IN one of the most unusual decisions yet to come out of Kenya’s constitutional court division, Judge Chacha Mwita has upheld a claim by a former member of that country’s defence force, that he was unlawfully detained for over four years until 1986. The court found it could consider the case, even though the events took place so long ago, and has awarded damages of almost R900 000, plus costs and interest.
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A LONG, long time ago, in 1976 to be exact, John Muruge Mbogo joined the Kenya armed forces and was detailed to serve with the air force. In the next six years, before his life changed forever, he rose to the position of corporal. Then, in 1982, he was detained and handed over to the army on suspicion that he was part of an aborted coup.
That was the start of a detention that lasted well over four years. He says he was never tried and during his detention he was tortured to extract a confession, stripped naked, kept in solitary confinement and otherwise treated in a way that infringed his fundamental rights. Finally, he was released in December 1986 and immediately sacked from the army.
Now, many decades later, he has filed a petition asking for a court declaration that the entire period of his four year and five-month detention was unlawful and unconstitutional and breached his right to dignity.
Most readers of the man’s petition will immediately wonder about the obvious obstacles to his success: would the court agree to hear a matter involving events from so long ago, and how could he prove, so many years later, that he was tortured and treated in the way he claimed?
Not surprisingly, the defence force response was to deny all Mbogo’s allegations and to say that the court should not even consider the case because of the delay. To that particular criticism – that he had taken so long to bring a case – Mbogo had this answer: “He had taken so long to file the petition because the political environment was hostile; he was traumatized; he had no money and was terrified by the regime. He also stated that he did not believe that if he filed the case he would get justice.” But with a new constitution in 2010, followed by judicial reforms, he gained enough confidence to file a petition.
Despite all denial of wrong-doing, the defence force conceded that Mbogo had indeed been arrested and held in custody. But that arrest was lawful, they claimed. He was never ill-treated but he was held as part of the army’s obligations to keep the country safe. Contrary to Kenya’s recently repealed constitution, however, Mbogo’s detention was not “periodically reviewed”, and other safeguards were ignored.
There were also letters written to and from his family during his incarceration, and other letters signed by the official in charge of “restricted and detained persons”, all of which showed that indeed, Mbogo had been held, without trial and without access, during the period he claimed.
The fact that none of the safeguards that should have been in place to ensure people like Mbogo were assured of their rights, were in fact observed, meant that he was held “in violation of his human rights and fundamental freedoms”, the judge found.
What about his claim of torture? There was no evidence that he could produce to prove the claim, but the judge found a way round the problem by distinguishing between “torture” – often difficult to prove years later – and “other treatment” which was outlawed by the constitution. In the view of the judge the “other treatment” that was prohibited would cover Mbogo’s claim. “It should be given a broad and flexible interpretation to include any treatment unusual to human beings, intended to humiliate for sadistic pleasure. His claim that he was stripped naked in public, forced to walk on his knees across concrete floors and held in waterlogged cells, would all fit under that heading, as would the fact that he was held so long without trial.
One of the hallmarks of Mwita’s decision is its reference to significant judgments from other jurisdictions, on torture, infringement of rights and bringing delayed court action in matters like this. They included a decision by SA’s constitutional court in which the judges noted how difficult it was to prove “acts of brutality and torture” that took place long before in an era when much that happened was “shrouded in secrecy”.
“Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling,” and it was difficult to produce “corroborative evidence that could survive the rigours of the law”.
Mwita accepted the reasons given by Mbogo for the delay in bringing his petition and held that there was in any case “no limitation period within which to file claims challenging violation of human rights and fundamental freedoms”.
“It is true that very few people dared file claims against the then government for violation of their fundamental rights. A few tried “after President Moi left office” but there was still hesitation because not much had changed, said the judge.
This began to change with the new 2010 constitution, and Mbogo had brought his case three years later. “It is not in doubt that there is no law in this country limiting the period within which one should file a constitutional petition for violation of constitutional and human rights,” the judge concluded. To ignore the violations suffered by Mbogo would be “to run away from the fact” that the courts had a duty to protect the human rights enshrined in the bill of rights.
He was aware of the prejudice that could be suffered by the other side in such a case, but since there was no limitation clause in the constitution, or even clear pronouncements on the subject by the highest court, it would be “difficult’ for him (the judge) to hold that Mbogo had lost his right to ask for help.
Considering the level of damages awarded by other courts in comparable matters, he ordered that Mbogo be paid 7m Kenya shillings plus costs and interest.
Read the full judgment in JOHN MURUGE MBOGO V CHIEF OF THE KENYA DEFENCE FORCES & ANOTHER  EKLR (PETITION 603 OF 2013); (04 MAY 2018); on Kenya Law