Announcements
Kenya: Judgment on Nyayo House torture victims
2010-07-22, Issue 491
http://pambazuka.org/en/category/Announce/66153
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On 21 July, when ruling on a case where 21 victims of torture at Nyayo House had approached the High Court for justice, Lady Justice Hannah Okwengu found the State agents culpable of having violated human rights and fundamental freedoms with impunity. While the victims filed the case way back in 2004, it was a vindication that even if the wheels of justice grind slowly, they still deliver justice and reparations to those afflicted by human rights abuses. The Judgment is a citadel for the defence of human rights in Kenya in many ways.
On 21 July, when ruling on a case where 21 victims of torture at Nyayo House had approached the High Court for justice, Lady Justice Hannah Okwengu found the State agents culpable of having violated human rights and fundamental freedoms with impunity. While the victims filed the case way back in 2004, it was a vindication that even if the wheels of justice grind slowly, they still deliver justice and reparations to those afflicted by human rights abuses. The Judgment is a citadel for the defence of human rights in Kenya in many ways.
First, the Judgement notes that victims suffered many and diverse forms of human rights abuses, which are all prohibited by the Constitution of Kenya. The victims were tortured, treated cruelly, inhumanly and punished in degrading manner. They were further denied the rights to food, water, health, and also the right to a fair trial some of which are in the current Constitution and some are not, thereby extending rights other than those cited.
Second, the Judgement found the victims’ case as legally-sound even through they lacked medical records, which did not in any way render such claims baseless since their affidavits, proved that butcherous State officials presided over the mayhem. Indeed, it was the AG with the ‘burden of proof’ to show that the violations did not occur.
Third, while Section 74 of the Constitution of Kenya prohibits torture, inhuman treatment, and also degrading punishment, it does not define those acts. The Judgement was progressive by relying on regional and international human rights treaties to define these acts and thereby found a legal ground for the victims’ case. The Judgement placed on the executive arm an obligation to comply with the international treaties that Kenya has ratified. Consequently, this Judgment sets a more progressive precedent and jurisprudence in the discourse of human rights in Kenya.
Fourth, the attempt by the AG to thwart justice by requesting the court that the case be referred to the Truth Justice and Reconciliation Commission (TJRC) was flatly denied and defeated. The Judgement stated that the applications and demands were beyond the jurisdiction of the TJRC and further the same body cannot bring about the relief being sought. Indeed, Lady Justice Okwengu argued that it would be an abuse of the court process for the court to allow the cases to be referred to the TJRC when such cases were so close to determination.
Fifth, more attempts by the AG to scuttle the case by invoking the Public Authorities Limitations Act, which limits the period under which the government could be sued (maximum 3 years) was also thrashed out. The Judgement found that the victims had no way of suing government until after the 2002 General Elections, which ended Moi’s and Kanu’s reign. It is only after, that victims have had a legitimate access to court and justice was within reach.
Sixth, the victims were granted compensation from the government ranging from 1 million to 3 million per victim. This Judgement showed that even if some of the alleged and mainly malicious charges (such as sedition or being members of an unlawful society) and that some of these cases were withdrawn midway through the years by the AG invoking nolle prosequi, or the victims having served their sentences fully, they still had to be compensated for the aforementioned crimes against human dignity.
Finally, the Judgement found agents of the executive arm of government totally culpable and hence was sending a clear message to the executive arm about impunity. To date, the judiciary remains subservient to the executive arm, but the Judgement indicates that some members of the Judiciary can become more emboldened to the struggle for enjoyment and protection of human rights and fundamental freedoms in Kenya.
In conclusion, the Judgment was read when Kenya is on the verge of a major turning point in its history: the pending referendum on the Proposed Constitution. Unlike the current Constitution, the Proposed Constitution obligates the State, its officers, and all persons (including private companies) to respect, protect and promote fundamental freedoms, human rights, and human dignity. For example, the Proposed Constitution seeks to change the governance structure by providing for: a) separation of powers amongst the three arms of government; b) for a comprehensive and enforceable bill of rights and fundamental freedoms; and c) ensuring that powers of nolle prosequi shall never be invoked and/or abused without consent of the court. Therefore, it is obvious that for these victims, for ourselves and for our future generations, we have to VOTE YES!