Eric Mukoya

Four months and counting, we seem not to appreciate the import of a landmark judgement with the propensity to enhance justice among survivors of violence, particularly the poor. On the 4^th of April 2019, sitting in the Embu High Court, Justice Florence Muchemi declared charging of P 3 forms unconstitutional. She was categorical that Cabinet Secretary Ministry of Health, Inspector General of Police, the Honourable Attorney General, National and County governments health facilities were prohibited from levying any fee on P 3 forms. She termed such payment and any other solicitation therefrom, a violation of the basic principles of access to justice. Simply put, charging P 3 forms is null and void.

The judgment may have gone unnoticed because information from various counties indicate non-compliance. This necessitates a reminder, especially from Legal Resources Foundation Trust who canvassed the matter on behalf of poor Kenyans. Violence is barbaric, primitive, unjust and unashamedly, manifestation of a society whose values are fast eroding. Survivors of sexual and gender-based violence, grievous harm as well as assault amongst other forms are ostracized, stigmatized, and discriminated upon when made to pay for P 3 forms. Records show that at least 7 out of 10 Kenyans, more so women cannot afford and often abandon prosecution, hence lessening legal possibilities of dealing with perpetrators of violence.

If Kenya seeks to implement Sustainable Development Goals, especially Goal 16, then a culture to observe and respect court orders must be nurtured. The opposite is true and common among national and county governments agents. It is not the entitlement of the state to ensure legal inclusivity, through public participation, including protests, Kenyans must be central to this discourse. Article 48 of the Constitution is an aide-mémoire that institutional and legal governance which upholds the rule of law is evidentiary to civility. So, should non-compliance to Justice Florence Muchemi’s judgement bother us as a country?

P 3 forms are central in the management of the criminal justice system in Kenya. First, the forms are strategic evidence archiving instruments, without which ascertainment of allegations regarding violence may be difficult to prove. Second, they serve to demonstrate the extent of harm and confirmation of offense in sexual and gender based related abuse. It is appreciated that absence of a medical expert’s opinion reduces the level of truthfulness in an allegation of violence. Therefore, mishandling of P 3 forms at any stage is a procedural blunder that points to a mistrial yet Article 50 of the constitution demands fairness.

The magnitude of the P 3 form’s issue is large considering that Law Society of Kenya and International Justice Mission were part of the suit as interested parties. In addition, data from the court of appeal indicate that perpetrators of violence are likely acquitted due to lack of P 3 forms, or availability of poorly filled ones, besides, varied testimonies by medical experts, who in the first place didn’t interact with the survivor, hence less inclined to link the information form to the moment of reporting.

Be it as may, commitment to operationalize the judgment is long overdue. The interdicts by Justice Florence Muchemi politely instructed as follows: that all P 3 forms were not to be charged irrespective of what crime they represented: all public health facilities were not to charge any form of fees on P 3 forms: all police officers and stations were expected not to nor seem to suggest in any way or behave in such a manner as if P 3 forms were accessible at a fee: the cabinet secretary of the ministry of Health were to offer directive to all public hospitals not to charge P 3 forms: the national and county governments under Article 174 and 189 partner to ensure that health facilities do not charge P 3 forms: Council of Governors employ its political and administrative oversight to rein-in on counties’ health authorities from charging P 3 forms: and the Attorney General to constitute multi-stakeholder dialogue to develop policy and guidelines on modus operandi of P 3 forms.

In the interest of survivors of violence, the court be urged to proliferate the jurisprudence emanating from this holding. Furthermore, members of public to remain vigilant and canvass emerging trends of blatant disrespect of court orders and monitor how institutions implements the judgement. Nonetheless, for individual officers in the Ministry of Health in particular those working in public hospitals to remember that contempt of court proceedings will not invite institutional failure to observe the court order as a defence. We must echo Benjamin Franklin’s perspective of justice, who once said, “justice will not be served until those who are unaffected are as outraged as those who are.” Let us live the spirit of justice!