Webinar on Out of Court Settlement Agreements for Violence Against Women (VAW) in Kenya

By Winfred Odali

While the law provides for the option to use alternative dispute resolution mechanisms, this provision has been serially abused by victim support systems and actors in the criminal justice system, such as the police. One of the ways in which the police abuse this system is by coercing victims of violence against women to enter into out-of-court settlements with their abusers. The effect of such “agreements” is that perpetrators of violence against women are allowed to manipulate and escape the criminal justice system. This cultivates a culture of rape and impunity in a society where perpetrators get away with acts of violence against women without any form of punishment.

On 15 May 2025, ISLA held a webinar on out of court settlement agreements for Violence Against Women (VAW) in Kenya, bringing together key stakeholders, legal experts and gender justice advocates to discuss the implications of the landmark judgment delivered by the Constitutional Division of the High Court of Kenya on 15 December 2023 in the case of IW & CREAW v Attorney General & Others. The Court’s decision in this case declared out-of-court settlement agreements for sexual offences unconstitutional in that they violate the victim’s fundamental rights and freedoms under international, regional and domestic laws and standards. It further held that these ‘agreements’ 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.

This panel consisted of Hon. Justice Njoki Ndung’u, Dr Ruth Nekura, Ms Nicolette Naylor and Ms Tina Alai. Key themes explored during this session included the state due diligence obligations for VAW, the prevalence of toxic masculinity culture and various rape myths and stereotypes in the society, the international and regional frameworks that provide for the carceral system as a form of redress for victims of VAW, the history of the Sexual Offences Act Kenya and its role in protection of victims, the role of the judiciary in protecting victims and punishing perpetrators of VAW and the support and holistic care that victims need at every stage of the justice system and through various referral pathways.

The panel highlighted a pressing concern regarding the misuse of out-of-court settlements, emphasising how these arrangements can undermine the well-being of victims by overlooking the critical dynamics of power and coercion in sexual offences. Throughout the discussion, the concepts of secondary victimisation and re-traumatisation emerged as significant themes, casting a shadow over the case and its eventual judgment. The panel also articulated the essential role of court access for victims of Violence Against Women (VAW). Providing victims with a pathway to justice through the legal system is vital. It not only acknowledges their rights but also fosters accountability among offenders and serves as a deterrent to potential future violators. The panel also emphasised the necessity of raising public awareness, declaring emphatically that the judiciary has unequivocally ruled against any form of settlements in VAW cases by the police. The webinar culminated in a powerful call to action, advocating for sustained multi-sectoral collaboration to protect and uphold the rights of women in Kenya. In a compelling reminder,

In their words:

Dr Ruth Nekura noted that victims are often re-traumatised through harmful stereotypes and rape myths prevalent in the justice system. “The rise of the manosphere and aggravated entitlement are some of the root causes of violence,”

Tina Alai called on states to ensure support for access to justice. “It’s not just access to courts. It’s safety, wellness, healthcare and information that must be ensured as support for the victims of violence,” she emphasised.

Nicolette Naylor noted , “We need more conversations like this. The anti-gender and anti-rights movement is working hard to roll back progress – we need to organise, strategise and push back.”

Hon. Justice Njoki Ndung’u called on ISLA and other NGOs to bring more public interest litigation in the interest of women’s rights. She urged, “This case is just one – we need many more. I urge you to keep going, do even more!”

Watch the full webinar here:

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