Abstract
Over the years, Kenya has witnessed a rise in femicide cases. Femicide is an egregious violation of women’s right to life. Despite the existing laws that seek to address this heinous crime, Kenya still lacks specific legislation that criminalizes this crime. Thus, femicide remains a complex and multifaceted problem, necessitating a comprehensive examination to understand its prevalence, root causes, and the adequacy of legal responses.
This paper’s analysis unfolds in three parts. Firstly, it seeks to shed light on the classification of femicide as a homicide, how this limits not just the minimum penalties for perpetrators but also how it is described and handled as any other murder crime, and fails to address the root cause of this silent pandemic.
Second, in light of the scant existing legislation, this study argues that the law should seek to fill the gap to eradicate or at least substantially reduce femicide cases in the country, since the ultimate aim of criminal law is not just to impose a punishment but general prevention.
It concludes by proposing the enactment of a new legislation, if not specific provisions on the existing laws, that recognizes and criminalizes femicide as a standalone offense in the Penal code. This will ensure perpetrators are held accountable.
Keywords: Femicide, Homicide, Gender Based Violence, criminalize, Kenya.
Introduction
Femicide, as defined by the World Health Organization, is the intentional killing of women or girls because they are women. Femicide constitutes a violation of women’s rights and represents the most extreme end of gender based violence.
These killings often arise from gender inequality, discrimination, gender based violence, and patriarchal norms that exist in specific societies. The above definitions distinguish femicide from other forms of homicide since femicide targets women due to their sex, while homicide may not be gender related.
Such killings can take place in various forms. There are several forms of gender-related killings, the major one being Intimate femicide, which is usually executed by a current or ex-boyfriend or husband.
Research shows that a vast majority of female deaths occur within the walls of their homes. This leaves the home the most dangerous place for women and girls. Femicide is usually the endpoint of a pattern and culmination of long-term physical violence by their partners.
The Sexual Offenses Act 2006, Protection Against Domestic Violence 2014, and National Policy Prevention and Response to Gender Based Violence 2014 all seek to curb violence against women. However, none of these laws and policies address and criminalize femicide in Kenya.
The few perpetrators who have been caught and brought before the court are often charged with murder, with no consideration of the fact that these crimes are often gender motivated and perpetrated by intimate partners.
Causes and Effects
This silent epidemic against women in Kenya is driven by a complex interplay of social, cultural, economic, and legal factors. These factors include:
Gender Based Violence
Gender based violence (GBV) has a long history in Kenya. Normalcy of gender based violence has brewed for so long that it has evolved and given birth to the vile act of femicide. Femicide cases are an extreme manifestation of gender based violence, which usually occurs in family setups. Femicide and GBV are unethical practices that hurt women and families.
Economic Hardships
Lack of financial independence renders women vulnerable, making it hard for them to move out of an abusive and toxic relationship/marriage.
Honour Murder
This involves killings executed by a male or female family member due to the belief that the female has allegedly brought dishonour to the family. Such killings are often executed in the name of protecting the reputation of the family, adhering to tradition, or following misinterpreted religious teachings.
Gender Inequality
Deep-seated patriarchal norms foster gender inequalities. This relegates women to subordinate roles and normalises domestic violence.
Poor Enforcement of the Existing Legal Framework
Despite Kenya’s legal framework, enforcement remains a major challenge. Corruption has further eroded public confidence, with many perpetrators escaping justice through bribery and political connections.
Effects of Femicide
Violence against women can cause short-term and long-term physical and mental problems. Femicide does not only take away the life of the victim, but also often has a detrimental effect on the victim’s children, family members, and relatives.
Some of these effects include:
- Loss – Femicide causes immeasurable loss and suffering for those who loved, cared, and relied on their relationship with the victims.
- Traumatic Grief – Those who survive attempted murder end up having post-traumatic stress disorder.
- Fear – Femicide instills fear across the communities where gender based killings occur. This might sometimes lead to normalization of the perceptions that violence against women is inevitable.
Despite this, the Government’s reluctance to implement adequate legislative measures to address femicide has left girls and women vulnerable.
Scope of Study
Treating femicide as any other homicide overlooks the specific societal, cultural, and structural factors that lead to the suppression and limitation concerning the identification of the key elements that differentiate femicide from other generic terms.
The absence of specific provisions on femicide in both the National and International law underscores the persistent challenge of transforming the recognition of women’s rights into effective and binding legal instruments.
Recognizing femicide as a separate crime will be essential when developing adequate measures that seek to curb these murders. While international frameworks broadly address gender-based violence, they often fail to explicitly recognize femicide as a distinct and aggravated form of homicide.
This omission weakens the capacity of legal systems to adequately capture the gendered dynamics of such crimes and creates gaps in accountability.
The lack of a clear definition of femicide further complicates the fight against this crime. Without a precise definition, the justice system struggles to collect specific, and reliable data.
Blame shifting is also a big obstacle to addressing femicide. Most women who are killed by their partners often end up being accused by the society of provoking their deaths.
Legal Framework
National Framework – The Constitution of Kenya (2010)
The Constitution of Kenya (2010) is the supreme law of the land, binding all persons and state organs at both national and county levels.
- Article 21(3): Women are identified as a vulnerable group.
- Article 27: Buttresses the equality of every person before the law, equal protection, and equal benefit of the Law. It further obligates the state to take legislative and other measures to redress any disadvantage suffered by individuals because of past discrimination.
- Article 21(4): Obliges the state to enact and implement legislation to fulfill its international obligations.
- Article 29: Guarantees every person freedom and security of the person, which includes the right not to be subjected to any form of violence from either private or public sources.
International Framework
Kenya being a member state of the United Nations and African Union, has ratified many UN Human Rights Conventions i.e ICCPR, CEDAW, thus has made binding international commitments to adhere to the standards laid down in the universal human rights documents.
The classification of women as a vulnerable group alongside the constitutional and international duty of states to respond to the needs of vulnerable groups and address the intersection between vulnerability and discrimination, underscores an urgent necessity for states to implement robust legal frameworks that address femicide for what it is.
Conclusion
Despite the significant progress Kenya has made towards addressing violence against women and femicide, the need for consistent enforcement and better resource allocation remains.
Gender-related killings and violence against girls and women are not inevitable. To truly end femicide, we must address it for what it is, a uniquely extreme form of violence against women.
To effectively combat violence against women, which in turn will prevent femicide cases, a comprehensive approach is needed. This includes:
- Legislative Reforms
- A femicide law will be a huge step toward bringing attention to all the material manifestations of violence against women and protecting them.
- Reducing Gender Based Violence (Intimate Partner Violence)
- Early intervention and risk assessment can prevent femicide cases.
- Studying perpetrators’ behaviour and intentions can help predict risk factors and develop effective prevention strategies.
- Public Awareness Raising and Advocacy
- Continuous education on gender equality and forms of gender based violence.
- Encouraging cooperation among the victim, police, and medical officers to report such cases.
- Shelter and Support Services for Survivors
- Providing comprehensive support services, including safe shelters and resources for social and economic empowerment.
- Gender Responsive Policing
- Improved police responses to violence and better protective mechanisms ensure the protection of victims and survivors.
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