Nov 03

Thirteen men in Kenya awarded compensation for police torture more than 20 years ago

Thirteen men have been awarded total compensation of US$5,384,895 as a result of being tortured by police in Kenya between 1982 and 1995. The compensation was awarded in three separate lawsuits.

High Court Justice John Mativo (The Nation)

High Court Justice John Mativo (The Nation)

High Court Justice John Mativo ordered compensation in two lawsuits involving twelve men tortured by the police in Kenya between 1982 and 1995.

Five of the men were plaintiffs in a lawsuit decided in September 2017: they were each awarded US$48,450 — a total of US$242,250 (KSh25 million).[1] Those men are: Eliud Wefwafwa; Patrick Musungu; Samuel Wangila; Patson Kipchiris; and, Joshua Mark Okello. They were arrested and tortured between 1982 and 1995.

The other seven men were the plaintiffs in a lawsuit decided in October 2017: they were each awarded US$38,540 — a total of US$269,780 (KSh28 million).[2] Those men are: Boniface Wanjohi; Kuria Chege Wamere; Isaac Kinya; Stanley Ngigi; Cornelius Mulumia; Joab Otieno Ndonji; and, Pascal Wandera. They were arrested and tortured between 1986 and 1990. It isn’t known why they were awarded about US$10,000 less than the five men compensated in September.

Only one of those 12 men was prosecuted. Kinya was released after he was arrested and jailed for a month during which he was tortured to extract information about his alleged interference with the railway line in Nakuru. (Nakuru is about 100 miles northwest of Kenya’s capital Nairobi.) He was charged later with the interference, and after his conviction he was sentenced to 14 years in prison. After serving a year of his sentence Kinya’s conviction was quashed on appeal and he was released from prison.

Lawyer Gitau Mwara represented all 12 men. Their lawsuits accused State agents of torturing and subjecting them to inhuman and degrading physical and psychological treatment after their arrests and confinement in what is now known as the Nyayo House Torture Chamber in the Nairobi. After their arrest for a variety of offenses, each suffered similar mistreatment.

Lawyer Gitau Mwara

Lawyer Gitau Mwara

Mwara himself had been the victim of police torture at Nyayo House when he was jailed from 1990 to 1992. He was awarded compensation of $66,191 (KSh6.5 million) in 2011, but Kenya’s government resisted paying the judgment for more than four years, which it finally did in May 2015.[3]

The State’s defense against the lawsuits was they were time barred by alleging harm from acts committed 20 years and more ago.

Mwara argued the men weren’t able to file their lawsuits until Kenya’s revised Constitution went into effect in 2010. The new Constitution included an advanced Bill of Rights, and a provision that, “Any member of the Public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights – Art. 23(1)(2).”

Justice Mativo ruled that the political conditions in Kenya and the adoption of the new Constitution justified an exception to the late filing of the lawsuits: “It is important to repeat that owing to the political climate of the day, it was impossible for victims of human rights abuses to seek court redress and this door was opened by the promulgation of the 2010 Constitution” Mativo also stated: “I am persuaded that the petitioners proved to the required standards that they were physically tortured and subjected to unwarranted cruel, inhuman and degrading treatment. Their rights were violated by the police. They suffered both psychological and physical harm.”

The thirteenth man recently awarded compensation was Kenneth Matiba. On August 16, 2017 the High Court in Nairobi awarded Matiba a total of US$4,874,955 (KSh504.811 million) as a result of being tortured and mistreated while jailed. [4]

Kenneth Matiba in 2015 (The Star - Nairobi)

Kenneth Matiba in 2015 (The Star – Nairobi)

Matiba’s incarceration was a result of his political activism. He was elected to the Kenyan Parliament in 1983. He left to serve as Kenya’s Minister of Transport and Communications under President Daniel arap Moi. However, he resigned in December 1988. Matiba was an advocate of multi-party democracy for Kenya, which Moi opposed.

In 1990 Matiba was arrested at President Moi’s behest and held without trial at the Kamiti Maximum Security Prison in Nairobi. Also arrested was Charles Rubia, a member of the Kenyan Cabinet who also advocated for multi-party democracy.

While imprisoned prison Matiba was refused medication and suffered a severe stroke. Half his body was affected and he was incapacitated for some time.

Matiba was released after a multiparty system was instituted in Kenya.

At the time of his arrest Matiba had been well-to-do with a number of profitable business interests. While in custody, and after his release while suffering from the consequences of his stroke, his businesses suffered significant losses.

After adoption of the 2010 Constitution Matiba sued the Kenyan government alleging that his “arrest and detention was unlawful and that he was subjected to inhuman and degrading treatment leading to a complete breakdown in his health and untold losses to his very large business portfolio.”

On August 16, 2017 the High Court in Nairobi ruled the State was to blame for Matiba’s ill health and the loss of his business enterprises. The Court ruled that Matiba’s “right to be free from torture, cruel and inhuman treatment … were violated by agents of the State.” The Court ordered total compensation of US$4,874,955 that was comprised of three separate awards:

* US$144,855 (KSh15 million) for pain suffered at the hands of law enforcement officers
* US$175,242 (KSh18,146,631.52) for hospital bills caused by his mistreatment by law enforcement officers
* US$4,554,858 (KSh471,664,258.50) as compensation for financial losses he incurred through collapse of his businesses and financial ventures as a result of his mistreatment at the hands of the State.

Click here to read the High Court’s ruling in Kenneth Stanley Njindo Matiba v Attorney General [2017] eKLR.

Endnote:
[1] KSh25 million equaled US$242,250 at the exchange rate of KSh 103.1999 per US$1 on September 25, 2017. Divided five ways of KSh5 million each it equaled US$48,450 each. See, http://www.xe.com/currencytables/?from=USD&date=2017-09-25
[2] KSh28 million equaled US$269,780 at the exchange rate of KSh 103.789 per US$1 on October 31, 2017. Divided seven ways of KSh5 million each it equaled US$38,540 each. See,
http://www.xe.com/currencytables/?from=USD&date=2017-10-31
[3] KSh504,810,890.02 equaled US$4,874,955 at the exchange rate of KSh 103.5519 per US$1 on August 16, 2017.
http://www.xe.com/currencytables/?from=USD&date=2017-08-16
[4] Exchange rate on 5-26-2015 = Kenyan Shilling (KSh) 98.19999 to US$1 or 1KSh to $US 0.01018. See, http://www.xe.com/currencytables/?from=USD&date=2015-05-26 .

November 3, 2017
By Hans Sherrer
Justice Denied

Permanent link to this article: http://justicedenied.org/wordpress/archives/4007