Kenya’s Existing Legal Frameworks on TFGBV: The Constitution

Over the past week, while compiling the impact stories of KICTANet’s advocacy work, I held interviews with various beneficiaries in the network. We explored experiences of technology-facilitated gender-based violence (TFGBV). One of the issues we discussed was whether they sought legal redress, and the challenges they encountered while making the reports. Fortunately, the second chapter of our latest publication segues into the existing legal frameworks on TFGBV in Kenya.

In the report, we adopted the working definition of TFGBV as: “An act of violence perpetrated by one or more individuals that is committed, assisted, aggravated and amplified in part or fully by the use of information and communication technologies or digital media, against a person on the basis of their gender.”

Kenya does not have a specific law on TFGBV, as highlighted in the report. The country does, however, have several laws with provisions relevant to TFGBV. These legal frameworks cover both the domestic, regional, and global instruments to which Kenya is a party. These include the Constitution of Kenya, 2010, protections emanating from international law, and legislative (penal law) protections.

The Constitution of Kenya, 2010

The report highlights that the constitution provides general constitutional protections, special constitutional protections, and constitutional (human rights) redress for TFGBV.

I. General Constitutional Protections

Kenya’s Constitution stands as the supreme legal authority, and it embeds a robust framework of rights and values that form the backbone of protections against TFGBV.

• Core National Values: Article 10 enshrines national principles like human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of marginalized groups. These principles set a mandatory baseline for all governance and legal measures.
• Obligations to Vulnerable Groups: The Constitution (Article 21) compels the state to proactively address the needs of vulnerable groups, notably women, children, the disabled, the youth, and the elderly.
• Equality and Non-Discrimination: Article 27 guarantees every person’s equality before the law and outlaws discrimination based on sex, pregnancy, marital status, health, age, or disability. The state must implement measures to remedy the effects of past discrimination.
• Personal Rights and Protections:

1. Dignity (Article 28): Every individual’s inherent dignity is recognised and protected. Freedom from
2. Violence (Article 29): No person is to be subjected to violence or to cruel, inhuman, or degrading treatment from either public or private sources.
3. Freedom from Slavery (Article 30): Protection from slavery, servitude, and forced labour.
4. Privacy (Article 31): The right to privacy in personal affairs and communications, essential for safeguarding against online abuse.

• Freedom of Expression with Limits: Articles 33 and 34 guarantee media independence and freedom of speech but specifically exclude hate speech, incitement to violence, or advocacy of hatred based on sex, health, or related characteristics.
• Right to Correct Information: Article 35 ensures individuals can demand correction or deletion of false or misleading information that affects them, a significant shield against digital misinformation.
• Access to Justice: Every individual is entitled to access the courts (Article 48) and a fair hearing (Article 50) in case of rights violations, ensuring that TFGBV survivors can seek legal remedies.

II. Special Constitutional Protections

The Constitution recognises that certain societal groups have faced historic and systemic marginalisation, amplifying their risk of experiencing abuse, including TFGBV.

• Children (Article 53): Children have the right to be protected from abuse, neglect, harmful cultural practices, and all forms of violence. A child’s best interests are paramount in any matter concerning them.
• Persons with Disabilities (Article 54): Affirmation of the right to be treated with dignity and respect for all persons with disabilities.
• The Elderly (Article 57): Older persons are entitled to live in dignity and respect, free from abuse.
• Youth (Article 55): The state must protect youth from all harmful cultural practices.

Obligations of the State in the Context of TFGBV

1. Enact and enforce laws that criminalise TFGBV and related abuses, ensuring effective institutional mechanisms.
2. Provide prompt and adequate remedies, including investigations, prosecutions, and support for survivors.

III. Constitutional Redress for TFGBV

Kenya’s Constitution provides survivors of TFGBV with direct access to judicial remedies.

• Justiciability of Rights: Survivors can approach the High Court directly to enforce their rights under the Bill of Rights, without the need for intermediaries.
• Petitions by Representatives: If a survivor is unable or unwilling to engage with the legal process, others (individuals or organisations) can file petitions on their behalf, increasing access to justice for the most vulnerable.
• Specialised High Court Division: The Constitutional and Human Rights Division of the High Court handles these cases, granting remedies that include:

1. Declarations of rights violations
2. Monetary compensation
3. Injunctions to halt ongoing violations

This legal framework places binding obligations on the Kenyan state to both prevent TFGBV and ensure robust avenues for redress when abuses occur. In the next blog, we will explore the protections emanating from international law as compiled in the research report.