Academic journal article African Studies Review

Rape in the Courts of Gusiiland, Kenya, 1940s-1960s

Academic journal article African Studies Review

Rape in the Courts of Gusiiland, Kenya, 1940s-1960s

Article excerpt


This article examines the history of rape prosecutions in the African courts of Gusiiland, Kenya, from the 1940s through the first years of independence. Drawing on transcripts from African courts, it demonstrates that Gusii court elders were quite sympathetic to women who lodged rape claims. Elders handed down stiff punishments to rapists, were willing to entertain a wide definition of "indecent assault," and did not require the extensive evidence of rape so commonly demanded by judges in Western courts (and in British courts in Kenya). Perhaps most surprisingly, men who admitted to having had sex but claimed it had been consensual were forced to prove their claims. This article advances both the historical study of rape in Africa and suggests that we reassess-or at least reserve judgment-on the nature of sexual violence in the non-West.


After much debate, in June 2006 the Kenya parliament approved the Sexual Offenses Bill, the first such overhaul of the law since 1930. The bill introduced into the penal code new crimes (such as gang rape) and minimum sentences for sex crimes. On the broadest level there was no vocal opposition, although a comment by one male MP (to the effect that Kenyan women always say "no" even when they mean "yes") led to a walkout by female parliamentarians. Some early supporters of the bill argued that the final version had been too watered-down (the criminalization of female circumcision and of rape in marriage, for example, were dropped) . Nonetheless, the bill's sponsor, nominated MP Njoki Ndung'u, celebrated its passage as a major victory.

With the passage of the bill, the problem of sexual violence entered center stage in Kenyan public discourse. Opinion coalesced around the conclusion that rape is in fact a serious and growing problem and has to be dealtwith severely. Njoki Ndung'u herself was declared "Person of the Year" by the U.N. in Kenya. Issues such as child and wife abuse, and the treatment of victims by police and the courts, are now openly discussed. Police, medical personnel, and judicial officials are being trained in how to deal with cases of sexual violence. In contrast, only fifteen years before, the mass rape of seventy-one girls at St. Kizito Secondary School in Meru by their male classmates was dismissed by many as a case of "boys being boys" (Steeves 1997).

While the changes in attitudes and in law between the St. Kizito events and the passing of the Sexual Offences Act are striking, I argue that this does not necessarily signal the evolution of a "traditional" patriarchy into a more "modern" or liberal one. Using the example of the courts of Gusiiland, I argue that the history of rape in Kenya is much more complex, and the trajectory much less clear, than might otherwise be apparent. I demonstrate that from as early as the 1940s, and certainly from the 1950s through the 1960s, African courts and magistrates treated rape as a serious offense. Court elders, and later magistrates, punished rapists harshly, in absolute terms and relative to crimes such as elopement. The courts' conception of the crime was also strikingly "modern": elders and magistrates treated rape as an offense against a woman as opposed to one against her male guardian. Perhaps most fascinating are cases in which an accused man claimed to have had consensual sex with his accuser. Unlike their contemporaries in Western and in Kenya's British-run courts, Gusii elders did not expect a woman to prove that she had not consented to sex: instead, they demanded that the accused prove that she had consented. The record of these decisions complicates the notion of a progression away from a deeply rooted, deeply conservative patriarchal culture. In the absence of comprehensive historical studies of rape in Kenya (and indeed in most of Africa) , this article suggests a different context in which to place contemporary debates surrounding sexual violence, and also offers another dimension to the historiography of gender and the law in colonial Africa. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.