By Jerameel Kevins Owuor Odhiambo
In 2019, Kenya’s Directorate of Criminal Investigations reported that only 4% of sexual violence cases resulted in conviction, a statistic that speaks not merely to prosecutorial failure but to something far more insidious embedded within the legal architecture itself. This dismal figure stands in stark contrast to the nation’s constitutional promise of equality, revealing what Martha Koome has called “the gap between the law in books and the law in action.” The rules of evidence, those seemingly neutral arbiters of truth, operate as gatekeepers that systematically exclude women’s experiences from the courtroom’s sacred space. Like Kafka’s castle, the law presents itself as accessible while remaining fundamentally impenetrable to those whose realities it fails to comprehend. Professor Catharine MacKinnon observed that “the law sees and treats women the way men see and treat women,” and nowhere is this more apparent than in evidentiary standards that privilege masculine epistemologies. When corroboration requirements demand that a woman’s testimony about her own violation be verified by external witnesses, the law declares her inherently unreliable. The architecture of evidence thus becomes a monument to mistrust, built stone by stone from centuries of patriarchal assumption.
The doctrine of recent complaint, still lurking in Kenya’s common law inheritance, exemplifies how procedural rules encode gender bias beneath technical language. This principle, which treated delayed reporting of sexual assault as evidence of fabrication, emerged from Victorian England’s paranoia about female sexuality and dishonesty. Justice Rosalie Abella of Canada’s Supreme Court has noted that such rules “were based on now discredited myths and stereotypes about how victims of sexual assault should behave.” Yet these spectral presumptions continue to haunt Kenyan courtrooms, manifesting in judges’ reluctance to credit testimony that deviates from imagined scripts of victimhood. The rule assumes a world where women report violations immediately, ignoring the complex calculus of shame, fear, economic dependence, and social stigma that silences survivors. It presumes the rational actor of law and economics, untouched by trauma’s dissociative effects. Like Toni Morrison’s character Sethe, who bore the unspeakable on her back, many women carry their violations in silence, and the law punishes them for it.
Kenya’s Evidence Act, inherited from colonial administration and minimally reformed, contains no provisions recognizing the distinctive barriers women face in accessing justice. Section 124 protects marital communications with testimonial privilege, yet no parallel protection exists for domestic violence survivors whose economic survival depends on maintaining household relations. Professor Kimberle Crenshaw’s concept of intersectionality reveals how women in Nairobi’s informal settlements face compounded exclusion, their poverty making evidence collection financially impossible while their gender makes their testimony legally suspect. The law’s pretense of neutrality, what feminist legal scholar Frances Olsen termed “the myth of formal equality,” obscures these material realities. When evidence rules require police reports, medical examinations, and documentary proof, they construct an obstacle course navigable only by those with resources, literacy, and social capital. The poor woman becomes what Gayatri Spivak identified as the subaltern, unable to speak within structures designed for other mouths. Justice becomes a commodity purchased with privilege, wrapped in the language of universal procedure.
The treatment of expert testimony on rape trauma syndrome illustrates how evidentiary gatekeeping pathologizes normal responses to violence. Kenyan courts, following English precedent, have historically excluded such evidence as irrelevant or prejudicial, yet readily admit expert testimony on issues deemed worthy of scientific validation. Professor Carol Smart argues that “law’s claim to truth is not singular but plural,” yet it singularly dismisses women’s experiential knowledge. When trauma manifests as inconsistent recall, flat affect, or continued contact with an abuser, courts interpret these through patriarchal scripts rather than psychological reality. The survivor becomes doubly violated, first by the perpetrator and then by a system that reads her trauma as mendacity. Like the chorus in Greek tragedy, expert witnesses could contextualize these responses, yet evidentiary rules silence them. The Federal Rules of Evidence in the United States underwent reform to permit such testimony, recognizing that “myths and misconceptions about rape are not confined to the distant past,” as Justice Ruth Bader Ginsburg observed. Kenya’s evidence law remains trapped in that distant past, amber-preserved and anachronistic.
Character evidence rules, ostensibly designed to prevent prejudice, operate with glaring asymmetry in sexual violence prosecutions. While complainants’ sexual history may be admitted through various exceptions to demonstrate consent or credibility, defendants enjoy robust protections against propensity evidence. Section 14 of Kenya’s Sexual Offences Act attempted reform by restricting sexual history evidence, yet judicial interpretation has hollowed out this protection. Justice Albie Sachs of South Africa’s Constitutional Court observed that “the law of evidence has historically been the enemy of the rape victim,” and this enmity persists in how judges exercise discretion. The underlying logic resurrects what feminist scholars call the “madonna-whore dichotomy,” where women’s credibility depends on performed chastity. Like Hester Prynne bearing her scarlet letter, the complainant’s sexual past becomes the trial’s true subject. The accused’s pattern of predation remains inadmissible, while the complainant’s virtue stands perpetually on trial. This evidentiary asymmetry does not merely fail to level the playing field; it tilts it into a precipice.
Hearsay rules, designed to ensure testimonial reliability, become instruments of silencing when applied without attention to power dynamics. Traditional exceptions permit business records and official documents while excluding the informal records of women’s lives: diary entries chronicling abuse, messages to confidantes, contemporaneous complaints to family members. Professor Mari Matsuda argues that “looking to the bottom” requires legal systems to center the perspectives of the subordinated, yet evidentiary hierarchies privilege formal documentation over lived experience. When a woman’s contemporaneous text message describing her assault is excluded as hearsay while police reports authored by skeptical officers are admitted, the law announces whose voice it trusts. The exception for excited utterances, requiring spontaneous statements made under stress, imposes temporal requirements divorced from trauma’s reality. Like Virginia Woolf’s Mrs. Dalloway moving through fragmented time, survivors experience and express violation in ways that formal legal categories cannot capture. The hearsay rule’s rigidity thus becomes another bar in the cage of inadmissibility.
Judicial notice, the evidentiary doctrine permitting courts to recognize facts beyond dispute, reveals the law’s selective omniscience. Kenyan judges take judicial notice of statutory provisions, constitutional principles, and what one Court of Appeal decision termed “notorious facts,” nonetheless refuse to acknowledge well-documented realities of gender-based violence. When Justice Rosalie Abella wrote that courts must take judicial notice of “the disadvantaged position of women in society,” she articulated an epistemic revolution that Kenyan jurisprudence has largely resisted.
The prevalence of domestic violence, the economic dependency that traps women in abusive relationships, the victim-blaming endemic to police responses these are documented realities that courts treat as requiring proof in each case. This willful blindness, what Charles Lawrence called “unconscious racism” in the American context, operates as unconscious sexism in evidentiary application. Like Oedipus refusing the obvious truth, the law protects itself from knowledge that would require transformation. Judicial notice could democratize legal knowledge, yet it remains the province of the already powerful.
The burden of proof, that foundational allocation of evidentiary responsibility, assumes parties enter the courtroom as equals. Professor Christine Littleton argues that “equality must mean equality between unequals,” yet evidence law ignores structural inequality in assigning burdens. When a woman alleges workplace sexual harassment, she must prove unwelcomeness while battling presumptions that her clothing, demeanor, or continued employment implied consent. The burden becomes not merely legal but existential, requiring her to prove her own subjectivity against interpretations that erase it. Justice Thurgood Marshall observed that “the Constitution does not require things to be fair; it requires them to be equal,” but evidence rules achieve neither fairness nor equality. Like Sisyphus, women push the boulder of proof up the hill of skepticism, only to have patriarchal presumptions roll it back down. The allocation of burdens thus predetermines outcomes, making trials mere theatrical performances of predetermined conclusions.
Corroboration requirements, though formally abolished in many jurisdictions, persist as informal judicial practice in Kenya. The Sexual Offences Act eliminated the legal requirement for corroboration in sexual assault cases, yet judges continue to seek it, citing prudence and caution. Justice Bertha Wilson of Canada’s Supreme Court condemned this practice, noting that “the myth that complainants are likely to lie about sexual assault is no longer acceptable.” Yet Kenyan appellate decisions regularly affirm acquittals based on uncorroborated testimony, the word “uncorroborated” functioning as a judicial dog whistle. This informal requirement resurrects what it formally buried, demonstrating law’s ability to preserve hierarchies through practice when stripped of explicit authority. Like the ghost of Hamlet’s father, the corroboration requirement haunts proceedings, demanding satisfaction. When combined with poverty’s barriers to evidence collection, this informal rule renders justice inaccessible. The law announces equality while practicing exclusion, a hypocrisy that wounds more deeply than honest discrimination.
Privilege doctrines protect certain relationships attorney-client, doctor-patient, spousal by excluding confidential communications from evidence. Yet these privileges assume autonomy and choice, concepts often foreign to women in coercive relationships. The marital communications privilege prevents spouses from testifying about confidential conversations, ostensibly protecting marital harmony, but in domestic violence cases it shields abusers. Professor Jeannie Suk has argued that “the privilege serves the batterer rather than the battered,” creating a zone of legal immunity within the home. Kenya’s Evidence Act maintains this privilege with minimal exceptions, prioritizing the abstract institution of marriage over the concrete safety of women. Like the locked room in Bluebeard’s castle, the privileged space becomes the site of hidden violence. When the law protects confidentiality over safety, it announces its values: the preservation of patriarchal structures trumps protection of patriarchal victims. Reform requires not merely tweaking privilege rules but reconsidering what relationships merit legal protection and why.
Standing and relevance requirements filter which evidence courts will hear, and these filters are not gender-neutral. When women seek to introduce evidence of systematic discrimination, pattern evidence, or social science research on gender bias, courts often exclude it as irrelevant to the individual case. Justice Anthony Kennedy acknowledged that “discrimination operates at many levels of generality,” be that as it may evidentiary rules demand specificity that makes patterns invisible. Professor Angela Harris argues that evidence law’s individualism “makes it difficult to establish systematic discrimination,” fragmenting collective experience into atomized incidents. In Kenya’s employment tribunals, women cannot introduce statistics showing company-wide gender wage gaps unless they first prove individual discrimination, creating a catch-22 of proof. Like the paradox of Zeno’s arrow, the requirement for particularized evidence ensures the target of justice remains perpetually out of reach. Relevance, ostensibly a neutral standard, becomes a weapon wielded to preserve status quo arrangements that benefit the powerful.
The transformation of evidence law requires more than procedural tinkering; it demands epistemological revolution. Justice Albie Sachs wrote that “achieving gender equality requires changing traditional ways of thinking,” and nowhere is this truer than in how law validates knowledge. Kenya stands at a crossroads, with constitutional commitments to equality pulling against colonial evidentiary inheritances that encode Victorian gender assumptions. The question is not whether evidence rules are gendered—they manifestly are but whether legal actors will acknowledge this reality and act. Like James Baldwin’s challenge that “not everything that is faced can be changed, but nothing can be changed until it is faced,” Kenya must confront how its evidentiary architecture systematically excludes women’s realities. This requires judges to interrogate their own assumptions, legislators to center marginalized voices in reform efforts, and legal education to teach evidence not as technical rules but as power structures. The rules of evidence, when reformed with reference to social context, could become instruments of liberation rather than reproduction. The choice, ultimately, is whether justice will remain an abstract principle or become a lived reality for all Kenya’s people.
The writer is a social commentator
John Kamau 
Mt Kenya Times