Mateso: Aluta Continua

The following is an exposé that appeared last year on Plus254.com. For the prelude to this post, click here. Same writer © All rights reserved.

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By Maina Fred Wambugu (aka Yule Mbois Mndialala) 




The proposed draft may have its pitfalls and inherent flaws, but having battled close to a month to bring justice forth from the abyss within which it clearly resides in our current constitution and its misconstrued implementations, perhaps nobody has a greater incentive to see the old regulations replaced by a new rule of law than Mary Wanjiku, an Actuarial Sciences student in one of our public universities.

Of course Mary is but one of the millions of Kenyans who cannot quite access their fundamental right to justice, but in lieu of the burden she has had to carry around with her since Easter, she has every right to be exasperated with the turtle-race pace at which her marathon towards a just finishing line has progressed. 

On the eve of Good Friday, as published in 'Mateso: R.E.S.Pia C. Maboy Tumekosa', Mary was lured into a trap by two of her friends, and in the aftermaths of a night of wild fun, ended up being raped in Buruburu phase 3. Whether she was a willing party in the binge drinking and raving is a matter of conjecture at this point in time, with the only clear thing being the anguish she has had to deal with - the Nairobi Women's Hospital doctor who allegedly examined her that morning, and without even pointing her to a counselor, told her to "have a nice day"; the Gender department in Buruburu Police Station, who would not budge without receiving a petty 'bribe' to kick-start the investigation process; and last but certainly not least, the delay in the publication of her ordeal, owing much to the slow pace of official investigations.

The Coalition on Violence Against Women - a Kenyan network of individuals and organizations committed to eradicating violence against women - says that violence is not only physical, but psychological and mental. Yet to this day, the suspects are yet to record any official statement or at the very least be interrogated by the police. Meanwhile, Mary is routinely taking an assortment of anti-retro viral medication, still unsure what the full repercussions of that night are going to be on her future. She has twice had to sit in a doctor's examination room, disrobed and in the company of other rape victims as she awaits the medical evaluation required to somewhat fortify her case, as the culprits continue to go to work and conduct their affairs as though nothing had happened.

The scales of Justice appear firmly tipped against women's right to have their dignity respected.

Every person has inherent dignity and the right to have that dignity respected and protected. At least that is what the draft constitution would have you legally entitled to. On Thursday 1st April, Mary would have felt undignified by a suggestion that the following morning's events would occur to anyone she knew, let alone herself. The fact that the act committed against her was instigated by her ex-boyfriend and his pal only serves to amplify the mistrust she now undoubtedly carries with her, and the pain she subsequently feels. However, in light of justice thus far denied, perhaps playing devil's advocate may be more instructive than damaging in an attempt to comprehend her ordeal as it stands.

The fact remains that she went out with them out of her own will. She did not leave at any point, nor did she make any indications that she was being forced to consume alcohol. She did not ask any female companions to join them, even when she was quite clearly outnumbered by the guys. She then proceeded to get inebriated and eventually went to Buruburu, where the two had allegedly conspired to have sex with her under the influence of alcohol. Mary had been in a sexual relationship with Lenny*, and consented to having sex with him. While she claims the sexual interaction with Lenny's best friend was not consented to, she was not restrained, nor did she scream during the encounter. Upon leaving their house afterward, she did not tell anyone of the people in the vicinity about what had happened, and went directly to Hurlingham Medicare Plaza. Any evidence thus far collected would prove either inconclusive, circumstantial or ineligible in a Kenyan Court of law, on the current constitution. Many would consider details held to be hearsay, and with the heavy dose of negligence by official investigators, conclude that there is no case.

Mitigating circumstances however do arise. Several witnesses have come forward since - though as yet not to the police - claiming that the two have been involved in similar cases before. Interviews with students at the Kenya School of Professional Studies and a couple from the Nairobi University indicate that they have been marked as 'bad boys' for their habit of getting girls drunk and having their way with them. There may yet be a case to build for Mary, and it should be our collective hope that such behavior is dealt with in the strongest possible means by the law, to curb cases of Gender-Based violence in Kenya. 

Attorney General (AG) Amos Wako acknowledged in 1999 that,

''[v]iolence against women pervades all social and ethnic groups. It is a societal crisis that requires concerted action to stem its scourge... Culture does influence the relationship between the various groups in society and...some cultural practices, beliefs and traditions have had the tendency to relegate women to a second class status in society thereby not only violating their rights as human beings [but] leading to discrimination against women. Some...customs and cultural practices have found their way not only into law but...[are used] as justification for violence against women.''

Yet, despite its moral and legal obligations, the government has not reformed Kenya's laws to make all acts of violence against women criminal offenses, nor has it addressed the discriminatory practices of the police force, prisons services and court system. Perhaps with a new constitution, the likes of Mary who were raped during the 2007/2008 Post Election Violence may be closer to receiving justice against their oppressors.

Lady Justice continues to cast a glum stare on victims of rape and Gender-Based violence.

But before then, the judicial system and legal structure must endeavor to do more than just expect rapists to get caught red-handed for the cases against them to have a just result. 

*Not the suspect's real name