Rethinking Access to Justice: Enforcing Women’s Rights in Cases of Domestic Violence in Kenya.

Source: (2004) East African Journal of Human Rights & Democracy. 2(3): 222-253.

It is now trite to recapitulate that the modern criminal justice system has failed to respond adequately to crime generally and to domestic violence in particular (Barnett and Hagel 1977; Minow 2000). Yet current trends in the battle against domestic violence weigh heavily in favor of greater criminalization of domestic violence through aggressive prosecution and legislation of punitive laws against batterers (Hanna 1996; Zorza 1994).
The questions that arise are why despite these developments domestic violence remains pervasive? Why do women choose to stay with their batterers? Why are they disinclined to use the criminal justice system? What lessons can be learned about the role of law in achieving social change?
Domestic violence has gained international recognition as a violation against women’s rights. States are required to put in place “legal and other administrative measures” that seek to ensure the elimination of domestic violence as a violation of international women’s rights. In Kenya, the State sponsored response is the criminal justice system and more recently the 2002 Domestic Violence (Family Protection) Bill. The criminal justice system through the Penal Code and the courts makes it an offence to assault a person while the domestic violence bill expands the definition of domestic violence to take into account of other facets of abuse other than physical abuse. It also establishes
a Family Court that aims at providing a one-stop forum for survivors of abuse to seek redress. The commonality between the existing legal regime and the proposed legal reforms is the centrality of the State and formal legal institutions as the key players in social control aimed at eradicating domestic violence. Author’s abstract.