Authored By: Wanjiku Gachara
Kenya School of Law
ABSTRACT
This article explores the urgent and deeply personal issue of femicide in Kenya, juxtaposing it with Croatia’s recent legislative strides in recognising and codifying femicide as a distinct criminal offence. Through the lens of real lives lost and names turned into hashtags. The paper highlights the systemic failure of Kenya’s legal framework to address gender-based killings with the specificity and seriousness they warrant. Despite over 500 documented cases between 2016 and 2023, Kenya continues to lack a legal definition or tailored response to femicide, allowing perpetrators to hide within broader homicide laws. Croatia, following public outcry and tragic loss, responded by aligning with the Istanbul Convention and introducing legal definitions for both femicide and gender-based violence. This article draws lessons from Croatia’s journey, while acknowledging its limitations, and argues passionately for the codification of femicide in Kenya. Legal recognition is more than a symbolic act; it is a necessary step toward justice, accountability, and the protection of women’s lives. In honouring the memory of victims and amplifying the call for reform, this paper stands as both a legal analysis and a moral plea for change.
INTRODUCTION
Scarlet Wahu, Rita Waeni, Christine Ouma (in Homabay), Bridgit Ochieng (in Kisumu) and Rebecca Muthoni (in Laikipia), Grace Wangari (in Kasarani) and Lucy Wambui Jenkinns (in Laikipia), I could go on and on. Their names are not just hashtags; these are lives lost due to intentional killing. 27.82M women in Kenya will all ask themselves this question at one point in time: ‘Will I make it home tonight?’.
Femicide is the intentional killing of a woman. It is when a person who causes the death is a partner, relative or even a stranger. Femicide is when the person who causes the death of a woman believes that the life of a woman is less valuable because she is a woman.
Over the past months, OdipoDev.com, in conjunction with African Uncensored, meticulously examined news reports from reputable Kenyan sources and compiled over 500 cases of femicide between January 2016 and December 2023.1 The cases are not isolated; instead, they reveal recurring patterns, indicating a deeper and more systemic issue. The available data compiled in the report shows that globally, 85,000 women and girls were killed intentionally in 2023. Sixty per cent of these homicides. 51,000 were committed by intimate partners or other family members. One hundred and forty women and girls die every day at the hands of their partner or a close relative, which means one woman is killed every 10 minutes. 2
Not even the many anti femicide protests in Kenya have turned the hearts of the legal authorities. The deaf ears of the law on this gender based murders have proven the depth of this systemic issue. It is even more disheartening to realise that the same police we turn to for help stopped the protests by using tear gas on the women who showed up for the femicide protests.3 Croatia did it, and so can Kenya.4 It is necessary to introduce femicide as a separate criminal offence in our Penal Code to address the pervasive issue of gender-based violence as well as to align with international standards, particularly the Council of Europe’s Istanbul Convention. This legislative change aims to unequivocally recognise and combat the intentional killing of women due to their gender. By introducing femicide as a separate offence and incorporating gender-based violence as an aggravating factor in sentencing, Croatia has taken steps to address the root causes and systemic nature of these crimes. Kenya’s failure to follow suit reflects both a legal and moral gap in protecting women’s rights and lives.
This study seeks to explore the legal, institutional, and societal dimensions of femicide in Kenya and to make a case for legislative reform that not only criminalises femicide specifically but also aligns with global human rights standards like the Istanbul Convention.
PROBLEM STATEMENT
Despite a rising number of femicide cases in Kenya, over 500 documented between 2016 and 2023, there is no legal recognition of femicide as a distinct criminal offence in the country’s Penal Code. This lack of legal acknowledgement, coupled with systemic inaction by authorities and the suppression of public protests, reflects a broader failure to address gender-based violence with the urgency and seriousness it demands. The existing legal framework fails to capture the gendered nature of these crimes, perpetuating impunity and undermining justice for victims. Kenya urgently needs to adopt legislation that specifically defines and criminalises femicide, aligning its laws with international human rights standards and reinforcing its commitment to protecting women’s lives and dignity.
RESEARCH QUESTION
How would the introduction of femicide as a separate offence in Kenya’s Penal Code impact the prevention, investigation, and adjudication of gender-based killings?
CONCEPTUAL AND LEGAL FRAMEWORK OF FEMICIDE IN KENYA – LEGAL INSTRUMENTS ADDRESSING FEMICIDE IN KENYA (OR LACK THEREOF)
Despite the efforts to address gender-based violence, femicide remains a persistent and complex problem, necessitating a comprehensive examination to understand its prevalence, root causes, and the adequacy of legal responses. Battered Woman Syndrome (BWS) is a critical concept in understanding the psychological and legal dimensions of femicide. Conceptually, BWS, developed by Lenore Walker in the late 1970s, describes a pattern of psychological and behavioural symptoms observed in women who have experienced prolonged and severe domestic violence.5It explains how sustained abuse leads to learned helplessness, hypervigilance, and the belief that escape is impossible, factors that may contribute to fatal outcomes, whether as victims or, in exceptional cases, as perpetrators acting in perceived self-defence.
Legally, BWS has been recognised in various jurisdictions through expert testimony supporting self-defence claims where battered women kill their abusers, thereby influencing judicial interpretations of intent, imminence, and reasonableness.6For instance, in R v Ahluwalia,7the court acknowledged the psychological impact of sustained abuse, ultimately broadening the scope for provocation and later informing self-defence arguments. The integration of psychological frameworks like BWS into legal reasoning is therefore essential in ensuring nuanced adjudication in femicide cases and broader gender-based violence litigation.
The Kenyan legal framework does not provide a straight-through provision criminalising femicide, hence the premise of this paper. However, a few provisions have been given. That is the Constitution of Kenya 2010, article 29 states that every person has the right to life.8 Article 27 provides for equal protection of both women and men before the law and in all spheres of life, including political, economic, cultural and social spheres.9It halts any discrimination and obligates the State to take measures to address any disadvantage suffered by any individual or group because of past discrimination. Article 28 states that every person has inherent dignity and the right to have that dignity respected and protected.10 Article 29 protects every person from any form of violence from either public or private sources. Further, it protects every person from being subjected to torture in any manner, whether physical or psychological. In case any of the aforementioned rights have been violated, the State has been given a duty to ensure access to justice for all persons, and, if any fee is required, it shall be reasonable and shall not impede access to justice.11
Why then should we make femicide a crime? The Penal Code in sections 202, 203 and 207 provides for the specificity of killings that are manslaughter, murder and killing on provocation, respectively. In each of these, someone has caused death to another, but they are all different crimes because in each, the circumstances of death are different.12 The law provides for this because justice is very specific, and that means we have to make our laws very specific too.
The courts have made attempts to condemn femicide, for instance, Lesit J in Republic v Ruth Wanjiku Kamande opined that, ‘I want young people to know that it is not cool to kill your boyfriend or girlfriend. Even when you feel disappointed or frustrated, don’t do it. Instead, it is cool to walk away and thereafter forgive. 13 When women’s lives are brutally stolen through acts of femicide, their futures are erased, their voices silenced forever, and the world is left emptier for it. Are we always going to forgive the perpetrators, or will the wheels of justice finally be lubricated to move faster, to honour the lives lost and protect those still at risk? To cure this ailment specificity of crimes in this case, femicide, should be addressed.
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS ON FEMICIDE
Under Articles 2(5) and 2(6) of the Constitution of Kenya, the fundamental principles of international law are integrated into the country’s legal framework.14 Consequently, any treaty or convention ratified by Kenya becomes part of the national laws automatically. Additionally, Article 21(4) mandates the State to enact and enforce legislation that ensures compliance with its regional and international commitments to uphold, advance, and safeguard human rights and fundamental freedoms.15
The African Charter on Human and People’s Rights is important at the regional front, the Organisation of African Unity through the African Charter on Human and People’s Rights in Article 18 (3) makes provisions for states to ensure the elimination of every discrimination against women and to ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.16
Article 3 of the Declaration on the Elimination of Violence Against Women (UNGA Res 48/104, 1993) affirms women’s entitlement to equal enjoyment and protection of all human rights across various fields—political, economic, social, cultural, civil, and others. This includes the right to life and other fundamental freedoms.17
Kenya, being a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) when it ratified the convention in 1984, is legally obligated to take measures to ensure the elimination of all forms of discrimination against women. It should condemn discrimination against women and agree to pursue policies to eliminate such discrimination, including through legislation and other appropriate means.18 States Parties shall take all appropriate measures to modify social and cultural patterns of conduct to eliminate prejudices and practices based on stereotyped roles for men and women.19 These social patterns include viewing women as inferior and valueless, hence the rise of women’s rights being violated to the extent of taking away their precious lives.
In light of the comprehensive international instruments I have highlighted, it is evident that femicide is a grave violation of women’s human rights; it must be specifically addressed under national legal systems. The increasing recognition of femicide as a distinct criminal offence in other jurisdictions, such as Croatia, where femicide was codified into law to reflect the gravity of gender-based violence, presents a model for Kenya to adopt. This step would ensure that femicide is not only legally defined but also adequately punished, with clear preventative measures in place. The legal codification of femicide in Kenya would serve to strengthen the protection of women’s rights, harmonise with international human rights frameworks, and ensure a more effective response to gender-based violence, reinforcing the country’s commitment to upholding the rights of women as enshrined in both its Constitution and international human rights agreements.
FEMICIDE IN CROATIA
Croatia’s approach to femicide has evolved significantly over the years, with growing recognition of the gendered nature of violence. The country has worked towards aligning its legal frameworks with international human rights standards, particularly concerning gender-based violence (GBV). Historically, Croatia, like many other nations, had not treated femicide as a distinct crime, but rather as a subset of general homicide. However, advocacy and activism by women’s rights organisations led to legal reforms aimed at better addressing femicide and its root causes. The move towards the codification of femicide was in response to the alarming rise in gender-based violence and public demand for more targeted legal intervention.
INTRODUCTION OF FEMICIDE AS A SPECIFIC CRIME
The murder of a 44-year-old woman by her former partner at her workplace in Split on November 30, 2021, initiated a series of actions that ultimately led to the definition of femicide as a specific criminal offence in Croatia two and a half years later. As of 2nd April 2024, amendments to the Criminal Code will come into force in Croatia, introducing, alongside other changes aimed at improving the position of victims and witnesses and implementing provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), a new criminal offense: femicide, also referred to by legislators as the aggravated murder of a female person, recognized as a gender-based murder. Equally significant is the incorporation in the Criminal Code of the definition of gender-based violence, aligning with the definition provided in the Istanbul Convention.20
Gender-based violence is now defined in the new legal amendments as violence directed at a woman because she is a woman or that disproportionately affects women. The legislator adopted the definition of gender-based violence outlined in the Istanbul Convention, recognising that gender-based violence stems from unequal structural power dynamics between men and women, deeply entrenched in cultural, traditional, and social norms. Moreover, gender-based violence will generally be regarded as an aggravating factor in practice, unless the Criminal Code specifies a more severe penalty.21
‘Mama, one question bothers me: why do men keep killing us? Do they hate us? Why does Baba slap you when you don’t cook early? Is he like the others? I fear him, Mama!” “My dear sweet child, don’t worry about me, I will be fine. That is just the way Baba is; it is the way he was brought up. I still love him because he works hard to provide for us, he pays your school fees and pays for grandma’s medicine.22 This narrative should be long dropped, whether it is how he was brought up or not, does not warrant the loss of life of a female just because she is a woman.
These social norms and unequal power dynamics should come to an end. Too many femicide protests and discourses have been held to not holding the perpetrators accountable. This can be done by taking a step to strengthen our legal framework. Legal reforms aim to reduce domestic violence and violence against women, and to enhance the protection of victims of crime through legislative measures, particularly by introducing a clear definition of gender-based violence and establishing a distinct criminal offence for the aggravated murder of a female person.
LIMITATIONS OF CROATIA’S APPROACH
There is no definition of femicide in the Croatian Criminal Code. However, this type of offence may fall under other provisions of Croatian criminal law. The relevant articles for identifying femicide cases are, inter alia, articles 110 and 111. The lack of a uniform definition hampers the measurement of femicide, which becomes invisible among general homicide data. This should be An area of improvement if Kenya is to codify femicide.23
CONCLUSION: WHAT CAN KENYA LEARN FROM CROATIA?
Croatia’s legal recognition of femicide as a distinct criminal offence marks a significant step forward in confronting gender-based violence with the urgency and specificity it demands. By introducing a legal definition for gender-based violence, Croatia has acknowledged that such crimes are not isolated acts of brutality but manifestations of deeply rooted structural inequalities and patriarchal norms. The country’s willingness to align with international human rights frameworks, particularly the Istanbul Convention, offers a replicable model for other nations grappling with similar issues, including Kenya.
Kenya can draw valuable lessons from Croatia’s legislative shift. First, the importance of naming the crime: recognising femicide explicitly within the Penal Code gives legal weight to the lived experiences of countless women who suffer, often in silence, under the shadow of gender-based violence. Second, legal specificity paves the way for more effective data collection, targeted interventions, and informed policymaking tools that are essential for dismantling the systemic drivers of femicide. Third, Croatia’s approach underscores the role of public pressure and civil society advocacy in pushing legal reforms forward. Kenya’s vibrant activist base must be empowered, not suppressed, in the fight for justice and equality.
However, Croatia’s experience also serves as a cautionary tale that codification alone is not enough. Without clear definitions, implementation strategies, and institutional support, the law risks becoming symbolic rather than transformative. Kenya must therefore not only criminalise femicide explicitly but also invest in enforcement mechanisms, survivor support systems, judicial training, and public education to shift cultural attitudes. Robust organisations such as the Federation of Women Lawyers are there to offer psycho-social support to women facing emotional and psychological issues. The federation also offers pro bono and legal aid services to expedite quality access to justice.24
Ultimately, the lives of women in Kenya cannot continue to be collateral damage in a system that refuses to name their killers for what they are. Legal reform is not merely a legislative act; it is a moral imperative. Croatia has taken that step. It is time for Kenya to follow.
Reference(S):
1 Media Council of Kenya, An Analytical Overview of Femicide Reporting in Kenya, January 1st to January 31st 2024 (Media Council of Kenya 2024)https://mediacouncil.or.ke/sites/default/files/downloads/Report%20On%20Femicide.pdf accessed 12 May 2025.
2 UNODC and UN Women, Femicides in 2023: Global Estimates of Intimate Partner/Family Member Femicides (United Nations 2024).
3‘Police Use Tear Gas on Kenya Protesters Rallying AgainstFemicide’https://www.aljazeera.com/amp/program/newsfeed/2024/12/10/kenyan-police-tear-gas-protesters-marchin g-against-femicide accessed 12 May 2025.
4Iva Čatipović and Mirjana Kučer, ‘Femicide as a Separate Criminal Offense: A Milestone in Croatia’ (WAVE Network, 4 April 2024) https://wave-network.org/femicide-criminal-offense-croatia/ accessed 12 May 2025.
5 Lenore E Walker, The Battered Woman (Harper and Row 1979).
6 Elizabeth Sheehy, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and Legal Theory’ (1999) 11 Canadian Journal of Women and the Law 1.
7 R v Ahluwalia [1992] 4 All ER 889 (CA).
8 Constitution of Kenya 2010, art 29.
9Ibid, art 27.
10 Ibid, art 28.
11Ibid, art 28
12 Penal Code (Cap 63, Laws of Kenya) ss 202, 203, 207.
13 Republic v Ruth Wanjiku Kamande Criminal Appeal No 102 of 2018 (High Court of Kenya).
14Constitution of Kenya 2010, art 2(5) and (6).
15 Ibid, art 21 (4).
16 African Charter on Human and Peoples’ Rights, art 18(3).
17 Declaration on the Elimination of Violence Against Women (adopted 20 December 1993, UNGA Res 48/104), art 3(a).
18 Convention on the Elimination of All Forms of Discrimination Against Women, art 2.
19 Ibid, art 5 (a).
20 Iva Čatipović and Mirjana Kučer, ‘Femicide as a Separate Criminal Offense: A Milestone in Croatia’ (WAVE Network, 4 April 2024) https://wave-network.org/femicide-criminal-offense-croatia/ accessed 12 May 2025.
21 Iva Čatipović and Mirjana Kučer, ‘Femicide as a Separate Criminal Offense: A Milestone in Croatia’ (WAVE Network, 4 April 2024) https://wave-network.org/femicide-criminal-offense-croatia/ accessed 12 May 2025.
22 Equality Vanguard, ‘Call It What It Is: Femicide’ (Medium, 14 March 2024) https://medium.com/@equalityvanguard/call-it-what-it-is-femicide-ab46fa1b1d19 accessed 15 May 2025.
23 European Institute for Gender Equality, Measuring femicide in Croatia (Factsheet, European Institute for Gender Equality 2021) https://eige.europa.eu/sites/default/files/documents/20211563_mh0121103enn_pdf.pdf accessed 12 May 2025.
24 FIDA Kenya, ‘Access to Justice’ https://fidakenya.org/access-to-justice/ accessed 15 May 2025.
