as explained by a judge:
But even in the absence of rescue centers, we could have a situation where we have
some kind of foster homes. Foster homes in the sense that I volunteer. I as a mother
whose children are gone and I have room in my house, if there is such a child, I can
volunteer. We have a register where people can volunteer to give such services free
of charge, pro bono. So that you give this child the assistance that she needs, the
protection that she requires at that point in time, and you have people who are
actually vetted and whom you know you are sure of and will not expose the child
to further abuse. That would help.818
814
Interview with YM (n 611).
815
816
Ibid.
817
Ibid.
818
217
Just like in the case of restoration of health, restoration of security goes beyond that of the primary
victim. The gendered nature of the offence and the influence of patriarchy often places the mother
and the rest of the siblings in need of protection from the extended family especially where they
are required to attend court as witnesses. There is therefore need for the state to also provide for
the safety of secondary victims of IFCSA.
There is hence need for the state to take up its responsibility to provide enough shelters, safe houses
or set aside a budget to support privately run homes or individuals willing to shelter IFCSA
victims. This will address the concern that associates the use of restorative justice in sexual
offences to the risk of compromising the safety of the victim. The provision of state funded shelters
is also compatible with the ideals of the women’s movement’s goal of removing offences related
to violence against women from the private to the public domain.819
5.4.3 Investing in Restorative Lifestyles

The impact that IFCSA has on livelihood calls for the incorporation of a restorative justice as a
lifestyle in the society. The perception of restorative justice as a lifestyle involves the application
of restorative values and principles in everyday interaction with people even outside the realms of
crime. This includes addressing what Van Ness and Strong refer to as ‘structural impediments to
wholesome, healthy relationships’.820 These impediments are the cause of structural imbalances in
the society which act as a double edged sword. They first present a fertile ground for IFCSA to
thrive and secondly, they eventually come in the way of an effective legal response. There is
therefore need to address the underlying socio economic factors that contribute to IFCSA. There
is also need for promotion of a social environment that will enable victims manage IFCSA more
effectively if it occurs. This calls for an approach of intentionally viewing the interaction between
child welfare and related social phenomenon with a restorative lens even when there is no conflict.
Having established in this study that IFCSA is prevalent enough to cause concern, it is incumbent
upon the state to come up with policies that are geared towards anticipating it and addressing it in
advance. A question posed to all the IFCSA inmates interviewed was why they engaged in IFCSA
in the first place. On the advice of the advice of the Deputy Commissioner of Prisons, the question
819
Brunildapali (n 241) 51.
820
218
was posed indirectly as, ‘why do people do it?’ None of the seven inmates interviewed took
responsibility. Most blamed witchcraft. Only one came close to taking responsibility by claiming
that his was caused by temptation by the devil. No wonder it has been said that parents who
sexually abuse their children are rarely exclusively motivated by sex but by behavioral problems
produced by circumstances. It is therefore argued that unless this ‘Achilles' Heel’ is recognized,
then the cycle of offending is likely to start again under similar stresses and circumstances.821
When a person serves a jail term without owning up to the abuse or taking responsibility, chances
of them repeating the offence are high. As long as incarceration remains the only outcome in our
legal system for IFCSA perpetrators, the problem will persist indefinitely. Though the perpetrator
is not the focus of this study, the state may need to consider intervening on behalf of the perpetrator
beyond incarceration. The benefit eventually accrues to the victim especially since they go back
to the same family at the end of the jail term. The jail term by itself does not, in any event, erase
kinship.
What this study proposes is for the state to invest in narrowing the power gap between the
perpetrator and the potential victim by empowering the victim. The empowerment can be done
through existing institutions. A good place to start would be in the education sector. Entrenching
sex education in the school curriculum can go a long way in creating awareness. There are
examples to borrow from. In Finnish schools, for instance, sex education starts at year four. In
Kenya, the idea would require deep reflection and wide consultation in view of general public
response to the stalled Reproductive HealthCare Bill. The Bill provides for sex education for
adolescents whom it defines as anyone between ten and seventeen.822 It proposes, inter alia, that:
The government facilitates the provision of adolescent- friendly reproductive health

and sexual health information and education develop policies to protect adolescents
from physical and sexual violence and discrimination including cultural practices
that violate the reproductive health rights of the adolescents; and facilitate
adolescents’ access to information, comprehensive sexuality education and
confidential services.823
821
G McKeever, ‘The Punishment of Parent-Child Sexual Abuse’ (1996) 47 N. Ir. Legal Q. 81, 85.
822
Draft Reproductive Health Care Bill Section 2.
http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2014/ReproductiveHealthCareBill2014__1_.pdf (accessed 7
May 2018).
823
Section 34.
219
The inclusion of provision of reproductive health care services to children as young as ten years
old has been met with a lot of hostility from a considerable segment of the society.824 There is need
to find middle ground between the draft and the society’s concerns to facilitate the rolling out
reproductive health services to children in a socially acceptable way. Empowered children will be
less likely to be taken advantage of by those close to them. They will also be confident enough to
report abuse when it happens.
Sex education may be strengthened further by regular free school based health care provided at
least once a year. This may present an opportunity for the children to discuss with trusted adults
anything that may be happening to them at home including IFCSA. This again is practiced in
other jurisdictions. In Finland for instance, the school health nurse sees children for regular check-
ups once a year. First-year, fifth-year and eighth year pupils are provided with a more extensive
but non- intrusive medical examination to which parents are also invited. Parents are also notified
of the yearly check-ups and are at liberty to attend if they wish. Personalized health advice is given
to support and promote mental health, independence, a healthy lifestyle and physical fitness.825
Lastly on the issue of lifestyle, there is need to interrogate a belief that was restated severally
during the field research. This is to the effect that IFCSA was rare or unheard of in the traditional
African households. If the belief is true, it would be useful to find out the reason behind it. At a
glance however, one aspect that existed in the traditional African family setting that is almost
becoming rare today is the enforcement of boundaries through the force of taboos.826 From the
discussion on livelihood under specificities of IFCSA, it is clear that IFCSA thrives where there
has been disturbance of certain social balances and boundaries. This may be through death,
divorce, relocation for work purposes, and shared housing. One victim more circumspect on why
she was abused by her uncles as a child, ‘Well I guess if I had been close to my mum I don’t think
anything would have happened to me but I think it happened because I was actually on my own’.827
824
G Gathura, A Oduor and F Kibor, ‘Fury Over Bill on Reproductive Health’ The Standard, (Nairobi, 20 June
2014).
825
Ministry of Social Affairs and Health, Child and Family Policy in Finland (2013) available at
https://julkaisut.valtioneuvosto.fi/bitstream/handle/10024/69916/URN_ISBN_978-952-00-3378-1.pdf?sequence=1
accessed 27 April 2018.
826
Interview with Advocate Wahome Gikonyo (n 576).
827
220
She was effectively blaming the abuse on under-parenting caused by the living arrangement in the
home.
Investing in restorative lifestyles has long term and far reaching impact. The Committee on the
Rights of the Child has remarked that preventing violence in one generation reduces its likelihood
in the next. It has gone on to assert that research shows that children who have not experienced
violence and who develop in a healthy manner are less likely to act violently, both in childhood
and when they become adults. Implementation of article 19 is therefore a key strategy for reducing
and preventing all forms of violence in societies and for promoting “social progress and better
standards of life” and “freedom, justice and peace in the world” for the “human family” in which
children have a place and a value equal to that of adults.828 This includes the child victim of IFCSA.
The state must therefore go beyond the constitutional declaration of the place of the family in the
society and invest more on its stability especially with regard to parenting and provision of
economic and social rights. The state should be able to anticipate and make provision for various
occurrences that affect the family like death, divorce, and relocation for work. Where poverty
forces families to disregard basic boundaries like on sleeping arrangement, it remains the duty of
the state to ensure access of the economic and social rights enshrined in the constitution especially
right to decent housing. This leads to the discussion below on the importance of strengthening
child related institutions.
5.4.4 Strengthening Child Related Institutions
The Nordic welfare states are generally considered to be responsive to vulnerability, through
systems where the state has the primary responsibility for the welfare of the population.829 The
primary institution that deals with the welfare of the child in Kenya is the Department of Children
Services. Since independence, the department has been relocated from one ministry to another at
the whims of the regime in power. It has been a department in each of the ministries, including the
Ministry of Home Affairs, National Heritage and Social Services, Ministry of Gender, Children
and Social Development, Ministry of East African Community, Labor and Social Protection, and
828
CRC General Comment No 13 (n 42) para 14.
829
V Strand & I Ikdahl, (n 284) 130.
221
currently in the Ministry of Labor and Social Protection. The constant translocation is
demonstrative of the level of political will the state has in prioritizing children’s matters. It is also
clear from the names of the various ministries that children issues are not their core function. This
is reflected in their budgetary allocations as discussed in chapter four. It is difficult for the
department to deliver on its mandate without sufficient support from the state. It needs a permanent
home positioned in a ministry that will prioritize its core mandate. If well positioned and funded
by the state, it will be able to play its role as a resilience building institution. This resonates with
the demands made by the vulnerability theory in calling for an analysis of state institutions to
ensure that the disadvantaged are not unduly underprivileged. This essentially puts pressure on the
state where there is absence of political will in securing the livelihood of certain categories of
people.830
A well- equipped and supported Department of Children Services will be able to play a bigger role
in child protection. Currently, the only social protection intervention carried out by the department
is the World Bank funded Cash Transfer Program for Orphans and Vulnerable Children (CT-
OVC).831 It is meant to assist the government provide a safety net for households living with or
taking care of orphans and vulnerable children. Currently, IFCSA victims do not fall in this
category. This study proposes extension of the category of vulnerable children to include IFCSA
victims even where they do not come from a needy family. This is especially where the bread
winner has been jailed because of committing an IFCSA offence.
Finally, there is a need for synergy between the Department of Children Services and other
government agencies in order to reduce trauma for an IFCSA victim. The absence of this synergy
was demonstrated in a case narrated by a children’s officer. The case involved an IFCSA victim
who had turned eighteen years and needed an Identity Card. She had been sexually assaulted by
her father who was arrested and remanded in custody as he could not raise bail. Unfortunately he
died while in custody and the family blamed her for his death. They banished her from the family
and burnt all her possessions so she could not get the relevant documents needed for her
registration. The children’s officer narrated her frustration in trying to assist the victim:
830
Strand (n 284) 130.
831
http://projects.worldbank.org/P111545/kenya-cash-transfer-orphans-vulnerable-children?lang=en&tab=overview
(accessed 8 May 2018). Or http://labour.go.ke/ovcsecretariat.html.
222
Now when this child wants a birth certificate, the same government says we need
documents of the parent and yet the family does not want anything to do with that
girl. Actually they burnt everything that belonged to that girl. So you will find that
the same government is exposing that girl to some more pain because they are
saying we cannot register you because we need your documents from your parents
and the family says no, we don’t want anything to do with her. So the government
systems need to….the ones who are working with children’s issues, they need to
work together. Especially if they are dealing with sexual abuse cases, they need to
work together. They need a birth certificate, they need an ID, they need a P3 all
those things because sometimes they are forced to pay for the P3 and they are
people who’ve been abused. So we need to have a proper coordination of the
government institutions.832
The synergy can be accelerated if the profile of the department of children services is
elevated to a point that it is taken as seriously as other government agencies. This cannot
happen without the support of the executive.
5.5 Conclusion
This final chapter has summed up the study by seeking to answer the question as to what entry
points exist for the application of restorative practices and values within the Kenyan criminal
justice system. These are only identifiable through creative engagement with the justice system in
order to come up with what has been described as ‘a midway process that is a product of the
dialectical process’.833 The resultant ideal process includes both retributive and restorative justice.
Such a system would focus, not just at the harm caused to the victim, but on how to restore the
victim for posterity. This midway system acknowledges the place of censure and condemnation of
the act done. It also calls for the need to put into consideration the context of the familial
circumstances in crafting the restorative response. This demands resource mobilization and
sufficient goodwill from all arms of government. The process and ultimate benefits of
incorporating restorative values, processes and lifestyles in IFCSA was summarized as follows:
Attempts could be made to do it creatively within the available means because it is

just about re allocation of resources through stakeholder collaboration. It would
take training and reformulating and creating an understanding but that would be
repaid by reduced costs downstream in terms of reduced time and overall cost to
832
833
223
the system it is all about reallocation of resources in the criminal justice system. If
we reallocated our resources with stakeholder collaboration, the kind of new model
victim centered method can happen. Initially there will be foregrounded intensive
course in terms of training and in terms of reformulating and in terms of creating
an understanding and so forth but I think that will be repaid by quite some reduced
costs downstream in terms of reducing time that it actually takes to deal with a lot
of these cases and in terms of overall costs to the system. A child whose human
rights are secured or guaranteed through this kind of a hearing whose victimization
is prevented and livelihood ensured is a child who is going to be less costly to the
system; less likely to cause trouble in school and less likely to have other psycho
social problems. The same thing with other members of that family. So in terms of
overall costs to the system, incorporating restorative justice is doable and it can be
beneficial.834
The effective incorporation of restorative justice in the formal justice system’s response to IFCSA
demands a paradigm shift that places the victim at the center of the justice process and ensures
they remain there throughout the process and thereafter. It should also be able to surmount all the
valid concerns evident in the specificities of IFCSA as well as those raised by feminists around the
issue of unequal power balance between the victim and the perpetrator. This is only achievable
through the active input of the three arms government in playing their respective roles to restore,
build and sustain the resilience of the victim of IFCSA through holistic justice as discussed in this
chapter.
834
Ibid.
224
CHAPTER SIX: RECOMMENDATIONS AND CONCLUSION
6.1 Overview
This study set out to interrogate the effectiveness of the legal framework within which IFCSA is
responded to in Kenya from the victim’s perspective. This has necessitated the unpacking of
IFCSA with the aim of distinguishing its impact from that of child sexual abuse by a non-family
member. The study has been carried out by interrogating restorative justice against the backdrop
of vulnerability theory, feminism, legal pluralism, and human rights standards. This has been
useful in realizing the overall goal of the study which is to explore entry points of restorative justice
values and processes in the criminal justice system. These values and processes have been drawn
from both the formal and informal justice system. The study has demonstrated that restorative
justice is a possible means of delivering a more victim-centred and holistic justice to the victim of
IFCSA.
The study was based on a four prong hypotheses as stated in chapter one. First, that IFCSA is
prevalent enough to cause concern and be accorded specialized attention. Secondly, that IFCSA
possesses peculiar specificities that distinguish it from child sexual abuse by a non- family member
and hence has a unique impact on its victims. Thirdly, that the legal framework under which IFCSA
is responded to is deficient and incapable of delivering holistic justice to the victim of IFCSA.
Lastly, there is a notable enduring affinity within the community for IJS in IFCSA cases with
communities enduringly resorting to it to resolve or cover up a good number of IFCSA cases. IJS
can therefore neither be ignored nor wished away in the search for a restorative response to IFCSA.
The study has therefore given due consideration to IJS values and processes capable of adding
value to the search for a victim centered restorative response.
The five research questions that this study set off to answer include the extent to which the existing
legal framework adequately protects the interests of IFCSA victims; the unique ways in which
IFCSA impacts its victim; the extent to which restorative justice may provide an effective legal
response to IFCSA ; the lessons FJS may learn from IJS in consolidating a restorative response to
IFCSA; and the entry points available for the application of restorative practices and values in
IFCSA cases.
The theoretical and conceptual basis of this study has been laid through a comprehensive
discussion of restorative justice. It has been discussed against the backdrop of vulnerability theory,
225
feminism, legal pluralism and human rights standards. This has involved discussing the historical
background of restorative justice and the meaning assigned to it by its various proponents. Though
restorative justice means different things to different proponents, the meaning that is relevant to
this research is the one with the component of a victim centered response to crime. This resonates
to the aim of the research which seeks to place the victim’s interests at the center of the response
to IFCSA.
The study has adopted Gerry Johnstone’s scope of the theory as a set of values, a process and as a
lifestyle.835 As a process, it provides the ‘forum where all parties with a stake in the offence come
together to resolve collectively how to deal with its aftermath’.836 As a set of values, it calls for the
injection of attitudes that make the criminal justice system more responsive to the needs of the
victim. As a lifestyle, it advocates for a holistic approach to life and relationships in everyday
relationships, beyond the realms of crime.837 The study has interrogated restorative justice from
the three perceptions. These three perceptions have also formed the basis of identifying entry
points for restorative justice in the criminal justice system as it responds to IFCSA.
The subject of this study is a child who is sexually abused within the home. The child is, more
often than not, female while the perpetrator is in most cases male. The gender and power dynamics
inherent in this scenario has necessitated a discussion of restorative justice in the light of women’s
experiences as espoused by various feminist theories. The positioning and needs of the vulnerable
child victim has also made it necessary to examine restorative justice against the backdrop of
vulnerability theory.
The study has highlighted the nexus between restorative justice and legal pluralism in appreciation
of the fact that there exists more than one legal order in Kenya; the formal and the informal justice
systems. IFCSA offences often generate concerns that transcend the scope of the formal justice
which is not the only relevant and effective legal order in people’s lives. Informal justice is
exercised in existing institutions of normative ordering like the home, neighborhood, workplace,
and schools, which also provide avenues of conflict redress.838 The thread that ties the formal and
informal justice systems is found within the concept of legal pluralism. This study has therefore
835
G Johnstone (ed.) A Restorative Reader, Texts, Sources (n 50) 1.
836
T. Marshall, ‘Restorative Justice: An Overview’ (n 31) 28.
837
D W Van Ness and K H Strong, (n 46) 41.
838
ICHRP (n 298).
226
interrogated the concept of legal pluralism as a basis for identifying the values and processes
outside the formal justice system that can enrich restorative justice.
Any sound legal response involving a child victim must have due regard to relevant human rights
standards. This includes the principle of the best interest of the child and the right to access to
justice both of which are cardinal human rights standards in relation to children. The study has
demonstrated the importance of aligning all restorative processes and values applicable in IFCSA
to these human rights standards. The maintenance of the standard is important in ensuring the
protection of the child victim’s human dignity while in pursuit for justice.
In answer to the question on the extent to which the existing legal framework suffices in protecting
the interests of the victim of IFCSA, the study has extensively analyzed the relevant statutory and
case law together with international standards. The analysis has covered the law applicable from
the time the abuse is detected, through investigation, arrest, bail, hearing, and sentencing. The
discussion of the legal framework has been with a view to identify the gaps that impede justice for
an IFCSA victim.in the legal framework. The research has shown that Kenya is replete with
legislation, binding treaties and standards of persuasive force that are relevant in guiding a victim-
centered approach in the respond to sexual offences. The jurisprudence around the victim’s rights
is also on an upward trend. The legal framework is however blind to the specificities that are
peculiar to IFCSA. It ignores the context and circumstances and presumes equivalence of the
victims. This has resulted in the delivery of justice that is not holistic and essentially impedes
access to justice to the victim of IFCSA. There is also a lingering gap between international
standards on the place of the victim and the existing domestic framework. This provides room for
utilization of restorative justice through legislative intervention, more dynamic interpretation of
existing laws by the courts and more facilitation for implementation of the restorative laws.
With regard to the question on the uniqueness of the impact of IFCSA, the study has unpacked the
context within which IFCSA occurs and engages the legal process. This undeniably differs from
that which pertains to child sexual abuse by a non-family member. The context within which the
former takes place is more fragile and its after-effect is graver, more permanent, far reaching and
complex than the latter. The specificities identified in the research include of patriarchy, family
set up, concerns of livelihood, associated stigma and taboos, community expectations, and the
tension around the issue of ownership of the conflict.
227
The discussion of specificities of IFCSA has highlighted the bottlenecks that diminish the chances
of the victim of IFCSA accessing justice within the formal justice system. The handicaps have the
cumulative effect of complicating the reporting, investigation and prosecution of IFCSA cases.
The complications propel the victims and their families towards the path of least resistance. This
may take the form of either sweeping the incident under the carpet, or outright complicity and
acquiescence by those supposed to report the offence. They therefore have the potential of
impeding access to justice if left unacknowledged and unattended by the legal system. The research
has proved that the bottlenecks cannot be resolved by the traditional thinking around the formal
justice system. It is for this reason that a restorative approach is explored.
The ultimate research question is on the entry points that exist for the application of restorative
practices and values within the Kenyan criminal justice system. This has been answered together
with the question on the lessons the formal justice system can learn from the informal. The
proposed restorative entry points are sourced from both the formal and informal justice system.
The study does not however recommend restorative justice as a stand-alone alternative. It
recommends it to the extent that it renders support to the existing justice system for the benefit of
the victim. The findings of this study have disclosed several opportunities for entry points of
restorative justice in the response to IFCSA in the following areas:
6.2 Opportunities for Restorative Interventions
a) Opportunities in the Use of Therapeutic Practices
This has to do with the implementation of the law, at all phases of the justice process, in a manner
that does not impact negatively on the victim’s well-being. It is in acknowledgement of the
heightened emotions that accompany IFCSA. The study calls on all professions who interact with
the victim of IFCSA to be intentional about empathizing with them and placing them at the center
of the case at hand. Implementation of therapeutic processes requires a shift from the traditional
adversarial mindset. This is achievable through skills training to enhance the professionals’
emotional intelligence.
228
b) Opportunities to Learn from the Informal Justice System
While admitting that informal justice is neither perfect nor a panacea for the shortfalls in the formal
justice system, the study has made two observations concerning the same. First, is the community’s
undeniable affinity to it and second, the fact that it is replete with restorative processes and values
that the formal justice can learn and possibly adopt. These include the fact that it is easily
accessible, it has settings and processes that resonate with the community’s lived reality, and the
cases are disposed of swiftly and expeditiously. In addition, IJS, unlike the FJS, endeavours to
resolve complex issues wholesomely without isolating them into demarcations of civil and
criminal or splitting them into various other disciplines. These are aspects that FJS may borrow
from IJS to make it more restorative. The other aspect that the FJS can adopt from the IJS is the
incorporation of restorative outcomes that are of direct benefit to the victims like reconciliation,
apology and compensation. The search for a restorative response to IFCSA will therefore always
be incomplete without recognizing the role of the IJS.
c) Opportunities to Divert some IFCSA Cases to IJS

There is general official resistance against the use of IJS in IFCSA cases. The study has however
identified two categories of IFCSA that may possibly be diverted to IJS with minimal backlash.
The first one is where the victim and the perpetrator are both below eighteen years. The second is
where the IFCSA takes place between two youths without a substantial age difference between
them and without use of coercion. The key considerations are therefore absence of coercion, the
age of the perpetrator and the difference in age between the two.
d) Opportunities to Law Reform

Many of the opportunities identified above are unachievable without the support of the requisite
legal framework. This is mainly in form of law reform and amendment of existing legal provisions.
The jurisdiction of the Children’s Court needs to be expanded to include all cases involving child
victims. The mandate of the Department of Children Services as prescribed in the Children Act
needs to be expanded to accommodate more meaningful intervention on behalf of IFCSA victims.
The sentence for sexual abuse under the Children Act equally needs to be enhanced with a view to
229
harmonize it with the sentences for related offences in the Sexual Offences Act. The study has also
recommended the rethinking of the statutory age of consent for the sake of non- coercive sexual
encounters between related teenagers which is currently criminalized. The other recommendation
is the removal of the mandatory minimum sentences in sexual offences together with the bar
against plea bargain in sexual offences. This will facilitate the better use of discretion on a case by
case basis and facilitate the operationalization of combining incarceration of perpetrators with
other victim centered restorative outcomes. The study has also made recommendations for
amendment of the law and policy on bail and bond. This is with a view to specifically address the
unique circumstances of IFCSA where both the victim and perpetrator may be living under the
same roof during trial.
The study has also identified the need to amend the Victim Protection Act to give the Department
of Children Services a role in the management of the Victim Protection Trust Fund on behalf of
IFCSA victims. Finally, it is clear from the discussion in chapter four of this study that the
intersectionality between childhood and abuse by a family member creates certain specificities
which increase the vulnerability of the child victim. Though children are generally classified as
vulnerable under the Constitution, the Children Act, the Sexual Offences Act and Victim
Protection Act, specific recognition of IFCSA victims as a vulnerable category in all the statutes
will draw the much needed attention to this intersectionality.
e) Opportunities in Executive Intervention

The most obvious finding to emerge from this study is that the ultimate solution to the research
problem lies beyond the mere letter of the law. It is a problem whose solution lies in a multi-
sectoral approach to the issue. The study has called on the executive through its agencies to invest
in both the implementation of laws that have the effect of restoring the victim and promote
restorative justice as a lifestyle. This requires political will which is demonstrated by adequate
budgetary allocation and prioritization of institutions that are positioned to build the resilience of
both the victims and potential victims of IFCSA. These include department of children services,
health institutions and schools. The use of therapeutic processes in responding to IFCSA requires
training of all the professionals who interact with IFSCA victims from detection to sentencing and
thereafter. This is to ensure that the victim is handled with the requisite emotional intelligence
230
throughout to avoid re-victimization and contribute to the recovery process. The training will only
succeed with support from the executive in terms of prioritization, political will and budgetary
allocation.
6.3 Need for Further Research
This research marks the beginning of a conversation on the need to distinguish child sexual abuse
that takes place within the home on the basis of the unique circumstances surrounding it. It not
only contributes to a deeper understanding of the intricacies surrounding IFCSA, it also adds to
existing literature on the relatively unbeaten path of applying restorative justice to a taboo offence
like IFCSA whose standard response has assumed to be swift retribution. Due to its scope
constraints, the study did not interrogate all areas comprehensively. It can however act as a base
for future studies as it has thrown up legal and anthropological questions in need of further
investigation. These findings provide insights for future research hence the recommendation that
further research be undertaken in the following areas:
The first area that needs further investigation is a claim that was echoed by several respondents in
this study. This is to the effect that IFCSA was unheard of in traditional African families. There is
need for a social cultural study to establish the veracity of this claim. If it is established to be the
case, a study on the structures that insulated the family from such infractions and the possibilities
of replicating the same in the present day, may be necessary. If the claim is found to be untrue, it
would be useful to find out how IFCSA was responded to in the traditional African setting
especially on the restoration of the victim.
The second area in need of further investigation is with regard to the propensity to misuse IFCSA
through fabricated cases in order to achieve a certain end. As pointed out in chapter four this
disturbing trend was identified in the course of data collection. All the professionals interviewed
confirmed having dealt with fabricated cases at some point in the course of their work. The most
common victims of tramped up charges are those with the least bargaining power in the society
like children, the aged and the poor.839 The issue of fabrication of IFCSA falls outside the scope
of this research. If however left unattended, it can have the effect of undermining official response
839
Interview with Inmate E. H. Fondo (Shimo la Tewa Prison, Mombasa, 16 September 2016).
231
to the genuine cases. A study research on the prevalence of the fabricated cases and the manner in
which they present themselves would be useful to enable a quick identification of the same at the
earliest time possible.
Thirdly, there is need for more information on non- coercive sexual activity amongst teenagers
both within and outside the family. In most of the cases, it is the male who is seen as the aggressor
and hence taken through the criminal justice process as a sex offender. When found guilty, they
end up serving long sentences. Research in this area will assist in coming up with a more
constructive approach than the indiscriminate punishment based response that has no regard to the
existing relationship between the two teenagers.
232
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APPENDICES
Appendix One: Consent Form
Introduction
My name is Mercy Mwarah Deche. I am carrying out a PhD research under the working title:
Legal Responses to Intra-Familial Child Sexual Abuse in Kenya: A case for Restorative
Justice. This study is in response to the now widespread problem of child sexual abuse within the
home, also known as intra-familial child sexual abuse (IFCSA). It is informed by the hypothesis
that the existing Formal Justice System does not sufficiently achieve justice for these victims. The
purpose of this study is to come up with a victim centered legal response for cases of IFCSA
through incorporation of restorative justice into the criminal justice system.
I am going to give you information and invite you to be part of this study. This is to make sure that
you understand the study well. Please ask me to stop and give clarification at any point. If you
have any questions later, you can also ask me.
Why is this study being done?
This study will form part of my thesis for the Doctorate degree in law I am currently undertaking
at the University of Nairobi. It is hoped that the study will contribute greatly to the criminal justice
process in Kenya in the specific area of responding to IFCSA. The information gathered in this
study will assist all players in this field to highlight the hurdles and gaps and also give pointers to
possible solutions including the incorporation of restorative justice. The overall effect will be a
more effective legal response to intra familial child sexual abuse.
What does the study involve?
This study will involve focused group discussions with community leaders and professionals,
participation in some of the IFCSA court cases and interviews. The interview shall be both in depth
and Key informants’ interview targeting the following respondents:
1. Judicial officers at all levels (judges and magistrates);
2. Legal practitioners ;
3. Children’s officers;
4. Probation officers;
5. Police Officers;
6. Community leaders;
7. Victims of IFCSA;
8. Convicted offenders
The Respondents will be drawn from the Mombasa, Nakuru and Kwale counties.
Procedures to be followed:
a) If you consent to participate in the study as a respondent in the interview, you will be asked
questions on the topic under research for about 20 to 30 minutes. The interviewer will
record your response. If you need time to think through your answers, the questionnaire
may be emailed to you and you may respond on email. You do not have to disclose your
name.
b) If you consent to participate in the group discussion, your contribution shall be noted and
used in the research. Your name shall however not be disclosed unless you want it. If you
are not comfortable, you may abstain from signing the consent form.
Benefits
244
The study may not directly benefit you as an individual. However it will make a great contribution
to the criminal justice system. It will form a basis for possible ground breaking legal reform in
dealing with intra familial child sexual abuse cases.
Risks
Only negligible risk is anticipated. This risk relates to the expected discomfort incidental to
discussing an issue as horrific and disturbing as child sexual abuse. The researcher is however
experienced and shall conduct the interview professionally and with due sensitivity.
Confidentiality
Privacy and confidentiality shall be ensured throughout the study process. All information from
this study, for data entry and analysis, will be transmitted only in a form that cannot be identified
with the subject.
Right to refuse or withdraw
Your participation in this study is voluntary. If at any time you do not want to answer any interview
question, you may skip that question. You are free to withdraw from the study at any time.
Consent certificate
I have read the foregoing information. I have had the opportunity to ask questions about it and any
questions that I have asked have been answered to my satisfaction. I consent voluntarily to
participate as a participant in this study and understand that I have the right to withdraw from the
study at any time without affecting any treatment that I may require.
Signature of Participant: _________________________________________

Name of Participant (optional)_____________________________________
Date: ________________________________________________________
I have accurately read or witnessed the accurate reading of the consent form to the potential
participant, and the individual has had the opportunity to ask questions. I confirm that the
individual has given consent freely.
Print name of researcher: ________________________________________
Signature of researcher: _________________________________________
Date: ________________________________________________________
245
Appendix Two: Authorization from National Commission for Science, Technology &
Innovation.
246
Appendix Three: Consent from Probation and Aftercare Service Directorate
247
Appendix Four: Authorization from Directorate of Children’s Services
248
Appendix Five: Consent from Commissioner General of Prisons
249
Appendix Six: Consent from Kenya Police Service
250
Appendix Seven: Consent from Judiciary
251

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UNIVERSITY OF NAIROBI

LEGAL RESPONSES TO INTRA-FAMILIAL CHILD SEXUAL ABUSE IN KENYA: A

MERCY MWARAH DECHE

Candidate: Mercy Mwarah Deche

Prof. Kiarie Mwaura

ACRWC - African Charter on the Rights and Welfare of the Child.

AJS - Alternative Justice System.

CEDAW - Convention on Elimination of all forms of Discrimination Against Women.

CRC - Convention on the Rights of the Child.

DANIDA - Danish International Development Agency.

DFC - Danida Fellowship Center.

eKLR - Electronic Kenya Law Report.

FJS - Formal Justice System.

ICCPR - International Covenant on Civil and Political Rights.

ICESCR - International Covenant on Economic Social and Cultural Rights.

ICRH - International Center for Reproductive Health.

IFCSA - Intra-Familial Child Sexual Abuse.

IJS - Informal Justice System.

SOA - Sexual Offences Act.

UDHR - Universal Declaration on Human Rights.

UNGA - United Nations General Assembly.

WHO - World Health Organization.

A S S v Republic Malindi High Court Criminal Appeal No 64 of 2011 [2013] eKLR.

C.K. (A Child) & 11 Others v Commissioner of Police/Inspector-General of the National Police

C N v Republic Muranga High Court Criminal Appeal No 60 of 2013 [2014] eKLR.

F O D v Republic Homabay High Court Criminal Appeal No 32 of 2014 [2014] eKLR.

Table of Cases from Other Jurisdictions

Case 26692/05 CAS and CS v Romania [2012] ECHR.

Case 12.626 Jessica Lenahan (Gonzales) et al v United States [2011].

Case no 39272/98 MC v Bulgaria [2003].

Constitution 2010 (KEN).

Criminal Procedure Code Revised 2012 (KEN).

Evidence Act Revised 2014 (KEN).

Interpretation and General Provisions Act Revised 2014 (KEN).

Judicature Act Revised 2018 (KEN).

National Police Service Act 2011 (KEN).

Penal Code Revised 2014 (KEN).

Protection Against Domestic Violence 2015 (KEN).

Child Welfare Act 2007 (FINLAND).

Sexual Offences Act 2006 (KEN).

Victim Protection Act 2014 (KEN).

Table of International Treaties and Conventions

1.1 Background to the Research

1.2 Statement of the Problem

1.3 Purpose and Objectives of the Study

The specific objectives of the research are to:

i. Identify the specificities of the impact of IFCSA on its victim.

iii. Explore restorative justice as an innovative legal response to IFCSA.

1.4 Research Questions

1.6 Significance of the Study

1.7.2 Child Sexual Abuse

1.7.4 Informal Justice System

1.7.5 Intra-familial Child Sexual Abuse (IFCSA)

1.7.7 Restorative Justice

1.8 Theoretical and Conceptual Framework

1.9.1 General Child Sexual Abuse

1.9.4 Restorative Justice in Sexual Abuse Cases

1.9.6 Access to Justice

1.10.1 Desk Research