The Court of Appeal has faulted the government for failing to acknowledge and publicly apologise to the victims of the 2007/08 election chaos who experienced sexual and gender based violence (SGBV).

Justices Daniel Musinga, Francis Tuiyott and George Odunga said the State cannot run away from its obligations, which include protection and reparation, adding that it can be held liable for omissions or commissions during unrest.

“We must point out that the State obligations to the citizenry are not suspended during periods of civil unrests or conflicts, which is not uncommon shortly before and or immediately after the General Election.

“The patterns of violence that have been witnessed in the past around such periods are sufficient to cause the State to be on high alert to protect its people,” the bench headed by Justice Musinga said.

At the same time, they declared that the government’s failure to classify the SGBV-related crimes committed during the post- election violence as crimes against humanity is a violation of Kenya’s obligations under the Constitution.

According to them, Kenya is a signatory of the Rome Statute and is required to investigate and prosecute crimes against humanity of rape, torture, persecution, sexual violence, and other inhumane acts.

“The failure to establish an independent and effective investigations and effective investigations and prosecutions of SGBV related crimes committed during the post-election violence is a violation of Kenya’s obligations under the Statute of the International Criminal Court, international human rights law and statutory law which requires the investigation and prosecution of Crimes against Humanity of torture, persecution, other sexual violence, and other inhumane acts (mutilations),” they found.

The judges also faulted the government for failing to give the victims medical care and rehabilitation.

They, however, found that the High Court erred by finding that the Independent Police Oversight Authority was liable for failing to investigate alleged violations by both government and non-state actors.

Justice Weldon Korir ruled that the government failed its own citizens by failing to take measures to protect them during the chaos that rocked the country and which resulted violations of the victims rights, injuries to their bodies and psychological torture occasioned by the violence.

“The State had a duty to enforce laws that prohibit all forms of violence against women including forced sex.’’