Regional court to hear Wako appeal

By Wahome Thuku

in Arusha

The hearing of a case filed against the Kenyan Government by 3,000 Mt Elgon torture victims at the East African Court of Justice (EACJ) has been stopped.

The court suspended all the proceedings in Arusha, Tanzania, to allow the hearing and determination of an appeal filed by Attorney General Amos Wako against an earlier ruling.

A five-judge Bench was ready to hear the case yesterday morning but they were confronted with the oral application by State Counsel Terry Gathagu.

The case filed in July last year by a Kenyan human rights body, the Independent Medical Legal Unit (IMLU), arose from military operations conducted in the Mt Elgon area between 2006 and 2008 when civilians were allegedly tortured and executed by State agents.

IMLU through lawyer Kethi Kilonzo claim it referred the matter to the EACJ on behalf of the victims after Kenya failed to take action against the individuals involved.

Initially, it named the respondents as the AG, the Internal Security minister, the Chief of General Staff, the Police Commissioner and the East African Community Secretary General. But the court directed that the AG be sued on behalf of all the others since they were State officers.

But the AG informed the judges that he had filed a notice to appeal against a ruling in which the court dismissed his application to have the case dismissed. The ruling was made on June 29, this year where the court held that it had the authority to hear the reference and that the case was within time.

Legal authority

The AG insists that the court has no legal authority to hear the matter and that the case should be dismissed for having been filed outside the two-month period allowed by the rules of the EACJ.

Ms Gathagu argued that if proceedings were not stopped, the intended appeal would be rendered useless. But Kilonzo strongly opposed the application saying it was an ambush by the State Law Office having been filed orally in court. "A stay at this point would prejudice the rights of the claimants," she submitted.

Judges Johnson Busingye, Mary Amoko, John Mkwawa, Jena Butasi and Benjamin Kubo unanimously agreed that the grounds for appeal should be disposed of before the main case is dealt with. They reasoned that a challenge on their legal power to hear the matter went to the root of the case.

The AG will have one month within which to file the main appeal. The court could then hear and dispose it in September and determine the fate of the entire case.