Eleven petitioners, who were survivors of defilement, child abuse, and other forms of sexual violence, brought a petition before the High Court at Meru against Kenyan law enforcement agencies. They alleged that the police had failed to effectively investigate their complaints and take the necessary action, which would have brought the perpetrators to account for their unlawful acts. They based their petition on diverse national and international laws, including the Constitution of Kenya 2010, the Sexual Offences Act 2006, the Police Act of the Laws of Kenya, the Universal Declaration of Human Rights, the African Charter on the Rights and Welfare of the Child, and the African Charter on Human and Peoples’ Rights.
The Court observed that the petitioners were survivors of sexual violence and child abuse, they had suffered physical and psychological harm, and consequently reported the crimes to various police stations. The police failed to conduct prompt, effective, and professional investigations into these complaints. This caused further harm to the petitioners as the perpetrators continued to threaten their physical and psychological well-being. Furthermore, the Court also stated that this created a climate of impunity for defilement, as the perpetrators were not held accountable for their unlawful acts.
The Court found that while the perpetrators were directly responsible for the harm caused, the police authorities were culpable for the ongoing failure to ensure that criminals were brought to account through effective investigation and prosecution of these crimes. The Court found that the police not only failed to take action, but also put the victims under onerous cross-examination, and humiliated and blamed them when they reported the crimes committed against them. For these reasons, the Court found the respondents directly responsible for the psychological harm caused to the petitioners as a result of their actions and inaction.
The Court established that a fundamental breach of the petitioners’ freedom has occurred when the police failed to pursue the perpetrators of child abuse and sexual violence (See Van Eader v. Minister of Safety and Security (2002) ZASCA 123, South Africa). The state has a positive obligation to protect the vulnerable, such as children, and its failure to do so did not need to be intentional in order to constitute a breach of this obligation (See Jessica Lenahan (Gonzales) and others v. United States).
Moreover, the Court reaffirmed that once a report is made to the police, the police have a duty to take the appropriate steps and actions to investigate and apprehend the perpetrators, and the failure to do so violated constitutional rights of the victims as guaranteed under Article 244 of the Constitution of Kenya 2010 (See the Kenyan case of R. v. Commissioner of Police & 3 others ex-parte Phylis Temwai Kipteyo)
The Court agreed on the central role the police played in facilitating access to the courts by victims of sexual abuse, with the consequence that when the police failed to discharge their obligations, victims are denied access to the courts and therefore access to justice. Furthermore, as the petitioners were children, the Court stated that the failure of the police to act on the complaints of abuse also infringed on the constitutional requirement to protect the best interests of the child.
The Court found that the actions and inactions of the police authorities violated various fundamental rights and freedoms that are guaranteed in the Constitution of Kenya and other laws, including Article 27 (right to equality and freedom from discrimination), Article 28 (right to human dignity), Article 29 (the right to freedom and security of the person), Article 48 (right to access to justice), Article 50 (the right to a fair hearing), and Article 53 (rights of the child). The police departments were consequently ordered to conduct prompt, effective, proper, and professional investigations into the petitioners’ complaints in order to ensure fair and effective implementation of rights as guaranteed by the Constitution of Kenya.