Protection and reparations for survivors of sexual and gender based violence in the Great Lakes Region

1. Protection and reparations for survivors of sexual and gender based violence in the Great Lakes Region CSW: NY 24th Feb 2011

2. ACORD • Pan African organization working for social justice in 17 countries in Africa • livelihoods & food sovereignty • gender • HIV&AIDS • peace-building and conflict resolution • practical activities with communities, research and advocacy at all levels

3. Background • Violations against women have become normalised through social norms, traditions, religions, culture • This gives root to the culture of impunity to sexual abuse & violation of girls & women. • SGBV includes: rape, gang rape, physical & psychological torture, domestic violence, etc • SGBV increases where there is conflict and social breakdown. These are compounded by new/emerging challenges • the sub regional nature of conflicts and their spread across borders, • trafficking of persons across porous borders • the particularly fragile states that lend them open to manipulation

4. background Uganda: 68% of ever-married women aged 15 to 49 years had experienced some form of violence inflicted by their spouse or intimate partner Uganda Bureau of Stats. Kenya: A gov. survey found 49% of women had experienced violence. A recent civil society survey found this may be as high as 75% Kenya Bureau of Stats, FIDA DRC: 1,200-1,600 cases of sexual violence every month in 2009, of which more than half are rapes UNFPA study Tanzania: In a rural area, 87% of partnered women had experienced physical or sexual violence at the hands of their partner at some point in their lives WHO Multi-country study Burundi: In one medical centre in the capital city, MSF records 27 cases of sexual & gender based violence every week, and 1,366 deaths per year CEDAW 2008 shadow report

5. MDG3 project on ending impunity to SGBV in ICGLR countries • ACORD is implementing an MDG3 project funded by the Dutch government • 5 countries – DRC, Burundi, Kenya, Tanzania, Uganda Aim: • Combat violence against women and girls • Challenge impunity & • Bring perpetrators of SGBV crimes to justice • Restore the health & livelihoods of survivors Expected outcomes • Cultural change & practice on impunity as it relates to SGBV • Strengthen institutions & mechanisms of justice and uphold rule of law in protecting women and girls against SGBV & punish perpetrators • Facilitate reparation for SGBV survivors in conflict & post conflict situations Among other activities we have undertaken 2 studies in the 5 countries • Judicial audit of the legal frameworks as far as SGBV is concerned • Study on the mechanisms of Protection and Reparations for SGBV survivors

6. Protection and Reparations Study AIM: To develop model comprehensive policyguide that will inform engagement by civil society and governments on:- • national commitment on the protection and reparation for women survivors of sexual and gender based violence • resource allocation for reparations of survivors of sexual and gender based violence • integration in the transitional justice mechanisms Methodology: • Analysed formal and informal justice systems • Their ability to address protection and reparations needs of SGBV survivors • Institutions’ roles and responses in addressing protection and reparations for SGBV survivors • Interviewed – SGBV survivors, police, health institutions, judicial officers and civil society working on human rights and women’s rights

7. What is Reparations? • The term reparations is not widely understood and is sometimes interchangeably used with the word compensation. • Yet effective reparations is much broader and encompasses the following; • Restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition • Restitution: - restoration of “status quo” – the situation before the violation occurred. • restoration of liberty, legal rights, social status, family life & citizenship • Return to one’s place of residence, restoration of employment and return of property • Compensation: - covers any economically assessable damages resulting from the crime. • Physical or mental harm/pain & suffering, humiliation, lost opportunities, loss of zeal of life, loss of social relationship, • Costs required for legal assistance, medical care, psychological and social services etc, • Compensation may be financial or in kind

8. What is Reparation? contd • Rehabilitation: - includes medical & psychological care as well as legal and social services for the victim • Satisfaction & guarantee of non-repetition: - comprise putting in place effective measures aimed at attaining the broader objectives of reparation in the long term e.g. • Revelation of the truth, Public acknowledgement of the facts and acceptance of responsibility • Search for the disappeared and identification of remains • Restoration of the dignity of survivors e.g through commemoration • Activities aimed at remembrance and education and at preventing the recurrence of similar activities • Reform of public sector institutions • Reparations can follow civil or criminal legal action in the formal or in the traditional justice system • Reparations can be individual or collective

9. Overall Study Findings The laws and institutions responsible for the implementation do not provide SGBV survivors with adequate guarantees of a full and fair reparation for damages suffered

10. Father 8 Years Quest for Justice for defiled daughter: Case in Kenya He has been threatened, arrested, detained, and at one stage, had to flee from home, fearing for his life. But these tribulations did not dampen Paul Rotich’s resolve to pursue justice for his daughter, who was scarred for life after she was defiled. Former Kapsabet Principal Magistrate John Njoroge sentenced the rapist, Jackson Kibiwott Langat, to serve 10 years in prison with hard labour, after being convicted of the offence. Langat initially fled his home to avoid arrest, but he was nabbed when he returned after five years. But Rotich viewed the sentence as too lenient, and took it upon himself to file an appeal in the High Court. Rotich’s search for justice lasted eight long years, but he was tenacious. Last month, Rotich was vindicated as the courts enhanced the sentence. Rotich shed tears of joy when Eldoret High Court Judge Lady Justice Philomena Mwilu, enhanced the sentence to 50 years. (Article by Kimutai, in the Standard Newspaper)

11. Paul Rotich’s case Daughter 5 years old defiled by a neighbor in 2002 Traumatized at the sight of any man and her school performance has dropped Aged 14 today, she could not control her bladder as a consequence of the defilement Rotich sold a piece of his land to pay for medical bills for his daughter to undergo correctional surgery - cost almost 700,000 ksh (USD 8200) He sought justice for his little girl, a process that took 8 years Paul finally got justice for his daughter but: He is as traumatized as his girl, destitute and insecure. Does he deserve protection and reparations? Who is responsible to provide for these? Paul’s case is an example that highlights existing gaps in the judicial system:

12. Highlights of Key findings • Specific laws addressing SGBV exist but with no specific provisions for protection and reparations for SGBV survivors • DRC: Two recent laws (2006) which amended the penal code of 1940 and the criminal procedure code of 1959 – • have no clear provisions of reparations. • Reparations provisions are scattered in various legislations. • Recent case: Colonel KibibiMutware sentenced to 20years but what provisions for survivors? • Tanzania: Sexual Offence Special Provision Act (SOSPA) • legislates against SGBV crimes, • provides for compensation in addition to fine and imprisonment of the perpetrator. • However the nature of compensation for survivors is at the discretion of the court. • Uganda: Penal code; • decision to determine the amount of compensation (case of defilement or rape) is at the discretion of the judge • Kenya: Kenyan Sexual Offence Act (2006) • No specific provisions of reparations

13. Findings (continued) 2. Very weak institutional linkages thus not facilitating the proper collection and preservation of evidence needed for successful court case; this hampers survivors to claim for any form of reparations. • chain of evidence broken/weak – (survivor - police - health practitioner – court) • Lengthy processes, capacity gaps, insensitive to survivors plight, costs, distances, etc • Weak collaboration among actors in the chain of evidence 3. Strong influence of traditional justice systems • male dominated; • biased towards collective responsibility rather than individual responsibility; • collective measures for reparations in which the responsibility of the perpetrator is lost and the needs of the survivor are ignored; Examples: Kenya Mijikenda community (Kaya elders) - fine imposed by elders to rapists does not exceed 4,000ksh (50$) and is shared between the elders and the survivors’ family Turkana: herds of cattle paid to the clan. DRC: perpetrator forced to marry impregnated girl; slaughter chicken to repair the damage done. 4. Insufficient political will to domesticate and implement ratified international instruments into national laws (CEDAW, etc). Similarly there is insufficient resource allocation

14. Findings (continued) 5. Ignorance among the public and SGBV survivors’ on their rights to reparations and the legal procedures to access justice 6. Some positive initiatives geared towards enhancing protection and rehabilitation of SGBV survivors noted: • Establishment of rescue centers (Kenya, Tanzania) • AVIFEM(Agencenationalecontre les Violencesfaites aux Femmes), • FONAFEN (Fonds de promotion et de protection de la femme et de l’enfant) • STAREC (program de Stabilization et de Reconstruction des zones sortant de Conflicts (a UN and DRC Government partnership initiative) in DRC

15. Recommendations • Enhance access to information on procedures and avenues for getting information on protection and reparation for SGBV survivors • legal education programmes on protection and reparation of SGBV survivor • Need enhanced collaboration amongst various actors (along the chain of evidence) for a holistic approach to SGBV reparations • Training of the personnel • Enhance institutional capacity – equipment, tools, etc • National governments should demonstrate political will by • Domesticating & effectively implementing international & human rights instruments on SGBV • Governments should put in place mechanisms for effective Reparations • Establish Trust funds for SGBV survivors • Support systems for survivors throughout the duration of proceedings • Support systems for reparations to include both the direct and indirect victims (e.g parents, dependents etc) • State allocation of resources to pay for claims of reparations (re. DRC case)

16. Recommendations contd. • Create institutional mechanisms for prevention, protection and reparation for SGBV • Establish and strengthen national legal framework for reparations • Introduce human rights and legal training programmes focusing on protection and reparations • Allocate appropriate resources for the implementation of legislation

17. THANK YOU MERCI OBRIGADO ASANTE