Changing the law to protect rape survivors, HIV-positive people

Joan Booko (not her real name), 19, was raped by two men in the western Kenyan town of Kitale in 2005. She reported the incident to the local police and went to hospital for treatment, but her attackers were released within days, after paying a fine of US$300 each.

"I see them on the street every now and again," she said. "They are free men."

At the hospital, she was not given the post-exposure prophylaxis, a course of antiretroviral drugs that can reduce the chances of contracting HIV by up to 80 percent if taken within 72 hours of exposure to the virus.

Joan's situation is not uncommon in Kenya, where it is thought a woman is raped every half hour in the capital, Nairobi, and perpetrators are often released after paying fines as low as $20.

This could soon be a thing of the past. The Kenyan parliament recently passed a sexual offences bill that includes mandatory minimum sentences for rapists, and criminalises deliberate transmission of the HI virus. Although not passed in its original form, Njoki Ndungu, the Member of Parliament who proposed the bill, said she was "elated" that it would finally become law.

"Sixteen new sexual offences have been introduced, as well as severe deterrents in the form of mandatory minimum sentences for rapists," she said. "We are hoping that the law will be implemented as soon as possible."

However, there was scepticism about how effectively the new law would protect women from sexual assault. "For many rural women, it will take much more than a new law to change deeply entrenched traditions, where culturally, women have little power," said Jack Nyagaya, a full-time counsellor in Kitale who regularly deals with cases of rape, and feels the new law does not go far enough in tackling sexual offenders.

"The bill that was passed is a mutilated form of the one that was originally brought," he said. "We need greater political will, and we need the police force to be willing to enforce the minimum sentence in order for it to take root."

Ndungu acknowledged that the bill was unlikely to have an immediate effect. "We have to retrain the police on how to handle victims of rape and other sexual offences, and on DNA forensics," she said. "We have to re-train the courts as well, on how to deal with such cases, and we have set up a sexual offenders' register that needs to be opened. Medical personnel also need training, and hospitals need to be fully equipped with rape kits."

The HIV/AIDS Prevention and Control Bill, tabled by Kenya's Minister of Health, Charity Ngilu, successfully passed its second parliamentary reading recently. It proposes a ban on forced HIV tests for employment, marriage, admission to educational institutions or entry into the country, and obtaining insurance cover or loans, although people charged with sexual offences can be compelled to undergo tests.

If passed, the law would provide the first legal framework for prevention, management and control of the pandemic in Kenya.