Milimani HCCHRPET/E416/2021: IW & CREAW v the Attorney General & others

Summary of Judgment Delivered Declaring Out-of-court Settlement Agreements for Sexual Offences Unconstitutional
For Immediate Release
12 November 2024
Milimani HCCHRPET/E416/2021: IW & CREAW v the Attorney General & others
Nairobi, Kenya
The facts
IW, The 1st Petitioner was a university student who sought employment as a sales marketer during the Covid-19 pandemic. She was raped by her employer, an ex-police officer. The investigating officer in the matter coerced her to enter into an out-of-court settlement agreement with the perpetrator, failing to forward the matter to the Office of the Director of Public Prosecutions (ODPP) for prosecution by a court of law.
The case in court
The Petitioners argued that the challenge of state actors in the criminal justice system in Kenya, especially the police, coercing victims of gender-based violence into out-of-court settlement agreements is widespread. This is usually done by perpetrators who pay a sum of money to the police to ensure that they do not forward their cases to the Office of the Director for Public Prosecutions for prosecution. The police in turn coerce the victim to settle the matter out-of-court. In these agreements the perpetrator promises the victim or her family representative a sum of money in exchange for her silence. In most cases the survivor ends up getting little or no compensation at all.
They further submitted that the option to use alternative dispute resolution mechanisms under Article 159(2)(c) of the Constitution and restorative justice under Section 15 of the Victim Protection Act has been serially abused by actors in the criminal justice system who continue to tamper with cases of sexual offences for their own gain. Out-of-court settlement agreements for sexual offences cultivate a culture of rape and impunity in the society where perpetrators know that they can get away with acts of violence against women.
The Petitioners sought for declaratory orders that out-of-court settlement agreements are unconstitutional as they violate the due diligence principle as enshrined in international and domestic human rights laws and standards. They also sought orders quashing the out-of-court settlement agreement between the 1st Petitioner and the 1st Respondent, fresh investigations to be conducted into the case of the 1st Petitioner and damages of up to Kshs 10,000,000.
The judgement
- Out-of-Court settlements in sexual offences are an infringement of constitutional rights
On 15 December 2023, Hon. Justice Mrima of the High Court of Kenya, Constitutional Division, delivered its judgment declaring out-of-court settlements for sexual offences unconstitutional. In its judgment, the court issued a declaration that out-of-court settlement agreements in sexual violence cases resulting in the non-prosecution of those likely to be culpable infringes the victim’s rights and fundamental freedoms as guaranteed in Articles 27, 28 and 29(c) of the Constitution of Kenya, that is: the right to equality and non-discrimination, the right to dignity and the right to be free from cruel, inhuman and degrading treatment including the right to be free from all forms of violence from either public or private sources. The court recognized that such agreements also contravene Section 40 of the Sexual Offences Act.
- Out-of-Court settlements in sexual offences are a violation of international human rights law
The Court in judgement held that out-of-court agreements infringe the provisions of international instruments to which Kenya is a state party, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), Declaration on the Elimination of Violence against Women (DEVAW), the Maputo Protocol, the Convention on the Elimination of Discrimination against Women (CEDAW) and the African Charter on Human and Peoples’ Rights.
In addition, the court went further to issue a declaration that out-of-court settlement agreements in cases of sexual violence resulting in the non-prosecution of those likely to be culpable are unconstitutional and should not be entered into by the police or otherwise except under the direction of the Director of Public Prosecutions while acting within the Constitution and the law.
However, the court held that the petitioners had not produced sufficient evidence in the case at hand to prove the existence of an out-of-court settlement agreement and as such the rest of the orders that were sought by the petitioners were denied.
Implications
The judgement underscored that out of court settlements in sexual offences are illegal, unconstitutional and therefore untenable.
The National Police Service and the Director of Public Prosecution must without fail carry out their duty to investigate and prosecute impartially, thoroughly and effectively all reported cases of sexual offences.
Ends.
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For further enquiries kindly contact:
Winfred Odali
ISLA Associate Lawyer