Domestic violence is a problem that is rampant in most parts of the world especially in Africa. There is no standard definition of domestic violence in Kenya maybe because there are no express laws on the same. However several scholars have attempted to define domestic violence. The term violence against women means any act of gender based violence that results in or is likely to result 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 occurring in public or private life [1]. FIDA (K) in the 1998 annual report on the legal status of women in Kenya states, physical abuse or battery consists of a wide range of activities. It can involve pushing, grabbing, scratching, slapping, hitting, punching, chocking, kicking, kneeing, sitting and standing on, burning, drowning, hair-pulling, arm-twisting, hanging by neck and arms or feet, handcuffing, biting or throwing, tying up with rope, clawing or scratching, locking one out of the home, driving recklessly while one is in the car, throwing objects, threatening to hurt with weapons such as knife or a gun, abandoning in dangerous places, refusing to help when one is pregnant , injured, or sick. [2] There is no clear definition of the crime and the present laws need to be amended to provide for the crime. For purposes of this project domestic violence against women includes any act to any woman or girl by an intimate partner that is physical in nature and likely to cause her physical injury and harm and this includes hitting, battering ,shoving and pushing, kicking, chocking among others.
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Background
The problem of domestic violence can be traced in the Kenyan traditional system which is patriarchal in nature. In the Kenyan traditional setting a man was recognized as the head of the house hold and subsequently had powers to chastise the wife and children. A woman was seen as a lesser being and was therefore submissive to the husband and in some cultures it was even any man. Some scholars have done extensive research on domestic violence and their works have established that domestic violence is so rampant and is affecting many people’s lives and therefore laws needs to be amended and new laws made. Violence against women is both a historical and cultural phenomenon and a reality which has permeated all sectors of Kenyan society as a result of unequal treatment of women and men. [3] This shows that the historic and cultural aspects are the major pioneers of this problem. Wife beating is fairly prevalent in Kenya. The continuation of this practice maybe attributable to the fact that every regime of customary law in Kenya, grants husbands the right to ‘chastise’ their wives for misconduct.
Under Kenyan customary laws only unjustified or excessive beating by the husband would be sufficient ground for divorce or for the wife to return to her family. [4] The only reason that would cause a wife to return would be excessive beating; there is no provision as to what would amount to excessive ‘chastise’.
Violence against women is a manifestation of the historically unequal power relations between men and women which have led to domination over and discrimination against women by men and to the prevention of women’s full advancement. Violence against women throughout the lifecycle derives essentially from cultural patterns in particular the harmful effects s of certain traditional or customary practices and all acts of extremism linked to race sex language or religion that perpetuate the lower status accorded to women in the family, the workplace, the community and society. Violence against women is exacerbated by social pressures, notably the shame of denouncing certain acts that have been perpetrated against women, failure to reform existing laws, inadequate efforts on the part of public authorities to promote awareness of and enforce existing laws and the absence of educational and other means to address the causes and consequences of violence. [5]
Domestic violence is a widespread problem in the whole country and affects women from all classes and age. Violence cuts across all classes of women in this country: rich and poor, educated and illiterate, employed and unemployed, in urban and rural areas and in all ethnic communities. [6] It does not therefore mean that it’s a problem of a section of women but it affects all. This increases the magnitude since women are more than the men in this country. From the scholars we can appreciate that the problem of domestic violence against women is prevalent and it has its roots from cultural practice and would perhaps explain why it’s so common.
The government made an attempt to address some of this problem in 1966 by setting up a commission to work on the law of marriage and divorce whose terms of reference included among other things the status of women in the society the commission found out that wife battery was pertinent to the issue of status of women in the society. After examining it the commission proposed a bill to criminalize wife battery but due to the dominated male parliament the bill was rejected and the parliament justified the practice of wife chastise as an inherent traditional right of an African man. A woman who has been battered can only seek redress for assault provided for in section 250-253 of the penal code. [7] In worse cases which result in death the perpetrator of the crime is charged with murder and mostly reduced to manslaughter which has a lighter sentence.
From then, women in human rights organizations and in parliament have tried making several bills but none has succeeded so far. The two major bills on domestic violence against women were: national council for gender development bill 1999 and domestic violence (family protection) bill 1999. Here is a summary of what they entailed;
National Council for Gender Development Bill 1999
This bill sought to establish a council to ensure gender mainstreaming in national development policies, initiate legal reforms on issues affecting women , and formulate programs on gender development and to prepare reports on Kenya’s international obligations regarding women among other things. With regard to violence against women it could have pushed for Kenya’s adherence to its international obligations to eliminate both discrimination and domestic violence against women.
Domestic Violence (Family Protection) Bill 1999
This bill sought to provide for the grant, enforcement and variation of court orders for protection from domestic violence. In this bill the definition of a spouse encompasses persons living together who may not necessarily be legally married ensuring that women in cohabitation situation are protected from violence. The bill also provides for issuance of protection orders for victims of domestic violence. From this we can see that Kenya has gone a long way to ensure domestic violence is reduced but still the parliament is dominated by male members who are not ready to make the necessary reforms.
Several statistics have been conducted by organizations and individuals to show the seriousness of the problem. According to Kenya demographic and health survey (KDHS) 2003, one out of every four women experience violence from husbands with 40% experiencing physical violence and 16% sexual violence. [8] From this statistics it’s clear that physical violence against women is more prevalent than any other type. In the innocenti digest no. 6 of 2000 by UNICEF 20 TO 50% of women are battered in every country worldwide 46% 0f 612 women surveyed in one district in Kenya reported of having been beaten by a partner of those 58%reported that they were beaten often or sometimes. [9] This statistics also show the explicitness of the problem and shows that it needs urgent attention.
Research questions
A big question to consider would be why is domestic violence so prevalent? It is clear that domestic violence is so rampant. This research will endeavor to establish why domestic violence against women is so prevalent
Is it because there is a lacuna in law that leads to continued domestic violence against women? The research will seek to establish whether the lacuna in law is the cause of domestic violence against women.
What can be done to benefit victims of domestic violence as well as curb its use in the future? The research will have conclusive findings and will make recommendations on the laws that need amends and new laws that need to be established to curb domestic violence against women.
Presumptions
Domestic violence against women is prevalent because of the lacuna in law.
The male dominated parliament is the main cause of the lacuna in law since the men still acknowledge customary law which allows for chastisement of women.
The constitution, to which all laws are subject to allows for use of customary law in civil cases.
Limitations in the study
I am limited only to tackle the legal part yet this problem has both legal and social aspects. I am limited in research since am supposed to handle mainly the Kenyan situation. Since there is inadequacy in law my research will be limited only to the few provisions in Kenyan laws which provide for the crime impliedly.
Research methodology
I will use both primary and secondary data. Primary data will include issuing of questionnaires to the affected members of the society; I will make observations especially to the affected women. I intend to conduct interviews in various institutes like federation for women lawyers (FIDA), coalition on violence against women among others and individuals who may have authority on domestic violence against women in Kenya especially the human rights activists. Further I will conduct interviews on the victims of domestic violence
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Secondary sources include textbooks and journals which have specialized on domestic violence against women, declarations, treaties, and the various statutes on substantive and procedural law, judicial authorities which cover for the crime of domestic violence as assault, bills of parliament which were not passed into law and the ones which are being debated on. The internet will also be a major source of my research.
Literature review
Although various organizations and individuals have focused considerable attention and effort on the subject of domestic violence against women, an in-depth study on the issue particularly dealing with the situation in Kenya need to be done, this is mainly so because most scholars seem to dwell more on the social aspect of the problem rather than the legal aspect of it. Empathy and sympathy cannot solve the problem alone, legal mechanisms have to be put in place to eliminate this problem. There are also no clear ways on which the perpetrators of the crime are to be punished.
In its annual reports of 1997 and 1998 FIDA (K) observed the current situation of women in Kenya in terms of family issues. According to them women in the privacy of their homes are subjected to shockingly savage acts of violence which need to be addressed urgently. They have however not provided for the specific laws to be amended and the new law to be enacted. They have mostly dwelled on the social aspects and recommendations probably leaving out the most important aspect which is the legal aspect.
Dr. Jacinta Muteshi in her book mapping best practices promoting gender equality and the advancement of Kenyan women highlights the problem of domestic violence however she has failed to bring out what constitutes to the crime of domestic violence against women. Without defining a crime it would be very hard or even impossible to come up with the perpetrators and the punishment for the same.
In the book Kenyan country gender profile domestic violence against women has been highlighted as a problem that is both historical and cultural. The author tries to show the seriousness of the problem yet its being taken too lightly. The author has dwelled so much on the social aspects and has not mentioned anywhere what could be done to amend the laws or to draft others. He has not highlighted the legal status of the crime which is very important if this problem of domestic violence against women is to be addressed.
In the Beijing declaration and the platform for action. [10] This journal provides mostly for the consequences of violence against women in a broader sense including situations of armed conflict. The journal dwells so much on the groups of women who are vulnerable who include refugee women, women migrants, destitute women, the elderly, women with disabilities etc. the author did not put into consideration the welfare of women in normal intimate relationships who suffer silently. However the journal has many recommendations which can help reduce or curb the problem of domestic violence against women. The recommendations can only be helpful if they are incorporated to Kenyan laws.
In the book women of the world: laws and policies affecting their reproductive lives the author portrays the problem to be customary based and that’s why it has strived mostly because the constitution of Kenya allow for use of customary laws. The author does not seek to address the problem in fact she just mentions the problem and leaves it at that.
The convention on the elimination of all forms of violence against women (COVAW) which is the most extensive instrument dealing exclusively with the rights of women is an international instrument that Kenya is subject to. Although Kenya has ratified this instrument, its provisions are not applied in Kenyan courts in practice. The provisions are therefore not helpful in anyway unless the judiciary would apply its provision in our courts in practice.
Kenyan statutes which provide for the crime of domestic violence against women provides for use of customary law in Kenyan courts so long as they are not repugnant to justice and morality gives room for broad interpretation which could lead to tolerating the crime to some extent. The penal code cap 63 laws of Kenya, provides for the crime of assault that shoulders domestic violence against women. This act should provide expressly for the crime this is because many perpetrators get a light sentence or worse go free which makes it hard to curb the crime. The criminal procedure code cap 75 laws of Kenya which provides for the procedure of arrest, search and sentencing of a suspect. The procedure is complex and complicated and has a lot of loopholes that lead to perpetrators to go free. The civil procedure act cap21 of the laws of Kenya which provides for rules in seeking legal redress in civil court for compensation for acts of domestic violence against women. The rules provide for complex procedures that delay justice and cause many cases to be struck out on technical grounds. The evidence Ac [11] t in sections 107-109 provide that the burden of proof is borne by the prosecution most of who are incompetent and its male dominated leading to acquittal of perpetrators for lack of evidence beyond reasonable doubt.
I however agree with the annual FIDA(K) reports on the family issues affecting the lives of women. Their recommendations can only be useful only if they are put into law. The various international agreements have good provisions but can only be useful if they are incorporated in the Kenyan laws to be used by the domestic courts.
Chapter breakdown
My research project will have four chapters which include;
Chapter 1: introduction
This will include the sneak preview of the topic of domestic violence, the background, the hypothesis and objectives of the study
Chapter 2: international standards that are set on the problem of domestic violence
This will include analyzing the various laws especially the international standards present that provide for domestic violence against women. Take a case study on a state where domestic violence has been provided for in the laws and done away with successfully. Use and quote works of philosophers who have shunned domestic violence against women.
Chapter 3: Kenyan situation
Here I will critically analyze the situation of domestic violence against women in Kenya, the magnitude of the problem and what has been done or what is being done to eliminate this problem.
Chapter 4: Recommendations
This will include various suggestions of amendments that need to be made to eliminate the problem of domestic violence against women. The recommendations will be strictly legal based.
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