IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 26, Issue 10, Series 1 (October. 2021) 05-12 e-ISSN: 2279-0837, p-ISSN: 2279-0845. www.iosrjournals.org DOI: 10.9790/0837-2610010512 www.iosrjournals.org 5 |Page An Analysis of the Legal Framework for the Protection of Victims of Spousal Abuse in Kenya Scholastica Omondi 1 , Dr. Daniel Muia 2 1 (Phd Candidate, Kenyatta University, Kenya) 2 (Senior Lecturer, Kenyatta University, Kenya) Abstract Spousal Abuse (SA) refers to violence between intimate partners. SA is a societal problem which negatively affects the individual, family and the community. Kenya has laws which attempt to address aspects of SA and provide justice for the victims. This study seeks to analyse the legal framework for the protection of Victims of Spousal Abuse (VSA). The Study found that there are gaps in Kenya‟s legal framework such as the lack of a specific offence called SA, the absence of a law on mandatory reporting of SA, the lack of a law on mandatory prosecution of SA cases and the absence of a no drop policy in SA cases. These weaknesses hinder the effective protection of VSA and their access to justice. The study recommends the formulation of laws on mandatory reporting and prosecution of SA cases and the simplification of the court process in handling SA cases. Key words: Access to justice, Criminal Justice System, Perpetrator, Spousal abuse, Victims of Spousal Abuse --------------------------------------------------------------------------------------------------------------------------------------- Date of Submission: 20-09-2021 Date of Acceptance: 05-10-2021 --------------------------------------------------------------------------------------------------------------------------------------- I. INTRODUCTION Spousal Abuse (SA)refers to violence between intimates living together or who have previously cohabited (Buzawa and Buzawa, 2003). SA can be perpetrated in various form such as physical, psychological, economic and verbal acts used to achieve domination and control over an intimate partner by the other (Freeman, 2008). II. THE LEGAL FRAMEWORK FOR THE PROTECTION OF VSA In Kenya, the legal framework of laws which regulate SAare the Constitution of Kenya 2010, the Penal Code Cap 63 Laws of Kenya, the Sexual Offences Act of 2006, the Children Actof 2001 and more specifically the Protection from Domestic Violence Act of 2015. The Constitution is the supreme law of the country and provides for the protection of all human beings against any form of violation including SA. The Penal Code is the main body of law that defines most crimes and provides for their punishment. It does not however provide for any offence known as SA. Cases of SA are therefore prosecuted under the general offence of assault making it difficult statistically to analyse SA matters in the CJS. The Sexual Offences Act defines several crimes of a sexual nature and provides for their punishment. This Act recognizes the sexual form of SA, however, it decriminalizes sexual abuse in the marital context. The criminalization of sexual form of abuse within a marriage such as marital rape is controversial due to the issue of when consent in a marriage is given and when it stops. Most importantly, the Protection from Domestic Violence Act aims to protect victims of domestic violence including Victims of Spousal Abuse (VSA) but does not create a specific offence called SA. It therefore becomes difficult to prosecute all forms of SA. The Constitution of Kenya, 2010 has a special recognition for the family as the basic unit of society. It entails key provisions for the protection of the family as an institution. These provisions include:- Article 45 which recognizes the family as the basic unit of the society, Article 26 on the protection of the right to life, Article 27 on the protection from discrimination, Article 28 on the protection from inhumane and degrading treatment, Article 29 on the right to human dignity and respect, Article 31 on the right to privacy, Article 47 on the right to fair administrative action, Article 48 on the right to access to justice and Article 50 on the right to a fair hearing. The first obligation of the State is the protection of the family institution through Article 45. It recognizes the family as the natural and fundamental unit of society and the necessary basis for social order. It further provides that the family enjoys the recognition and protection by the state. Secondly, the constitutional protection of the family obligates the State to protect the life of every family member by ensuring their safety.