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Cash for rape: Why civil suits may undermine justice in Kenya

A rape or defilement survivor in Kenya can pursue a civil suit, but an advocate with the Federation of Women Lawyers-Kenya says that can only be in theory.

Photo credit: Photo | Pool

What you need to know:

  • Pursuing compensation may incentivise perpetrators and erode survivor dignity, warns a legal expert and human rights advocate.
  • Sexual violence cases highlight tensions between justice, reparations, and societal values in Kenya's evolving legal landscape.

Can a victim of rape or defilement in Kenya pursue a civil suit to seek compensation from their attacker?

According to Dennis Otieno, an advocate with the Federation of Women Lawyers-Kenya, the answer is yes, but only in theory. The implications of doing so, he warns, would undermine the spirit of the law meant to protect survivors.

“In the jurisdiction of Kenya, this has been quite a non-occurrence,” Dennis says.

“We’ve not seen it formally done, or if it has, it hasn’t been publicised in a way that most people are aware of. But legally, a survivor can actually file for damages.”

He observes that the notion of pursuing both criminal and civil justice in sexual offences may sound progressive, but it risks opening a dangerous door. He argues that if financial compensation becomes an expected part of justice, some perpetrators might see rape or defilement as a crime out of which they can simply pay their way.

“This would actually create an instance where some perpetrators would opt to engage in the heinous act because they have the ability to pay,” he explains. “You’d find that this starts creating, to a measure, the pimping out of survivors where the survivor is wounded, but people are only after reparations. Bring us the money, bring us the damages so that we sort this out.”

Dennis says such an approach could unravel the core intention of Kenya’s Sexual Offences Act, which is to deter sexual violence by enforcing strict criminal penalties. “The whole essence of the Sexual Offences Act is deterrence,” he says. “Having a monetary incentive to follow after means a perpetrator who is moneyed will always find a way out. That’s how we end up back in a place where a man rapes a woman and she’s handed over to him as a wife; robbed of dignity, grace, and consent, and then forced into a lifetime of subjugation.”

While the idea of reparations may appeal to survivors seeking redress, Dennis believes it’s not worth the broader consequences. “Yes, it sparks a conversation,” he admits. “But in practice, this would be robbing every survivor of their dignity. The best advice is to maintain the deterrent effect of the Sexual Offences Act.”

Nevertheless, sexual offences continue to cast a long shadow into the future. For instance, the government nullified the election of John Chebochok as zonal director of the Kenya Tea Development Agency-managed Tegat/Rorok tea factory. John had been exposed in a BBC Africa Eye and Panorama documentary as perpetuating quid pro quo sexual harassment.

Human rights organisations fiercely opposed his election. Most significantly, tea buyers declared they would not purchase tea from the factory if he remained in leadership, a move that would severely impact the livelihoods of smallholder tea farmers in the region.

In France, the career of a brilliant economist came crashing down after he was accused of violating a woman. In 2011, Dominique Strauss-Kahn resigned as managing director of the International Monetary Fund following his arrest for sexually assaulting a hotel housekeeper in New York.

CNN described him as “once most known for his brilliant grasp of global economics and European politics”. According to the BBC, by early 2011, “his work as head of the IMF saw him touted as a potential challenger to Nicolas Sarkozy for the French presidency.”