Challenging culture of impunity in Kenya

Three former university professors have brought a claim in Kenya’s high court asking for restitution for human rights infringements. They seem to be part of a trend to end the culture of impunity in Kenya. The three had been detained and tortured under a previous government, and now, more than 30 years later, wanted recognition of what had happened, plus compensation for how their lives had been ruined by the unlawful action against them. The professors’ court challenge was not the first in Kenya in which compensation was demanded for human rights abuses under the previous regime and the courts now seem more comfortable about agreeing to hear matters arising from decades ago. Going on previous experience, however, I wonder how long the professors will have to wait for the damages awarded by the courts, to be paid.

Read judgment

The solemn opening remarks by Judges John Mativo and Pauline Nyamweya signaled the gravity of the decision they were about to give and the horrors the case would disclose: torture, unlawful abduction, years in illicit detention, lives wrecked, bodies broken.

Law is the “bloodline of every nation”, the judges said. “The end of law is justice. It gives justice meaning.” It was a shield or refuge from misery, oppression and injustice.

They also quoted an earlier judgment of Judge Mativo in which he said there had developed a broad consensus that fundamental rights were owed and should be honoured “no matter what form of government a particular community chooses to adopt.”

As it turns out, this was a case concerning a previous government in Kenya – that under Daniel arap Moi, when the country’s “form of government” tended increasingly towards an autocratic, strongly-repressive, one-party state.

The three professors who brought the action were among the victims of that regime. They were arrested during a roundup of alleged plotters said to be intent on overthrowing the Moi government. And though they have survived to bring their combined case, they told horrifying tales of their detention, interrogation, torture and subsequent lengthy and unlawful imprisonment.

All of them are now over 70 years old, but their stories made clear that the events that began in June 1982 have reached into their old age. Their bodies have been permanently injured by torture and inhuman detention conditions; they and their families continue to suffer grave psychological stress; they lost their pensions and other financial support for their retirement years. Most of all, though, they feel it is past time for them to get the justice they have so far been denied, particularly since they all made earlier attempts to have the courts consider their plight, only to be turned down via reported decisions in 1984.

The judges were asked to declare that the professors’ human rights, under both the present and former constitutions, were violated, and that these violations were committed by servants of the government of Kenya. Further, that they were entitled to damages against the government for the “blatant, callous, oppressive and high handed violation” of their constitutional rights.

They faced an initial hurdle, however: when judgment was given in the case it was almost 40 years since the original cause of action. How would the judges handle that problem, raised by the government in opposing the application? In their decision the judges noted that by the time the matter was finally before them, the AG had not filed replying affidavits, nor grounds of objection to the petition. Nor were any witnesses called by the AG, although counsel for the AG participated in the trial, cross examined the professors and their witnesses, and also filed written argument.

Since the AG called no witnesses, this left the evidence of the petitioners essentially unchallenged, the judges found.

The country’s 2010 constitution was “fiercely progressive and transformative”. It “ushered in a new set of national values, a new bill of rights and a new system of government”, highlighting human dignity, equality, human rights and the rule of law as well as judicial independence. It was common ground that until the 2010 constitution was promulgated the political climate was “absolutely not conducive for any citizen to file a challenge of this nature against the government.” But while the AG said the five-year delay between promulgation of the 2010 constitution and the filing of the professors’ petition was “unreasonable”, there was neither argument nor evidence to substantiate how the delay might have prejudiced the state.

As for the professors, the judges accepted their explanation of why it took five years for them to get to court and added that it would be against the dictates of “transitional justice” to uphold the defence of limitation in this case.

The judges found their fundamental rights were indeed violated, under both the previous and the present constitutions, and the professors should be compensated for the physical and psychological harm done to them. “The majesty of law protects the dignity of a citizen in a society governed by law,” said the judges.

Public law aimed to “civilize public power” as well as assure citizens that they lived under a legal system that would protect their rights. Thus, compensation penalized the wrongdoer, putting liability on the state “which has failed in its public duty to protect the fundamental rights of the citizen”.

Damages should also reflect the fact that the professors suffered both outward physical harm and emotional damage by way of anguish, grief and humiliation for which no money could provide “true restitution”.

Two of the professors who were held in unlawful detention for 12 years after their initial torture and abuse were awarded Ksh. 20,000,000 each. The third, arrested in an apparent identity mix-up by the police and held for a much shorter period, was awarded Ksh. 6,000,000

This is not the first case brought under the new constitution related to atrocities committed by government agents under both the previous and the present governments, and the professors’ claim appears part of a trend in Kenya to challenge any culture of impunity.

Satisfying though the outcome may be, however, there is still a long road before the money is paid – a number of cases making their way through the courts in Kenya indicate that the government generally pays with huge reluctance and only after repeated litigation aimed at forcing the state to honour the orders of the court.