Three decades later, former Kenyan air force member may sue for torture – appeal court

21 February 2020 · Carmel Rickard

In a major new decision, Kenya’s court of appeal has ruled that a claim alleging torture under a previous regime may be heard – even though it is more than 30 years since the events involved. The case concerns Michael Kibuti, a previous member of the armed forces, who was tortured and then discharged after a court martial following a failed coup in 1982. It was originally heard in the employment and labour relations court as Kibuti wants the court to recognise that various of his constitutional rights were violated by the torture meted out to him, and he also claims the terminal benefits due to him when he was discharged. However, that court dismissed the petition saying his claim was disqualified. Kibuti then turned to the appeal court for help and the judges of that court have held the matter must be properly heard by a trial court.

Judgment, Court of Appeal

Judgment, Employment and Labour Relations Court

The allegations made by Michael Kibuti do not make for easy reading.

When he brought his case to the Employment and Labour Relations Court (ELRC) in 2014, he gave details of the way he had been tortured and his rights violated following a failed coup in 1982.

He said that he had intially enlisted in the armed forces and was attached to the air force. Then he was arrested and interrogated after which he was transferred to a maximum security prison was he was ‘left submerged in water for seven days’.

'Harrowing'

This was ‘most harrowing, inhuman and degrading treatment.’ His right not to be treated in an inhuman and degrading manner was infringed and he was treated ‘like an animal’.

He was denied all contact with other people, and was given neither food nor water. He was kept in a dark room and did not know whether it was day or night. He had no access to sanitation. Further, he was refused legal representation, he was not informed why he had been arrested and he was not told of his right to remain silent.

He was not given a fair hearing and when he was brought before a court martial, due process was not followed.

Mutiny

Lieutenant Colonel Joseph Karbauli, representing the armed forces, officially opposed Kibuti’s petition, saying he had not been wrongly treated or tortured and that his fundamental rights had not been violated. Karbauli said Kibuti had been legally arrested and court martialed for mutiny. He was sentenced to one year, later reviewed and reduced to six months.

The attorney general, acting for the government, said Kibuti was not entitled to any terminal benefits given that he had been convicted of participation in a mutiny. Further, the constitution in force at the time provided that nothing done to a member of the armed forces under the disciplinary law of the armed forces could be regarded as unconstitutional. In other words, human rights and fundamental freedoms did not apply.

Abuse

The court was also told that the petition had been filed 32 years after the alleged events. This was ‘an inordinately long period’ and amounted to an abuse of court.

Impressed with these arguments, Judge Mathews Nduma of the ELRC refused Kibuti’s petition.

He said that Kibuti had referred to allegations about events under the former constitution. The judge added that his hands were tied ‘in that (Kibuti’s) allegations cannot be founded on the new constitution but … should have relied’ on Kenya’s 1969 constitution, since repealed.

Priority

Kibuti took that finding to the court of appeal where three judges have now found that the ELRC should have heard his case. And, because of ‘the passage of time’ in the matter, the appeal judges ordered that the case be given priority hearing dates.

The judges said they were being particularly careful in the wording of their decision, so as not to prejudice the trial of the matter once it returned to the ELRC.

In response to the technical legal issues raised against Kibuti in the previous court, the judges said that the rights, said by Kibuti to have been infringed after his arrest, ‘exist in both constitutions’.

'Casually'

The question the judge in the ELRC should have asked is ‘whether those rights alleged to have been violated when the cause of action arose are covered by the new constitution.’

The judge in the lower court should also have checked whether the rights Kibuti complained had been infringed, ‘existed as rights’ in the 1969 constitution, ‘before dismissing the petition as casually as he did’.

Promoted

Giving a number of other legal grounds for why the ELRC should have considered the matter brought by Kibuti, the appeal judges added that the present constitution required the courts to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom. It also required that the spirit, purport and objects of the bill of rights were promoted.

‘We do not wish to say more as we think the order that commends itself … is one remitting the matter for re-trial.’

'Form and not substance'

The case had been dismissed as incompetent ‘on the basis of form and not substance,’ said the judges. They thus upheld the appeal, set aside the ELRC judgment and reinstated the petition for hearing before a judge other than Judge Nduma.

Kibuti is not the first former member of the armed forces to claim violation of rights in the wake of the 1982 failed coup. A similar case involving five petitioners, heard by the constitutional and human rights division of the high court and decided in November 2017, found in favour of the petitioners who claimed their rights had been violated and awarded them damages.

Carmel Rickard

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