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FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3564
INFO RUEHDS/AMEMBASSY ADDIS ABABA PRIORITY 8703
RUEHDR/AMEMBASSY DAR ES SALAAM PRIORITY 4784
RUEHDJ/AMEMBASSY DJIBOUTI PRIORITY 4310
RUEHKM/AMEMBASSY KAMPALA PRIORITY 1492
RUEHLO/AMEMBASSY LONDON PRIORITY 1977
RUEHFR/AMEMBASSY PARIS PRIORITY 1958
RHMFISS/CJTF HOA  PRIORITY
RHMFIUU/CDR USCENTCOM MACDILL AFB FL PRIORITY

UNCLAS NAIROBI 003437 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: KDEM PHUM PREL EAID SOCI KE
SUBJECT: KENYA CRIMINALIZES SEXUAL (AND SOME TRAFFICKING) 
OFFENSES 
 
REF: NAIROBI 1819 
 
¶1. (U) SUMMARY:  On May 31, Kenya's National Assembly voted 
to criminalize the worst forms of sexual offenses, including 
rape, defilement, child pornography and sex tourism, and 
sexual harassment.  While amendments to the bill may have 
watered down some of the proposed protections, the passage of 
the bill with most of the significant provisions intact is a 
major step forward in establishing a legal framework for 
protection from sexual violence.  The bill's passage lays an 
excellent foundation for the proposed WJEI program in Kenya, 
enabling it to build upon the heightened awareness of sexual 
offenses and the new tools available to legal and law 
enforcement authorities to protect victims and punish 
perpetrators.  END SUMMARY. 
 
One Woman's Quest to Tackle Sexual Violence 
------------------------------------------- 
 
¶2. (U) Disturbing sexual violence statistics for Kenya amply 
demonstrate the urgent need for a comprehensive law defining, 
criminalizing, consolidating, and enhancing penalties for 
sexual offenses.  An estimated 16,482 rapes occur annually, 
according to statistics from Women in Law and Development in 
Africa, a pan-African NGO promoting a culture for the 
exercise of and respects for women's rights in Africa.  This 
translates into an incidence of rape occurring every thirty 
minutes. 
 
¶3. (SBU) The bill is the personal project of nominated member 
of parliament Njoki Ndungu.  Aware that some MPs would insist 
on amendments to address the more contentious provisions of 
the bill, Ndungu told polFSN that she deliberately included 
"overreaching" provisions.  These provisions drew the 
attention of her male counterparts, leaving most of the core 
provisions intact.  Ndungu explained that she was pleased 
with the final version of the bill and stated that the 
amendments did not significantly affect the spirit or the 
most important provisions of the bill.  It is noteworthy that 
such a bill emanated from a private member rather than from 
within government.  As a private member's initiative, the 
bill avoided much of the delays inherent in a government 
project which would have ensued from various government 
ministries (and personalities) debating contentious 
provisions and also avoided incurring the automatic 
resistance of the opposition to a government project.  To 
better spread her message and make information available to 
the general public, Ndungu created a website, 
www.sexualoffencesbill.co.ke, containing information about 
the history and provisions of the bill and statistics for 
sexual violence in Kenya. 
 
Popular Pressure Influenced Vote 
-------------------------------- 
 
¶4. (U) The debate on the bill in Parliament was heated and 
split sharply along gender lines.  While the elite male MPs 
debated their perception that the word "No" expresses a range 
of meanings in Kenyan culture, hundreds of protesters 
descended on Parliament to express their support for the 
bill.  In a show of rare solidarity, at one point during the 
debate the female MPs stormed out of Parliament united to 
express their disapproval of the proposed amendments. 
Subsequent conversations with MPs reveal that significant 
popular pressure was applied to them to support the bill.  In 
short, the passage of the bill became an election issues for 
many MPs.  As a result of this popular pressure, a number of 
prominent MPs reversed their resistance to certain 
provisions, allowing for the relatively swift passage of the 
bill. The influence of the power of the people in ensuring 
that this bill was adopted is an important development in 
Kenya's young democracy.  It is among the first instances of 
popular pressure directly affecting the adoption of 
legislation.  USAID funded advocacy efforts and education for 
MPs on the provisions of the bill. 
 
Some Watering Down 
------------------ 
 
¶5. (U) However, some significant amendments to the bill were 
made, which may have serious consequences for rape victims. 
In particular, one of the amendments shifts the burden of 
proof to the claimant to establish the guilt of the accused. 
Another amendment imposes penalties equal to the offense 
 
charged (imprisonment for not less than 10 years) for 
providing false information about an incidence of rape. 
These two provisions may have a significant chilling affect 
on the willingness of rape victims to come forward and seek 
justice.  Additionally, the MPs voted to strike the provision 
criminalizing martial rape, arguing that non-consentual 
intercourse could not occur between spouses. 
 
Trafficking in Persons Now Criminalized 
--------------------------------------- 
 
¶6. (U) The law also provides for the much needed 
criminalization of trafficking of children and trafficking in 
persons for the purpose of sexual exploitation.  The law 
defines an act of child trafficking as one where a person: 
"knowingly or intentionally makes or organizes any travel 
arrangements for or on the behalf of a child within or 
outside the boarders of Kenya, with the intention of 
facilitating the commission of any sexual offense against a 
child, irrespective of whether the offense is committed" and 
also one who "supplies, recruits, transports, transfers, 
harbors or receives a child within or across the boarders of 
Kenya, for the purposes of the commission of any sexual 
offense under this act with such child or any other person." 
 
¶7. (U) Trafficking for sexual exploitation is defined as any 
person who "intentionally or knowingly arranges or 
facilitates travel within or across the boarders of Kenya by 
another person and either: intends to do anything to or in 
respect of the person during or after the journey in any part 
of the world, which if done will involve the commission of an 
offense under this act; or believes that another person is 
likely to do something to or in respect of the other person 
during or after the journey in any part of the world, which 
if done will involve the commission of an offense under this 
act." 
 
¶8. (U) The law imposes a minimum sentence for child 
trafficking of imprisonment for ten years, and a fine of not 
less than approximately USD 27,400 for juristic persons. 
Those found guilty of trafficking for the purpose of sexual 
exploitation now will face a minimum term of imprisonment for 
15 years and/or a fine of at least USD 27,400.  While the 
criminalization of human trafficking is a definite step 
forward in combating the vice, comprehensive anti-trafficking 
legislation is urgently needed to address various aspects of 
trafficking, including trafficking for exploitative labor. 
Such draft legislation is currently with the office of the 
Attorney General for refinement and gazetting, which would 
pave the way for Parliament to adopt. 
 
What This Means For WJEI 
------------------------ 
 
¶9. (SBU) COMMENT:  While the amendments to the bill 
undoubtedly dilute some of the protections afforded under the 
proposed bill, the new law (merely awaiting the President's 
signature to come into effect) empowers victims, their 
defenders, law enforcement, and the courts with the necessary 
tools to ensure that sexual offenses do not go unpunished. 
The adoption of the law has significant implications for the 
proposed WJEI program here in Kenya.  (Reftel.)  The 
extensive media coverage of the bill and parliamentary 
debates heightened awareness of sexual offenses and brought 
sensitive subjects like sexual mores, rape, and defilement 
out of the shadows and into the public sphere.  The new 
provisions now arm law enforcement and legal officials with 
the authority and required tools to carryout community 
policing, investigations, and prosecutions.  While 
significant cultural and legal hurdles still may discourage 
rape victims from seeking justice, the new law certainly 
affords them additional protections and incentives for ending 
the assured impunity which sexual offenders have previously 
enjoyed.  END COMMENT. 
HOOVER