A PRACTITIONER’S GUIDE TO INCREASING WOMEN’S ACCESS TO ELECTORAL JUSTICE Annex B: Kenya Case Study Country Context The Government of Kenya has made commitments to gender equality through international treaties, 122 regional conventions,123 and domestic law, including the Kenyan Constitution.124 At the national level, a number of institutions are responsible for addressing issues related to gender, human rights, and justice. These include the Ministry of Public Service, Gender, Senior Citizen Affairs and Special Programmes; the National Commission on Human Rights; and National Gender and Equality Commission. Those commitments include ensuring that women can participate meaningfully in political process and have equal access to justice. Significant government infrastructure is also dedicated to addressing gender-based violence, a key barrier to women’s equal participation in political and electoral processes. The State Department for Gender Affairs (housed within the Ministry of Public Services, Gender, Senior Citizen Affairs and Special Programmes) is responsible for coordinating government action on gender-based violence, which it does through the Gender-Based Violence and Family Protection Directorate, one of four technical directorates. That responsibility is shared with the Ministry of Health, which delivers services to survivors, and the criminal justice system, which is responsible for enforcing the law, including incidents of gender-based violence.125 However, as noted in the National Policy on Prevention and Response to Gender-Based Violence, “Conflict, political instability as well as poor enforcement of laws and policies also contribute to the occurrence of [gender-based violence],” and, despite the legal framework in place, “[t]he impact of these laws is however hampered by inadequate enforcement and gaps in various respects.” 126 Kenya’s Office of the Director of Public Prosecutions (ODPP) acknowledged that, “[a]lthough Kenya has an elaborate legal framework on [sexual and gender-based violence], the conviction rates have remained low.”127 Kenya’s judiciary is an independent branch of the government that is mandated to deliver justice and uphold the Constitution and other laws. The court system consists of the Supreme Court, the Court of Appeal, the High Courts, and magistrate judges. The Supreme Court is the final court of appeal. The High Court deals with the most serious cases under civil and criminal law, as well as appeals from the lower courts. The High Court is based in Nairobi and has resident judges in cities and towns across the country. Appeals from the High Court are heard by the Kenya Court of Appeal, which comprises at least 12 judges. Less serious cases are heard by Magistrates’ Courts. The 2010 Constitution also provides for the use of alternative dispute resolution (ADR) mechanisms to enhance the delivery of justice to all citizens. Kenya’s judiciary has established Court Annexed Mediation, which allows courts to receive 122 For example, Kenya ratified the International Covenant on Civil and Political Rights (ICCPR) in 1972 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1984. 123 African Union. (n.d.). Protocol to the African Charter on the Rights of Women in Africa (“the Maputo Protocol”). 124 Article 27 of the Kenyan Constitution of 2010 (Section 1, “Every person is equal before the law and has the right to equal protection and equal benefit of the law”; Section 3, “Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”). 125 These include the Constitution of Kenya; the Penal Code; Criminal law (Amendment) Act 2003; the Criminal Procedure Code; and the Sexual Offences Act, which, among other things broadens the definition of sexual offenses; the Sexual Offences (Amendment) Act, 2011, which strengthened the 2006 Act; the Sexual Offences Regulations 2008; the Sexual Offences Dangerous Offenders DNA Data Bank Regulations; the Counter Trafficking in Persons Act (2011); and the Prohibition of Female Genital Mutilation Act 2011. 126 Ibid. 127 Office of the Director of Public Prosecutions (Kenya). (2022). Rapid Reference Guide on the Prosecution of Sexual and Gender-Based Violence Cases in Kenya. 45