Since 1902

Action against Patel is victory in a hopeless situation of impunity

Top managers of Patel Farm Perry Mansukh and Vinoj Jayakumar before Naivasha law courts July 5th, 2018. [Courtesy]

Ten days ago, Nakuru County Commissioner, Joshua Nkanatha, convened a meeting in Solai, Nakuru, of the victims of the recent dam tragedy.

The victims had been told the meeting would be for the government to give them a cash token, towards helping them get back their lives which had so pugnaciously been disrupted by the bursting dam.

Somewhere into the meeting, however, representatives of the Patel Coffee Estates surfaced bearing money which, they explained, was a token from the owners of the ill-fated dam.

The villagers were told they would only be paid the money after signing documents presented to them for the first time at the meeting.

It has now transpired that the document each victim signed was a form of release from liability in favour of the Patel Estates.

In exchange for a payment, each victim was recorded to have agreed to discharge Kensalt Limited, the company that ostensibly owned the dam, of any liability for the loss they suffered as a result of the burst dam. The documentation referred to the tragedy as “an act of God”, and a “natural disaster.”

By signing the document, the victims also agreed that they had voluntarily participated in the curious “Solai Fact Finding Committee that was chaired by Mr Charles Kiragu” and that they were bound by its findings. The documentation stipulated that the payout was “a gesture of goodwill which is premised on [Patel’s] commitment of enhancing good neighbourhood, purely based on humanitarian grounds.”

Many questions arise from last week’s events, the first of which is the clear collusion between officials of the Government and the Patel Estates aimed at defeating interests of the victims.

The facts suggest the use of trickery to procure the meeting, whose purposes had been misrepresented, and then official intimidation to get victims to sign the documents in question. While the government is supposed to protect the public interest, including that of the poor, in the Solai case, officials were doing the bidding of the Patel family.

Secondly, the documentation that was signed anticipates an independent report on the Solai tragedy, whose results were to bind the victims. In the documents, the date of the report is to be filled by hand, after the victims have signed it.

The report is supposed to exonerate the owners of the dam from blame by characterising what happened there as a natural disaster. To begin with, creating legal documents to cover a future report is an act of fraud.

Further, it cannot be a natural disaster if, in order to build a dam, a landowner diverts a river into his property and blocks its outlet. It would be foreseeable that in case of heavy rains, as happened when the dam burst, the absence of an outlet would be a source of peril, as ended up being the case.

Thirdly, while, orally, the payout to the victims was explained as a token that signified regret, the documentation presents the payment as the consideration for a legally-binding discharge in favour of the Patels.

The victims did not participate in determining the amount they received. It is understood that for every death, Patel paid Sh150, 000, and that there were different amounts for other categories of loss, some as low as Sh10, 000. Again, the space to operate this way is evidence of how much privilege the Patels have been allowed.

In what seems a reversal of their fortunes, the Director of Public Prosecutions has since announced that there will be criminal charges against the Patels, and also the officials whose responsibility it was to ensure the dams in question were operated safely.

This announcement is only a small redemption in what has been a hopeless situation of impunity. However, his exertions would remain incomplete if the DPP did not also investigate the manner in which the payout last week was processed, which could otherwise block the path to compensation for the victims.

Last week, I addressed a session of the UN Working Group on Business and Human Rights, which is currently visiting Kenya, and has shown great interest in the Solai dam which they were also going to visit.

While others have characterised the practises by the Patels as a case of corporate impunity, I submitted to the Working Group that the Patels are practicing feudalism.

To explain, feudalism is a society structured around landholding in which a public authority, say a government, grants an individual landlord rights over a large tract of land, in exchange for services and the landlord then establishes a class of tenants, obliged to live on the land in exchange for homage, labour, and a share of the crop they produce.

Shorn of the cover hollow cover of a corporation, what the Patels have achieved in Solai is a form of feudalism. In this relationship, their workers and neighbours are part of their possessions, not different from the cows they own.

- The writer is Executive Director KHRC. [email protected]