Navigating the Complexities of Intimate Partner Violence: The Supreme Court’s Insights on the Battered Woman Syndrome in Ruth Wanjiku Kamande vs Republic case

The Supreme Court of Kenya recently rendered a pivotal judgment in Ruth Wanjiku Kamande Vs Republic, SC Petition No. E032 of 2023, shedding light on the evolving role of the battered woman syndrome within the country’s criminal justice system. While the appeal itself was dismissed on procedural grounds, the Court’s detailed analysis provides valuable guidance for legal practitioners and illuminates the path forward for how this complex issue may be addressed in future cases involving intimate partner violence.

This case originated from the tragic events of September 20, 2015, when Farid Mohamed Halim (the deceased) was murdered. The appellant, Ruth Wanjiku Kamande, was charged with the offence under Section 203 as read with Section 204 of the Penal Code.

The High Court Proceedings and Findings

Before the High Court (Lesiit J), the prosecution presented evidence from neighbours (PW7 and PW8) who heard screams and calls for help from the deceased’s house. One neighbour, PW8, heard the deceased saying, “nisaidie, nisaidie amenidunga” (help me, help me she has stabbed me). PW7 saw the deceased holding his abdomen, appearing to be in great pain, while the appellant blocked him from reaching the kitchen where the keys were kept. The deceased was stabbed multiple times, ultimately sustaining 25 stab wounds across his body, leading to death from multiple injuries and blood loss due to penetrating force trauma.

The appellant gave an unsworn statement in her defence, claiming the deceased attacked her after she threatened to expose his alleged AIDS status. She alleged he stabbed her several times, she disarmed him by poking his eyes, and then she “stabbed him severally, eventually losing count of how many times” while he was seated on her on the bed.

The High Court made several key findings. It noted the appellant and deceased had a tense relationship, evidenced by incidents like the appellant being upset about phone access and following the deceased. The court found the appellant’s account that the attack started and occurred solely in the bedroom was contradicted by witness testimony and the presence of bloodstains throughout the house.

Crucially, the court assessed the claim of self-defence. Citing previous Court of Appeal decisions, it considered whether the attack on the appellant was serious enough to put her in immediate peril and justify instant reaction. The court found the evidence showed the appellant was in control, used the knife “over a period of time, a stab at a time until the deceased was no more”, and that the “25 stab wounds all over his body… could not be accepted as an act of self-defence”. The court concluded the force used was “neither reasonably necessary nor reasonable force”. Furthermore, the appellant’s medical examination showed only superficial injuries, contrasting sharply with the severe injuries inflicted on the deceased.

Regarding provocation, the court found the appellant was “extremely jealous of the deceased and harbored a huge grudge against him” over past love letters. It dismissed the alleged AIDS document as an “afterthought” since no such document was found, concluding that even if it existed, it “could not justify the appellant’s actions on the material day”.

Based on the weapon used, the nature and number of injuries (25 stab wounds, deliberately and intermittently inflicted), and the appellant’s conduct, the High Court found malice aforethought proved beyond reasonable doubt. The appellant was convicted of murder and sentenced to death.

The Court of Appeal’s Decision

The appellant appealed to the Court of Appeal, raising twenty grounds, challenging, among other things, the proof of murder and the consistency of her defence. The Court of Appeal (Okwengu, Warsame & J. Mohammed, JJ.A) upheld the High Court’s findings. They agreed that the deceased’s death was caused by the appellant’s actions. On malice aforethought, they concurred with the trial court that the “nature of the weapon used; nature of injuries suffered by the deceased; the conduct, before, during and after the incident; and the manner of use of the weapon” supported the finding, concluding the appellant’s actions “were intended to result in death”. The Court of Appeal dismissed claims of investigative mismanagement or witness inconsistencies, affirming the trial court’s decision that the appellant “violently, intentionally and unlawfully killed the deceased” and that her self-defence claim was “unbelievable”. The appeal was dismissed.

Path to the Supreme Court: The Battered Woman Syndrome Issue

Undeterred, the appellant sought leave to appeal to the Supreme Court, arguing that the intended appeal raised fundamental points of general public importance on the battered woman syndrome. The Court of Appeal granted leave, noting that the issue was “ideally raw in the Country and has had not so many decisions on the same” and required a “window for interrogation by the Supreme Court”.

The appellant framed her appeal around the applicability, standard, and burden of proof for the battered woman syndrome as a defence, and its relationship with self-defence and provocation. She argued that the syndrome, a “diagnosable condition”, impacts a woman’s state of mind and threat perception, justifying a lower standard of “loss of self-control” instead of the “reasonable man” test. She contended that once this defence is pleaded with prima facie evidence, the burden shifts to the prosecution to rebut it. The appellant claimed she endured a cycle of abuse from the deceased and that her actions were a response, but her self-defence plea was unjustly rejected based on proportionality because the battered woman syndrome was not established law at her trial.

The respondent countered, arguing that the battered woman syndrome is not a stand-alone defence but can support existing defences like insanity or self-defence. They stressed the critical need for expert testimony to explain the syndrome’s impact. The respondent maintained that the burden of proving the existence of the syndrome lies with the defence, as it is within their special knowledge. They argued the appellant had not raised or provided evidence of the syndrome in the lower courts, making the claim theoretical before the Supreme Court.

The Supreme Court’s Analysis and Determination

The Supreme Court acknowledged the issue’s importance and the concerning rise in intimate partner violence. It defined the battered woman syndrome, drawing from Lenore Walker’s work and Black’s Law Dictionary, as “a set of behavioural and psychological reactions displayed by women who are subjected to severe, long – term domestic abuse”. The Court reviewed comparative jurisprudence, noting that in the UK, Canada, and the US, it typically supports existing defences rather than being a stand-alone defence. It also noted criticisms regarding the syndrome’s validity as a clinical diagnosis and concerns about potential misuse.

In the Kenyan context, the Court observed that the battered woman syndrome has primarily been applied as a mitigating factor in sentencing, citing the Truphena case and the Muruatetu guidelines, which include “commission of the offence in response to gender-based violence” as a relevant factor.

The Court’s Definitive Pronouncement on BWS Status:

The Supreme Court made it clear: the battered woman syndrome “has not in our view attained the status of a stand-alone defence” in Kenya. It must be raised “in aid or as an extension of one of the existing legal stand-alone defences: self-defense, provocation or temporary insanity”. The Court stated that elevating it to a stand-alone defence would “amount to usurpation of legislative mandate bestowed upon Parliament”. The Court stressed the need for a “nuanced approach, assessing each case individually”.

Burden and Standard of Proof:

The Court strongly reaffirmed the “golden thread” of criminal law, stating that the “legal burden of proof in criminal cases does not and cannot shift from the prosecution”. While the evidential burden may shift, the ultimate burden to prove guilt beyond reasonable doubt remains with the prosecution. When BWS is invoked, the defence aims to “raise a reasonable doubt regarding the accused’s actions and intent”. The Court held that the “burden rests on the defence to not only establish the existence of the battered woman syndrome but also the extent of such application”.

Despite the significance of the issue, the Supreme Court found that the battered woman syndrome “was not adequately raised and addressed by the courts below”. The appellant’s own testimony at trial described her relationship with the deceased as “a normal boyfriend/girlfriend relationship where we had long and short-term dreams to achieve together. However we had bad days and good days just like any other romantic relationship”, which contradicted the later portrayal of continuous victimization. No history of long-standing abuse was raised during her mitigation.

The Court emphasized that the issue of BWS was raised for the “first time in the application for certification before the Court of Appeal”. Citing its own jurisprudence, the Court reiterated that it exercises appellate jurisdiction over issues properly litigated and decided by the lower courts. It determined that the issue, while important, was “not properly before us” for a substantive determination of its application to the facts of this case because the factual basis for it was not established in the lower courts.

The Court stated that the “extremely pertinent issue of battered woman syndrome will be properly ventilated and adjudicated by the courts in due course” when moved correctly in a case where the issue has been properly litigated from the trial court upwards.

The Supreme Court’s decision, while dismissing the appeal on procedural grounds, provides crucial clarity and direction regarding the battered woman syndrome in Kenya:

• BWS is not a Stand-Alone Defence: The Court has definitively stated that the battered woman syndrome does not constitute a distinct defence against criminal charges like murder.
• BWS as Support for Existing Defences: The syndrome can potentially be used to support or extend established defences such as self-defence, provocation, or temporary insanity.
• BWS as a Mitigating Factor: It remains a recognized mitigating factor in sentencing, particularly within the category of gender-based violence as outlined in the Muruatetu guidelines.
• Requirement for Proper Litigation: For the battered woman syndrome to be considered by the courts, particularly as it relates to a defence, it must be explicitly raised and supported by evidence (which may include expert testimony) at the trial court level. It cannot ordinarily be introduced for the first time at the appellate stage.
• Burden on the Defence: While the legal burden of proof remains with the prosecution, the evidential burden rests on the defence to establish the existence and extent of the battered woman syndrome when it is invoked.

This judgment underscores the importance for legal practitioners to be vigilant in identifying potential indicators of the battered woman syndrome early in a case and ensuring that relevant evidence, including expert testimony where necessary, is adduced at the trial court stage. While the Kamande case did not lead to a broad expansion of BWS as a standalone defence, it solidifies its potential role in supporting existing defences and mitigation, setting the stage for its further development in Kenyan jurisprudence through future, properly litigated cases.

Contribution by Murithi Antony.