Assessing The Adequacy of The Laws Deali

ASSESSING THE ADEQUACY OF THE LAWS DEALING WITH DOMESTIC
VIOLENCE IN KENYA: THE NEED TO ENACT THE PROTECTION AGAINST
DOMESTIC VIOLENCE BILL, 2012
BY:
ODHIAMBO WYCKLIFE OYOO
i
TABLE OF CONTENTS
DECLARATION ........................................................................................... Error! Bookmark not defined.
DEDICATION ............................................................................................... Error! Bookmark not defined.
ACKNOWLEDGEMENT ............................................................................. Error! Bookmark not defined.
LIST OF ABBREVIATIONS ....................................................................................................................... v
List of Statutes ............................................................................................................................................. vi
List of Cases................................................................................................................................................ vii
Abstract ......................................................................................................................................................... 1
Chapter One .................................................................................................................................................. 1
1.0 Introduction ......................................................................................................................................... 2
1.1 Background ......................................................................................................................................... 2
1.3 Objectives of the study........................................................................................................................ 7
1.3.1Main objective .............................................................................................................................. 7
1.3.2 Specific objectives ....................................................................................................................... 7
1.4 Research questions .............................................................................................................................. 7
1.5 Scope of the study ............................................................................................................................... 7
1.6 Rationale of the study ......................................................................................................................... 8
1.7 Significance of the study ..................................................................................................................... 8
1.8 Hypothesis of the study ....................................................................................................................... 8
1.9 Theoretical Framework and Literature review.................................................................................... 9
1.9.1 Theoretical Framework ................................................................................................................ 9
1.9.2 Literature Review....................................................................................................................... 11
1.10 Methodology ................................................................................................................................... 14
1.11 Chapter breakdown ......................................................................................................................... 15
Chapter Two................................................................................................................................................ 17
THE LEGAL FRAMEWORK ON DOMESTIC VIOLENCE ................................................................... 18
2.0 Introduction ....................................................................................................................................... 18
2.1 The Kenyan Legal Framework ......................................................................................................... 18
2.1.1 The Constitution......................................................................................................................... 18
2.1.2 The Penal Code .......................................................................................................................... 20
2.1.3 The Sexual Offences Act ........................................................................................................... 21
2.1.4 The Evidence Act ....................................................................................................................... 24
ii
2.1.5 Application of Customary Laws ................................................................................................ 25
2.1.6 Judicial Intervention in Domestic Violence Cases..................................................................... 27
2.2 The International Legal Framework ................................................................................................. 30
2.2.1 The Universal Declaration of Human Rights (UDHR) .............................................................. 31
2.2.2 The International Covenant on Civil and Political Rights (ICCPR) .......................................... 31
2.2.3 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
............................................................................................................................................................ 32
2.2.4 The United Nations Declaration on the Elimination of Violence Against Women (DEVAW) . 33
2.2.5 Vienna Declaration and Program of Action. .............................................................................. 33
2.2.6 The African Charter on Human and People’s Rights and the Protocol Tothe African Charter on
Human and Peoples’ Rights On The Rights Of Women In Africa ..................................................... 33
2.2.7 AU Solemn Declaration on Gender Equality ............................................................................. 34
2.8 Chapter Summary ............................................................................................................................. 34
Chapter Three.............................................................................................................................................. 36
A CRITICAL APPRAISAL OF THE PROTECTION AGAINST DOMESTIC VIOLENCE BILL, 2012
.................................................................................................................................................................... 36
3.1 Introduction ....................................................................................................................................... 36
3.2 Salient features of the Bill ................................................................................................................. 37
3.2.1 Comprehensive Definition of Domestic Violence ..................................................................... 38
3.2.2 Protection Orders ....................................................................................................................... 39
3.2.3 Mode of Application for orders under the Bill........................................................................... 42
3.3 Shortcomings of the Bill ................................................................................................................... 44
3.4 Chapter summary .............................................................................................................................. 46
COMPARATIVE STUDY: THE EXPERIENCES OF SOUTH AFRICA AND THE UNITED
KINGDOM ................................................................................................................................................. 47
4.0 Introduction ....................................................................................................................................... 47
4.1 SOUTH AFRICA.............................................................................................................................. 47
4.1.1 The Constitutional Framework .................................................................................................. 48
4.1.2 Statute Law ................................................................................................................................ 49
4.1.3 Other measures put in place to curb domestic violence ............................................................. 53
4.1.4 Challenges experienced under the South African system .......................................................... 54
4.2 THE UNITED KINGDOM ............................................................................................................... 55
4.2.1 Criminal Law Remedies............................................................................................................. 56
iii
4.2.2 Civil Law Remedies ................................................................................................................... 56
4.2.3 Remedies under the Protection from Harassment Act 1997 ...................................................... 57
4.2.4 Remedies under the Domestic Violence, Crime and Victims Act (2004).................................. 57
4.2.5 Other Government responses to Domestic Violence cases ........................................................ 58
4.2.6 Challenges experienced by the UK system in handling domestic violence matters .................. 59
4.3 Chapter Summary ............................................................................................................................. 59
Chapter five................................................................................................................................................. 61
CONCLUSION AND RECOMMENDATIONS ........................................................................................ 61
5.1 Conclusion ........................................................................................................................................ 61
5.2 Recommendations for Reform .......................................................................................................... 64
5.2.1 Legal Reform ............................................................................................................................. 64
5.2.2 Setting up a government department to deal with violence cases .............................................. 65
5.2.3 Education and Awareness Programmes ..................................................................................... 65
Bibliography ............................................................................................................................................... 66
iv
LIST OF ABBREVIATIONS
AIDS Acquired Immune Deficiency Syndrome
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CREAW Centre for Rights Education and Awareness
DEVAW Declaration on Violence against Women
DVA Domestic Violence Act
GBDV Gender-based domestic violence
HIV Human Immunodeficiency Virus
ICCPR International Covenant on Civil and Political Rights
PFVA Prevention of Family Violence Act
SAPS South African Police Service
UDHR Universal Declaration of Human Rights
UK United Kingdom
UNHCHR United Nations High Commissioner for Human Rights
v
List of Statutes
The Constitution of Kenya, 2010
The Constitution of South Africa, 1996
The Crime and Security Act 2010 of the United Kingdom
The Criminal Justice Act, 1988 of the United Kingdom
The Domestic Violence Act No. 116 of 1998 of South Africa
The Domestic Violence, Crime and Victims Act 2004 of the United Kingdom
The Evidence Act Cap. 80 Laws of Kenya
The Family Law Act 1996 of the United Kingdom
The Penal Code Cap 63 Laws of Kenya
The Prevention of Family Violence Act No. 133 of 1993 of South Africa
The Protection from Harassment Act 1997 of the United Kingdom
The Sexual Offences Act No. 3 of 2006
Bills
The Criminal Law Amendment Bill, 2000
The Domestic Violence (Family Protection) Bill, 1999
The Family Protection Bill, 2007
The Protection Against Domestic Violence Bill, 2012
vi
List of Cases
AB V CD [2001] 28 KLR 210
Carmichele v Minister of Safety and Security [2001] (4) SA 938 (CC)
Du Plessis v De Klerk 1996 (5) BCLR 658 (CC).
Dzitu v. Republic, High Court at Malindi, case No. 73/2002
Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC).
Francis Charo Opo v. Republic (Criminal Appeal No. 39 of 1980)
Matheka v. Republic, High Court at Mombasa, case No. 126/2000
Omambia v. Republic Criminal Appeal No. 47 of 1995
R v R [1992] 1 A.C. 579
Republic .v. Duncan Gichuhi Waiyaki [1995] EA 929
Sv Engelbrecht[1993] 374 ZASCA 114
The State v Baloyi [2000] 2 SA 425(CC).
The Wilmina Achieng case [1998] EA 177736
Virginia Otieno vs. Ougo& another [1987] KLR, 371, H.C
vii
Abstract
Domestic violence is a vice that permeates all spheres of the human society. It is experienced by
people of all cultures, religions, social class and ages. A lot of studies have been done on the
subject of domestic violence especially since the advent of women emancipation movements.
The aim of this study is not to repeat the findings of these earlier studies but to assess the legal
framework on domestic violence in Kenya. This will be undertaken on the understanding that
Kenya has not enacted a law that specifically proscribes domestic violence nor is there a
particular government strategy towards combating the vice. The current legal framework on
domestic violence will be analysed with a view to making a case for the enactment of a law on
domestic violence. In making recommendations to this end, regard will be had to a pending Bill
that seeks to deal with domestic violence and the practice in other countries.
1
Chapter One
1.0 Introduction
This study will look at the legal regime dealing with domestic violence in Kenya. It is an
acknowledgement that domestic violence is indeed a crime. It is however despicable that there is
no specific law dealing with domestic violence as of itself in Kenya. This remains so despite the
fact that there is a bulk of international legal instruments, to which Kenya is a party, which have
criminalized the vice. This study will hence analyze the various laws that deal with domestic
violence in Kenya. The international legal framework on the same will also be explored with a
view to advocating for the enactment of the pending Protection Against Domestic Violence Bill,
2012 into law to regulate domestic violence cases in Kenya.
1.1 Background
Domestic violence is a universal phenomenon. It occurs in all cultures across the world. People
of all races, ethnicities, religions, and classes can be perpetrators of domestic violence. Domestic
violence is perpetrated by, and on men and women, and occurs in same-sex and heterosexual
relationships1. Although both men and women can be perpetrators of domestic violence, research
data obtained in the recent past point to the fact that domestic violence victims are by and large
female, with reported cases of male victims being few and uncommon.2
Domestic violence is a vice that has always been present in the Kenyan society. However, it was
not until recently that many people began to view it as a crime. In traditional Kenyan societies,
domestic violence was treated as a private matter between family members. Such matters were
not to find their way into public discourse. In most traditional African societies, for instance, a
man had the permission to chastise the wife and this in most cases took the form of physical
beatings. The patriarchal nature of society that held man supreme over woman did not help
things either. However with the recognition of domestic violence as constituting a violent crime,
the issue has become widely public.3
1
FIDA (K) (2008), ‘Gender Based Domestic Violence in Kenya’. Available at <http://www.womankind.org.uk/wp-
content/uploads/2012/03/FIDA-Kenya-Report-on-Gender-Based-Violence-in-Kenya.pdf> accessed on 20/10/2013.
2
Bancroft Lundy and Jay G Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on
Family Dynamic (2002) pp.64
3
Katie Lambert, ‘Broken Men Break the Silence: Male Domestic Violence Victims and their Struggle to be
Heard’<www.mankind.org.uk/> accessed on 08/10/2013
2
Domestic violence, as evidenced by previous texts on the subject, is a term amenable to many
definitions. The Black’s Law Dictionary defines it as violence between members of a household,
usually spouses; an assault or other violent act committed by one member of a household against
another.4 Domestic violence, also known as domestic abuse, spousal abuse, battering, family
violence, dating abuse or intimate partner violence has also been defined as a pattern of behavior
which involves the abuse by one partner against the other in an intimate relationship such as
marriage, cohabitation, dating or within the family. 5 The Home Office in England has proffered
the following definition:
Any incident or threatening behavior, violence or abuse (psychological, physical,
sexual, financial or emotional) between adults who are or have been intimate or
are family members, regardless of gender or sexuality.6
The causes of domestic violence have an historical bearing. Violence is not natural or born of
natural determinism. The major causes of domestic violence have always been located in the
patriarchal nature of most societies. Male domination over women has historical roots and its
functions and manifestations change over time.7The historical power relations which are
responsible for domestic violence especially on women are the economic and social forces,
which exploit the female body and female labour. Women who are less economically
empowered are more susceptible to sexual harassment, sexual slavery, human trafficking and
other ugly manifestations of domestic violence.8
The historical power relations play out mostly in the family set up, which has long been
recognized as the basic unit of the society.9 It is in the family unit where sexual identity is
created. Violence against women is often embedded in social customs that allow it to be
perpetrated with impunity – in many cases, without being considered as violence, let alone a
4
Bryan A. Garner (ed), Black’s Law Dictionary (9th ed)pp.1705
5
Wikipedia, the free encyclopedia<www.en.wikipedia.org/wiki/Domestic_violence>accessed on 20/10/2013.
6
Home Office ‘Number of specialist violence courts to double’ (2006) <www.homeoffice.gov.uk> accessed on
10/10/2013.
7
Patricia Kameri-Mbote, ‘Violence Against Women In Kenya; An Analysis of Law, Policy and Institutions’ (2000-
1). <http://www.ielrc.org/content/w0001.pdf> accessed on 04/11/2013.
8
Ibid.
9
Article 45(1) of the Constitution of Kenya, 2010 for instance provides that the family is the natural and fundamental
unit of society and the necessary basis for social order, and shall enjoy the recognition and protection of the State.
3
crime. Harmful gender roles can be reinforced by traditional practices such as widow-cleansing,
wife inheritance, child marriage and female genital mutilation.10
The laxity of law enforcement agents such as the police has also been cited as one of the major
factors that fuel violence, especially sexual violence among children and young adults. It
emerged in the study conducted by FIDA-Kenya11that most police officers are not keen on
apprehending the culprits, especially if they are ready to ‘buy’ their freedom. This further serves
to perpetuate the culture of violence which then continues unchecked since victims then become
reluctant to report cases of abuse since that will be an exercise in futility.
Domestic violence takes various forms including physical aggression or threats thereof. It also
includes sexual or emotional abuse, control, intimidation, passive or covert abuse, economic
deprivation and even stalking in some instances. The underlying motive of the abuser is always
the need to exert power over his/her victim. The abusers often use various tactics to exert power
over their spouse or partner such as blame, denial, threats, isolation, humiliation and
dominance.12
There are varied effects of domestic violence. Physical violence which is the major type of
domestic violence may result into severe injuries. Several case studies reveal that such injuries
are largely inflicted on women. However men also bear the brunt of such violence. A case in
point is that of the 27-year old man from Nyeri County who was scolded by his wife and had to
be treated at the Nyeri General Provincial Hospital.13 Such injuries range from minor to serious
burns, open wounds, cuts and injuries inflicted using wood, plastic or metallic blunt objects.
It is more difficult to ascertain the effects of the other types of domestic violence such as
emotional abuse. However it is obvious that there are various forms of traumatic disorders and
other conditions that emanate from psychological violence. Most often, violence especially that
perpetrated in relation to economic resources such as land results in victims being pauperized or
10
Supra n. 1
11
Ibid.
12
UNHCR, Domestic Violence and Abuse: Warning Signs and Symptoms of Abusive
Relationships,<http://www.helpguide.org/.../domestic_violence_abuse_types_signs_causes_effects.htm> accessed
on 03/11/2013.
13
WambuguKanyi, ‘Nyeri man battered by wife for secretly selling radio,’ The Star, 5 January 2012.
4
devastated. In Mombasa for example, a woman was dispossessed of all that her husband had left
behind on top of having been physically beaten for a long period by her brothers-in-law14.
In Kenya, there have been various efforts to enact laws dealing with domestic violence but this
has not come to fruition to date.15 This has been partly attributed to the male dominated
parliaments Kenya has had since independence. These parliaments tended to be chauvinistic and
thought of legislating on domestic violence as denying men the traditional right to chastise their
wives. Domestic violence has thus been prosecuted in Kenya under the auspices of criminal laws
such as the Penal Code16 and the Sexual Offences Act17. Although this has somewhat helped
curb the violence, it’s still not adequate since there are various gaps in the said laws. For
instance, the Penal Code prosecutes domestic violence such as sexual offences cases under
crimes against morality.18
This study will thus belabour to evaluate the laws that deal with domestic violence in Kenya with
a view to determining their efficacy in dealing with the vice. This will then inform the making of
recommendations geared towards making the laws more responsive to victims of domestic
violence. The study will be undertaken mainly by a review of the statutes and other laws and
policy frameworks that have over the years embodied attempts at slaying the dragon of domestic
violence. Judicial intervention in this area will also be considered and evaluated. Although it is
generally acknowledged that domestic violence is mainly rampant on women and children due to
their hitherto vulnerable status in the traditionally patriarchal society, the plight of men who have
borne the brunt of domestic violence will similarly be lent an ear. This study will thus examine
the legal framework on domestic violence without bias to either gender.
14
Supra n.1
15
The Government for instance set up the Commission on the Law of Marriage and Divorce in 1966 whose terms of
reference included looking at the status of women in society. The Commission proposed a Bill to criminalize wife
beating. Parliament however rejected the Bill and justified wife chastisement as a matter within the private domain
for which the law should not interfere.
16
Cap 63 Laws of Kenya
17
No. 3 of 2006
18
Chapter XV of the Penal Code Cap 63 Laws of Kenya deals with sexual offences. The chapter is titled ‘Offences
Against Morality’
5
1.2 Problem Statement
Since the turn of the 20th century there have been concerted efforts towards affirming the right to
equal treatment of men and women. This has been spearheaded predominantly by feminists and
other human rights activists whose position is that women should be treated equally with men 19.
This has had the consequence of among other things, identifying domestic violence as a crime at
the international plane. At the local scene, the constitution20 emphasizes the right to equality21
and has further introduced affirmative action measures aimed at ameliorating the disadvantages
historically suffered by hitherto considered vulnerable groups such as women.22
Despite the fact that domestic violence has been recognized as a crime, there is no specific law
that deals with it per se in Kenya. This is despite the fact that Kenya is a signatory to various
international conventions that have affirmatively criminalized domestic violence against women
and other disadvantaged groups. A good example of such conventions is the International
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Domestic violence is dealt with under various pieces of legislation such as the Penal Code23, The
Sexual Offences Act24 etc. While these statutes have somewhat provided a platform for the
prosecution of the perpetrators of domestic violence, they are not adequate in curbing the vice.
For instance, there is no law that deals with marital rape. This study thus seeks to analyse the
efficacy of the laws dealing with domestic violence with a view to making a case for the
enactment of the Protection Against Domestic Violence Bill, 2012 into law.
19
The equality principle is enshrined in various international instruments. For instance, Article 1of the Universal
Declaration of Human Rights provides that ‘all human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ This is similarly
mirrored under Article 2 of The African Charter on Human and Peoples’ Rights which is emphatic that ‘every
individual should be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present
Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any
other opinion national and social origin, fortune, birth or other status.’
20
21
Article 27 of the Constitution states in no uncertain terms that every person is equal before the law and has the
right to equal protection and equal benefit of the law. It further asserts that men and women have the right to equal
treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
22
Article 27(6) of the Constitution is emphatic in this and provides in this regard that to give full effect to the
realization of the rights guaranteed under the Article, the State shall take legislative and other measures including
affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups
because of past discrimination.
23
Chapter 63 Laws of Kenya
24
No. 3 of 2006
6
1.3 Objectives of the study
1.3.1Main objective
The main objective of this research is to conduct a study into the laws dealing with domestic
violence in Kenya with a view to determining their adequacy in curbing the vice. This will be
done on the understanding that there is no specific law dealing with domestic violence in Kenya
but that there is a pending Bill that seeks to address this issue. The study will seek to make a case
for the enactment of this Bill into law to specifically deal with domestic violence.
1.3.2 Specific objectives

The specific objectives of this study are to:
1. To assess the efficacy of the Kenyan laws on domestic violence.

2. To assess the international instruments and the standards set thereby on the doctrines
against domestic violence.
3. Explore the provisions of the law on domestic violence in other jurisdictions such as
South Africa and the United Kingdom due to their more developed system in terms of
dealing with domestic violence.
4. Explore the possible measures that can be put in place to improve the way the legal
system in Kenya deals with domestic violence. I will make a case for the enactment of
the Protection Against Domestic Violence Bill, 2012 into law to deal with the vice.
1.4 Research questions

i. How adequate are the laws that deal with domestic violence in Kenya in dealing with the
vice?
ii. What are the provisions of international instruments law in relation to domestic violence?
iii. How do the legal systems in South Africa and the United Kingdom handle the issue of
domestic violence?
iv. What are the viable interventions that can be put in place to improve the handling
domestic violence in Kenya?
1.5 Scope of the study

This study is concerned mainly with the laws that regulate domestic violence in Kenya. The
international legal framework on domestic violence will however also come under scrutiny. The
7
judicial intervention in the area of domestic violence will also form part of this study. The study
will hence utilize mostly secondary sources of information such as law reports.
1.6 Rationale of the study

The motivation for carrying out this study arose from the fact that domestic violence is
increasingly becoming rampant. This has included even cases of men being battered by their
wives. Despite this fact, there is yet to be enacted in Kenya a specific law dealing with domestic
violence. This study therefore seeks to give an insight into the laws governing domestic violence
in Kenya with a view to ascertaining their adequacy in dealing with the vice. This will be
imperative in making a recommendation for the enactment of a specific piece of legislation to
deal with this vice.
1.7 Significance of the study

This study is important for various stakeholders including:
a) The Government
This study is expected to influence government policy in so far as domestic violence is

concerned. It will provide a platform for the legislature to gain a greater insight and
understanding into the issues surrounding domestic violence. This is overtly important in
order to enable it embark on enactment or the reform of the law to cater for this area of
interest. This is especially important since there have been efforts to enact a law dealing with
domestic violence which however has not come to fruition.
b) Scholars
This research will no doubt act as a reference for future scholars who are interested in this
area of study. This is more so important given that there is very little literature on this area
especially locally which can be utilized for research purposes.
1.8 Hypothesis of the study

In writing this research paper, several assumptions were made. These include:
8
1. That domestic violence has been widely recognized as a crime both internationally
and locally.
2. That there is no specific law in Kenya dealing with domestic violence and it’s instead
dealt with under various criminal laws.
3. That other countries such as South Africa and the United Kingdom have in place
domestic violence laws that can serve as a comparative source for Kenya in enacting
a law on domestic violence.
4. That there is need to enact a specific law dealing with domestic violence in Kenya to
better enable the prosecution of domestic violence cases.
1.9 Theoretical Framework and Literature review
1.9.1 Theoretical Framework

There are various theories that have been put forward to attempt to explain the issue of domestic
violence. This study acknowledges the relevance and importance of all the theories in
conceptualizing domestic violence but it will look at only two theories; the feminist perspectives
and the control theory.
i. Feminist Perspectives
According to feminist theories, women should enjoy equal rights with men based on the equality
of all human beings. This has led for example to the recognition of violence against women as
constituting a violation of the rights and fundamental freedoms of women and impairs or
nullifies their enjoyment of those rights.25It has been argued that as women have now become
more free and equal in society, and are less controlled, they have become able to act more like
men and this therefore explains why female crime rates have increased.26
The theory of female emancipation could be valid to explain the crime of domestic violence on
men. If, because women are now more socially ‘free’ then they may start to act how they believe
men act, and therefore this can result in them being violent and aggressive. However it doesn’t
25
This position is reflected in the provisions of the Declaration on the Elimination of Violence against Women, UN,
General Assembly Resolution 48/1004 of 20 December 2003
26
Supra n.7
9
explain this for women who don’t abuse their male partners, which are inadvertently the majority
of cases.27
ii. The Control Theory
This theory is based mainly on the patriarchal nature of most societies. It is based on the concept
that many family conflicts result from individuals’ need to obtain and maintain power and
control within a relationship.28 The motivation underlying the abuser’s behavior is the power and
control that she or he is able to exert over other members of the family. The more powerful
members of the family(e.g. father, parents, husband) often use the threat or use of force or the
threat or use of violence to obtain compliance from the less powerful members e.g. children and
wives.29
Control is not limited to physical power but extends to economic power as well. Study has
revealed for instance that women are discriminated against, as they are not economically
empowered to adequately meet their own basic needs and therefore, take charge of their
sexuality and livelihoods.30 This situation predisposes them to mistreatment in key aspects of
their lives, which impinge on their status in society including the control over their reproductive
rights, health and destiny.31 This theory explains the predominance of domestic violence on
women and children but fails to explain why some men are battered by their female partners.
27
Jane Mulroney and Carrie Chan, ‘Men as Victims of Domestic Violence’ 16 Australian Domestic and Family
Clearing houseTopicPaper
28
Maren E. Hyde and Tracy Juliao, ‘Theoretical Basis for Family Violence’ in Rose S. Fife and Sarina Schrager
(eds), Family Violence: what healthcare providers need to know. Jones &Bartlett Learning (2012)
29
Ibid.
30
Gichangi P, Thenya S, Kamau J, Kigondu C, Ngugi E, Diener L.(2002),Domestic violence in Kenya: A baseline
survey among women in Nairobi. FIDA-Kenya.
31
Ibid.
10
1.9.2 Literature Review
Domestic violence has long been considered as a serious problem and there have been concerted
efforts to curb it. These efforts must however address the root cause of this vice that is mainly
traceable to societal stereotype and the insubordination of women in the traditional societal set
up. Efforts to empower women must thus address current norms and traditional social customs
that legitimize violence against them, as well as legislation and law enforcement that
discriminate against them. Initiatives to promote gender equality must deal openly and
vigorously with the issue of partner violence, because women will never be equal in their public
lives until they are equal at home32.
Bonita C. Meyersfeld discusses the issue of domestic violence under international law. In his
article, Reconceptualizing Domestic Violence in International Law33, he observes that a binding
characteristic of communities throughout the world, almost without exception, is the battering of
women by men. He further notes that one of the main causes of the rift between the law against
domestic violence and the implementation of such law is the intimacy of the relationship
between the aggressor and the abused. An additional explanation for the schism, according to
him, is the lack of a correct conceptualization of domestic violence. This work is important in
highlighting the need to correctly conceptualize domestic violence hence better deal with it and
the permeating presence of domestic violence even at the international plane hence the need to
be handled under international law as well.
Kristin L. Anderson in her article ‘Gender, Status, and Domestic Violence: An Integration of
Feminist and Family Violence Approaches’34 has similarly discussed the issue of domestic
violence. In her work, she explains from the feminist perspectives why women tend to stay in
abusive relationships. It’s her argument thus that the interplay between cultural constructions of
femininity and structural conditions is the chief reason why women do not leave abusive
relationships. She further avers that dominant notions of femininity emphasize nurturance;
women attempt to "heal" abusive men through their love, understanding, and patience. Yet
32
Republic of Kenya National Report to CEDAW-FINAL, APRIL 2004,
<http://www1.uneca.org/Portals/ngm/Documents/KENYA-COUNTRY-REPORT-TO-CEDAW-FINAL-APRIL-
2004-2009-1.pdf> on 22/11/2013.
33
Bonita C. Meyersfeld, ‘Reconceptualizing Domestic Violence in International Law’ (2003) 67 Albany Law
Review 371
34
Kristin L. Anderson, ‘Gender, Status, and Domestic Violence: An Integration of Feminist and Family Violence
Approaches,’ Journal of Marriage and the Family 59 (August 1997) pp.655-669.
11
women also remain in abusive relationships because of their limited economic and social
resources. This work is important in understanding the difficulty in moving away from the
abuser, particularly in light of the control theory.
Katharine Bartlett and Deborah Rhode35 have also sought to trace the genesis of laws that
proscribe domestic violence. They record that under early American common law, a husband, as
master of his household, could subject his wife to chastisement short of permanent physical
injury. Beginning the 1960s however, the women’s movement sought to make private violence a
public issue. This led for example, to the passing of the Violence Against Women Act, 1994 in
the United States as part of a massive omnibus crime bill which responded to domestic violence
on multiple fronts. This discussion is important especially in understanding the influence of
feminists in the enactment of domestic violence laws, not only in Kenya but even globally.
Emily Burrill, Richard Roberts, and Elizabeth Thornberry in their book, Domestic Violence and
the Law in Colonial and Postcolonial Africa36 have considered the various factors that perpetuate
domestic violence in African societies as opposed to for example Western societies. They
contend that African practices related to marriage, for instance dowry payment by the husband’s
family gives them the right to exploit the labour and subject the bride to their commands. This
article sheds light on the African set up and locates the source of domestic abuse in such a set up.
Aurelia Babalwa Njezula while writing about domestic violence in South Africa decries the lack
of police cooperation in combating domestic violence, especially on women. She observes that
women victims of rape or assault in South Africa face a criminal justice system that is too often
unable or unwilling to assist them in their efforts to seek redress. She also points to the fact that
domestic violence flourishes because society is tolerant of it.37 This work helps give an insight
into the legal system treatment of the victims of domestic violence even in cases where there is a
law that deals with the vice. It highlights the need for law enforcers to be trained to accept and
handle domestic violence as a crime.
35
Katharine T. Bartlett and Deborah L. Rhode, Gender Law and Policy (2010) pp. 278-314.
36
Emily Burrill, Richard Roberts, and Elizabeth Thornberry, Domestic Violence and the Law in Colonial and
Postcolonial Africa(1st ed, 2010)
37
Aurelia Babalwa Njezula, ‘Investigating Domestic Violence against Women in South Africa’ (2006)
<http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_4599_1242781895.pdf> on 18/12/2013.
12
Eugene Cotran in his book38 on his part has delved into the applicability of customary laws in
Kenya. He observes that under customary law, a husband may chastise his wife for her
misconduct, but unjustified or excessive beating by the husband would be sufficient cause for the
wife to return to her family. It then appears that customary law permits violence on women so
long as in the eyes of the society it is not excessive. The remedy available to the battered woman
apart from escaping to her family would be to seek divorce. This study will seek to investigate
the extent to which the application of customary law pursuant to section 3(2) of the Judicature
Act39 perpetuates or helps to curb domestic violence, predominantly on women.
Ruth Aura Odhiambo and Maurice Oduor in their article40 have similarly decried the inadequacy
of the laws dealing with domestic violence in Kenya. They observe that sexual and gender based
violence revolves around patriarchal notions about the roles of women and men in society and
that the official response to violence is thus influenced by these gendered power relations. It is
their position that although the Sexual Offences Act, 2006 sought to respond to the specific
challenge of sexual violence, there is as yet no targeted law that seeks to deal with other forms of
violence against girls and women. This study will similarly seek to underscore the need to have
an all-round piece of legislation that deals with all the aspects of domestic violence as opposed to
sector-specific legislations such as the Sexual Offences Act.
The Constitution of Kenya, 2010 has introduced fundamental principles that are geared towards
ensuring gender equality and affirming the equality of all human beings. This is intended to
ameliorate the disadvantages suffered by hitherto considered vulnerable groups, such as women
and children. For instance, the Constitution recognizes that every person has inherent dignity and
the right to have that dignity respected and protected.41 The Constitution similarly prohibits
discrimination on among other grounds, sex.42 These constitutional provisions should thus
provide a platform for the enactment of laws and judicial pronouncements that criminalise acts of
violence.
38
Eugene Cotran, Casebook on Kenya Customary Law(1987)pp.97
39
Cap 8 Laws of Kenya
40
Ruth Aura Odhiambo and Maurice Oduor, ‘Gender Equality’, in Lumumba PLO, Mbodenyi MK and Odero SO,
The Constitution of Kenya: Contemporary Readings( 2012)pp.99-151
41
Article 28 of the Constitution.
42
Article 27 of the Constitution.
13
There have been various attempts at enacting laws to address domestic violence, especially on
women. Dating back to 1966, there have been proposed several bills seeking to criminalize
various aspects of domestic violence, a case in point is the Bill introduced by the Commission on
the Law of Marriage and Divorce which sought to criminalize wife beating. Other Bills include
the Domestic Violence (Family Protection) Bill, 1999 and the Criminal Law Amendment Bill,
2000,the Protection Against Domestic Violence Bill, 2012 etc. None of these Bills however
became Acts. This has had the consequence of making the victims of domestic violence rely on
criminal law for their protection.
Most domestic violence cases are prosecuted under the provisions of the Penal Code. These
include the sections dealing with assault43, grievous harm44, murder45, attempted murder46 etc.
The Penal Code is however inadequate to prosecute these cases. For instance, it envisages that
only women can be victims of rape. To try and cure the shortcomings of the Penal Code
especially on sexual offences, in July 2006 the Kenya government enacted the Sexual Offences
Act to curb the spread of the heinous crimes of sexual violence against women and children. This
Act however also has shortcomings of its own. For instance, this legislation excludes marital
rape as a punishable offence.47 These statutes are supplemented by international legal
instruments ratified by Kenya such as CEDAW which forms part of Kenyan law by dint of the
provisions of article 2(6)48 of the Kenyan constitution.
Domestic violence laws should therefore not be based on one gender, but should be inclusive of
both men and women. It should include married persons, those in family settings, friends, those
dating and even those who are cohabiting or in other arrangements. This is especially imperative
in light of the fact that domestic violence occurs in all situations, cultures and persons.
1.10 Methodology
This study will mainly be based on secondary sources of information obtained from the library.
These will include statutes, case law, law books and journals, commentaries by legal scholars,
43
Chapter XXIV Cap 63 Laws of Kenya
44
S. 234 Cap 63
45
S. 203 Cap 63
46
S. 220 Cap 63
47
A Critique of Section 38 of the Sexual Offences Act, Juvenile Justice Quarterly, Vol 4 issue 4 Oct-Dec 2007
48
Article 2(6) provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the
Constitution.
14
newspaper articles, magazines etc. The internet will equally be useful in providing direct access
to materials that are unavailable in the library as print material.
1.11 Chapter breakdown

This study will be divided into five chapters.
Chapter one: Proposal

This chapter will entail the research proposal and which generally comprises the background of
the research. It will lay out the research objectives, methodology as well as the theoretical
framework and the literature review.
Chapter two: The Legal Framework on Domestic Violence

This chapter will deal with the laws relating to domestic violence in Kenya. It will be organized
as follows:
2.0 Introduction
2.1 The Legal Framework in Kenya
2.1.1 The Constitution
2.1.2 The Penal Code
2.1.3 The Sexual Offences Act
2.1.4 The Evidence Act
2.1.5 Customary Laws
2.1.6 Judicial Intervention in Domestic Violence Cases
2.2 The International Legal Framework
2.2.1 The Universal Declaration of Human Rights
2.2.2 The International Covenant on Civil and Political Rights
2.2.3 The Convention on the Elimination of All Forms of Discrimination Against Women
2.2.4 The United Nations Declaration on the Elimination of Violence Against Women
15
2.2.5 Vienna Declaration and Program of Action.
2.2.6 The African Charter on Human and People’s Rights and the Protocol To the African
Charter on Human and Peoples’ Rights On The Rights Of Women in Africa
2.2.7 AU Solemn Declaration on Gender Equality
2.3 Chapter Summary
Chapter three: A Critical Appraisal of The Protection Against Domestic Violence Bill, 2012
This chapter will look at the various international instruments that deal with domestic violence
that have been ratified in Kenya and assess how Kenya has complied with her obligations under
them. It will be organized as below:
3.1 Introduction
3.2 Salient features of the Bill
3.3 The Shortcomings in the Bill
3.4 Chapter Summary
Chapter four: Comparative Analysis

This will be the comparative chapter. It will seek to unearth the laws that deal with domestic
violence in South Africa and the United Kingdom. This is in light of the fact that these
jurisdictions have somewhat enacted relatively viable laws to deal with domestic violence. It will
comprise the following:
4.0 Introduction
4.1 Kenya and South Africa
4.2 Kenya and the United Kingdom
Chapter five: Conclusion and Recommendations
This will be the concluding chapter. It will consist of the conclusion and proffer
recommendations for reform which will be discussed as below:
16
5.0 Conclusion and Recommendations
5.1 Conclusion
5.2 Recommendations
17
Chapter Two
THE LEGAL FRAMEWORK ON DOMESTIC VIOLENCE
2.0 Introduction
Domestic violence is as rampant in Kenya as it is elsewhere in the world. This has mainly been
attributed to the patriarchal nature of the society. In a patriarchal society, for example, domestic
violence is recognized as one way of disciplining one's wife.49 In fact, even the society socializes
one as a woman to anticipate this discipline.50 Despite the fact that domestic violence has been
recognized as a crime, there is no law in Kenya that criminalizes domestic violence expressly.
Domestic violence cases have consequently been handled under the auspices of various laws,
mostly those which deal with criminal matters. The following sections will thus be dedicated to a
dissection of these laws to bring to the forth the extent to which they curb the vice.
2.1 The Kenyan Legal Framework

2.1.1 The Constitution51
The enactment of the constitution in 2010 brought with it a lot of renewed hope especially in so
far as the protection of human rights is concerned. Indeed, the Constitution has been lauded as
being sui generis in so far as the protection of human rights is concerned.52 The Constitution
under Chapter IV provides for the Bills of Rights which contain blanket provisions which
safeguard the rights of men and women alike. These rights also apply to children.
49
Bonita C. Meyersfeld, ‘Reconceptualizing Domestic Violence in International Law’ (2003) 67 Albany Law Review
371. The author argues that in some jurisdictions, the official structures are conducive to or supportive of violence as
a means of subduing female family members.
50
Kathy Majitenyi, ‘Cases of Domestic Violence Increase in Kenya’ Voice of America, 4 March 2010
<http://www.voanews.com/english/news/Cases-of-Domestic-Violence-Increase-in-Kenya-86691287.html> accessed
on 22/10/2013.
51
52
M Kiwinda Mbondenyi and J Osogo Ambani, The New Constitutional Law of Kenya (2012). See for instance the
explanation proffered at page 160 where the authors are of the position that compared to the Bill of Rights in the
repealed Constitution or in many other contemporary jurisdictions, the 2010 Constitution is unique in a number of
critical respects. It exhibits the following salient features-it has a near exhaustive catalogue of entitlements, contains
the different genres of human rights, provides for an expansive non-discrimination clause, expresses regard for
substantive equality(affirmative action), reserves certain rights from derogation, carries special regulation of
emergencies, espouses a conservative strain of moral philosophy, opts for a centralized limitation clause as opposed
to multiple internal limitation clauses, and has both vertical and horizontal implications. The Bill of Rights also
comes with viable enforcement apparatuses.
18
The constitution safeguards the right to life, liberty and security of the person and his protection
of the law53. It also empowers any Kenyan whose rights or freedoms has been infringed upon to
have the dispute resolved by application of law to be determined in an impartial and open trial
before a court of law or another autonomous and unbiased body54. It further recognizes that
every person has inherent dignity and the right to have that dignity respected and protected.55
The Constitution goes further to recognize that the family is the natural and fundamental unit of
society and that parties to a marriage are entitled to equal rights at the time of marriage, during
the marriage and at the dissolution of the marriage.56 It also goes further to enumerate the rights
of children inter alia the right to be protected from abuse, neglect, harmful cultural practices, all
forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.57
As far as violence is concerned, it provides that “Every person has the right to freedom and
security of the person, which includes the right not to be subjected to any form of violence from
either public or private sources”58. It also does provide for the protection from torture in any
manner, whether physical or psychological59, subjection to corporal punishment60 and treatment
in a cruel, inhuman or degrading manner.61
The Constitution thus provides a basis for the protection of all persons from violence, both from
public and private sources. Private sources can be interpreted to mean domestic abuse especially
that which occurs in the family set up. The Constitution also goes ahead to provide for equality
in marriage62 which can be viewed as an attempt to negate inequalities in marriages which is
responsible for the perpetuation of violence especially on women who are considered less equal
due to the patriarchal notions of most societies. Children are similarly protected from among
other things, acts of violence.
53
Supra n. 51, Article 26
54
Supra n. 51, Article 50(1)
55
56
57
Supra n. 51, Article 53(1)(d)
58
Supra n. 51, Article 29(c)
59
Supra n. 51, Article 29(d)
60
Supra n. 51, Article 29(e)
61
Supra n. 51, Article 29(f)
62
Supra n. 51 ,Article 45
19
2.1.2 The Penal Code63
The Penal Code provides for the general criminal framework under which domestic violence
cases are prosecuted. It defines offences as either felonies or misdemeanors and prescribes the
penalties thereof. The various offences under which questions of domestic violence are handled
are divided into two; Sexual Offences and Offences Against the Person. The sexual offences are
however now handled under the Sexual Offences Act, 2006 which repealed the relevant sections
of the Penal Code dealing with such offences.
The offences against the person include murder, attempted murder, grievous harm and assault
among others. Section 144 provides for indecent assault on females. It states that, “Any person
who unlawfully and indecently assaults any woman or girl is guilty of a felony and is liable to
imprisonment with hard labour for twenty-one years.” This crime is identified as a felony, an
indication that the law treats it as being serious. The offence of assault is however considered as
a misdemeanor and the Penal Code provides that “Any person who commits an assault
occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for
five years.”64
The sexual offences on the other hand include rape, defilement, incest, detention of a female for
immoral purposes, unnatural offences, prostitution among others. Rape is prohibited by the Penal
Code and carries a maximum sentence of life imprisonment. It is said to have been committed
under Kenyan law where a man has unlawful carnal knowledge of a woman without her consent
or with her consent if the assent is attained by force or through of coercions or pressure of any
kind, or by panic of physical harm or by means of false representation.65
The offence of defilement is similarly a felony under the Penal Code. This is defined as sexual
intercourse with a girl who is less than 14 years of age and is punishable by imprisonment for
fourteen years together with hard labour and corporal punishment.66 Conspiracy to defile is also
a felony liable to imprisonment for three years with or without corporal punishment.67 Other
63
Cap. 63 Laws of Kenya
64
Ibid, s.251
65
Supra n.63, s.139
66
Supra n.63, s.145
67
Supra n.63, s.157
20
offences include incest which is a felony punishable by imprisonment for five years68, abduction
where a person takes a woman away or detains her against her will with the intent to marry or
carnally know her or cause her to be married or carnally known by another person 69. The
punishment thereof is imprisonment for seven years.
The above provisions of the Penal Code have provided a platform on which domestic violence
cases have been prosecuted. However the same are inadequate in prosecuting domestic violence.
For instance, they fail to recognize the differentiated dimensions of domestic violence and only
comes into effect after the victim has been violated which may sometimes be too late. Similarly,
in cases where domestic violence is ongoing, the Penal Code fails to provide for the removal of
the abuser from the home environment so as to minimize the effects of violence70.
In addition, the Penal Code penalizes only indecent assault on women and the general offence of
assault. It fails to provide for and specifically penalize domestic violence, leaving the victims
vulnerable and without legal protection or a means of recourse. It does not also criminalise
spousal rape which is fatal in as far as the sexual rights of married persons may be violated by
their partners. The non-recognition by law of the possibility of a man raping his wife is thus
problematic within the context of domestic relations.71
More fundamentally, the offences under the Penal Code only attract prison sentences. No remedy
is provided calculated at remedying the victim or making reparation as the case may be. The
sentences imposed are aimed at punishing and hopefully reforming the accused. The victim thus
has no good made to him or her at a personal level. This needs to be addressed especially in
offences such as rape, defilement etc.
2.1.3 The Sexual Offences Act72

The Sexual Offences Act was enacted in 2006 to respond to the rampant sexual offences that
were witnessed in the country during that period by introducing a comprehensive law reform
68
Supra n. 63, s.166
69
Supra n. 63, s.256
70
FIDA (K) 2008 Report on Gender Based Domestic Violence in Kenya; Nairobi, FIDA
(K)<http://www.womankind.org.uk/wp-content/uploads/2012/03/FIDA-Kenya-Report-on-Gender-Based-Domestic-
Violence-in-Kenya.pdf> on 12/11/2013
71
J M Migai, ‘The Penal Code and Spousal Rape: Is there need for legislature intervention?’ (1995) University of
Nairobi Law Journal Issue No. 2.
72
No. 3 of 2006
21
with regard to rape and sexual assault.73 The Act came into force as law in Kenya in July 2006.
In 2007, the Attorney General appointed a multi-sectoral task force that has been spearheading
the implementation of the Act. The Act also aimed at introducing stiffer and enhanced penalties
for offenders.74Since independence, the Sexual Offences Act is the first gender related Act to be
passed in Parliament.75This was informed by the need to address the inadequacies of the Penal
Code with respect to sexual offences. For instance, the Penal Code contemplated that only girls
and women could be raped. The Act thus repealed sections 139-168 of the Penal Code and some
sections of the Evidence Act76 and the Criminal Procedure Code77.
The Act is an improvement on the Penal Code provisions. It is a comprehensive law on sexual
offences. Among the benefits of the Act include the expanded definition of sexual offences i.e.
rape and defilement including both sexes; introduction of 14 new sexual offences; creation of
minimum and maximum mandatory sentences; enhanced and stiffer penalties for sentences for
sexual offences; limited requirement on burden of proof for the victims; establishment of register
of sexual offenders at the high court and the setting up of a DNA data bank and a pedophile
registry.78
The Act also defines emerging forms of sexual violence that were not covered in the penal code,
such as trafficking in children and presents an attempt to move from the old theory of classifying
sexual offences as crimes against morality and address them as crimes of violence that they are.79
For instance, the definition of the complainant in instances of sexual offences includes the
Republic.80 The Act has also defined what “genital organs’ are which was not previously
defined. Other terms also defined by the Act include penetration and indecent assault.81
73
See the Sexual Offences Act, 2006 the preamble which states that it is an Act of Parliament meant to ‘make
provision about sexual offences, their definition, prevention and the protection of all persons from harm from
unlawful sexual acts, and for connected purposes’
74
Njoki Ndungu, ‘Legislation for Sexual Violence in Africa: Preparing and Delivering Evidentiary
Requirement’<www.suri.org/legislation.pdf> accessed on 16/11/2013.
75
Ibid.
76
77
78
Winnie Lichuma, ‘Kenyan’s Experience Legislating the Sexual Offences Act.’KNHCR.A paper presented at the
17th Pre-Summit Consultative Meeting on Gender Mainstreaming in the AU. Available at
<www.fasgno.org/assets/files/17GIMAC Pre-Summit/The Experience of legislating the Kenya’s Sexual Offences
Act.pdf> on 16/11/2013.
79
Supra n. 72
80
See s. 2 of the Sexual Offences Act, 2006. Previously the complainant, being the victim of a sexual offence was
allowed to withdraw the offence on his/her own volition. This provided a leeway through which undue influence
22
Among the new offences introduced by the Act include gang rape, deliberate transmission of
HIV/AIDS or other sexually transmitted disease82, promotion of sexual offences with a child83,
child sex tourism84, gang rape85, incest by female persons86, child pornography87, child
trafficking88 among others. These new offences no doubt increase the cache of sexual offences
punishable under the act hence affording better protection to the victims of such offences.
The Act has similarly enhanced the sentences upon conviction of a sexual offence. For example,
the punishment for rape is a minimum of 10 years imprisonment but which can be enhanced to
life imprisonment89. Previously there was no lower ceiling term for the offence of rape meaning
magistrates had the discretion to vary the term to even less than ten years. The new offences also
attract heavy penalties. For instance, the deliberate transmission of HIV carries a minimum
sentence of 15 years.90
The Act however has flaws of its own. For instance, under section 43(5)91 of the Act, marital
rape is not criminalized. This has had the consequence of making marital rape and domestic
violence continue unabated. The other shortcoming of this Act is the provision of section
3892.This section is a threat to women victims who decide to sweep the crime under the
carpet93hence increasing the cases of underreporting in sexual offences 94.This is due to the fact
from parents upon being bribed by the perpetrators would prevail upon the complainant to withdraw the case. The
Act has therefore made the Republic one of the Complainants and a sexual offence cannot now be withdrawn unless
the prosecution consents with leave of the court.
81
Supra n. 72, s. 2
82
Supra n. 72, s.25
83
Supra n.72, s.12
84
Supra n.72,s.14
85
Supra n.72,s.10
86
Supra n.72,s.21`
87
Supra n.72,s.16
88
Supra n.72,s.13
89
Supra n.72,s.3
90
Supra n.82
91
The section provides that the section shall not apply in respect of persons who are lawfully married to each
other. The said section deals with unintentional and lawful acts. The import of the provision is thus that persons
who are legally married to each other cannot be subject to proceedings for unlawful and intentional acts in their
private setting which inter alia includes marital rape.
92
Section 38 provides that ‘any person who makes false allegations against another person to the effect that the
person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that
for the offence complained of.’
93
Supra n.78
23
that it makes it an offence to make false allegations. It criminalizes the victims and has a penalty
similar to the offence complained of. This provision in itself can make a survivor of sexual
assault not to report to the police for fear of being punished if the case fails. In sum therefore, in
as much as the Sexual Offences Act has made great strides with respect to providing for the
framework for punishment of sexual offences, the provisions are not adequate. For example,
while the Act sought to respond to the specific challenge of sexual violence, there is as yet no
targeted measure that seeks to deal with other forms of violence.95
2.1.4 The Evidence Act96

This is the Act that governs the collection and submission of evidence as far as procedural issues
are concerned. Thus therefore in cases where someone seeks redress, he or she must follow the
rules set out in this Act. Some of the rules of this Act however make it difficult to convict
persons suspected of committing domestic violence crimes. For instance, it is a requirement in
criminal cases that the party bearing the burden of proof must discharge it effectively in order to
sustain a conviction.97 The burden of proof in this case is beyond reasonable doubt. Anything
short of that will fail. In rape cases, this gives many accused persons the chance to get away as
the victim is put at a disadvantage.98
The Act also allows the adducing of evidence of character as a defence in a rape case. The
character of the victim can be impeached by questioning her morality99. Thus where consent to
sex was vitiated for example by the complainant being drunk, the fact of her drunkenness can be
used to question her morality. Similarly, the Act requires that the evidence of a child of tender
years should be corroborated before it is admitted in evidence.100 The requirement for
corroboration has connotations for lack of trust for the complainant. In addition, the complainant
94
Equality Now, Discrimination Against Women in Law (2011)
<www.equalitynow.org/sites/default/files/WG_Report_EN.pdf> accessed on 15/11/2013.
95
Ruth Aura Odhiambo and Maurice Oduor, ‘Gender Equality’, in Lumumba PLO, Mbodenyi MK and Odero SO,
The Constitution of Kenya: Contemporary Readings(2012)pp.120
96
97
Ibid, s.107-109.
98
Republic .v.Duncan Gichuhi Waiyaki [1995] EA 929.
99
Supra n. 96, S. 163
100
Supra n.96, s.124
24
may have been the sole witness, being the primary victim; hence there would not be anybody to
corroborate the evidence with the consequence that the case may fail.101
The Evidence Act should therefore be amended to facilitate domestic violence cases where
proving the case is difficult. It is worth noting that some of these sections have since been
amended by the Sexual Offences Act, 2006.102
2.1.5 Application of Customary Laws

African customary law is a source of Kenyan laws pursuant to the provisions of section 3(2) of
the Judicature Act Cap 8 Laws of Kenya103 subject to the repugnancy test104. Despite the
applicability of customary law in civil cases, these laws are not codified anywhere and vary from
tribe to tribe. In addition, the repugnancy test has no generally accepted interpretation. Judges
and magistrates therefore have the leeway to offer an interpretation according to what they
perceive it to be. This perpetuates violence especially against women due to the hitherto male
dominated judiciary by allowing for the arbitrary application of such laws at the discretion of the
judge.105
African customary marriages are similarly recognized under law. In most of the communities in
Kenya, there are certain ceremonies which must be performed in order for a marriage to be
considered as valid in law. One such ceremony is the practice of giving bride price (dowry)
101
See for instance the case of Francis Charo Opo v. Republic (Criminal Appeal No. 39 of 1980)
102
For instance under the Second Schedule to the Act, Section 124 of the Evidence Act is amended deleting the
words “a child of tender years who is” and substituting therefore the words “alleged victim” and by deleting the
word “child” wherever it appears thereafter and substituting therefore the words “alleged victim”
103
Section 3(2) provides that ‘The High Court, the Court of Appeal and all subordinate courts shall be guided by
African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it
is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all
such cases according to substantial justice without undue regard to technicalities of procedure and without undue
delay.’
104
Article 2(4) of the Constitution enshrines the repugnancy test and provides in this regard that ‘any law, including
customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.’
105
See for example the case of Virginia Otieno versus Ougo & another {1987} KLR, 371 , H.C, where the court
directed that the deceased be buried in accordance with the customs of his Luo clan and stated that there is no way in
which an African citizen can divest himself of the association with the tribe of his father. Mr. Otieno, having been
born and bred a Luo remained a member of Luo tribe and subject to the customary law of the Luo people. It appears
that Article 44(1) of the Constitution renders S.M Otieno’s case a bad law since one cannot be forced to take part in
a cultural life that he or she is against it. Further, the judgment in this case denied Wambui Otieno her right to bury
her husband by reason of operation of customary law.
25
where the husband to-be parts with gifts such as cows or cash to the family of the bride. This
practice has perpetuated a lot of domestic violence on women as many men argue that if they
paid to get the wife, then she should be treated just as any other property.106
In Kenya the practice of bride price is in the preserve of customary law which is not codified and
the nature and extent of the practice differs with each ethnic group. As such, there are no hard
and fast rules on the regulation of the practice and this creates a loophole for parents who wish to
alleviate themselves from poverty to misuse the practice to unjustly enrich themselves by
demanding high bride price. The need for parents and kin to make financial gain out of bride
price has led to the increase in the number of early and forced marriages among certain
communities in Kenya for example in Nyanza where Child marriage is also relatively common.
The girl-child is forced to marry or is married off at an extremely early age when she may not
appreciate her new status nor have the capacity to play her role effectively as a mother and a
wife.107
When a customary marriage ends, the wife’s family is expected to return to the husband the bride
price he paid out to marry her; then only will the marriage be dissolved customarily. 108 Because
many women cannot raise the money to pay back the bride price, they opt to stay in abusive
marriages.109 Such customary practices are harmful to women and impede the realization of
equality rights.
106
Supra n.71
107
Center for Rights, Education and Awareness (CREAW), Bride Price: Is it Modern Day Slavery?(2006)
108
Eugene Cotran, Casebook on Kenya Customary Law (1987) pp.123-124. The author notes that all the customary
laws provide that if there are no children of the marriage, the dowry is returnable in full. Where there are children of
the union the rules differ amongst the ethnic groups. Amongst the Kikuyu, Kamba and the Nandi the husband has a
choice whether to keep the children or give them to the wife. If he keeps them, no dowry is returnable. If he gives
them to the wife, then he is entitled to receive back the whole of the dowry (see for example Karuru v. Njeri [1968]
E.A 361, Case No. 43)
109
FIDA-Kenya, ‘Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of ICESCR Rights’(2008)
<www2.ohchr.org/English/bodies/cescr/docs/info-ngos/FIDAKenya41.pdf> Accessed on 13/11/2013. See also
Centre for Rights, Education and Awareness (CREAW), ‘Bride Price: Is it modern day slavery?’(2006) where it is
recorded that if a marriage is not successful, the bride price will be returned, it is a further indication that marriage is
primarily seen as the alliance of families rather than an interpersonal commitment based on love. Marriage is
cemented by the bride wealth, giving a large number of the bride’s family a material stake in the perseverance of the
marriage, a form of marital insurance.
26
2.1.6 Judicial Intervention in Domestic Violence Cases
Cases dealing with domestic violence are increasingly coming before Kenyan courts. This
section will look at some of these cases to illustrate the manner in which these incidents have
been handled before the Kenyan courts. Examples from other jurisdictions will also be given to
elucidate on the manner in which this subject is treated elsewhere as well. It is imperative to note
at this stage that there have been mixed developments in so far as the exercise of judicial
authority is concerned. Whereas there are decisions that have sought to protect victims against
violence, others have done the complete opposite.
The cases illustrated in the next section illustrate how acts of violence are treated before the
courts and whereas some may not be domestic violence cases per se, they provide an insightful
extrapolation on how the judiciary has in the past reacted to such cases. This is particularly
indispensable having in mind that there is not as yet a strict prosecution of domestic violence
cases as of themselves since there are no direct provisions of the law under which such cases can
be brought and they are therefore dealt with mainly under the general criminal framework.
In some instances, violence cases have been thrown out due to technicalities of procedure. For
example in Judicial Attitudes of the Kenyan Bench on Sexual Violence Cases, a digest published
by COVAW in 2005, detailed the case of Dzitu v. Republic110, where the appellant was charged
with, among other things, rape (section 140 of the Penal Code), with the alternative charge of
indecent assault on a female (section 144 (1) of the Penal Code). The second count related to
attempted rape (section 141 of the Penal Code). The appellant was convicted and sentenced to
serve four years in prison plus three strokes of the cane with hard labour, but he appealed. One of
the grounds on which the court allowed the appeal and acquitted the appellant was that the case
was prosecuted by a prosecutor below the rank of acting inspector.
This case highlights the need to decide cases based on substance rather than on technicalities of
procedure since in this case justice was manifestly not served. This is in light of the fact that it
was not the fault of the victim in the case that the police who prosecuted the case was below the
rank of inspector. The introduction of the Overriding Objective principle in the Civil Procedure
Act may thus have come in handy in this regard.
110
Dzitu v. Republic, High Court at Malindi, Case No. 73/2002.
27
In the Wilmina Achieng case111, one Dan Ndenda Wamamba beat his wife Wilmina Achieng and
lacerated her private parts in a most brutal attack. He was punishing her for going home late and
for failing to account for her whereabouts between 1.00p.m. and 8.00p.m. on December 6, 1997.
The man was subsequently arraigned in court for the offence where he pleaded guilty and
remained unrepentant claiming that his action was consistent with his Luhya community’s way
of dealing with such behaviour. He was fined ten thousand Kenyan shillings which he promptly
paid, went home and beat his still sick wife. He was rearrested, charged with the offence of
assault and eventually jailed for six months. He was released shortly afterwards through a
presidential pardon during a national holiday in December 1999.
This case brings into perspective the exercise of the power of mercy and the sentences that are
given by courts upon conviction of persons found guilty of acts of violence. It highlights the
need to assess the persons who should benefit under the power of mercy programme and the
need to tighten sentencing for domestic violence cases. It also starkly highlights the need to
protect victims from the reach of the aggressor through such facilities as safe houses or
protective custody.
Sometimes judicial attitudes revealed in the exercise of judicial discretion can be entirely
unreasonable. For instance in the case of Matheka v. Republic112, the appellant was convicted of
defilement of a girl under the age of 14 years contrary to section 145(1) of the Penal Code and
sentenced to 14 years imprisonment with eight strokes of the cane. The judgment delivered on 8
October 2001 states: “The evidence against the appellant was overwhelming...The Conviction
was therefore proper and the appeal against conviction is therefore dismissed. On sentence, the
appellant was awarded the maximum as provided by law. [In] this age of AIDS such offenders
must adequately be punished. However, taking into account that the appellant is a first offender,
the appeal against sentence is allowed.” The court in this case, in its wisdom or otherwise held
the fact that the accused was a first offender to override the severity of the offence he had
committed.
The Courts have similarly perpetuated the offence of marital rape by not curing the lacuna in
legislation. It has for instance been held that a husband cannot be charged for raping his spouse
111
The Wilmina Achieng case [1998] EA 177736
112
Matheka v. Republic, High Court at Mombasa, Case No. 126/2000.
28
unless they are separated or divorced. In AB V CD113, it was stated that spouses have the right to
sexual intercourse with one another, commencing at the time of consummation of the marriage.
The court did however recognise that the female partner had the right to decline to submit to
irrational demands for carnal association, and that this could amount to cruelty and a basis for
divorce.
Courts have at times adopted a very restrictive approach in the definition and interpretation of
some of the domestic violence offences. For instance in the Omambia Case114the appellant, in
the High Court’s view, had not touched the complainant’s private parts but merely touched her
bottom and put his hand under her blouse. This in the courts reckoning did not constitute
indecent assault. This restrictive interpretation makes offenders walk scot-free as was the case in
this particular matter.
There are however instances where the courts have sought to mete out punishment
commensurate with the offence committed. For instance in the Zeinab Mohammed case115, the
accused defiled a standard three girl and infected her with syphilis and HIV-AIDS. In giving
judgment, the court noted thus:
In essence, he [the accused] has literally sentenced a little girl to death and a slow
and painful one at that. He deserves the maximum sentence as provided by law.
Indeed, in my view, the law is not sufficient. He deserves more than that but the
court’s hands are tied by the penal provisions. I will therefore award the accused
the maximum sentence as provided by law.
The court proceeded to sentence the accused to 14 years in prison with 20 strokes of the cane and
hard labour. This can be lauded as a positive response by the judiciary but it highlights the stark
inadequacy of the law with regard to sentencing. This has however been addressed by the Sexual
Offences Act which sets the maximum sentence at life imprisonment.
The issue of domestic violence has also been handled by the courts in other jurisdictions as well.
For instance, the Constitutional Court in South Africa in the case of The State v Baloyi116 was
faced with the novel and complex task of establishing the appropriate balance between the state’s
113
AB V CD (2001) 28 KLR 210.
114
Omambia v. Republic Criminal Appeal No. 47 of 1995
115
Case No. 4728 of 1998
116
The State v Baloyi, (2000) 2 SA 425(CC).
29
constitutional duty to provide effective remedies against domestic violence, and its simultaneous
obligation to respect the constitutional rights to a fair trial of those who might be affected by the
measures taken. The court recognised that domestic violence is a serious problem because it is
often concealed and frequently goes unpunished but emphasized the need to strike a balance
between the need to protect family members from violence within the family and the appropriate
level of protection which the Constitution affords to people against whom domestic violence
interdicts have been granted.
The above case illustrates judicial consciousness in not only protecting the victims of domestic
violence but also ensuring that in so doing the rights of others, especially the persons against
whom such orders may be made are not infringed. The duty of the state to protect its citizens
from acts of violence is similarly underscored. This delicate balance is inevitable if viable
solutions to domestic violence cases are to be realized.
The foregoing discussion illustrates the inconsistency in exercise of judicial authority in so far as
the punishment of perpetrators of domestic violence is concerned. More sadly however, there is
illustrated the misuse of judicial discretion where some judges let criminals off the hook through
technicalities or a pedantic interpretation of the law. This is in itself a threat to reforms in dealing
with domestic violence cases.
2.2 The International Legal Framework

International law forms part of Kenyan law pursuant to the provisions of Article 2(5) and (6).117
Kenya has ratified several international Conventions which deal with human rights and by
extension, the protection against domestic violence. This section will seek to analyse the various
covenants that have a bearing on the protection against domestic violence and to what extent
Kenya has complied with these Conventions.
117
Article 2(5) provides that the general rules of international law shall form part of the law of Kenya while Article
2(6) provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the
Constitution. This is a shift from the practice obtaining before the enactment of the Constitution where treaties or
conventions had to be ratified before they could form part of Kenyan laws. The conventions acceded to by Kenya
before the enactment of the Constitution thus had to be ratified before they could have the force of law.
30
2.2.1 The Universal Declaration of Human Rights (UDHR)
The UDHR is a declaration approved by the United Nations General Assembly on December 10
1948. In Article 1 it states that all human beings are born free and equal in dignity and rights.
Article 2 provides that:
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
The Declaration also states that that no person will be taken through torture or to harsh, inhuman
or undignified treatment118. The non-discrimination clause taken together with Articles 3119 and
Article 5120 may be construed to mean that any form of violence amounting to threat to life,
liberty or serenity of the person or which constitutes torture or cruel, inhuman or degrading
treatment is a violation of the international obligation of member states. Kenya has signed the
UDHR.121This shows it recognizes the provisions set thereby, including those condemning
domestic violence.
2.2.2 The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is a multidimensional treaty approved by the United Nations General Assembly on
December 16, 1996, and emanated into application in March 23, 1976. It forms part of the
International Bill of Human Rights.122Kenya acceded to the ICCPR on 1 May 1972, and is
therefore bound to implement the provisions of the covenant within its jurisdiction. In fact, it is
the most substantially domesticated treaty in Kenyan law having most of its provisions
incorporated in the Bill of Rights under the current constitution.123
Article 6(1) of the ICCPR which protects the right to life, Article 7 which protects everyone from
torture or cruel, inhuman or degrading treatment or punishment and Article 9(1) which protects
the right to liberty and servility of person may be construed to cover the issue of domestic
violence.
118
Article 5.
119
Article 3 states, “Everyone has the right to life, liberty and security of person.”
120
Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
121
Connie Ngondi-Houghton, The State of Human Rights in Kenya (2005) pp.32.
122
UOHCHR, Fact Sheet Number 2: The International Bill of Human Rights (as of June 1996),
<http://web.archive.org/web/20080313093428/http://www.unhchr.ch/html/menu6/2/fs2.htm> accessed on
11/11/2013.
123
Supra n.121
31
2.2.3 The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)
The CEDAW was adopted by the United Nations in 1979 and came into force in 1981. Through
CEDAW, women’s rights are conceptualized as human rights. Kenya ratified with reservation
the CEDAW in March 1988 and committed itself to the Beijing Declaration and Platform for
Action, Security Council resolution 1325 on women, peace and security and the African Union
Solemn Declaration on Gender and Equality. Kenya is therefore required to pursue a policy
eliminating discrimination against women.
The CEDAW is the most extensive instrument dealing exclusively with the rights of women. It is
an international bill of rights for women which sets out practices regarded to be discriminatory
and lists actions to be taken to remedy this situation124. Many of the anti-discrimination clauses
contained therein provide the basis for the protection of women from violence. 125 In addition, the
Committee for the Elimination of Discrimination Against Women has made a number of
recommendations, which address the issue of gender-based violence and provide another source
of legally binding material at the international level dealing expressly with violence against
women.126
In 1992, CEDAW adopted General Recommendation 19, in which it confirmed that violence
against women constitutes a violation of human rights and emphasizes that, “States may also be
answerable for private acts where they fail to take action with due thoroughness to avert abuses
of rights or to probe and penalize acts of violence, and for issuing compensation”.127
Rural women are recognized as being at special risk of violence due to the prevalence of
traditional attitudes in many rural communities and it imposes an obligation on states to ensure
that services for victims of violence are accessible to rural women. Family violence is seen to be
widespread and present in every part of the world and measures necessary to eradicate it are
listed. Lastly, the Recommendation also directs state parties, in their reports to describe the
124
FIDA (K) 2008 Report on Gender Based Domestic Violence in Kenya; Nairobi, FIDA
(K)<http://www.womankind.org.uk/wp-content/uploads/2012/03/FIDA-Kenya-Report-on-Gender-Based-Domestic-
Violence-in-Kenya.pdf> on 12/11/2013
125
See for instance Article 6 of the Convention.
126
Supra n.124
127
United Nations, The Convention on the Elimination of All Forms of Discrimination against Women and its
Optional Protocol: Combating Discrimination (2003) pp.68.
32
extent of each problem in their countries, the measures taken to prevent and punish the
occurrence of such problems and the effectiveness of such measures.128
2.2.4 The United Nations Declaration on the Elimination of Violence Against Women
(DEVAW)
The Declaration on the Elimination of the Violence against Women (DEVAW) deals exclusively
with violence against women. Although it is not legally binding, it sets out international norms
which states have recognized as being fundamental in the struggle to eliminate all forms of
violence against women. It defines violence against women in Article 1 as “any act of gender-
based violence that results in, or is likely to result in: physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty
whether owing in public or private life.”
UN member states are required to eliminate violence against women and to exercise due
thoroughness to prevent, probe and penalize acts of violence against women, even if the acts are
executed by the State or an individual.129 Kenya being a member of the UN is thus under an
obligation to comply with the requirements of the Declaration.
2.2.5 Vienna Declaration and Program of Action.

The Vienna Declaration and Program of Action provides for the elimination of all forms of
gender-based violence. It urges governments and other organizations to intensify their efforts to
protect and promote human rights.130 This may be realized by legal arrangements and through
state action and worldwide collaboration in such arenas as economic and communal
development. Kenya recognizes this declaration and therefore conforms to its provisions.
2.2.6 The African Charter on Human and People’s Rights and the Protocol To the African
Charter on Human and Peoples’ Rights On The Rights Of Women In Africa
These are regional instruments geared towards human rights protection and more specifically
calling for gender equality by elimination of discriminatory practices mainly against women. The
African Union through the African Charter on Human and People’s Rights makes provisions for
states to ensure the elimination of every form of discrimination against women and to ensure the
128
Supra n.124
129
Article 4 of the Declaration
130
Article 1(18).
33
protection of the rights of the woman and the child as stipulated in international declarations and
conventions.131
The protocol has provisions that relate directly to the issue of violence on women132. Article 4 on
the right to life, integrity and security of the person provides that States parties should enact and
enforce laws to prohibit all forms of violence against women including unwanted or forced sex
whether the violence takes place in private or public. The reference to private or public must be
seen as wide and all-encompassing to include acts of violence that takes place in both the family
setting and even in public places such as in workplaces.
2.2.7 AU Solemn Declaration on Gender Equality

The AU Solemn Declaration on Gender Equality in Africa reaffirms the African countries’
commitment to the principle of gender equality as enshrined in Article 4 (1) of the Constitutive
Act of the African Union. It was concluded at the Heads of State and Government meeting in the
Third Ordinary Session of the Assembly in Addis Ababa, Ethiopia, from 6-8 July 2004. At
Article 9 of this Declaration, the Member states undertook to sign and ratify Protocol to the
African Charter on Human and People’s Rights to the Rights of Women in Africa by the end of
2004 and to support the launching of the public campaigns aimed at ensuring it entry into force
by 2005 and usher in an era of domesticating and implementing the Protocol as well as other
national, regional and international instruments on gender equality by all State Parties.
2.8 Chapter Summary

It is notable that the laws dealing with domestic violence in Kenya are inadequate in so far as
prosecution of the vice is concerned. For instance, there is no law that outlaws marital rape hence
contributing to its perpetuation. Whereas the Sexual Offences Act is laudable for introducing
stiffer penalties for those convicted of sexual offences and overhauling the archaic provisions of
the Penal Code with regard to sexual offences, it is riddled with challenges of its own. These
include the claw back provision under section 38 which stigmatizes victims of domestic violence
and the non-criminalization of marital rape under section 43(5). This is not helped either by some
131
Article 18(3)
132
See s.3(4) which states that “ States Parties shall adopt and implement appropriate measures to ensure the
protection of every woman’s right to respect for her dignity, and protection of women from all forms of violence,
particularly sexual and verbal violence”
34
of the pedantic judicial interpretation of domestic violence cases which make offenders walk scot
free.
The international legal framework is rich in principles that are geared towards the protection of
human rights and especially outlawing domestic violence. These laws form part of Kenyan laws
by dint of Article 2(5) and Article 2(6) and should therefore provide a platform for the
prosecution of domestic violence cases where national legislation is either lacking or inadequate.
Implementation of these international instruments will thus help Kenya attain a mileage in
fighting domestic violence.
35
Chapter Three
A CRITICAL APPRAISAL OF THE PROTECTION AGAINST DOMESTIC

VIOLENCE BILL, 2012
3.1 Introduction
The attempts to enact and/or reform laws relating to domestic violence in Kenya can be traced as
far back as 1999 when The Domestic Violence (Family Protection) Bill133was tabled in
Parliament. This Bill was however not enacted. It sought to provide for the intervention of courts
in cases of domestic violence to provide for the grant, enforcement and variation of court orders
for the protection from such violence. The Bill provides for protection orders to victims of
domestic violence and makes provision for the establishment of a fund to provide financial
assistance to domestic violence victims. The Criminal Law Amendment Bill, 2000on its parts
ought to cure the inadequacy of the Penal Code in combating sexual offences. It sought for
instance to provide for a maximum of life imprisonment for the offence of defilement.134The
recommendations of the latter were covered under the Sexual Offences Act, 2006.135
The Domestic Violence (Family Protection) Bill, 2007 was also mooted as an improvement of
the 1999 Bill. It has a wider definition of the term domestic violence which may be construed to
mean violence against a person either physically or sexually thus occasioning psychological
harm or threats of violence or of imminent danger to that person by any other person with whom
that other person is or has been in a domestic relationship with.136 Alternatively, the Bill seeks to
make provisions for the protection and relief of victims of domestic violence and to provide for
related matters.137The Bill was never passed. On all these attempts, the main grounds for failure
to enact the law were that it was purportedly an assault on local customs or had granted too many
rights to women.138The Bill was revised and renamed as the Protection Against Domestic
133
The Domestic Violence (Family Protection) Bill, 1999
134
See s. 16 of the Bill
135
No. 3 of 2006
136
See s.3 of the Bill
137
John Chigiti, ‘Domestic Violence (Family Protection) Bill, 2007’ The Star, 24 August 2011.
138
Nancy Baraza, ‘Family Law Reforms in Kenya: An Overview’ Presentation at Heinrich Böll Foundation's
Gender Forum in Nairobi, 30 April 2009. Available at <www.ke.boell.org/downloads/nancy_baraza_-
_family_law_reforms_in_kenya.pdf> on 11/12/2013.
36
Violence Bill 2012.139The revised Bill has incorporated some issues that were overlooked in the
2007 Bill. For instance, the meaning of violence has been expanded to include abuse derived
from customary practices such as virgin testing, widow cleansing among others. The Protection
Against Domestic Violence Bill, 2012 has not been enacted but is currently undergoing internal
review and stakeholder consultation. It has also been forwarded to the Attorney General for
consideration.
The following parts of this chapter will therefore be solely dedicated to giving a comprehensive
analysis of the Protection Against Domestic Violence Bill, 2012. The salient features and
shortcomings of the Bill will come under scrutiny. This will be done on the back of evaluating
the potential of the Bill to become the law governing domestic violence matters in Kenya if
enacted. This exercise will be undertaken with a view to impressing upon the relevant
stakeholders the need to enact the Bill into law. There will thus be proffered recommendations
on ways to improve the Bill where it is felt it has shortcomings which may hamper its aim of so
protecting domestic violence victims.
3.2 Salient features of the Bill

It is worth noting that contrary to other laws that tackle domestic violence issues in Kenya that
have adopted a fragmented approach in the sense that they do not deal with domestic violence
exclusively, this Bill’s sole purpose is to protect the victims of domestic violence. The bill is
indeed comprehensive in terms of its coverage of domestic violence. It states in this regard that
it’s “A Bill for An Act of Parliament to make provision for the protection and relief of victims of
domestic violence; to make provisions for the protection of a spouse and any children or other
dependent persons, and to provide for matters connected therewith or incidental thereto.”140
It aims at reducing and preventing violence in domestic relations by adopting a two tier strategy:
recognizing that domestic violence in its various forms is unacceptable behaviour and ensuring
effective legal protection to victims of domestic violence where it occurs by inter alia
empowering the court to make certain orders to meet these ends ensuring a speedy and
139
Federation of Women Lawyers Kenya (FIDA Kenya), The Global Initiative for Economic, Social and Cultural
Rights, ‘Joint Submission of Shadow Report to the Human Rights Committee on
International Covenant on Civil and Political Rights’ Kenya 105th Session 9 – 27 July 2012. Available at
<www2.ohchr.org/english/bodies/hrc/docs/ngos/Gl_ESCR_FIDA_Kenya_HRClo5.pdf>as at 11/12/2013
140
See the preamble to the Bill
37
inexpensive access to court.141 These approaches are to fighting domestic violence are herein
discussed.
3.2.1 Comprehensive Definition of Domestic Violence

The Bill has offered a fairly elaborate conceptualization of the term domestic violence. It defines
domestic violence to mean “violence against a 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.”142 It goes further to provide a near exhaustive exposition of some of the
terminologies in the definition of domestic violence.
The Bill recognizes the various forms and manifestations that domestic violence can take
including sexual abuse, physical abuse, emotional and psychological abuse, intimidation,
harassment, economic abuse, stalking, forcible entry into the applicants residence where the
parties do not share a common residence, depriving the applicant of or hindering the applicant
from access to or reasonable share of facilities associated with the applicant’s place of residence
among other forms.143 The Bill also recognizes that abuse can be derived from customary
practices and lists these to include female genital mutilation, forced marriage, child marriage
forced with inheritance interference from in-laws, sexual violence within marriage, virgin
testing, widow cleansing among others.144
The various types of violence are also expounded on. For instance, economic abuse includes the
unreasonable deprivation of economic or financial resources to which an applicant is entitled
under the law or which the applicant requires out of necessity, including household necessities,
medical expenses, school fees, rent, mortgage expenses or other like expenses; and denying the
applicant the right to seek employment or engage in any income-generating activity. Emotional,
141
Section 6 of the Bill which deals with the Object of the Bill and provides in this regard that “The object of this
Act shall be to prevent violence in domestic relationships by—
(a) recognizing that domestic violence, in all its forms, is unlawful behaviour; and
(b) ensuring that, where domestic violence occurs, there is effective legal protection for its victims by —
(i) empowering the courts to make certain orders to protect victims of domestic violence;
(ii) ensuring that access to justice is as speedy, inexpensive and simple in accordance with the law;
(iii) providing appropriate programmes, for persons who are victims of domestic violence;
(iv) providing programmes that have the primary objective of stopping or preventing domestic violence;
(v) providing effective sanctions and enforcement in the event that a protection order is breached; and
(vi) providing shelter for victims of domestic violence.
142
Section 3(2) of the Bill
143
See section 3 of the Bill
144
Ibid
38
verbal and psychological abuse on the other hand denotes a pattern of degrading or humiliating
conduct towards an applicant, including but not limited to repeated insults, ridicule or name
calling; repeated threats to cause emotional pain and repeated exhibition of obsessive
possessiveness which is such as to constitute a serious invasion of the applicants privacy, liberty
or security.145
The Bill also elaborates different kinds of domestic relationships. Under it, one is deemed to be
in a domestic relationship with another person in any of the following cases: is married to that
person; was previously married to that person; is living in the same house with that person; is a
family member of that person; has been engaged to get married to that person or has a child with
that person.146 The Bill is equally clear that conduct constituting domestic violence in terms of
the Bill does not by that reason alone cease to constitute an offence under any other law and any
such conduct may notwithstanding the Bill be dealt with in accordance with any other law.147
The broad definition offered by the Bill of the term domestic violence and its elements would go
a long way in ensuring that victims of such violence are adequately protected. This is especially
imperative due to the different forms that domestic violence can take, some of which are not
readily discernible e.g. psychological abuse. The Bill is equally emphatic that a person found
liable under the Bill for domestic violence can also be tried under other laws for the same
conduct. This also broadens the sources of relief for such victims.
3.2.2 Protection Orders

Part II of the Bill deals with what are referred to as protection orders. A protection order is
defined as the final order made by the court in a matter concerning domestic violence. A
protected person on the other hand in relation to a protection order means the person for whose
protection the order is made, any child of that person’s family or any person for whose benefit
145
See Section 2 of the Bill. The section also defines other types of abuse including “physical abuse” which includes
any act or threatened act of physical violence towards the applicant; “harassment” which means engaging in a
pattern of conduct that induces in an applicant the fear of imminent harm or feelings of annoyance and aggravation,
including—
(a) watching or loitering outside or near the building or place where the applicant resides, works, carries on business,
studies or happens to be;
(b) repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or
electronically transmitted messages to the applicant, whether or not conversation ensues;
(c) sending, delivering or causing the delivery of offensive or abusive letters, telegrams, packages, facsimiles,
electronic mails or offensive objects to the applicant.
146
Section 4 of the Bill
147
Section 3(6) of the Bill.
39
the order applies pursuant to a direction made under section 18.148 The bill seeks to guarantee
protection to all family members against domestic violence and also covers intimate partner
violence. The Bill provides that any person in a domestic relationship can make an application to
the court for protection orders.149
Police officers have a big role to play in so far as domestic violence is concerned under the Bill.
For instance, a police officer to whom a violence report is made can obtain for the victim or
advise the applicant to obtain shelter, medical treatment or shall assist the applicant in any
suitable way; advise the applicant of the right to apply for relief under the Bill and the right to
lodge a criminal complaint.150 The Bill similarly provides for the right of the victim to report the
case to an officer of the same sex151 and an alternative if he/she is not satisfied with the services
of the officer to whom she/he has reported the domestic violence case.152
The Bill further empowers the relevant Cabinet Secretary to develop the necessary policy to
facilitate the establishment by county executives of appropriate mechanisms to provide
temporary emergency shelters or safe houses and any other relevant services for the protection of
victims of domestic violence. These facilities may be provided in any form including designated
premises, temporary locations, adapted community facilities and mobile facilities.153 The Bill
thus seeks not only to serve justice to victims of domestic violence by guaranteeing their rights to
access courts of justice but also takes care of the immediate needs of the victim such as ensuring
his/her safety from the abuser. The reporting of any domestic abuse case is also not limited to the
victim only but is extended to anybody who has reason to believe that an offence involving
domestic violence is being committed.154
The directive to liaise with the county governments in developing a policy towards dealing with
domestic violence is no doubt a manifestation of the Bill’s consciousness in developing a
148
149
150
See section 7 of the Bill
151
Section 7(2) of the Bill
152
See section 7(3) of the Bill which provides that ‘An applicant who is not satisfied with the services of a police
officer to whom he or she has reported a case of domestic violence shall have the right to register a complaint-
(a) in accordance with such procedure as may be prescribed under section 9;
(b) under the Independent Police Oversight Authority Act; and
(c) under the National Police Service Act.
153
154
40
mechanism in line with the devolved system of governance that was adopted under the
Constitution of Kenya, 2010. This is especially important having due regard to the fact that the
counties are in direct contact with the populace and are better placed to decipher the underlying
issues as far as domestic violence issues are concerned.
The Bill is equally categorical about the procedure for applying for a protection order which
application is the duty of a person who is or has been in a domestic relationship with the other
persons.155 Applications can also be made in a representative capacity on behalf of children156 or
other persons who lack capacity to do so for instance where one lacks the capacity to understand
the nature, and to foresee the consequences, of decisions in respect of matters relating to his or
her personal care and welfare.157 These would include people who are insane, unconscious or
those who are unable to appreciate the import of their decisions.
The courts powers to make protection orders are also extensive. For example, the court may
order counseling and conciliation programmes which are calculated to ensure respect for the law
prohibiting domestic violence, the promotion of a protective environment for all within the
family and the promotion of harmonious domestic relations between and among the parties.158
Basically then the orders made by the court do not necessarily seek to protect the victim only but
also to ensure that the abuser is to an extent reformed and hence avoid future incidences of
violence. Indeed, the court can as well issue mutual orders159 in favour of the respondent even
though no such application had been made by the respondent. The orders also seek to protect the
dependants of the victim.160
The protection order can take various forms161 but before an order is made the court must take
into account inter alia the welfare of any child affected by the order and the accommodation
155
156
157
158
Section 16
159
Section 20
160
Section 18
161
See section 21(1) of the Bill which details the contents of a protection order and provides thus “A protection
order may direct that a respondent shall not do any one or more of the following —
(a) physically or sexually abuse or threaten to abuse the protected person;
(b) damage, or threaten to damage, any property of the protected person;
(c) engage, or threaten to engage, in behaviour including intimidation or harassment, which amounts to
psychological abuse of the protected person;
41
needs of all persons affected by the order.162 A court shall not also make an order excluding the
respondent from the whole of a shared residence that is solely or jointly owned or leased by him
unless to the satisfaction of the court there is no other way to secure the safety of the person(s)
intended to be protected.163
The primary responsibility of enforcing the protection order is bestowed upon the police who
may arrest without a warrant anybody who breaches a protection order within five years of
making the order.164 Such breach of a protection order attracts a fine not exceeding one hundred
thousand shillings or imprisonment for a period not exceeding twelve months, or both.165 The
penalty for breach of a protection order will thus serve a deterrent purpose especially where
imprisonment is resorted to.
3.2.3 Mode of Application for orders under the Bill

Part III of the Bill deals with the mode of application for relief in a domestic violence case and
vests the jurisdiction of handling such matters in the Resident Magistrates’ Courts of the first
class. Such application shall be made by way of an affidavit and a report of the police officer,
probation officer or such other persons may be required by the court. Ex parte orders can be
issued by the court.166 Where the application is made by other parties other than the victim, the
victim must be furnished with a copy of the same.167 In case the respondent is absent at the time
of hearing the court may either proceed with the matter or adjourn.168
In most of the other provisions relating to the mode of application for protection orders, the court
shall adopt the general practice obtaining in civil matters. For instance, a party who is aggrieved
by a decision of the court can appeal to the High Court and then to the Court of Appeal within
(d) encourage any person to engage in behaviour against the protected person where the behaviour, if engaged in by
the respondent would be prohibited by the order;
(e) engage, or threaten to engage, in behaviour including intimidation, harassment or stalking which amounts to
emotional, verbal or psychological abuse of the protected person;
(f) engage, or threaten to engage, in economic abuse of the protected person; or
(g) engage, or threaten to engage, in cultural or customary rites or practices that abuse the protected person.
162
Section 21(4)
163
Section 21(7)
164
Section 23(1)
165
Section 25
166
167
168
42
thirty days of the ruling.169 The court similarly has the power to receive evidence as it deems fit
whether in proceedings on hearing in the first instance or on appeal.170
The Bill also provides for an award of compensation to the victim where the court deems this to
be necessary.171 Such compensation shall take into consideration among other factors the pain
and suffering of the victim, the cost of medical treatment for injuries sustained, any loss of
earnings arising therefrom and the amount or value of property taken or destroyed or damaged.
The court can similarly make orders under any other law relating to marriages or matrimonial
causes.172 The court can thus award both special and general damages. This is especially
important as it takes into account the loss that may have been sustained by the victim, both
monetary and non-monetary arising from such forms of abuse as verbal and psychological abuse
which are not readily quantifiable.
The Bill is also clear that conduct constituting domestic violence under it does not by that reason
alone preclude it from constituting an offence under any other law173 thus a person may still be
liable under other laws for an act of domestic violence. This would for example include cases
which fall under criminal law and are dealt with under the Penal Code and other criminal laws.
This provision serves to avoid usurping the powers and roles of other law enforcing mechanisms.
For instance, criminal law would still operate to bring to account a perpetrator of violent assault
although the assailant may have been ordered to pay his victim for the detriment suffered.
The protection order is in effect the principal remedy under the Bill to domestic violence victims.
It is notable that the procedure for applying for the order and generally engaging with the law
enforcement mechanism in violence cases under the Bill are victim-friendly. For instance, there
are requirements for the exclusion of parties not authorized by the court to attend the
proceedings174 and a prohibition from publishing the victim’s image in a newspaper175 in order to
protect the victim. The proceedings can also be held in private if the court so directs.176
169
170
171
172
173
See section 3(6) of the Bill
174
Section 35 of the Bill which provides that “ No person shall be present during the hearing of any proceeding
under this Act except—
(a) an officer of the court;
(b) parties to the proceedings and their advocates, if any;
43
3.3 Shortcomings of the Bill
It is worth appreciating that the Bill is a tremendous achievement in so far as the fight against
domestic violence is concerned. It is a first in defining the aspects of domestic violence and its
elements and would indeed go a long way in providing relief to victims of the scourge if it
becomes law. The Bill however has some limitations which may hinder it from effectively
protecting victims were it to be passed into law. These are hereunder highlighted.
The first limitation of the Bill concerns marital rape as a form of violence. Marital rape is not a
crime in Kenya. This has been premised on the notion that upon marriage there is express
consent to sexual intercourse, a claim that has been strongly refuted and marital rape is indeed a
form of sexual violence.177 The lack of criminalization of marital rape in Kenya is not helped
either by the provisions of section 43(5) of the Sexual Offences Act 178 which defines what
constitutes an ‘intentional and unlawful act’ in relation to rape but excludes persons who are
married to each other from its reach..The Sexual Offences Act’s express exemption of marital
rape from its application means that married women cannot file a suit on a charge of marital
rape. This burdens married women with exposure to sexual violence, and denies them the equal
protection of the law. Married women, who are victims of domestic violence, are therefore left
with the option of using the assault provisions provided under the Kenyan Penal Code, which are
insufficient.179
As the intended law under whose purview marital rape matters would fall, it would be expected
that the Bill would criminalise such form of violence. The Bill is however silent on marital rape
although it broadly provides for violence within marriage. This is a gross omission of the Bill
although it has to be observed that resistance to the marital rape provision being included in the
(c) a representative, if any;

(d) witnesses; and
(e) any other person whom the court permits to be present.
175
Section 40
176
Section 35(3)
177
See the House of Lord’s decision in R v R [1992] 1 A.C. 579whereLord Hale was emphatic that “the idea that a
wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health
or however proper her objections is no longer acceptable. It can never have been other than a fiction, and fiction is a
poor basis for the criminal law.”
178
No. 3 of 2006
179
Christine Wanjiru Kung’u, ‘Criminalization of Marital Rape in Kenya’ (2011). Faculty of Law, University of
Toronto.
<https://tspace.library.utoronto.ca/bitstream/1807/31288/8/Kung%27u_Christine_W_201111_LLM_thesis.pdf> on
22/01/2014.
44
Bill was overwhelming from Members of Parliament who felt that such a provision would
unnecessarily interfere with the private lives of people who have consented to sexual activities
with one another by dint of their marriage.
There are also limitations in the Bill with respect to fines that are payable upon breach of orders
or regulations under the Act. For instance, under section 40 of the Bill, it is prohibited to publish
in a newspaper or broadcast the proceedings under the Act. A breach of this direction attracts a
fine not exceeding fifty thousand shillings for an individual. It is my position that this fine is not
sufficient and cannot act as sufficient deterrence to persons who have an interest in such
publication, for instance of the victims’ photograph.
Section 23 of the Bill on its part addresses the enforcement of a protection order so issued. The
police are vested with powers to arrest the respondent at any time within five years of making the
order if he is in breach of the order. The Bill is however silent on the geographical aspects of
enforcement. It is for example left in doubt whether the order can be enforced outside the
jurisdiction of the court that made the order. This is imperative in light of the fact that both the
applicant and the respondent can move outside the court’s jurisdiction, albeit for different
reasons hence it would be important for the applicant to be protected anywhere he or she is.
The Bill at section 43 deals with general provisions relating to offences and provides under
section 43(1) that any person who makes any false statement in any application or affidavit made
in terms of the Bill, knowing such statement to be false or not believing it to be true commits an
offence and is liable to a fine not exceeding two hundred thousand shillings or to imprisonment
for a period not exceeding three years or both. While this provision seeks to safeguard against
false testimonies and hence frivolous applications being brought under it, it nevertheless instills
fear in witnesses and even victims and may deter the reporting of domestic violence cases lest
one is declared as lying under oath and be subjected to the heavy punishment provided for
therein. A similar provision obtains under the Sexual Offences Act 180 and the provision is at best
retrogressive in the fight against domestic violence. This section should thus be deleted from the
180
See section 38 of the Act which provides that “any person who makes false allegations against another person to
the effect that the person has committed an offence under this Act is guilty of an offence and shall be
liable to punishment equal to that for the offence complained of”
45
Bill so as not to hinder persons coming forth to report cases of domestic violence for fear of
prosecutions for lying under oath.
3.4 Chapter summary

It is notable that the Protection Against Domestic Violence Bill, 2012 is a big leap in terms of the
efforts to legislate on the issue of domestic violence. This is especially the case when considered
against the backdrop that there currently exists no particular piece of legislation which
exclusively deals with the vice, or even a policy document that defines domestic violence under
Kenyan legislation. The Bill has had to undergo profound developments and is traceable to The
Domestic Violence (Family Protection) Bill of 1999 which was introduced in Parliament but was
never enacted. A similar fate befell the Family Protection Bill, 2007.
The Bill has very progressive provisions such as protection orders under Part II of the Bill and
even compensation to victims for both monetary and non-monetary loss arising from the acts
constituting domestic violence. The Bill is similarly laudable for its broad definition of terms
such as ‘domestic violence’ which encompasses various types such as psychological abuse,
economic abuse, abuse derived from customary practices among others. The Bill has also
enhanced the role of police officers in domestic violence matters to include obtaining for the
victim or advising the applicant of a protection order to obtain shelter, medical treatment or assist
the applicant in any suitable way. These provisions would no doubt go a long way to ensuring
the assistance of the victims of domestic violence.
The Bill however has some limitations, although such limitations are not very much pronounced.
These include the non-recognition of marital rape as a form of domestic violence, the punitive
punishment for false information which may scare off witnesses and even victims among others.
It will also be important to impart the police with necessary skills and expertise to enable them
handle domestic violence cases. These would include training and even the setting up of a
domestic violence department at every police station. On the whole however, the Bill has
substantially dealt with issues that arise in domestic violence cases.
46
Chapter four
COMPARATIVE STUDY: THE EXPERIENCES OF SOUTH AFRICA AND THE
UNITED KINGDOM
4.0 Introduction
Domestic violence is a persistent worldwide problem, occurring in every culture in all societies.
The underlying problem is that many societies consider it a private affair and therefore
acceptable181. It is a universal phenomenon that affects people of all races, ethnicities, religions,
and classes. Various legal systems around the world have in effect sought to deal with this
menace in one way or the other. This section will thus be dedicated at highlighting the way in
which the legal systems in South Africa and the United Kingdom have dealt with the issue of
domestic violence. These jurisdictions have been picked on since they have enacted specific laws
on domestic violence apart from dealing with the vice under the general criminal justice system.
4.1 SOUTH AFRICA

In South Africa domestic violence has reached epidemic proportions, one of the highest rates in
the world.182 It exists in millions of households, in every community, in every institution, in both
public and private spaces.183 Such violence is fuelled by legacies of racial and gender
discrimination. It is estimated that at least one in four women experience domestic violence;
some on a continuous basis.184The view that domestic violence is a private matter has led to it
being ignored within the public realm and hence receiving less official attention.185
181
Azwifaneli Managa and Bertha Chiroro, ‘The Scourge of gender-based violence in South Africa’ Pambazuka
News, 20 February 2013.
182
Ingrid Sinclair and Anél du Plessis, ‘Domestic Violence Adjudication in South Africa: A View on Therapeutic
Jurisprudence and Human Rights Protection of the Female Victim’. Available at
<www.aija.org.au/TherapJurisp06/Monograph%20Papers/2%20 Sinclair & Du Plessis.pdf> on 28/01/2014.
183
Ibid.
184
Dawn Blaser, ‘Statistics on Violence Against Women in South Africa and Internationally’ (1998) NICRO
Women’s Support Centre. Available at <http://www.womensnet.org.za/pvaw/understand/nicrostats.htm#dvsa.> at
12/01/2014.
185
‘More haste less speed? The South African Domestic Violence
Act’<http://www.genderlinks.org.za/attachment.php?aa_id=13451> accessed on 28/01/2014.
47
In light of this fact, the legal system has sought to respond to this menace in various ways. South
Africa has made so much progress since attaining independence in 1994 in terms of putting
together legislation, policies, and even resources for the empowerment of women and children,
from the country's constitution to various interventions including the recent Women
Empowerment and Gender Equality Bill, which is supposed to fill in some gaps with regard to
groups that need protection such as widows, women with disabilities, and sexual minorities.
These measures as far as domestic violence is concerned are hereunder discussed.
4.1.1 The Constitutional Framework

The South African Constitution under its Bill of Rights entrenches the right of every person to
equality, freedom and security.186 More specifically, the constitution guarantees every person’s
right to have their dignity respected and protected187; everyone’s right to freedom and security of
the person, which includes the right to be free from all forms of violence from either public or
private sources188, and the right not to be tortured in any way189, nor to be treated or punished ina
cruel, inhuman and degrading way190, as well as every person’s right to bodily and psychological
integrity.191The Constitution therefore imposes a duty upon the South African government to
take necessary measures to ensure human rights of persons are protected and respected. A
violation of these constitutional rights would entitle a victim of domestic violence to claim
constitutional damages as an alternative where other remedies have failed.192
The Constitutional Court has gone further to render an interpretation of these rights in so far as
domestic violence matters are concerned. In the case of S v Baloyi193, the Constitutional Court
expressed the view that domestic violence compels constitutional concern because ‘…it is
systemic, pervasive and overwhelmingly gender-specific,…[and it] reflects and reinforces
patriarchal domination, … in a particularly brutal form’. In addition, it was the court’s finding
that the state is under a number of direct constitutional obligations to deal with domestic violence
186
The Constitution of South Africa, 1996, Cap 2.
187
Section 10
188
Section 12(1)(c)
189
Section 12(1)(d)
190
Section 12(1)(e)
191
Section 12(2)
192
See Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC). Furthermore, these damages could be
claimed inter parties in light of the acknowledged horizontal application of the Bill of Rights (see Du Plessis v De
Klerk 1996 (5) BCLR 658 (CC).
193
2000 (1) BCLR 86 (CC).
48
and to protect every person’s right to be free from domestic (or private) violence. These
obligations, as was rightly observed by the court, arise from the constitutional injunction that the
state must respect, protect, promote and fulfill the rights enshrined in the Bill of Rights.
This position was further affirmed in the case of Carmichele v Minister of Safety and
Security194where the court [this time the High Court] decided that in some instances, there is a
positive component to the Bill of Rights ‘‘which obliges the state and its organs to provide
appropriate protection to everyone through laws and structures designed to afford such
protection’’. More prudent to note is the court’s remark thus‘‘… Constitutional obligations are
now placed on the state to respect, protect, promote and fulfill the rights in the Bill of Rights and,
in particular, the right of women to have their safety and security protected.’’
The constitution is also particular about the means of enforcement of the rights enshrined therein.
Section 38 of the Constitution provides for the right of a number of people to approach a
competent court alleging that a right in the Bill of Rights has been infringed or threatened 195. The
court may grant appropriate relief, including a declaration of rights.
4.1.2 Statute Law

The South African legal system did not stop at the constitutional stage in its bid to protect
domestic violence victims. The court in the case of S v Baloyi196cited above was of the finding
that section 12(1) (c) of the Constitution provided the imperative for legislation dealing with
domestic violence. Such a law would not be an end in itself since it could not by itself eradicate
domestic violence, but rather it would amount to a preventive measure, seeking to offer
protection to victims of domestic violence, to prevent future misconduct by abusers, and to
ultimately promote restorative justice.197
The Prevention of Family Violence Act198, hereinafter referred to as the PFVA was among the
first legislative interventions in matters of domestic violence. It was An Act of Parliament that
194
2001 (4) SA 938 (CC)
195
The people include anyone acting in their own interest; anyone acting on behalf of another person who cannot act
in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in
the public interest; and an association acting in the interest of its members.
196
Supra n. 193
197
Waheeda Amien, ‘Recent Developments in the Area of Women’s Rights in South Africa: Focus on Domestic
Violence and Femicide’ <www.engender.org.za/publications/DV& Femicide.pdf> accessed on 16/01/2014.
198
Prevention of Family Violence Act No. 133 of 1993
49
was intended to provide for the granting of interdicts with regard to family violence; for an
obligation to report cases of suspected ill-treatment of children; that a husband could be
convicted of the rape of his wife; and for matters connected therewith.199 This Act was
significant since it introduced, for the first time under South African law the offence of marital
rape.200 This Act was however replaced by the Domestic Violence Act201 on 15 December 1999
in recognition of the fact that the remedies offered by the PFVA were narrow and insufficient,
and had clearly proved to be ineffective202 Suffice to note therefore that much of the discussion
of the South African system on domestic violence will be on the Domestic Violence Act and not
the PFVA.
The Domestic Violence Act is currently the statutory law that deals with domestic violence
matters in South Africa. The Act conveys South Africa’s national, regional and international
commitments to the elimination of domestic violence for the achievement of gender
equality.203The Act is categorical in its recognition that domestic violence is a social evil and is
rampant in South Africa.204 There are various salient features and remedies offered by this Act
which forms the crux of the discussion in the following section of this work.
i) Comprehensive definition of Domestic Violence
The DVA offers a wide definition of what constitutes a domestic relationship. This includes
cohabitants, those who live or lived together in a heterosexual or homosexual relationship, and
those who are or were in a relationship of any duration, including those of an actual or perceived
romantic, intimate or sexual nature205. This latter group would arguably include even one-night
stands. Domestic violence is also given a wide definition in recognition of the fact that it
manifests itself in many forms. This includes physical abuse, sexual abuse, economic abuse,
199
See the preamble to the Act.
200
See Section 5 of the Act which provides that ‘Notwithstanding anything to the contrary contained in any law or in
the common law, a husband may be convicted of the rape of his wife’.
201
No. 116 of 1998
202
Chantelle de Nobrega, ‘Framing Gender-Based Domestic Violence in South Africa: The Domestic Violence Act’
(2009). Available at <http://thesis.eur.nl/pub/6631/deNobregaFrame.pdf>at 22/01/2014. The author observes that in
overall, the implementation of the act was rather poor, with little training and education on offer for magistrates, the
police or the public. In addition, the act failed to provide a clear definition of what constitutes domestic violence
while also only offering protection within marriage.
203
See the preamble to the Act
204
Ibid.
205
Section 1(vii).
50
psychological or emotional abuse, verbal abuse, intimidation, stalking, harassment, damage to
property, entry into the complainant’s residence without consent (where the parties do not live
together), as well as any other controlling or abusive behaviour towards the complainant.206
ii) Role of the Police in Domestic Violence cases
Police officers similarly have an enhanced role as far as domestic violence matters are concerned
under the Act. The Act places a positive duty on the South African Police Service (SAPS) to
assist a complainant and, where necessary, to find suitable shelter and to obtain medical
treatment.207 A police officer also has a duty to secure the crime scene and protect the
complainant from further harm. The officer must then render such assistance to the complainant
as may be reasonably required in the circumstances and if it is reasonably possible to do so, hand
a written notice to the complainant detailing the complainant’s rights and explain to him its
contents.208
The police are also empowered to effect an arrest without warrant if in their opinion there is a
reasonable suspicion that an offence containing an element of violence has been committed
against the complainant.209 In carrying out their duties under the Act, members of the police
service must however act with due diligence and adhere to certain guidelines provided for under
the Act. A breach of these guidelines would attract disciplinary action against the culpable
officers.210
iii) Remedies Available to Domestic Violence Victims under the Act
There are a number of reliefs open to those suffering from domestic abuse. For example, they
might lay a charge of assault, or one of trespass if they rent or own property which the abuser
keeps entering without permission. They might, alternatively, obtain an eviction order.211
However, the most viable remedy introduced by the DVA is the protection order. This is an order
from the court which specifically commands an abuser to stop abusing someone.
206
Section 1(viii).
207
Section 2(a).
208
Section 2(b) and (c)
209
Section 3.
210
See sections 18(2) and (4). This provision would be expected to make the police more vigilant in their work and
avoid cases of police indolence.
211
Charlotte Bendall, ‘The Domestic Violence Epidemic in South Africa: Legal and Practical Remedies’ Women's
Studies : An inter-disciplinary journal 39:2 pp.100-118
51
The process of obtaining a protection order under the Act is fairly convenient and flexible. For
instance, an application may be brought outside ordinary court hours if the court is satisfied that
the complainant requires urgent intervention.212 The victim must not necessarily instruct a
lawyer. The proceedings are required to be held in camera, ostensibly to protect the interests and
the identity of the victim.213 A protection order thus received is enforceable anywhere in the
Republic214 thus taking into account the possibility of movement of the victim and or the
respondent from one region to another.
An application for the issuance of a protection order may be brought on behalf of the
complainant by a third party who has a material interest in the wellbeing of the complainant.215
Such third parties include a counselor, health service provider, a member of the South African
Police Service, a social worker or a teacher. If any of these persons applies for a protection order,
the complainant must give his or her written consent. However, consent is not required where the
application is a minor; a person who is mentally retarded; a person who is unconscious; or a
person who is unable to provide the required consent.216 In addition, a minor or any person on
behalf of a minor may also apply for a protection order without the assistance of the parent or
guardian.217
The first step towards obtaining a protection order is attending the magistrate’s court in order to
make an application. If the magistrate is satisfied that there is evidence that the alleged abuser is
committing, or has committed, an act of domestic violence, and that undue hardship may be
suffered by the complainant if a protection order is not issued immediately, the court will issue
an interim protection order.218 There can be various elements of such an order, such as that a
firearm should be confiscated from the abuser, that the police should come with the victim in
order to collect their belongings from their home, that the abuser should be evicted from the
home, or that they should pay the victim emergency monetary relief.219
212
Section 4(5).
213
Sections 11(1) (a) and (b), 11(2) (a).
214
Section 12(3).
215
Section 4(3).
216
Ibid.
217
Section 4(4)
218
Section 5(2)(a) and (b)
219
Section 7
52
After issuance, the protection order is served on the abuser to inform them that they must attend
a return date in order to show cause why the protection order should not be made final.220 The
court must grant a final order on the return date specified in the interim order, if it finds, on a
balance of probabilities, that the respondent is committing or has committed an act of domestic
violence.221 A protection order would still be issued even if the respondent does not appear in
court provided that the court is satisfied that prima facie evidence exist that the respondent is
committing or has committed an act of domestic violence.222
It is notable that the protection order will last until the victim chooses to cancel or vary it. Under
the DVA, it is an offence to breach the conditions of a protection order. If the abuser breaches
the order, the victim can approach a member of the South African Police Service with the
warrant of arrest. On conviction, the respondent is liable to a fine or imprisonment not exceeding
a period of five years.223 It is also noteworthy that the DVA provides for legal representation to
the victim at all stages of the proceedings.224
4.1.3 Other measures put in place to curb domestic violence

In addition to the Domestic Violence Act, there are other policies and guidelines that have been
put in place in South Africa to support the Act. For instance, The National Policy Guidelines for
the Handling of Victims of Sexual Offences were finalized in 1998. This aimed at improving
victims’ experiences of the criminal justice system by providing protocols for officials in the
police, health, welfare, and justice systems and prisons.225 The Government went even further to
publish the Integrated Domestic Violence Training Programme Manual in 2004. The purpose of
this was to help police officers, prosecutors, magistrates, counselors, and victim assistant officers
to deal adequately with domestic violence by enhancing their understanding of domestic violence
issues.226
220
Section 5(3)(a)
221
Section 6(4)
222
Section 6(1).
223
Section 17(a).
224
Section 14.
225
Charlotte Bendall, ‘The Domestic Violence Epidemic in South Africa: Legal and Practical Remedies’ Women's
Studies : An inter-disciplinary journal 39:2 pp.100-118
226
Ibid.
53
Special facilities such as thuthuzela centers, family courts and sexual offences courts have also
been set up.227 The motivation behind creating the family courts was that they would bring under
one roof all matters relating to the family to be dealt with by the judiciary, including both divorce
and family violence matters. The sexual offences courts were aimed at reducing secondary
victimization of domestic violence victims by improving the management of cases through the
courts, and to allow for more effective prosecutions by specially trained prosecutors. The
thuthuzela courts on their part act as one-stop service centers where victims have access to a
number of services including the police, counseling, doctors and prosecutors.228
4.1.4 Challenges experienced under the South African system

It is notable that the legal system especially through the Domestic Violence Act has made great
strides in the positive direction in the efforts to curb domestic violence. The fact that the
government has both recognized and taken action against domestic violence in this way is an
extremely positive step. However, the system still experiences some challenges in the fight
against domestic violence.
The effective implementation of the DVA has been undermined by factors such as under-
resourcing of courts and police stations, police perceptions of domestic violence, fragmented
service provision from the courts, the police and the health sector and the lack of information for
applicants regarding the application procedure.229 The South African police for instance have
never submitted a report on domestic violence cases as is required of them. They [the police]
have also been noted to often display a lack of knowledge regarding the procedures to be
followed in domestic violence matters.230 Moreover, many policemen are themselves
perpetrators of domestic violence, or associate with people who are.231
The case of S v Engelbrecht232was arguably the most significant in testing the extent to which the
state had enforced and upheld the Domestic Violence Act. Mrs. Engelbrecht was found guilty of
227
Lisa Vetten, Addressing Domestic Violence in South Africa: Reflections on Strategy and Practice (2005).
228
Supra n. 225
229
Supra n. 227
230
Submission to the Portfolio Committee &Select Committee on Women, Youth, Children and People with
Disabilities: Implementation of the Domestic Violence Act, No. 116 of 1998. Available at
<http://www.tlac.org.za/wp-content/uploads/2012/01/Implementation-of-the-Domestic-Violence-Act.pdf> on
27/01/2014.
231
Supra n. 225
232
Sv Engelbrecht(1993) 374 ZASCA 114
54
the murder of her husband, despite the Judge having found that she had exhausted all her options
and done everything within her power to escape his relentless abuse and coercive control,
including attempts on three occasions to obtain a protection order and making numerous calls to
the police emergency service to no avail. This case was groundbreaking in terms of steering the
South African jurisprudence towards taking into account the reality of abused women’s lives and
exposing the stark inability and unwillingness of various government agencies to implement the
DVA.
4.2 THE UNITED KINGDOM

Domestic violence, especially violence against women, is a key factor that undermines the ability
of women to participate as full and equal citizens in UK society. In tandem with this fact, the UK
government has increased the priority given to issues of violence against women since 1999.233
Government attention to the significant issue of domestic violence has been in response to
NGOs, individual women working at the local level and a proactive research agenda.234 Each of
the four countries of the United Kingdom develops their own domestic violence strategy. The
Home Office however performs the role of the lead government department for the co-ordination
of domestic violence policies and initiatives, providing guidance to other governmental
departments and co-operating with non-governmental organizations to develop and implement
policy.235
There is no statutory definition of domestic violence, and the term is generally understood to
cover a wide range of behaviour, much but not all of which is criminal.236 Indeed, a review of
government publications in the United Kingdom in 2001 identified 14 different definitions of
domestic violence, indicating what has been described as a “definitional crisis.”237 The Home
Office in 2004 however proffered the following definition:
233
Purna Sen and Liz Kelly (2007), ‘Violence Against Women in the UK’ (2007) CEDAW Thematic Shadow Report
on Violence Against Women in the UK
<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/UKThematicReportVAW41.pdf> on 28/01/2014.
234
Ibid.
235
Matczak, A., Hatzidimitriadou, E., and Lindsay, Review of Domestic Violence policies in England and
Wales(2011)
236
Pat Strickland, ‘Domestic Violence’ (2013). Home Affairs Section.<http://www.parliament.uk/briefing-
papers/sn06337.pdf> on 11/01/2014.
237
Kate Paradine and Jo Wilkinson, Protection and Accountability: The Reporting, Investigation and Prosecution of
Domestic Violence Cases (2004)
55
Any incident of threatening behaviour, violence or abuse (psychological, physical,
sexual, financial or emotional) between adults who are or have been intimate
partners or family members, regardless of sexuality. 238
The above definition has since been revised and on 31 March 2013, a new cross-Government
definition was introduced which has been expanded to include 16 and 17 year olds and coercive
control. The cross-Government definition is: “Any incident or pattern of incidents of controlling,
coercive, threatening behaviour, violence or abuse between those aged 16 or over who are or
have been intimate partners or family members regardless of gender or sexuality.”239
There is a wide range of legal remedies for victims of domestic violence under UK laws. These
include both civil and criminal sanctions. The following section will thus be an examination into
these remedies and protections available to such victims.
4.2.1 Criminal Law Remedies

Recognising domestic violence as a crime has become an increasingly important part of
government policy on crime control.240Domestic violence is however not a specific statutory
offence. There are however a range of criminal offences including sexual and physical assault,
harassment offences and the crimes related to homicide, which can be applied in a case of
domestic violence. For example, common assault can be prosecuted under the provisions of the
Criminal Justice Act.241
4.2.2 Civil Law Remedies

Civil law remedies in combating domestic violence have existed for quite a long time. These
were mainly introduced under the Family Law Act 1996 which attempted to rationalize the
system which was hitherto seen as inconsistent and anomalous. The Act introduced two main
remedies, occupation orders242 and non-molestation orders.243 Occupation orders can define or
regulate rights of occupation to the home – for example excluding a perpetrator from the family
238
Home Office (12/09/2006) ‘Number of specialist violence courts to double’ <www.homeoffice.gov.uk> accessed
on 10/10/2013
239
Home Office, Cross-government definition of domestic violence consultation: Summary of Responses, September
2012, pp19. <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/157800/domestic-
violence-definition.pdf> on 29/01/2014.
240
Supra n. 233
241
The Criminal Justice Act, 1988 s.39.
242
S.33-41of the Act.
243
Section 42
56
home, and also possibly from the surrounding area. A non-molestation order can be applied to a
broad range of people in order to prevent further violence to the applicant or children.
The Crime and Security Act 2010 introduced domestic violence protection orders where a senior
police officer may issue a domestic violence protection notice to a person over 18 years of age if
that officer has reasonable grounds for believing that the person “has been violent towards, or
has threatened violence towards, an associated person” and that the notice is necessary to protect
that person from violence or a threat of violence244. The notice is the basis for the application for
the protection order. The order prohibits the suspected perpetrator from molesting the victim and,
where they cohabit, may require the suspected perpetrator to leave those premises.
4.2.3 Remedies under the Protection from Harassment Act 1997

The Act introduces both civil and criminal remedies in cases of domestic violence. It however
deals mainly with violence outside the home.245The Act creates a criminal offence prohibiting
people from pursuing a course of conduct which amounts to harassment of another person, and
which they know or should know amounts to such harassment.246 Two other criminal offences
are created, that of harassment, and of putting people in fear of violence.247 It also provides for
restraining orders.248 These would forbid a perpetrator from pursuing further conduct against the
victim amounting to harassment, or causing fear of violence. Breach without reasonable excuse
is an arrestable offence.
There are similarly civil remedies provided for under the Act. For instance, section 3 of the Act
creates a statutory tort of harassment. On such a claim, damages may be awarded for (among
other things) any anxiety caused by the harassment and any financial loss resulting from the
harassment.249 The Act also addresses stalking.250
4.2.4 Remedies under the Domestic Violence, Crime and Victims Act (2004)
This Act is significant in so far as it tries to update the various legislations dealing with domestic
violence issues. For instance, it extends protection offered by civil law to victims of domestic
244
Section 24
245
Supra n. 235
246
Section 1
247
Sections 2 and 4
248
Section 5
249
Section 3(2)
250
The Government amended the Protection from Harassment Act 1997 from November 2012 to introduce two new
explicit offences of stalking.
57
violence by making the breach of a non-molestation order made under Part IV of the Family Law
Act 1996 a criminal offence, dealt with by the criminal as opposed to the civil courts and
punishable with a maximum penalty of 5 years.251 The Act also extends protection to same sex
couples.252
Section 12 of the Act amends section 5 of the Protection from Harassment Act 1997, which dealt
with restraining orders, allowing courts to make restraining orders on conviction or acquittal for
any criminal offence based on balance of probability evidence if there is a need for an order to
protect a person or persons. These orders are intended to be both preventative and protective.253
Protection for victims and witnesses is extended by the introduction of a statutory Victims’ Code
of Practice and a Commissioner for Victims and Witnesses.254
4.2.5 Other Government responses to Domestic Violence cases

The Home Office is the lead government agency for publishing and co-coordinating policy and
legislative developments on domestic violence. Violence against women is regarded as one of
the key priorities in its agenda. This role is mainly fulfilled by The Equalities Office which is a
cross-cutting Home Office Unit. The Government Equalities Office and the Minister for Women
and Equalities lead strategy across Government on issues related to violence against women. For
example, in 2009 the Equality Office published a communications guidance and toolkit in order
to strengthen the then government strategy and support governmental communication on
domestic violence.255
The Home Office and other non-governmental actors also fund various bodies to offer
specialized domestic violence support to victims. These include the Independent Domestic
Violence Advisors (IDVA) which serves as a victim’s primary point of contact and the
Independent Sexual Violence Advisors (ISVA) which provides independent support to victims of
sexual abuse through the criminal justice process. There has also been set up Sexual Assault
Referral Centres (SARCs) which are safe locations where victims of sexual assault can receive
251
Section 1
252
Section 4
253
Matczak, A., Hatzidimitriadou, E., and Lindsay, J. Review of Domestic Violence policies in England and Wales
(2011).
254
Section 32
255
Supra n. 253
58
an integrated service of medical help, legal advice and counselling from professionally trained
staff.256
4.2.6 Challenges experienced by the UK system in handling domestic violence matters

It is notable that the UK system seeks to deal with domestic violence cases in a plethora of ways.
Despite the various pieces of legislation and interventions that have been put in place by the
system, there are still experienced some up hills in the fight against domestic violence. For
instance, despite significant developments in policy and guidance by major statutory agencies at
the national level, there is inconsistent implementation at the local level.257 This is further
compounded by low levels of reporting which means that the full extent of domestic violence
cannot be appreciated.
The criminal justice system has failed to give adequate protection to victims of domestic
violence and has not in most cases held perpetrators accountable for their violence by failing to
arrest, charge, convict and sentence appropriately. Similar sentiments have been expressed in
relation to civil and family law responses due to the limited effectiveness of injunctions and the
failure to take account of domestic violence in divorce and child contact proceedings. 258This
greatly hampers the fight against domestic violence and reduces incentives for victims to seek
redress in the legal system.
4.3 Chapter Summary

The study conducted above reveals that various jurisdictions adopt various methods in dealing
with domestic violence cases within their legal systems. Whereas South Africa has an omnibus
law in the Domestic Violence Act which is near exhaustive in terms of domestic violence
matters, the United Kingdom prefers a fragmented approach where domestic violence issues are
handled under the auspices of various laws including the Protection from Harassment Act, the
Family Law Act, Domestic Violence, Crime and Victims Act among others. However in both
256
Ibid.
Purna Sen and Liz Kelly, ‘Violence Against Women in the UK’ (2007) CEDAW Thematic Shadow Report on
257
Violence Against Women in the UK

<http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/UKThematicReportVAW41.pdf> on 28/01/2014.
258
Kate Paradine and Jo Wilkinson, Protection and Accountability: The Reporting, Investigation and Prosecution of
Domestic Violence Cases (2004)
59
systems, the main remedies offered are in the form of protection orders, non-molestation orders
and occupation orders.
A striking feature of the UK system is the active involvement of the government in domestic
violence cases through the Home Office which rolls out various programmes in combating
domestic violence cases ranging from conducting studies into domestic violence periodically to
offering funding to various departments and bodies which deal with domestic violence issues.
The importance of such government involvement cannot be underscored in light of the fact that
violence can emanate from both state and non-state actors thus necessitating government
involvement under its duty to protect its citizens.
It cannot also escape attention that these jurisdictions are grappling with various challenges in
trying to implement domestic violence laws. Police brutality and perceptions about domestic
violence cases plague the South African system while low reporting levels and failure of the
criminal justice system to bring perpetrators to book are constant nightmares in the UK system. It
should however suffice to note that Kenya in her bid to reform her domestic violence laws and/or
enact a specific law on domestic violence can learn a lot from these other jurisdictions, both in
their successes and failures. The government could for example borrow a leaf from the UK
government and put in place similar strategies and structures to deal with the vice.
60
Chapter five
CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion
Domestic violence is a vice that permeates all aspects of life and is experienced in all societies
and cultures. It is perpetrated by, and on, both men and women although a majority of the cases
involve women as the victims of the scourge. This fact has been located to emanate from social
constructions, especially customs and practices that hold man superior over woman and thereby
subjugate the female body and labour to the control of men. Violence has also been used as a
means of correcting errant behavior in what has been referred to as wife chastisement in most
African set ups. The control theory on its part proffers an explanation for violence that posits that
it is a tool used by the more powerful members of society to gain control and exert influence
over the less powerful members. This control is not only limited to physical control for instance
masculinity but also extends to other areas such as economic domination and decision making.
The prevalence of domestic violence at the universal plane and the recognition and acceptance of
human equality has had the consequence of locating domestic violence as a crime. Feminists
have for instance contended that domestic violence against women impairs their ability to
participate equally with men in societal matters in addition to being an affront to their rights to
personal and bodily integrity. They have therefore sought to end discrimination against women
in the private sphere without which, as they observe, there cannot be equality in the public realm.
In tandem with the foregoing position, many jurisdictions have sought to fight domestic violence
through various avenues ranging from enacting legislation that proscribe such acts to setting up
special facilities to aid those who have borne the brunt of violence.
It is however lamentable that despite the recognition of domestic violence in all its
manifestations as a crime, Kenya has no specific legislation or government policy directed
towards fighting domestic violence per se. This has had the consequence of leaving domestic
violence victims with little option but to seek remedies under the general criminal framework.
Violence cases are thus prosecuted mostly as criminal offences and thus criminal statutes have
61
had direct application in this respect. For instance, most domestic violence offences are brought
under the provisions of the Penal Code whereas sexual offences are dealt with under the ambit of
the Sexual Offences Act.
It is worth appreciating that the aforementioned pieces of legislation have provided a welcome
platform for the prosecution of violence cases and have to a great extent aided in quelling the
vice. For instance, the Sexual Offences Act introduced stiffer penalties to those convicted of
sexual offences and introduced a broad cache of what constitutes sexual offences. However, such
laws are not adequate in combating domestic violence and are riddled with challenges of their
own. For example, none of the statutes gives an explicit definition of what constitutes domestic
violence. This then makes it difficult to sufficiently deal with a problem whose full parameters
have not been conceptualized and appreciated. Further, the penal code on its part offered limited
avenues for redress for example by contemplating only the rape of women and girls. The Sexual
Offences Act on the other hand fails to criminalize marital rape. This is seen as rubberstamping
the practice and affording no solace to its victims.
Kenya has at times applied international law principles in adjudicating matters before her courts.
This is pursuant to Article 2(5) and (6) of the Constitution that is emphatic that international
conventions and treaties ratified by Kenya as well as the general principles of international laws
form part of Kenyan laws. The international legal framework is rich in principles and standards
that are geared towards the protection of human rights and especially outlawing domestic
violence. Kenya can and has utilized such principles in her courts to afford relief to victims of
human rights violations. These include the provisions of CEDAW and DEVAW which are
unequivocal in outlawing violence especially against women.
It is however notable that there have been attempts by the Kenyan legislature to enact a law that
deals with domestic violence. These attempts can be dated back to 1966 when the Commission
on Marriage and Divorce was formed to look into the marriage laws in the country. There
followed the mooting and debating of various bills which related to various aspects of domestic
violence. These include the Criminal Law Amendment Bill 1999, the Family Protection Bill,
2007 and the Protection Against Domestic Violence Bill, 2012. None of these Bills has of yet
seen the light of day in terms of being enacted into Acts of Parliament. This is attributable to the
traditionally male dominated Kenyan Parliaments that were conservative and thought of
62
legislating in matters domestic violence as infringing on the private lives of people and a denial
of the right of men to chastise their wives. This line of thought for instance has seen a vigorous
opposing of the recommendation to introduce a provision prohibiting marital rape in legislation.
The Protection Against Domestic Violence Bill 2012 is an updated version of the various Bills
that have been mooted to curb domestic violence such as the Family Protection Bill, 2007. It
contains progressive provisions that can go a long way in helping curb domestic violence if
enacted. For instance, it offers a wide definition of the term domestic violence and near
exhaustively enumerates various kinds of domestic relationships. It also introduces a new aspect
in the form of protection orders which is the final order rendered by a court in a domestic
violence case. The order can take various forms including ordering the respondent to compensate
the applicant, separating the parties, offering medical care and shelter to the abused party among
others. Police officers similarly have an enhanced role in domestic violence matters. For
instance, they are required to explain to the victim her rights including the right to lodge a
criminal complaint.
The Bill however has some limitations, though not so much pronounced. An example is the
failure to criminalize marital rape. In addition, section 43 of the Bill outlaws false testimonies in
a domestic violence case and imposes a hefty penalty on anybody found lying under oath.
Although this provision would serve to deter false witnesses and vexatious suits, it nevertheless
instills fear in would-be witnesses who would cow at the prospect of being jailed or being
ordered to pay insurmountable fines if adjudged to have lied under oath. On the whole however,
the Bill is a novel piece of legislation that would solve the domestic violence puzzle if enacted
into law.
Other jurisdictions around the world have also dealt with domestic violence matters in their legal
systems in one way or the other. Two jurisdictions elicited attention in this study, South Africa
and the United Kingdom. The South African system principally deals with violence cases under
the Domestic Violence Act whose salient features include protection orders and the prominent
role of the South African Police Service (SAPS) in matters domestic violence. The UK system
on the other hand adopts a fragmented approach where domestic violence issues are handled
under a host of statutes including the Domestic Violence, Crime and Victims Act, the Protection
63
from Harassment Act, the Family Law Act among others. Each of the Acts deals with one or
more aspects of domestic violence.
These jurisdictions however experience challenges of their own. In South Africa, the police have
been faulted for being unresponsive to domestic violence victims and in fact some of them are
perpetrators or are related to domestic violence perpetrators. They are also not adequately trained
to handle domestic violence matters. The UK system on the other hand suffers from low
reporting levels and failure of the criminal justice system to bring perpetrators to book. In sum,
Kenya can learn valuable lessons from these other jurisdictions both in their successes and
failures in her bid to enact domestic violence legislation.
5.2 Recommendations for Reform

It is clear from the foregoing discussion that there is need for reform both in the law and
institutions to be able to combat domestic violence in Kenya. This is particularly imperative in
light of the upsurge in violence cases where both men and women bear the brunt of such
violence. I thereby recommend the following interventions which ultimately will aid in the
bringing of relief to victims of domestic violence.
5.2.1 Legal Reform

There largely exists need to undertake legal reform as relates to domestic violence matters. The
chief reform in this aspect is the need to finalize and enact the Protection Against Domestic
Violence Bill 2012. The promulgation of this Bill will go a long way in bringing relief to victims
of domestic violence victims. As the discussion in the preceding sections of this work reveal, this
Bill is solely geared towards tackling domestic violence issues. It is a first in conceptualizing
domestic violence victims and offers various positive aspects in combating domestic violence
including a wide definition of the term domestic violence, introducing protection orders as well
as enshrining a fairly flexible and convenient procedure for seeking relief.
It would however be necessary review the Bill with a view to amending and/or repealing some of
its sections before its enactment in order to make it more responsive to violence matters. For
instance, under section 40 of the Bill the fine payable by anyone found liable for publishing the
photograph of the parties in the proceedings should be reviewed upwards from fifty thousand
shillings to about two hundred thousand shillings to make it a sufficient deterrent against such
acts. Similarly, there should be introduced a marital rape prohibition provision in the Bill.
64
In reviewing the Bill, valuable lessons can be learnt from the practice in other jurisdictions. For
instance, there should be provided for free legal representation for victims as is the South African
practice. The orders under the Bill could also be increased to include such orders as non-
molestation orders and restraining orders offered under the UK system. In addition, the
protection order should be capable of being enforced anywhere in the Republic as is the case
with the South African system.
Away from the Bill, it is necessary to do away with section 38 of the Sexual Offences Act which
seeks to punish those found lying under oath since this deters potential witnesses and even the
victim in violence cases from coming forward to provide evidence in violence cases for fear of
being fined and/or imprisoned. Section 43(5) of the Act should also be amended so as to prohibit
marital rape.
5.2.2 Setting up a government department to deal with violence cases

Apart from dealing with violence matters under the judiciary, a government department should
be set up to provide support to domestic violence victims. This department would be manned by
professionals such as counselors who should be tasked with providing help to victims of such
violence. The department would also be responsible to help in victim compensation where the
respondents are unable to compensate the victims. Kenya can borrow a leaf from the UK practice
where the Home Office is responsible for churning out government policy on domestic violence
from time to time. A similar department in Kenya like its UK counterpart would also help in
financing bodies that create awareness about domestic violence issues such as FIDA-KENYA as
well as providing periodic updates on government policy directives on the same.
5.2.3 Education and Awareness Programmes

There is need to sensitize the masses on domestic violence matters. These would include
targeting traditional practices and believes that demeans women integrity. There is need to
empower women through equal opportunities for education, employment opportunities,
enlighten them on legal issues as well as implement policies that address rights of women to
inheritance. Economic empowerment of women is crucial so as to ensure that they are not forced
to stay in abusive relationships because of economic dependence. Men on the other hand should
be enlightened on treating their partners as equals and the need to desist from issuing threats,
65
personal attacks, or ultimatums when negotiating with their partner but instead to embrace
dialogue and negotiation strategies.
Education should also be offered to judicial staff and police officers. As has been shown with the
South African situation, police officers need to be trained adequately to accept domestic violence
as a crime and on ways to intervene in such cases. This is especially vital in view of the
enhanced role of police officers under the Protection Against Domestic Violence Bill 2012 in
particular and the general criminal framework in general. Judicial officers such as judges,
advocates and clerks similarly need sensitization on domestic violence matters to enable them
better appreciate and help in solving such matters. Such education programmes should be
organized and facilitated by both the government and non-state actors such as FIDA.
In sum, implementing the above recommendations would go a long way in ensuring that there is
relief to violence victims. This must be evaluated against the backdrop of the recognition of
domestic violence both at the international plane and locally. The spiraling cases of violence
cases in the country thus need to be checked to safeguard human rights and personal integrity.
66
Bibliography
Books
Bancroft Lundy and Jay G Silverman, The Batterer as Parent: Addressing the Impact of
Domestic Violence on Family Dynamic (2002) Sage Publications (CA)
Bryan A. Garner (ed), Black’s Law Dictionary (9th ed, 2009) West Publishing Co.
Center for Rights, Education and Awareness (CREAW), Bride Price: Is it Modern Day Slavery?
(2006)Nairobi: Centre for Rights, Education and Awareness
Connie Ngondi-Houghton, The State of Human Rights in Kenya (2005) A Publication of the
Ministry of Justice and Constitutional Affairs.
Emily Burrill, Richard Roberts and Elizabeth Thornberry, Domestic Violence and the Law in
Colonial and Postcolonial Africa(1st ed, 2010)Ohio University Press
Eugene Cotran, Casebook on Kenya Customary Law (1987) University of Nairobi: Nairobi
University Press
Kate Paradine and Jo Wilkinson, Protection and Accountability: The Reporting, Investigation
and Prosecution of Domestic Violence Cases.(2004) HM Crown Prosecution Service
Inspectorate
Katharine T. Bartlett and Deborah L. Rhode, Gender Law and Policy (2010) New York: Aspen
Publishers
Katharine T. Bartlett, Deborah L. Rhode and Joanna Grossman, Gender and Law: Theory,
Doctrine, Commentary (6thed, 2013) Wolters Kluwer Law & Business
Lisa Vetten, Addressing Domestic Violence in South Africa: Reflections on Strategy and Practice
(2005). New York: UN Division for the Advancement of Women
M Kiwinda Mbondenyi and J Osogo Ambani, The New Constitutional Law of Kenya (2012).
Nairobi: Claripress Limited
67
Mangai Natarajan, Domestic Violence: The Five Big Questions (2007) Ashgate Publishing
Limited.
Marjorie Agosin (ed), Women, Gender and Human Rights: A Global Perspective (2002) Rutgers:
The State University
Matczak, A., Hatzidimitriadou, E., and Lindsay, J., Review of Domestic Violence policies in
England and Wales (2011). London: Kingston University and St George’s, University of
London.
Journal Articles
Bonita C. Meyersfeld, ‘Reconceptualizing Domestic Violence in International Law’ (2003) 67

Albany Law Review 371.
Charlotte Bendall, ‘The Domestic Violence Epidemic in South Africa: Legal and Practical
Remedies’ (2010) Women's Studies: An inter-disciplinary journal 39:2 pp.100-118
Dawn Blaser, ‘Statistics on Violence Against Women in South Africa and Internationally’
(1998) NICRO Women’s Support Centre.
Federation of Women Lawyers Kenya (FIDA Kenya), The Global Initiative for Economic,
Social and Cultural Rights, ‘Joint Submission of Shadow Report to the Human Rights
Committee on International Covenant on Civil and Political Rights’ Kenya 105th Session 9 – 27
July 2012.
Gichangi P, Thenya S, Kamau J, Kigondu C, Ngugi E, Diener L, ‘Domestic violence in Kenya:
A baseline survey among women in Nairobi.’(2002) FIDA-Kenya.
Ingrid Sinclair and Anél du Plessis, ‘Domestic Violence Adjudication in South Africa: A View
on Therapeutic Jurisprudence and Human Rights Protection of the Female Victim’ in Greg
Reinhardt and Andrew Cannon AM (eds),Transforming Legal Processes in Court and Beyond.
(2007) Melbourne: The Australasian Institute of Judicial Administration Incorporated.
J M Migai, ‘The Penal Code and Spousal Rape: Is there need for legislature intervention?’
(1995) University of Nairobi Law Journal Issue No. 2.
68
Jane Mulroney and Carrie Chan, ‘Men as Victims of Domestic Violence’16 Australian Domestic
and Family Clearinghouse Topic Paper.
Kristin L. Anderson, ‘Gender, Status, and Domestic Violence: An Integration of Feminist and
Family Violence Approaches,’ (1997) Journal of Marriage and the Family 59.
Maren E. Hyde and Tracy Juliao, ‘Theoretical Basis for Family Violence’ in Rose S. Fife and
Sarina Schrager (eds), Family Violence: what healthcare providers need to know. Jones &
Bartlett Learning (2012)
Michelle Govender, ‘Domestic Violence: Is South Africa Meeting its Obligations in Terms of the
Women’s Convention?’ (2003) 19 South African Journal on Human Rights.
Nancy Baraza, ‘Family Law Reforms in Kenya: An Overview’ Presentation at Heinrich Böll
Foundation's Gender Forum in Nairobi, 30 April 2009.
Patricia Kameri-Mbote, ‘Violence Against Women In Kenya; An Analysis of Law, Policy and
Institutions’ (2000-1). International Environmental Law Research Centre Working
Paper<http://www.ielrc.org/content/w0001.pdf>
Purna Sen and Liz Kelly ‘Violence Against Women in the UK’ (2007) CEDAW Thematic
Shadow Report on Violence Against Women in the UK
Ruth Aura Odhiambo and Maurice Oduor, ‘Gender Equality’, in Lumumba PLO, Mbodenyi MK
and Odero SO, The Constitution of Kenya: Contemporary Readings (2012)
Newspaper Articles
Azwifaneli Managa and Bertha Chiroro, ‘The Scourge of gender-based violence in South Africa’
Pambazuka News, 20 February 2013.
John Chigiti, ‘Domestic Violence (Family Protection) Bill, 2007’ The Star, 24 August 2011.
Kathy Majitenyi, ‘Cases of Domestic Violence Increase in Kenya’ Voice of America, 4 March
2010.
Wambugu Kanyi, ‘Nyeri man battered by wife for secretly selling radio,’ The Star, 5 January
2012.
69
Internet Sources
Aurelia Babalwa Njezula, ‘Investigating Domestic Violence against Women in South Africa’
(2006) Masters, University of the Western Cape
<http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_4599_1242781895.pdf>
Chantelle de Nobrega, ‘Framing Gender-Based Domestic Violence in South Africa: The

Domestic Violence Act’ (2009). Available at
<http://thesis.eur.nl/pub/6631/deNobregaFrame.pdf>
Christine Wanjiru Kung’u, ‘Criminalization of Marital Rape in Kenya’

(2011).<https://tspace.library.utoronto.ca/bitstream/1807/31288/8/Kung%27u_Christine_W_201
111_LLM_thesis.pdf> on 22/01/2014.
FIDA (K), ‘Gender Based Domestic Violence in Kenya’ (2008). Available at
<http://www.womankind.org.uk/wp-content/uploads/2012/03/FIDA-Kenya-Report-on-Gender-
Based-Violence-in-Kenya.pdf.>
FIDA-Kenya, ‘Kenyan Laws and Harmful Customs Curtail Women’s Equal Enjoyment of
ICESCR Rights’ (2008) <www2.ohchr.org/English/bodies/cescr/docs/info-
ngos/FIDAKenya41.pdf>
Katie Lambert, ‘Broken Men Break the Silence: Male Domestic Violence Victims and their
Struggle to be Heard’<www.mankind.org.uk/>
More haste less speed? The South African Domestic Violence Act’
<http://www.genderlinks.org.za/attachment.php?aa_id=13451>
Njoki Ndungu, ‘Legislation for Sexual Violence in Africa: Preparing and Delivering Evidentiary
Requirement’<www.suri.org/legislation.pdf>
Pat Strickland, ‘Domestic Violence’ (2013)Home Affairs Section
<http://www.parliament.uk/briefing-papers/sn06337.pdf>
Waheeda Amien, ‘Recent Developments in the Area of Women’s Rights in South Africa: Focus
on Domestic Violence and Femicide’ <www.engender.org.za/publications/DV& Femicide.pdf>
70
Winnie Lichuma, ‘Kenyan’s Experience Legislating the Sexual Offences Act.’ KNCHR.A paper
presented at the 17th Pre-Summit Consultative Meeting on Gender Mainstreaming in the AU.
Available at <www.fasgno.org/assets/files/17GIMAC Pre-Summit/The Experience of legislating
the Kenya’s Sexual Offences Act.pdf>
Reports and Conventions
Equality Now, Discrimination Against Women in Law (2011)

<www.equalitynow.org/sites/default/files/WG_Report_EN.pdf>
Home Office, Number of specialist violence courts to double (2006) <www.homeoffice.gov.uk>
Home Office, Cross-government definition of domestic violence consultation: Summary of

Responses (September 2012)
Republic of Kenya National Report to CEDAW-FINAL, APRIL 2004,

<http://www1.uneca.org/Portals/ngm/Documents/KENYA-COUNTRY-REPORT-TO-CEDAW-
FINAL-APRIL-2004-2009-1.pdf>
UNHCR, Domestic Violence and Abuse: Warning Signs and Symptoms of Abusive Relationships,
<http://www.helpguide.org/.../domestic_violence_abuse_types_signs_causes_effects.htm>
United Nations, The Convention on the Elimination of All Forms of Discrimination against
Women and its Optional Protocol: Combating Discrimination (2003)
UOHCHR, Fact Sheet Number 2: The International Bill of Human Rights (as of June 1996),
<http://web.archive.org/web/20080313093428/http://www.unhchr.ch/html/menu6/2/fs2.htm>
71

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Assessing The Adequacy of The Laws Deali

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ASSESSING THE ADEQUACY OF THE LAWS DEALING WITH DOMESTIC

VIOLENCE IN KENYA: THE NEED TO ENACT THE PROTECTION AGAINST

DOMESTIC VIOLENCE BILL, 2012

ODHIAMBO WYCKLIFE OYOO

AIDS Acquired Immune Deficiency Syndrome

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CREAW Centre for Rights Education and Awareness

DEVAW Declaration on Violence against Women

DVA Domestic Violence Act

GBDV Gender-based domestic violence

HIV Human Immunodeficiency Virus

ICCPR International Covenant on Civil and Political Rights

PFVA Prevention of Family Violence Act

SAPS South African Police Service

UDHR Universal Declaration of Human Rights

UNHCHR United Nations High Commissioner for Human Rights

The Constitution of South Africa, 1996

The Crime and Security Act 2010 of the United Kingdom

The Criminal Justice Act, 1988 of the United Kingdom

The Domestic Violence Act No. 116 of 1998 of South Africa

The Evidence Act Cap. 80 Laws of Kenya

The Family Law Act 1996 of the United Kingdom

The Penal Code Cap 63 Laws of Kenya

The Protection from Harassment Act 1997 of the United Kingdom

The Sexual Offences Act No. 3 of 2006

The Criminal Law Amendment Bill, 2000

The Domestic Violence (Family Protection) Bill, 1999

The Family Protection Bill, 2007

The Protection Against Domestic Violence Bill, 2012

AB V CD [2001] 28 KLR 210

Carmichele v Minister of Safety and Security [2001] (4) SA 938 (CC)

Du Plessis v De Klerk 1996 (5) BCLR 658 (CC).

Dzitu v. Republic, High Court at Malindi, case No. 73/2002

Francis Charo Opo v. Republic (Criminal Appeal No. 39 of 1980)

Matheka v. Republic, High Court at Mombasa, case No. 126/2000

Omambia v. Republic Criminal Appeal No. 47 of 1995

R v R [1992] 1 A.C. 579

Republic .v. Duncan Gichuhi Waiyaki [1995] EA 929

Sv Engelbrecht[1993] 374 ZASCA 114

The State v Baloyi [2000] 2 SA 425(CC).

The Wilmina Achieng case [1998] EA 177736

Virginia Otieno vs. Ougo& another [1987] KLR, 371, H.C

1.3.2 Specific objectives

1. To assess the efficacy of the Kenyan laws on domestic violence.

1.4 Research questions

1.5 Scope of the study

1.6 Rationale of the study

1.7 Significance of the study

This study is expected to influence government policy in so far as domestic violence is

1.8 Hypothesis of the study

1.9 Theoretical Framework and Literature review

1.9.1 Theoretical Framework

1.11 Chapter breakdown

Chapter one: Proposal

Chapter two: The Legal Framework on Domestic Violence

2.1 The Legal Framework in Kenya

2.1.1 The Constitution

2.1.2 The Penal Code

2.1.3 The Sexual Offences Act

2.1.4 The Evidence Act

2.1.5 Customary Laws

2.1.6 Judicial Intervention in Domestic Violence Cases

2.2 The International Legal Framework