Bad governance: Tax-payers bear brunt of State backed torture

Scores of Kenyans have gone to court and successfully petitioned to be compensated for torture by State officials that is costing the taxpayer hundreds of millions of shillings.

Calculations by the Nation show that so far Sh1.1 billion has been awarded by courts to 51 victims of torture.

Businessman-cum-politician Kenneth Matiba was the latest in a swelling list of litigants to be compensated as a result of wrongs done mostly during the Kanu era.

Mr Matiba’s Sh945 million award given last month is the biggest.

Records show that as many as 400 people have brought cases to the courts involving abuse of their rights.

KANU ERA

They include lawyers, politicians, journalists, former university lecturers, former student leaders, farmers, police officers, soldiers and military officers.

Although most of the torture happened in the Kanu era, an overwhelming majority of the cases were filed starting in 2003 after the independence party lost power to the Mwai Kibaki-led National Rainbow Coalition.

And with the 2010 Constitution giving more rights to Kenyans and independence to a hitherto cowed Judiciary,  the judges have been generous in compensating victims. However, they have also warned the dark days when police officers were used to unleash terror on citizens should never happen again.

Unfortunately, that is not the case as a number of police officers still carry on with the bad habit.

LAW ENFORCERS

And if reports of rights abuses as police quelled recent protests are anything to go by, Kenyans will continue to pay for the criminal behaviour of the law enforcers.

Human rights advocates, including the Kenya National Commission on Human Rights and Fida Kenya, are investigating the police behaviour and have vowed to take cases to courts.

“Fida Kenya is offering free legal representation to all survivors of the violence and we ask them to visit our offices,’’ the organisation’s chairperson Josephine Wambua-Mong’are said in a statement following the police raid at the University of Nairobi in which students were beaten up.

During the Kanu regime of both founding president Mzee Jomo Kenyatta and his successor Daniel arap Moi, dissenting voices would be silenced by being thrown into detention.

SUCCESSFULLY SUED

Those who have successfully sued the government include suspects of Mwakenya Movement, Pambana Publication, February Eighteen Movement, mothers calling for the release of their sons- under the banner- Release Political Prisoners and a political party known as Kenya Patriotic Front, associated with Nakuru politician Koigi wa Wamwere.

Mr Matiba, who was detained in the early 90s as the struggle for the second liberation peaked, suffered a stroke while in detention and his multi-billion-shilling business empire collapsed.

Others are Mr Wamwere, who was detained more than once and was awarded Sh12 million. He had earlier been awarded Sh3 million but he appealed and the amount was increased by the Court of Appeal.

Mr Wamwere was first detained without trial between August 9, 1975 and December 12, 1978, while his second detention from August 5, 1982 to December 12, 1984.

TORTURED

Recently, five victims who were tortured over allegations of being members of Fera were awarded Sh25 million by Justice John Mativo.

They included Mr Patrick Musungu, Mr Samuel Wangila and Patson Kipchiris.

Former Alego Usonga MP and Standard newspaper editor Otieno Mak’Onyango was awarded Sh20 million by Justice Kalpana Rawal after he was arrested and detained following the 1982 attempted coup.

Mr Mak’Onyango was arrested on August 17, 1982 and was held in incommunicado at the General Service Unit Headquarters and while there, he was subjected to beating, cruel and inhuman and degrading treatment and threatened with death. He was charged with treason when he was arraigned in court on September 23, 1982.

100 MILLION

He had sued the State and former President Daniel arap Moi but Justice Rawal absolved Mr Moi from blame saying it will be unjust and unwarranted to make a Head of State personally responsible for failures or misdeeds of the state officers without showing his direct participation or involvement.

“The law has given sufficient remedies to a claimant by imposing the liability on the Attorney General which takes care of such claims,” the Judge ruled.

In October 2011, Justice Daniel Musinga awarded some 21 people more than Sh100 million, amounts ranging from Sh1.5 million to Sh6.5 million.

The victims included Dr Oduor Ongwen, James Akumu, Wilson Ang’ong’a, Alogo Raila, Benjamin Andahi, former UoN student leader Wafula Buke, Geoffery Kuria, Milton Chege; Gibson Maina and Wanderi Muthigani. Others were journalists Mugo Theuri and Njuguna Mutonya.

WOMEN BRUTALISED

Another group led by Harun Thungu Wakaba, were awarded between Sh1 million and Sh3 million by Justice Musinga in 2010.

Some of the women who were brutalised at Uhuru Park’s Freedom Corner also sued and were compensated.

The “Mothers of Political Prisoners” went on a hunger strike while camping at Uhuru Park in March 1992 with the sole aim of highlighting and securing the release of their sons.

The women, including Nobel Laureate Wangari Maathai were demanding the release of 53 political detainees.

After three days of the hunger strike, they were attacked and beaten mercilessly by armed police officers. The women stripped naked in protest.

CLOSURE

In his judgement, Justice Isaac Lenaola — now Supreme Court judge — said it was his hope, the decision would bring to some sort of closure, the pain and suffering the families underwent in the 1990s.

“Damages and declarations may never heal the soul but can assuage the lingering pain of the body and spirit,” he said. 

But speaking to the Nation recently, Mr Rumba Kinuthia said to bring a closure to the matter, the people who tortured the victims should come forward and explain to the nation, who gave them the orders.

“They should explain the circumstances and under whose instruction were they acting,” he said.

The lawyer added he would be happy if his tormentors offered an apology.

ACKNOWLEDGE

“I have met some, although retired, they are alive. They knew what they were doing was illegal but they still carried the orders. It cannot be an excuse to say they were just following orders,” he said.

 Mr Wamwere said the State should acknowledge it was wrong to subject him to inhumane treatment.

“Imagine for 13 years to be detained without trial then to be compensated Sh2 million. It is absolutely nothing. There should be an admission (of the wrongdoing) and reasonable compensation,” he said.

The big question is why should a taxpayer be forced to pay for the sins of individual security officers.

OFFICERS TO PAY

In a precedent-setting ruling in 2013, Lady Justice Mumbi Ngugi ruled such officers should not go scot free and leave the burden of paying damages of torture victims to the government.

“While in appropriate cases of those whose rights have been violated will be entitled to compensation from the State, liability for any unlawful conduct on the part of police officers in the course of their duties but done in breach of the Constitution and their statutory mandate under the National Police Service Act must begin to be placed on the officers concerned,” the Judge said.

According to the Judge, making individual officers pay for their acts, will bring to an end misconduct by police officers.

She was making a judgment in a case in which a matatu tout had gone to court to seek compensation following torture by APs.

COMPENSATED

Journalist and former magazine publisher Pius Nyamora and his wife Lois were also compensated.

The Nyamoras published Society magazine between 1988 and 1994. It was a daring publication which took on Kanu by the horns.

For their pains, the Nyamoras suffered constant harassment at the hands of regime agents. When they decided their very lives were at stake, they took flight to the US.

After Kanu’s fall, they returned to sue the Kenya Government and were awarded Sh5 million for gross violation of their rights.

JUDGEMENTS

Many litigants chose to await Kanu’s electoral defeat and many died waiting — the scores of former Kenya Air Force servicemen thrown out of their jobs and into jail in the wake of the failed putsch of 1982 being the most glaring example.

But even with the court awards, there have been some eyebrow raising judgments like that of Justice Ngugi in the case of Koigi wa Wamwere which was upheld by the Court of Appeal.

For the expressly stated reason of avoiding an avalanche of lawsuits that could simply bury them, the judges chose to find that no torture has taken place in the country’s prisons.

In the little-noted finding made by Justice Ngugi and upheld by the Court of Appeal, she said: “I have set out in detail some of the averments of the petitioner with regard to what he considers to be acts of torture committed against him by state and state agents during his detention and incarceration in his two trials. …. I must, regretfully, find that there were no acts of torture as recognised in law committed against the petitioner during his detention in prison.

DEPLORABLE CONDITIONS

“What the petitioner was subjected to was the same deplorable conditions to which other prisoners in Kenya are subjected to. The poor diet, lack of adequate medical and sanitation facilities, lack of an adequate diet, have been hallmarks of prison conditions in Kenya. The discriminatory dietary regulations that the petitioner refers to, if they were indeed in force as the petitioner avers, are doubtless a carry-over from the discriminatory colonial regulations which independent Kenya inherited and has not seen fit to question and change.

“To find that the poor prison conditions amount to torture which entitles the petitioner to compensation would open the door for similar claims by all who have passed through Kenya’s prison system.”

As courts hand down one award after another, and with the new found zeal to crack down on Jubilee regime critics, hard-pressed taxpayers are now beginning to wonder when it will all end.

For Kenyans, the cost of State torture is beginning to assume the form of a debt that just cannot get finished no matter how much and for how long one pays.

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