Lawyer seeks powers for magistrates to award compensation

A lawyer has petitioned the High Court to quash sections of the law that bar magistrates from hearing and fully determining cases involving human rights violations.

Jonathan Obwogi argues that Section 8(2) of the Magistrates’ Courts Act is unconstitutional, saying it denies victims of rights violations access to justice at the lower courts.

Under the law, magistrates are only permitted to hear matters relating to freedom from torture, cruel, inhuman or degrading treatment or punishment, and freedom from slavery or servitude. However, they are barred from awarding compensation to victims whose rights have been violated.

Obwogi argues that the current legal framework creates an unjust situation where magistrates’ courts may declare that a person’s rights have been violated but are powerless to grant compensation.

“Persons who approach the High Court can be awarded damages for violations of their rights, while those who file similar cases before magistrates’ courts cannot. This is discriminatory,” he said.

According to Obwogi, there is no legitimate or rational justification for prohibiting magistrates from awarding compensation in human rights cases. “The petitioner avers that there is no articulated legitimate objective for the blanket prohibition on compensation awards by magistrates’ courts,” he stated in his court papers.

He further questions why the law allows a chief magistrate to hear civil claims worth up to Sh20 million, and a resident magistrate claims of up to Sh5 million, yet bars them from awarding damages to victims of human rights violations.

Obwogi described the situation as contradictory, noting that magistrates routinely handle complex constitutional questions in criminal proceedings but are restricted from determining remedies in rights-based petitions.

“Magistrates can declare that torture occurred but cannot award even Sh1 in compensation. This is irrational. There is no rational basis for allowing magistrates to determine whether torture occurred, yet prohibiting them from assessing damages,” he argued.

He said Parliament should instead have allowed magistrates to hear such cases and provided a mechanism for transferring matters to the High Court where compensation exceeds the Sh20 million jurisdictional limit.

According to Obwogi, relatively straightforward violations—such as unlawful detention beyond 24 hours, denial of access to a lawyer or unreasonable searches—should not necessarily be litigated in the High Court.