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KENYA: The Law and Domestic Violence

Source: the Star
Domestic violence against women has always existed in Kenya. The recent past has however seen an increased number of domestic violence cases, where men have become the victims.

Domestic violence is also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence. It is defined as a pattern of abusive behaviours by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation. Domestic violence, so defined, has many forms, including physical aggression or assault (hitting, kicking, biting, shoving, restraining, slapping, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse and economic deprivation.

The rights of a person not to be subjected to physical abuse/ domestic violence are protected and guaranteed in the tenets of our constitution. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected. If the case in Nyeri where a man had his entire face defaced is anything to go by, then that is one among the worst forms of inhuman and degrading treatment. Article 29 further provides that every person has the right to freedom and security, which includes the right not to be?

a)Deprived of freedom arbitrarily or without just cause;

b)subjected to any form of violence from either public or private sources;

c)subjected to torture in any manner, whether physical or psychological;

d)subjected to corporal punishment; or

e) treated or punished in a cruel, inhuman or degrading manner.

The most common form of domestic violence in Kenya is physical abuse. Section 234 of the Penal Code provides that any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. Section 237 of the Penal Code provides that any person who unlawfully wounds another; or(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person, is guilty of a misdemeanor and is liable to imprisonment for five years.

Section 250 of the Penal Code also provides that any person who unlawfully assaults another is guilty of a misdemeanor and, if the assault is not committed in circumstances for which a greater punishment is provided in this code, is liable to imprisonment for one year. Section 251 thereof also provides that any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.

This simply means that, physical assault, even if it happens in a family setting, is a criminal offense punishable under the law. The punishment will differ depending on the severity of the assault on the victim. The punishments prescribed for the offenses are harsh and could as a result tear down a family unit, for instance if a husband or wife is imprisoned for a long period of time. This should therefore seek to deter parties to a marriage to avoid physical abuse and confrontation as a means of solving their family disputes, as it is a criminal offense.

According to the matrimonial laws in Kenya, cruelty is a valid ground for divorce. If a party to a marriage becomes physically abusive to the other, the other party can move to a court of law and seek orders to dissolve the marriage on grounds of cruelty. Section 8 subsection 1(c) of the Matrimonial Causes Act, provides that a petition for divorce may be presented to the court on either by the husband or the wife on the ground that the respondent has since the celebration of the marriage treated the petitioner with cruelty.

Sections 3 (1) c the Subordinate Courts (Separation and Maintenance) Act, provides that any woman may apply to the court for an order or orders under this act on grounds that her husband has been guilty of persistent cruelty to her or her children or of willful neglect to provide reasonable maintenance for her or her children whom he is legally liable to maintain. Maybe the legislator needs to relook at this given that the violence has since taken a new turn.

Physical abuse/ cruelty will never resolve matrimonial differences. We should realise that parties are equal in a marriage. Parties to a marriage should therefore shun this vice at all costs and embrace other forms of dispute resolution like mediation. The Mututho laws should at the same time be enforced in Nyeri and other hot spots so as to rein in on the lethal brew that is causing all this mess in the concerned homes.