ational as her guardian and Next friend) & 11 others v COMMISSIONER OF POLICE/INSPECTOR GENERAL OF THE NATIONAL POL Further to the above the Police failure to effectively enforce Section 8 of the Sexual Offences Act,2006 infringes upon the petitioners right to equal protection and benefit of the law contrary to Article 27(1) of the Constitution of Kenya, 2010 and further by failing to enforce existing defilement laws the police have contributed to development of a culture of tolerance for pervasive sexual violence against girl children and impunity. In the circumstances the respondents are responsible for violation of the petitioners’ rights under Article 27 of the Constitution of Kenya, 2010. The respondents are obligated by law to protect girl children from defilement and ensure effective investigation of defilment claims(See section 14 and 14A of the Police Act(repealed and replaced by Act No.11A of 2011), Section 2, 8 and 40 of the Sexual Offences Act and Articles 157(4) and Article 244 of the Constitution of Kenya, 2010). In the case of MC BULGARIA(MCV BULGARIA,EUROPEAN COURT OF HUMAN RIGHTS 39272/98, 2003) the European Court of Human Rights held:“The investigation of the applicant’s case, and in particular the approach taken by the investigators and the prosecutors in the case fell short of the requirements inherent in the States’ positive obligations-viewed in the light of the relevant modern standards in comparative and international law-to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse…….The court thus finds that in the present case there has been a violation of the respondent State’s positive obligations under both Articles 3(on torture and inhuman/degrading treatment) and 8(on protection of the law) of the Convention.” In the case of CAS ROMANIA(CAS ROMANIA, EUROPEAN COURT OF HUMAN RIGHTS 26692/05 2012). The European Court of Human Rights held that an ineffective investigation of sexual assault charges violates the Human Rights convention. The court held as follows:“It (the investigation) should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk failing foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the court has often assessed whether the authorities reacted promptly to the complaints at the relevant time. Consideration has been given to the opening of investigations, delays in taking statements and to the length of time taken for the initial investigation. Yet in the case of CARMICHLE V MINISTER SAFETY AND SECURITY AND ANOTHER(SUPRA) the Court held:“The courts are under a duty to send a clear message to the accused, and to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights. South Africa also has a duty under international law to prohibit all gender-based discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and http://www.kenyalaw.org - Page 13/17