Why 1998 bomb blast survivors will not be compensated

 

Aerial view of the US embassy, August 7, 1998. [File, Standard]

The High Court has dismissed a petition seeking to hold the Kenyan government liable for failing to prevent the 1998 US Embassy bombing that killed more than 200 people and injured thousands.

In a judgment delivered on Wednesday, Justice Lawrence Mugambi threw out the petition filed by Kituo Cha Sheria and five individual victims on behalf of about 32 survivors and families of deceased victims, finding that the State was not liable for the August 7, 1998, terrorist attack.

Justice Mugambi ruled that the petitioners failed to prove that the government had prior intelligence on the planning or execution of the bombing and that it failed to act on such intelligence.

“Without evidence to establish that the government failed to act on intelligence, the substratum of the petition cannot hold. Therefore, the petition lacks merit and is dismissed for lack of merit,” the judge ruled.

The petitioners had sought declarations that the State violated the rights of victims by failing to detect, prevent or stop the bombing.

They also asked the court to order compensation and to compel the Attorney General to pursue international claims against Sudan, Iran or Al-Qaeda assets.

However, the court faulted the petitioners for relying on unproven and hearsay material drawn from publications and reports.

“The authors of these reports and publications were neither caused to testify nor did they file affidavits indicating the contents of those reports on alleged prior intelligence information. The facts relied upon to arrive at the conclusions in those reports cannot be verified. Basically, it is hearsay evidence,” Justice Mugambi said.

He added that such material could not be relied upon to establish State responsibility for the deadly attack.

“The petitioners’ hearsay statements cannot be relied upon as evidence to prove that the Government of Kenya failed to act on the attack,” the judge ruled.

Victims of the August 7, 1998 terrorist bombing of the US Embassy in Nairobi arrive at the Milimani High Court ahead of a ruling by Justice Lawrence Mugambi on a compensation petition filed by Katiba Institute. [Nancy Gitonga, Standard]

Justice Mugambi further said he had analysed various judgments produced in court as evidence, including decisions by United States courts, noting that none faulted the Kenyan government for negligence.

“In my view, the U.S. statements in the reports cannot be relied upon as substantive evidence to prove disputed evidentiary facts that the Government of Kenya failed to act on prior intelligence,” he stated.

“In any event, I have gone through the three statements carefully, and I do not find anywhere where the American courts made findings that the Government of Kenya was negligent or complicit in the U.S. Embassy terrorist attacks by Al-Qaeda terrorists,” he added.

The judge noted that the American courts clearly placed responsibility for the attacks on the Republic of Sudan.

The petitioners had argued that failures at Kenya’s borders and intelligence agencies amounted to both domestic and international lapses, contending that the attack was foreseeable and preventable.

They claimed the government ignored warnings and failed to protect its citizens despite heightened terrorist threats in the region.

The government denied the allegations, maintaining that it had no specific intelligence pointing to the attack and that the information available at the time was general in nature.

In rejecting the claims, Justice Mugambi said there was no credible evidence demonstrating that Kenyan authorities were aware of a specific threat or that they ignored actionable intelligence before the attack.

“The court finds that the petitioners failed to prove that the respondents acted in a manner that violated the rights of the persons who died in the bomb attack. There is therefore no liability on the part of the respondents,” he ruled.

The victims, through their lawyers led by John Mwariri, expressed disappointment with the judgment and said they will appeal the decision in a bid to secure justice.