Nairobi, Kenya - It has been hailed as a landmark legal victory that will tackle the soaring rates of sex abuse against young Kenyans, and kick-start efforts to end the impunity enjoyed by rapists across other parts of sub-Saharan Africa.
A judge in central Kenya recently ruled that police should probe allegations of sexual assault made by 11 girls that they had hitherto ignored. The cases were part of a wider pattern of sex abuse against 270 youngsters from around Meru, Kenya at the hands of relatives, teachers and even policemen.
But while the judgment has been widely praised, many of those working to improve legal rights in the region warn court rulings are not always implemented and often fail to make a difference in the lives of ordinary victims.
Mercy Chidi, who runs the Tumaini Hope Centre for abuse victims, said she spearheaded the civil case against Kenyan police because officers had repeatedly failed to prosecute alleged abusers of the youngsters who were fleeing to her shelter.
"The police don't take it seriously and don't investigate the offences. It was frustrating. We were tired of mopping the floor and felt we needed to go a step further, challenge the state and hold the police accountable,” she told Al Jazeera.
"We wanted justice for the girls in the case, and legal protection for all 10 million girls in Kenya, so that eventually the police will enforce the law and there will be repercussions for the perpetrators of this violence."
- Fiona Sampson, lawyer
Rather than probing the allegations of young victims, officers demanded payment for assistance or humiliated and shamed the girls when they turned up at police stations to report their abusers, the court heard. One of the victims was even sexually assaulted by a policeman.
In one case, involving the gang-rape of a blind man's daughter, police took no action other than providing the sightless father with an arrest warrant, informing him that he should single-handedly apprehend the offenders, said Chidi.
One victim was mentally disabled. Others became pregnant or contracted the Aids-giving virus, HIV, from their abuse. A three-month-old baby was raped under a mistaken belief held across much of sub-Saharan Africa that penetrating virgins cures Aids.
"It is thought that the younger the victim, the stronger the cure,” said Fiona Sampson, a lawyer for The Equality Effect, a Canada-based group that helped prosecute the case leading up to last month's High Court ruling.
A 2010 study by Kenya's government described a "serious problem” of violence against children in East Africa's biggest economy. Some 32 percent of girls and 18 percent of boys endured sex abuse, mostly from within their own family.
"We wanted justice for the girls in the case, and legal protection for all 10 million girls in Kenya, so that eventually the police will enforce the law and there will be repercussions for the perpetrators of this violence, and we see a shift in behaviour by the men responsible,” said Sampson.
Sex abuse victims from Afghanistan, Pakistan, Somalia and China have asked for help in launching similar test legal cases in their countries. Sampson is already working on other pieces of so-called "impact litigation” in sub-Saharan Africa.
She aims to tackle the absence of marital rape in Ghanaian and Kenyan law books, and is collecting evidence of repeated failures of police to prosecute defilement cases in Malawi, where accusers also need a corroborative witness testimony.
The Kenyan test case took only eight months, she said. African countries can benefit from the experience of rights activists in the West who have spent decades using the courts to advance the rights of vulnerable groups.
| Women in Nairobi's Mukuru -kwa-Njenga slum suffer routine attacks from sexual predators [AFP]
"Our African partners are so concerned about the nature of abuses against women and girls that they didn't want to have to reinvent the equality wheel,” she said. "We can share the lessons learned from equality work we've done in other contexts.”
Rights activists celebrated the ruling. An opinion piece in The New York Times described an "extraordinary story of tenacity and courage” by the young victims which had achieved "legal protection from rape for all 10 million girls in Kenya”.
But other activists who use the courts to promote social reform say while the ruling is an important milestone, it may not be a game-changer that heralds speedy reform to police forces in Kenya and beyond.
Police spokesman Masoud Mwinyi acknowledged said the Meru case may help "minimise room for error in the future”, but he did not agree that officers fail to prosecute sex criminals across a nation of 44-million people.
"We would say that situation in Meru may not be a reflection of the entire country, because areas are unique and issues are unique - and it could be the exception rather than the rule,” Mwinyi told Al Jazeera.
Beatrice Chelangat, counsel for the International Federation of Women Lawyers in the case, noted while the judge ordered police to investigate sex attacks in Meru, no date was issued by which they had to achieve this goal.
"It was a bold move for the judge, but I'm not sure it will have as much impact as we were anticipating,” she said. "Unless there is punishment for failing to enforce procedures in the law, then there will be no repercussions.”
Impact litigation - using the law to advance social reforms - has a rich history in Western legal systems, including the 1954 landmark Brown vs. Board of Education case in the United States that banned segregation in public schools.
The idea spread to developing countries. The People's Union for Civil Liberties has pushed India's government to feed the malnourished. The Treatment Action Campaign has helped South African HIV sufferers get much-needed antiretroviral drugs since the late 1990s.
But Iain Byrne, a legal analyst for UK-based Amnesty International, noted that courtroom wins do not always translate into action. About three quarters of rulings from the African Commission on Human and Peoples' Rights have never been implemented, he said.
"We don't believe the change is going to be automatic and they will turn around and take sexual offences seriously. The difference is that now we have some official documentation that we can go back to court with."
- Mercy Chii, Tumaini Hope Centre
"You can have great litigation and great decisions but the challenge then remains to get those decisions enforced,” he said. "What you ultimately need is some kind of sanction that's going to hold states comply.”
Dennis Likule is a lawyer for the Refugee Consortium of Kenya, which is challenging Kenya's government in the courts over a decision to force refugees living in Nairobi and other cities into the country's overcrowded camps.
He warns against courtroom showdowns, saying they can antagonise ministers and even undermine the reforms that campaigners hope to achieve.
"Going to court is the last resort because it only creates acrimony with the government,” he said. "It's the African context in which you're working. Implementation of orders is a big problem. Slowly by slowly we will get governments that will obey some of those judgements.”
Back in Meru, Chidi from the rape centre said she is ready for a long-haul fight.
"The journey has just begun,” she said. "We don't believe the change is going to be automatic and they will turn around and take sexual offences seriously. The difference is that now we have some official documentation that we can go back to court with.”
Follow James Reinl on Twitter: @jamesreinl
Source: Al Jazeera