Kenya has become increasingly adept at recognizing human rights violations in court. Our Constitution guarantees access to justice, dignity, equality, and effective remedies. Courts have repeatedly found the State liable for torture, unlawful detention, police brutality, historical abuses and violations of socio-economic rights. Yet for many victims, a favourable judgment is only the beginning of another struggle: the fight to actually receive compensation, rehabilitation, or meaningful redress.

This is the uncomfortable truth of Kenya’s human rights landscape: we issue judgments, but too often fail to deliver justice.

Article 23 of the Constitution empowers courts to grant appropriate relief for violations of rights, including compensation. Article 22 gives every person standing to institute proceedings for enforcement of the Bill of Rights. Article 48 guarantees access to justice, while Article 159 requires justice to be administered without delay. These provisions were intended to make remedies real, not symbolic. Yet many victims who secure damages orders wait years for payment, face bureaucratic resistance, or receive monetary awards with no psychosocial or institutional follow-up.

This gap between judgment and implementation undermines public confidence in the rule of law. A right without an enforceable remedy is an aspiration, not protection.

Kenyan courts have made significant progress in affirming accountability. Victims of torture at Nyayo House successfully sued the State for atrocities committed during the one-party era. In Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment), the Court of Appeal reaffirmed that constitutional damages serve not merely compensatory but vindicatory purposes. The Court recognised that where the State violates rights, damages may be necessary to affirm the value of those rights and deter future abuse.

Similarly, in Coalition on Violence Against Women & 11 Others v Attorney General & 5 Others (2020), the High Court confronted the State’s response to sexual and gender-based violence during the post-election crisis. The case underscored that the state’s failure to prevent, investigate and remedy serious violations can itself attract constitutional responsibility. Yet even where courts recognize such harms, survivors often continue to wait for meaningful reparations.

These cases matter deeply. But they also expose a structural weakness: Kenya relies almost entirely on litigation to remedy human rights harm. Litigation is slow, expensive, adversarial and inaccessible to many survivors, especially the poor, rural communities, persons with disabilities, refugees, women facing stigma, or families of disappeared persons. Even when victims succeed, execution against government agencies can be cumbersome and delayed.

Comparative practice shows that courts alone cannot deliver meaningful reparative justice. Countries such as Colombia, South Africa, and Morocco have adopted administrative frameworks, including mechanisms under victims’ restitution regimes that provide registration, compensation, psychosocial care, education support, and land restitution without requiring individual litigation.

Kenya need not copy this model, but we should learn from a common lesson, reparations work best when institutionalised, not improvised. Kenya must think beyond one-off payouts. We need a National Reparations System anchored in law, adequately funded, transparent and survivor-centred.

First, Parliament should establish a National Human Rights Reparations Fund. This fund should be ring-fenced and financed through annual Treasury appropriations, a portion of recovered proceeds of corruption, court-imposed penalties for rights violations, and other lawful public revenue streams. Victims should not depend on whether an individual ministry decides to budget for an old decree.

Second, Kenya should adopt a standardised compensation matrix. Today, awards for similar harms vary widely depending on court, judge, legal representation and evidence available. While judicial discretion remains important, policy guidance could improve consistency for categories such as unlawful death, torture, enforced disappearance, sexual violence by state actors, arbitrary detention and protest-related disability. Equality before the law should include reasonable equality in remedies.

Third, reparations must extend beyond cash. A widow whose breadwinner was unlawfully killed may need school fees support for children, counselling, healthcare and livelihood assistance more than a cheque delayed for six years. Survivors of torture may need trauma care. Victims of unlawful eviction may need housing support and documentation restoration. Effective remedies should repair lives, not merely settle files.

Fourth, there must be a digital public accountability portal showing judgments entered against the State for human rights violations, payment status, pending claims and annual budget allocations. Transparency would reduce opacity and pressure institutions to comply.

Fifth, reparations should include guarantees of non-repetition. That means police reforms, command accountability, proper investigations, human rights training, preservation of evidence, and disciplinary consequences for repeat abuse. Compensation without reform simply prices injustice into governance.

Human rights remedies are not charity. They are constitutional obligations. Article 21 requires the State to observe, respect, protect, promote and fulfil rights in the Bill of Rights. Where it fails, repair is part of governance, not generosity.

Judgment is important. But judgment alone is not justice. Justice arrives when the widow is paid, when the survivor is healed, when the disappeared are acknowledged, and when institutions change so the next victim never exists.

By Faith N. Claudi

Legal Officer

Kituo cha Sheria- Forced Migration Programme

As the world marks the annual 16 Days of Activism Against Gender-Based Violence, this year’s theme ending digital violence against women and girls forces a stark reality into view: for many women and girls across Africa, the harms they suffer are not confined to streets, homes or workplaces. The same device that connects them to opportunity also becomes a vector for harassment, threats, blackmail, cyber-stalking, doxing, non-consensual sharing of private images, hateful and sexist speech. These are not “virtual” harms in some isolated domain; they reverberate through lives undermining dignity, safety, privacy, agency, and even life chances.

In the African context, where inequalities social, economic, gendered are already deep, technology-facilitated gender-based violence (TFGBV) often intensifies existing vulnerabilities. Digital violence doesn’t emerge in a vacuum; it is woven into the continuum of gender-based violence (GBV), leveraging the same structural power imbalances, patriarchal norms, discrimination, and social inequalities that fuel “offline” violence. Recognizing this is the first step: digital violence is not a “new problem” but an evolving battlefield in the struggle for gender justice.

From Words to Obligation: What the African Commission on Human and Peoples’ Rights (ACHPR) did with Resolution 522

In 2022, the ACHPR adopted ACHPR/Res. 522 (LXXII) 2022 — the “Resolution on the Protection of Women Against Digital Violence in Africa.” (achpr.au.int)

It marked a historic moment: for the first time, a continental human-rights institution explicitly recognized digital violence as a serious, gendered harm, demanding state-level action. The Resolution calls on States to: review or adopt legislation that expands gender-based violence definitions to include cyber-harassment, cyber-stalking and sexist hate speech; undertake research and adjust crime statistics to reflect digital violence; and ensure cooperation between law enforcement and service providers to gather evidence, all while protecting victims’ rights and dignity. (achpr.au.int)

Moreover, ACHPR mandated mandatory and continuous training for professionals interacting with victims of digital violence from police, social welfare and health workers, to the judiciary. (achpr.au.int) In 2024, the Commission further reinforced its commitment through ACHPR/Res. 591 (LXXX) 2024, which mandates a continental-wide study on the causes, manifestations and impact of digital violence against women; a step aimed at grounding future norms and state obligations in data and evidence. (achpr.au.int)

In short: the instruments are there. The norms are drafted but they remain, for many states, unimplemented.

Due Diligence in the Digital Age: State Duty Must Extend Online

The due diligence principle long recognized in human rights law holds that states must take proactive steps to prevent, investigate, prosecute and remedy violence, regardless of whether it occurs in “physical” or “digital” spaces. In its pronouncements around digital violence, the ACHPR has reiterated that these obligations apply equally online. (achpr.au.int)

For African states, this means far more than passive rhetoric. It demands:

• Adoption or reform of laws so that digital violence is defined and criminalized as gender-based violence;
• Enforcement mechanisms: investigation, prosecution, protective measures;
• Mandatory training of justice and law enforcement personnel;
• Ensuring cooperation with service providers (internet platforms, ISPs) for preserving and obtaining evidence;
• Supporting survivors with gender-sensitive, trauma-informed procedures, access to justice, redress and remedies.

Due diligence in the 21st century must include the digital realm. Without it, the “new frontier” of online violence becomes a safe harbour for perpetrators — even as survivors remain unprotected.

A New Treaty, But Is It Fit for Purpose? The Promise, and Peril, of the African Union Convention on Ending Violence Against Women and Girls (AUCEVAWG)

In February 2025, the AU adopted the AUCEVAWG. On paper, the Convention appears ambitious: it defines violence against women and girls broadly to include “physical, sexual, psychological, [and] economic” forms, and it explicitly states that such violence can occur “in private and public spheres, and in cyberspace” (Article 3). Although this may appear progressive, the formulation is ultimately hollow. The reference to “cyberspace” is not accompanied by any expansive definition of technology-facilitated gender-based violence (TFGBV) or any articulation of its forms, dynamics, or harms. As a result, the word “cyberspace” merely sticks out as a symbolic insertion rather than a substantive protection. Without definitions or obligations tailored to digital harms, the Convention offers no real guidance to states on how to prevent, investigate, prosecute, or remedy TFGBV.[1]

Moreover, by placing “cyberspace” after the public and private spheres instead of integrating digital spaces into that continuum the Convention unintentionally treats cyberspace as a third, distinct realm, separate from public and private life. This is conceptually problematic. For survivors, digital spaces are not detached environments; they are embedded within social, political, intimate, and economic life. Violence in cyberspace is simply violence in the public and private spheres expressed through digital means. The Convention’s structural separation therefore risks obscuring the continuity between online and offline violence, undermining efforts to address TFGBV as part of the lived experiences of African women and girls.

Beyond definitional gaps, leading feminist legal actors including the Initiative for Strategic Litigation in Africa (ISLA), Fòs Feminista, and Akina Mama wa Afrika (AMwA) argue that the Convention suffers from deeper shortcomings. A major concern is the implementation and monitoring framework under Article 14. By vesting primary responsibility in the African Commission on Human and Peoples’ Rights (ACHPR), the framework risks centralising oversight in a manner that may entrench impunity instead of fostering genuine accountability. If states ratify AUCEVAWG without corresponding resources, clear standards, institutional safeguards, or participatory mechanisms, the Convention may amount to little more than “symbols without substance.”

It is for these reasons that feminist movements and civil society actors across the continent have rallied behind a #PauseForPurpose, not to reject the Convention, but to call for its revision. The demand is for a text that is fit for purpose, one that meaningfully addresses TFGBV, integrates digital harms into the continuum of violence, clarifies state obligations under due diligence, and provides robust, participatory pathways for enforcement. Without such strengthening, AUCEVAWG risks becoming another well-intentioned but ineffective instrument falling short of the transformative protection African women and girls urgently need. And to echo the words of Kenyan Gen Z #RejectandAmend

What a Pause (and Revision) Must Achieve: Embedding Digital Justice, Due Diligence, and Survivors’ Rights

If AUCEVAWG is to live up to its promise, a revised and strengthened version must:

1. Explicitly incorporate the due-diligence standard for digital violence — obligation to prevent, investigate, prosecute, and provide remedies in digital contexts, drawing on Resolution 522 and ACHPR jurisprudence.
2. Adopt clear, comprehensive definitions of digital violence: cyber-harassment, non-consensual image sharing, cyber-stalking, doxing, deep fakes, online hate and disinformation campaigns, etc. It must recognise how these intersect with other structural inequalities (class, race, sexuality, disability, age, location).
3. Guarantee evidence-friendly procedures and reform evidence thresholds, so survivors of TFGBV are not shut out of justice by overly narrow rules of proof or unrealistic standards for “direct posting.”
4. Mandate comprehensive training and capacity-building for police, prosecutors, judges and other justice actors on technology-facilitated crimes, with emphasis on trauma-informed, gender-sensitive and human-rights based approaches.
5. Ensure effective, participatory and accountable monitoring and implementation — with civil society, survivors and feminist organisations playing central roles, not just a top-down, bureau-critic mechanism.

A “pause” in ratification does not mean delay in justice. Rather, it is a demand that justice be meaningful, transformative, and fit for the digital age.

The Evidence Barrier: Why Survivors of TFGBV Often Remain Invisible Before the Law

Even where states have laws, the “evidence barrier” effectively excludes many survivors of TFGBV from justice. Across Africa, common obstacles include:

• Police refusing to take complaints absent “hard proof” that a perpetrator personally posted the content ignoring coordinated campaigns, anonymous accounts, or posting via third parties.
• Courts dismissing screenshots, chat logs or other digital traces as “unreliable,” without offering forensic support or valuing metadata, platform logs or device records.
• Requirements for corroboration (e.g., witnesses to harassment in closed or private online spaces), which may be impossible if abuse happened in private chats or groups.
• Survivors are sometimes advised to “delete the content for their own safety,” thereby destroying evidence.

The result: digital violence becomes “unprovable by design.”

To remedy this, states must reform both procedural law and practice:

• codify the admissibility of digital evidence (screenshots, metadata, device logs, communications records, platform data, etc.);
• shift the burden of evidence collection from survivors to the state and service providers (platforms, ISPs), including obligations to preserve data and assist in investigations;
• allow courts to draw reasonable inferences from patterns of harassment or coordinated abuse, even absent direct proof of posting;
• build publicly accessible digital forensics capacity — not reliant solely on private firms or corporate cooperation.

Only then can the justice system reflect the reality of tech-enabled violence, and offer survivors a real path to accountability.

From Disbelief to Action: The Urgent Need for Training and Institutional Reform

Recognising digital violence is one thing. Responding to it is another. The capacity of justice institutions: police, investigators, prosecutors, judges will determine whether TFGBV is taken seriously or dismissed as “online drama.”

• Police and investigators must be trained to detect, preserve and investigate digital crimes: preserving evidence, tracing IPs or metadata (where lawful), cooperating with service providers, and applying trauma-informed, gender-sensitive procedures rather than victim-blaming.
• Prosecutors need to learn to build digital cases — using circumstantial evidence, expert forensic testimony, patterns of harassment, and cross-border cooperation where necessary. They must be willing to map digital harms to existing legal categories (threats, harassment, extortion, defamation, data protection, etc.) or call for reforms where gaps exist.
• Judges and magistrates must be equipped to interpret national laws (and AUCEVAWG / Resolution 522) in light of evolving technology to recognise cumulative harms, the continuum between online and offline violence, and the legitimacy of digital evidence. They must also be open to innovative remedies: content removal orders; account suspensions; reparations; psychosocial support; and protective measures for survivors’ digital identity.

In short: we need a comprehensive, continent-wide capacity-building agenda on digital gender-based violence.

Beyond 16 Days: Why TFGBV Must Be a 365-Day Priority

As the 16 Days of Activism conclude, there is a danger that digital violence will be treated as a seasonal campaign — a theme for one year — rather than a structural, long-term crisis requiring transformation of law, institutions, and social attitudes.

To avoid that, we must use the momentum to:

• Push for a #PauseForPurpose on AUCEVAWG ratification demanding robust revision so that the treaty truly serves survivors and reflects the realities of digital violence.
• Push for domestication and implementation of ACHPR/Res. 522 in national law and policy including legislation, training, evidence reform, data collection and survivor-centred policies.
• Advocate for evidence-friendly reforms in justice systems, supported by publicly funded forensic capacities and platform accountability.
• Demand comprehensive training for law enforcement, prosecutors and judges — co-developed with feminist, digital-rights and civil society actors.
• Insist on platform accountability and regulation, transparent reporting tools, data preservation obligations, and meaningful cooperation between platforms, states and civil society to protect users’ rights.

For African women and girls activists, defenders, journalists, students, and mothers the digital world should be a space of empowerment, connection and possibility. Too often, it becomes a space of fear, harassment and control. That must change.

A treaty is not enough. Resolutions are not enough. What is needed is action, accountability, capability and justice.

Conclusion: A Call to Transform Promise into Reality

This year’s 16 Days of Activism may come with heightened awareness, orange campaigns, social-media posts. But true justice requires more than awareness: it demands structural change in law, institutions, justice systems, social norms, and digital governance.

The adoption of AUCEVAWG was intended to signal progress. But as critics such as ISLA, Fòs Feminista and other feminist actors have warned, without stronger safeguards, meaningful oversight, and a deep commitment to digital violence, the Convention risks becoming symbolic rather than transformative. (aucevawg.org)

At the same time, ACHPR’s Resolution 522 and the forthcoming continental study on digital violence (per Resolution 591) offer powerful, existing tools to begin — if only states and civil society take them up with urgency and commitment. (achpr.au.int)

This is a moment of responsibility. For governments. For courts. For police. For digital platforms. For civil society. For every citizen.

If Africa is serious about ending violence against women and girls, in all its forms, then we must embrace the digital frontier with justice, dignity, accountability, and feminist vision.

By Glory Kairi, Advocate of the High Court of Kenya, Legal Officer at Kituo Cha Sheria