AG’s lame defence makes it easy for torture victims

By WAHOME THUKU

Since last year the Government has been paying millions of shillings to victims of the infamous Nyayo House torture, perpetrated by security agents in late 1980s and 1990s.

The most recent was a Sh126 million award to 30 victims in petitions filed in 2008 and 2009.

Among them were former University of Nairobi student leader Wafula Buke, human rights activist Kang’ethe Mungai and former NGO Council chairman Oduor Ong’wen.

Mr Buke and Mr Mungai were awarded Sh6.5 million each as general and extemporary damages while Mr Ong’wen was awarded Sh4.5 million. High Court judge Daniel Musinga awarded the damages on September 29 and October 11 this year.

So far, the High Court has awarded damages to 62 torture victims and 45 other petitions are still pending.

The new millionaires were the most sought out dissidents of yesteryear associated with illegal movements like Mwakenya and the Kenya Patriotic Front.

They also stood accused of plotting to overthrow the Government.

Their cases have also been simplified by the fact that former Attorney General Amos Wako gave up trying to defend the Government.

He never filed papers in any of the cases but only made a one-line submission that the petitioners had no clear allegations or proof and their cases were time barred. No court has bought these argument.

Rare gesture

On the other hand, the Government has been keen to prove to the world that it honours court judgements. In a rare gesture, the victims’ lawyer, Gitau Mwara, himself a former political detainee, commended the State for making the payments.

The victims underwent varying degrees of torture at Nyayo House and in prisons but the script of their ordeals was generally identical.

Special Branch officers would arrest the suspects in their homes or work places, search their houses or offices for incriminating material, blindfold them and take them away.

They would be held in police stations and finally land in Nyayo House. There they would be paraded before a panel of officers and interrogated for hours. They would then be stripped naked and beaten senseless in a bid to extract information from them.

They would then be locked up in pitch-dark and waterlogged cells at the basement where they would go for days without food or drinking water.

Some would break down and confess to things they knew nothing about just to end the suffering.

They would then be rushed to court after business hours and charged. Some would plead guilty and sentenced to years in jail.

Others would deny the charges and were remanded for years or months only for the cases to be terminated by the AG. The lucky ones would be released from Nyayo House with clear instructions never to reveal what they went through.

Cyrus Gitari Muraguri opened the floodgates when in 2003 he filed the first petition. Mr Gitari had been held at Nyayo House for 50 days, and then charged with being a member of Mwakenya.

The AG later terminated the case.

In his petition he sought a declaration that his constitutional rights had been grossly violated by the police and that he was entitled to general and extemporary damages, costs of the case and interest. The court agreed and awarded him Sh6.5 million.

Lawyer Rumba Kinuthia followed with a petition in 2004. He had been held and tortured at Nyayo House for 14 days, charged in court, remanded and the case finally terminated. He was awarded Sh1.5 million.

On July 21 last year, the High Court awarded other victims led by Harun Thungu Wakaba between Sh1million and Sh3 million each.

Latest petitions

The 21 victims filed the latest petitions in 2008. Through lawyer Mwara, they asked for damages ranging between Sh6 million and Sh10 million.

The victims were Ong’wen, Mr James Aggrey Akumu, former prison warder Wilson Ang’ong’a, Mr Alogo Raila, Mr Benjamin Andahi, Mr Gabriel Mung’ura, Mr Edward Koigi, Mr Geoffrey Kuria, Mr Milton Chege and Mr Gibson Maina.

Others were journalist Njuguna Mutonya, Mr Wanderi Muthigani, Mr Peter Njuguna, Mr George John Njenga, Mr James Kahiri, Mr Bernard Kinga, Mr Francis Chege, Mr George Kwanyah, Mr Andrew Muindi, Mr Buke and Mr Phillip Wanjau.

Another nine victims filed petitions in 2009 asking for the same orders. These were Mr Cornelius Akelo, Mr Joseph Mwaura and his wife Mary Mwaura, Ms Christine Kituu, Mr Keffa Ng’ang’a, Mr Waruiru Muhia, Mr Kareithi Rungurua, Mr Mungai and Mr Joshua Njoroge.

On March 30, 2011, another 21 petitions were consolidated into one case. The other nine were also consolidated into another case on March 28, 2011 as their allegations and demands were relatively similar.

Buke was a university student when he was arrested on November 14, 1987. He was interrogated at Nyayo House for 15 days. He pleaded guilty to a charge of espionage and was sentenced to five years in jail.

Ong’wen was arrested on April 14, 1986 at Kipsigis Girls High School where he was a teacher. He was held and tortured at Nyayo House for 14 days. He pleaded guilty to sedition and was jailed for four years.

Held and tortured

Kang’ethe Mungai was arrested on June 13, 1986 at his Gilgil home. He was held and tortured at Nyayo House for 15 days. He was then charged in Nakuru with sabotage and belonging to an illegal movement. He pleaded guilty and was sentenced to twelve and a half years imprisonment.

The AG did not file papers in any of the cases but the State Counsel orally asked that they be dismissed.

Justice Musinga upheld Section 74(1) of the repealed constitution under which they had filed the petitions, which guaranteed freedom from torture on inhuman treatment.

He also based his judgements on Article 1 of the United Nations Convention against torture and other cruel, inhuman and degrading treatment or punishment as adopted by the UN General Assembly in 1984.

After analysing the evidence, he concluded that the victims’ rights had been violated and they deserved compensation. On September 29, he awarded the nine petitioners between Sh1.5 million and Sh6.5 million each. On October 11, 2011, he awarded the next group between Sh2.5 million and Sh6.5 million each. The judge also ordered that State to pay them the cost of the petitions and interest.

The writer is a court reporter with the Standard Group

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