KENYA CRIMINALIZES SEXUAL (AND SOME TRAFFICKING)

UNCLAS NAIROBI 003437

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: KDEM PHUM PREL EAID SOCI KE
SUBJECT: KENYA CRIMINALIZES SEXUAL (AND SOME TRAFFICKING)
OFFENSES

REF: NAIROBI 1819


1. (U) SUMMARY: On May 31, Kenya's National Assembly voted
to criminalize the worst forms of sexual offenses, including
rape, defilement, child pornography and sex tourism, and
sexual harassment. While amendments to the bill may have
watered down some of the proposed protections, the passage of
the bill with most of the significant provisions intact is a
major step forward in establishing a legal framework for
protection from sexual violence. The bill's passage lays an
excellent foundation for the proposed WJEI program in Kenya,
enabling it to build upon the heightened awareness of sexual
offenses and the new tools available to legal and law
enforcement authorities to protect victims and punish
perpetrators. END SUMMARY.

One Woman's Quest to Tackle Sexual Violence
--------------


2. (U) Disturbing sexual violence statistics for Kenya amply
demonstrate the urgent need for a comprehensive law defining,
criminalizing, consolidating, and enhancing penalties for
sexual offenses. An estimated 16,482 rapes occur annually,
according to statistics from Women in Law and Development in
Africa, a pan-African NGO promoting a culture for the
exercise of and respects for women's rights in Africa. This
translates into an incidence of rape occurring every thirty
minutes.


3. (SBU) The bill is the personal project of nominated member
of parliament Njoki Ndungu. Aware that some MPs would insist
on amendments to address the more contentious provisions of
the bill, Ndungu told polFSN that she deliberately included
"overreaching" provisions. These provisions drew the
attention of her male counterparts, leaving most of the core
provisions intact. Ndungu explained that she was pleased
with the final version of the bill and stated that the
amendments did not significantly affect the spirit or the
most important provisions of the bill. It is noteworthy that
such a bill emanated from a private member rather than from
within government. As a private member's initiative, the
bill avoided much of the delays inherent in a government
project which would have ensued from various government
ministries (and personalities) debating contentious
provisions and also avoided incurring the automatic
resistance of the opposition to a government project. To
better spread her message and make information available to
the general public, Ndungu created a website,
www.sexualoffencesbill.co.ke, containing information about
the history and provisions of the bill and statistics for
sexual violence in Kenya.

Popular Pressure Influenced Vote
--------------


4. (U) The debate on the bill in Parliament was heated and
split sharply along gender lines. While the elite male MPs
debated their perception that the word "No" expresses a range
of meanings in Kenyan culture, hundreds of protesters
descended on Parliament to express their support for the
bill. In a show of rare solidarity, at one point during the
debate the female MPs stormed out of Parliament united to
express their disapproval of the proposed amendments.
Subsequent conversations with MPs reveal that significant
popular pressure was applied to them to support the bill. In
short, the passage of the bill became an election issues for
many MPs. As a result of this popular pressure, a number of
prominent MPs reversed their resistance to certain
provisions, allowing for the relatively swift passage of the
bill. The influence of the power of the people in ensuring
that this bill was adopted is an important development in
Kenya's young democracy. It is among the first instances of
popular pressure directly affecting the adoption of
legislation. USAID funded advocacy efforts and education for
MPs on the provisions of the bill.

Some Watering Down
--------------


5. (U) However, some significant amendments to the bill were
made, which may have serious consequences for rape victims.
In particular, one of the amendments shifts the burden of
proof to the claimant to establish the guilt of the accused.
Another amendment imposes penalties equal to the offense

charged (imprisonment for not less than 10 years) for
providing false information about an incidence of rape.
These two provisions may have a significant chilling affect
on the willingness of rape victims to come forward and seek
justice. Additionally, the MPs voted to strike the provision
criminalizing martial rape, arguing that non-consentual
intercourse could not occur between spouses.

Trafficking in Persons Now Criminalized
--------------


6. (U) The law also provides for the much needed
criminalization of trafficking of children and trafficking in
persons for the purpose of sexual exploitation. The law
defines an act of child trafficking as one where a person:
"knowingly or intentionally makes or organizes any travel
arrangements for or on the behalf of a child within or
outside the boarders of Kenya, with the intention of
facilitating the commission of any sexual offense against a
child, irrespective of whether the offense is committed" and
also one who "supplies, recruits, transports, transfers,
harbors or receives a child within or across the boarders of
Kenya, for the purposes of the commission of any sexual
offense under this act with such child or any other person."


7. (U) Trafficking for sexual exploitation is defined as any
person who "intentionally or knowingly arranges or
facilitates travel within or across the boarders of Kenya by
another person and either: intends to do anything to or in
respect of the person during or after the journey in any part
of the world, which if done will involve the commission of an
offense under this act; or believes that another person is
likely to do something to or in respect of the other person
during or after the journey in any part of the world, which
if done will involve the commission of an offense under this
act."


8. (U) The law imposes a minimum sentence for child
trafficking of imprisonment for ten years, and a fine of not
less than approximately USD 27,400 for juristic persons.
Those found guilty of trafficking for the purpose of sexual
exploitation now will face a minimum term of imprisonment for
15 years and/or a fine of at least USD 27,400. While the
criminalization of human trafficking is a definite step
forward in combating the vice, comprehensive anti-trafficking
legislation is urgently needed to address various aspects of
trafficking, including trafficking for exploitative labor.
Such draft legislation is currently with the office of the
Attorney General for refinement and gazetting, which would
pave the way for Parliament to adopt.

What This Means For WJEI
--------------


9. (SBU) COMMENT: While the amendments to the bill
undoubtedly dilute some of the protections afforded under the
proposed bill, the new law (merely awaiting the President's
signature to come into effect) empowers victims, their
defenders, law enforcement, and the courts with the necessary
tools to ensure that sexual offenses do not go unpunished.
The adoption of the law has significant implications for the
proposed WJEI program here in Kenya. (Reftel.) The
extensive media coverage of the bill and parliamentary
debates heightened awareness of sexual offenses and brought
sensitive subjects like sexual mores, rape, and defilement
out of the shadows and into the public sphere. The new
provisions now arm law enforcement and legal officials with
the authority and required tools to carryout community
policing, investigations, and prosecutions. While
significant cultural and legal hurdles still may discourage
rape victims from seeking justice, the new law certainly
affords them additional protections and incentives for ending
the assured impunity which sexual offenders have previously
enjoyed. END COMMENT.
HOOVER