Survivors of post-election sexual and gender-based violence (SGBV) have returned to the Supreme Court, demanding an end to what they describe as nearly 13 years of exclusion from justice and reparations.
The survivors, supported by human rights and legal organisations, say they have been forced to wait for justice promised under Kenya’s Constitution while other victims of political violence have benefited from various reparations and compensation programmes.
In a joint statement, Utu Wetu Trust, the Coalition on Violence Against Women (COVAW), the Independent Medico-Legal Unit (IMLU), the Kenyan Section of the International Commission of Jurists (ICJ Kenya), the Kenya Human Rights Commission (KHRC) and Physicians for Human Rights (PHR) said children born as a result of the 2007–2008 post-election sexual violence have since grown into adulthood while their mothers continue to pursue justice through the courts.
The groups said the survivors’ return to the country’s highest court in Supreme Court Petition No. E041 of 2025 marks a critical moment in efforts to address what they described as a longstanding pattern of excluding survivors of sexual and gender-based violence from justice, reparations and constitutional protection.
The case was previously heard as Constitutional Petition No. 122 of 2013 before the High Court and later as Civil Appeal No. E645 of 2021 before the Court of Appeal.
The appeal was filed by eight individual survivors alongside COVAW, IMLU, ICJ Kenya, PHR and other interested parties, including Utu Wetu Trust and KHRC.
The petition challenges the State’s alleged failure to prevent, protect against, investigate and prosecute widespread sexual violence committed during the 2007–2008 post-election violence, as well as its failure to provide effective remedies to survivors.
At the centre of the case is the question of whether survivors of conflict-related sexual and gender-based violence are entitled to the same constitutional protection, recognition and reparations extended to other victims of political violence.
The petitioners argue that survivors of SGBV have consistently been left out of reparations frameworks despite suffering some of the most serious violations during periods of political unrest.
They contend that such exclusion violates the constitutional rights to equality, dignity and access to justice.
The petitioners are also challenging a decision by the Court of Appeal that affirmed State responsibility and upheld compensation for four survivors who suffered sexual violence perpetrated by State security officers or who had reported the incidents.
However, they argue that four other survivors — SMM, SKO, DOJ and FOO — were subjected to discriminatory treatment and denied compensation because they were attacked by civilian militias or did not formally report the incidents to police at the time.
The petitioners argue that creating a distinction between victims based on the identity of the perpetrator or whether a traumatised survivor was able to report the crime during a national crisis amounts to an unconstitutional hierarchy of victimhood.
The appeal raises several broader constitutional and human rights questions.
The petitioners are challenging what they describe as an arbitrary distinction between survivors attacked by State agents and those targeted by private actors. They argue that every survivor is entitled to equal protection of the law and effective remedies.
They further contend that the Court of Appeal erred by applying a narrow civil tort negligence test instead of international human rights due diligence standards when determining the State’s responsibility.
According to the petitioners, the State had prior intelligence and constructive notice of impending and widespread sexual and gender-based violence. They argue that the burden should therefore shift to the government to demonstrate the measures it took to protect citizens.
The survivors also want the Supreme Court to reject failure to report as a basis for denying constitutional remedies.
They argue that survivors should not be denied justice simply because they could not formally report crimes during a period marked by widespread violence, insecurity, trauma and alleged police complicity.
The petitioners have also challenged the Court of Appeal’s failure to hold the Independent Policing Oversight Authority (IPOA) accountable.
They argue that IPOA has a continuing statutory mandate to investigate historical and unresolved cases of police misconduct dating back to the 2007–2008 post-election violence.
The groups said the failure to address such cases has left many survivors without accountability and effective remedies.
The case comes amid wider concerns over delays in Kenya’s justice system, including growing case backlogs and calls for faster resolution of constitutional and human rights matters.
The organisations said the case illustrates the human cost of delayed justice, noting that more than a decade has passed since the survivors first sought constitutional protection.
They also said the case has implications beyond the individual petition, particularly as Kenya develops a national compensation framework through the Presidential Working Group on the Establishment of a Framework for the Management of Claims and Compensation, chaired by Professor Makau Mutua.
The groups urged the process to expressly recognise survivors of conflict-related sexual and gender-based violence and ensure they receive equal access to reparations alongside other victims of political violence.
One survivor said the long wait for justice had taken a heavy toll.
“I have carried this pain for many years. I pray that this case will finally bring justice, not only for me, but for all survivors who have been waiting to be seen and heard,” the survivor said.
Another survivor said she hoped the Supreme Court would acknowledge the experiences of those who had been denied justice by the lower courts.
“All I have ever wanted is for someone to acknowledge what happened to us and to believe me. The lower courts may have doubted my experience, but I hope this Court will finally give us the justice we have waited so long for,” the survivor said.
The organisations called on the government to end what they described as the exclusion of survivors of conflict-related sexual and gender-based violence from national reparations programmes.
They urged the government to implement survivor-centred reparations that include compensation, rehabilitation, psychosocial support, public acknowledgment and guarantees of non-repetition.
They also called for stronger institutional accountability for conflict-related sexual and gender-based violence, including effective oversight of statutory agencies such as IPOA.
The groups further urged the Presidential Working Group on the Establishment of a Framework for the Management of Claims and Compensation to ensure the proposed national compensation framework expressly recognises survivors of conflict-related sexual and gender-based violence.
They called for survivors and survivor-led organisations to be meaningfully involved in designing and implementing the framework.
The organisations also urged the Judiciary to prioritise the hearing and determination of constitutional and human rights cases involving survivors of sexual and gender-based violence and address systemic delays that continue to deny victims timely access to justice.
Email your news TIPS to Editor@Kahawatungu.com — this is our only official communication channel
