Supreme Court awards damages of Kshs 2,500,000.00 each to some mothers of political prisoners whose rights and freedom from inhuman treatment were violated by the Government in 1992
On February 28, 1992 a group of women, most of whom were related to persons incarcerated for politically instigated offences (mothers of political prisoners) together with their supporters congregated and camped at a section of Uhuru Park (freedom corner). The mothers and their supporters participated in a demonstration by going on a hunger strike to urge for the release of the then political prisoners. The appellants contended that they were amongst the demonstrators. They further alleged that on March 3, 1992 while going on with their peaceful demonstration, they were brutally attacked and assaulted by over 100 police officers and General Service Unit (GSU) officers.
The appellants claimed that they continued with their demonstration at All Saints Cathedral Church where they were holed in a bunker, until January 19, 1993 when the last lot of the political prisoners were released. The appellants contended that from time to time between March 4, 1992 and January 19, 1993 police officers continued to brutally assault them. The 1st appellant averred that in June 1986, one of her houses was razed to the ground by police officers in the company of the then area councillor. She further claimed that in October 1987, another of her houses was demolished and the parcel re-allocated to a senior Government official. She further claimed that in August 1988 her other house was similarly demolished.
The appellants opted not to seek judicial redress at the material time because they lacked confidence in the Judiciary under the previous constitutional dispensation. Consequently, after the promulgation of the Constitution of Kenya, 2010 (Constitution) they filed constitutional petitions in the High Court and contended that their fundamental right to freedom from torture and cruel, inhuman or degrading treatment or punishment as well as their right not to be, deprived of freedom arbitrarily or without just cause were violated. They also contended that their right not to be subjected to any form of violence from either public or private sources, tortured in any manner whether physical or psychological, and treated or punished in a cruel, inhuman or degrading manner were infringed by police and GSU officers.
The High Court found that the appellants had not given any reasonable explanation or justification for the delay in filing their petitions and that they had not established their allegations of torture; and more so, since there were no medical records or treatment notes to substantiate their claim of being tortured over a long period of time. The court also held that the 1st appellant had not proved ownership of the properties she claimed had been demolished. Aggrieved, the appellants filed appeals in the Court of Appeal. The Court of Appeal dismissed the appeals and held that the appellants had not adduced any tangible evidence to support the allegations of torture or violation of the 1st appellant’s right to property. Further aggrieved the appellants filed the instant consolidated appeals.
- Whether there was limitation of time in matters relating to violation of rights under the Constitution.
- What was the nature and rationale of transitional justice?
- Whether the Constitution of Kenya, 2010 was applicable to claims of violation of rights and freedoms before it came into force.
- What was the nature of inhuman or degrading punishment or treatment and whether it had to be inflicted for a specific purpose for it to be established.
- Whether it was mandatory to exhibit any physical injuries or medical reports so as to establish existence of psychological/traumatic effect in a claim of violation of fundamental rights and freedoms.
- Who bore the burden and what was the standard of proof in a claim of alleged threat or violation of rights and freedoms?
- What were the factors to consider when determining the appellate jurisdiction of the Supreme Court as of right in a matter involving the interpretation or application of the Constitution?
- Recognition, promotion and protection of human rights was an integral part of a democratic state. It was precisely for that reason that the Constitution not only proclaimed that human rights constituted a fundamental cog in Kenya’s system of national values and principles of governance, but also expressly decreed and entrenched the Bill of Rights.
- The mere invocation by a party that an appeal to that court was premised on article 163(4)(a) of the Constitution did not automatically clothe the court with jurisdiction to entertain the same. A litigant had to demonstrate how such an appeal involved interpretation and application of the Constitution; and that the issue(s) relating to the interpretation and application was subject of adjudication before the superior courts below.
- At the very least, where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, a litigant had to demonstrate that the Court of Appeal’s reasoning and the conclusion(s) which led to the determination of the issue in dispute took a trajectory of constitutional interpretation and application. The consolidated appeal involved matters of constitutional interpretation and application. In other words, the consolidated appeal revolved around the interpretation and application of the bill of rights.
- The two superior courts below did not impose the limitation alluded to by the appellants. In point of fact, the two superior courts affirmed the position that the Limitation of Actions Act, cap 22 Laws of Kenya did not apply to causes founded on violation of rights and freedoms. There was no limitation of time in matters relating to violation of rights under the Constitution which were evaluated and decided on a case by case basis.
- A court was entitled to consider whether there had been inordinate delay in lodging a claim of violation of rights. It was on that basis that the two superior courts below held that claims of violation of human rights had to be filed in court within reasonable time. Where there was delay, a petitioner ought to explain the reasons for the delay to the satisfaction of the court.
- The idea of transitional justice connoted the broad range of mechanisms, means or mode through which a society confronted the wrongdoings from its past. Its objective being to obtain truth and justice regarding the past so as to ensure promotion and protection of the rule of law and durable peace going into the future.
- The need to confront and silence the ghosts of past wrongs or historical injustices was relevant in the Kenyan context. That was in light of Kenya’s history which was littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post-independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period.
- The golden thread that connected the appellants’ claims of violation of their rights was that they were alleged to have taken place during a period which had been recognized as repressive. In that, during the period in question the State grossly abused the rights and freedoms of the critics of the Government of the day. By their nature, those claims were founded on alleged past wrongs that called upon the law and courts to provide a transformative response. The appellants’ claims qualified as falling within the category of transitional justice claims.
- Transitional justice claims were context sensitive. Courts ought to be particularly sensitive to the reasons adduced for the delay. At the same time, courts should balance the reasons for delay with the likely prejudice a respondent could face in defending the claim in line with the right to fair trial. Such an approach emerged from the comparative lesson as could be gleaned from jurisprudence from Kenya’s superior courts and other jurisdictions.
- Transitional moments could be long-drawn and there were no clear-cut dates when a transition could be said to have run its full course. Especially, taking into account the tendency for re-irruptions in the form of renewed quests for justice. Late or recurring pursuit for justice were a distinctive motif of the quest for justice in transitional contexts. In other words, renewed or late quest for accountability and justice after the initial burst of efforts for justice was a phenomenon that was inherent in transitions. The persistence of the appellants and other litigants to get justice after other claimants had lodged similar claims was not something that was unique to the appellants as it was a universal phenomenon that was evident in the quest for transitional justice and accountability.
- The appellants claims that they did not have faith in the pre-2010 Judiciary, ought to be interrogated from the overarching context of the transition from the repressive to the post-2010 era. Courts during the repressive era were generally notorious for their abject failure to provide protection to victims of human rights violations. Though the process of judicial reforms and making the Kenyan State human rights friendly began in 2003, that process was not concluded until the constitutional reforms in 2010. That included the process of vetting of judges and magistrates which was a transitional justice mechanism to make the Judiciary fit as a custodian of the rule of law, democracy and human rights. Indeed, that partly explained why the clamour for judicial reforms was part of the larger constitutional reform package.
- The Constitution explicitly envisaged redress for historical injustices that occurred during the repressive era. In light of the dictate of article 27(1) of the Constitution on equal protection and equal benefit of the law, all victims of historical injustices had to be treated equally and afforded an equal opportunity for redress. That chimed with the demands for harmonious interpretation of the Constitution.
- Based on the context of Kenya’s democratic transition, the appellants’ explanation for the delay to the extent that it was attributed to lack of faith in the pre-2010 Judiciary was plausible. That was because the 2010 transition required the Kenyan State and society to undertake a great transformation, involving the creation of new institutions and anchoring them in a new set of values and principles, which were in total contrast to those that so far had prevailed.
- The appellants’ contention that they had no faith in the pre-2010 Judiciary to render justice regarding alleged violation of rights attributed to the State could not be faulted in light of the history. As for the additional explanation of impecuniosity, the court was unable to entertain the same since it was raised for the first time before the instant court and the superior courts below did not have an opportunity to address their minds on the same.
- There was a public interest element in allowing victims of alleged past gross human rights violations to access courts; that was, serving justice was the most effective insurance against future repression. A judicial trial served to send strong expression of formal disapproval of gross abuse of human rights. It also functioned to re-commit State institutions and persuade the general citizenry of the importance of human rights in a polity.
- Failure to ensure access to justice could send the wrong signal that judicial imprimatur had been given to the historical wrongs. Such a stance would encourage not deter potential violators of rights. It would also send the signal to the public that they could be complicit in violation of rights without consequences attaching to the perpetration of such atrocities. That was informed by the reality that failure of enforcement of freedoms and rights vitiated their authority, sapping their power to deter proscribed conduct.
- Whether a claim for violation of rights had been instituted within a reasonable time was to be determined based on the peculiar circumstances of each case. The delay in filing the appellants’ claims was understandable given the circumstances of the matter.
- Constitutions, like other legal instruments, were generally prospective in application unless there was a clear textual marker indicating that retrospective application of a provision was contemplated. Consequently, since the events in issue were alleged to have taken place before the Constitution of Kenya, 2010 came into force, it was the repealed Constitution which was applicable. Moreover, the rights and freedoms alleged to have been infringed were protected in both the repealed Constitution and the Constitution of Kenya, 2010 albeit with some minor variations in formulation.
- Section 75 of the repealed Constitution provided protection from deprivation of property except where stipulated conditions for compulsory acquisition were satisfied. That constitutional provision embodied the fundamental principle that a person’s property could not be expropriated or taken away arbitrarily.
- A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.
- Aside from bare allegations, the 1st appellant did not adduce even an iota of evidence to back her claims. Even in situations where a respondent did not file or tender evidence to counter the petitioner’s case, the petitioner bore the burden of establishing his/her allegations on a balance of probabilities. As to whether such standard was met would depend on whether a court based on the evidence was satisfied that it was more probable that the allegation(s) in issue occurred. The 1st appellant’s evidence or lack of it, for that matter, could not be the basis of a finding that it was more probable than not that her right not to be deprived of property was infringed.
- The incident at the freedom corner on March 3, 1992, drew widespread press coverage nationally and internationally as well as condemnation across the globe. It was a matter that the court could comfortably take judicial notice of as a matter of general notoriety. The provisions of sections 59 and 60 of the Evidence Act stipulated circumstances in which courts could take judicial notice of facts requiring no proof.
- The freedom corner incident took place. Nonetheless, the burden of proof lay with the appellants to prove on a balance of probabilities that they were not only at freedom corner but were also subjected to torture, inhuman and degrading treatment during the demonstrations. Weighing the evidence adduced before the High Court, the appellants’ proved their participation in the subject protest/assembly at freedom corner to the requisite standard.
- The court took the position that it should strive to interpret and develop constitutional concepts from an indigenous prism based on Kenya’s historical experience. However, sight should not be lost of the fact that the court was interpreting prohibitions recognized in international human rights law and other comparable constitutions. Therefore, the court could draw valuable insight from their interpretation in the body of international human rights law and comparative jurisprudence.
- The exact boundaries between torture and other forms of inhuman or degrading punishment or other treatment were often difficult to identify; and could depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms covered mental and physical ill-treatment that had been intentionally inflicted by or with the consent or acquiescence of State authorities.
- Inhuman or degrading punishment or treatment referred to ill-treatment which did not have to be inflicted for a specific purpose. However, an intention to expose individuals to conditions which amounted to or resulted in the ill- treatment had to exist. Exposing a person to conditions reasonably believed to constitute ill-treatment would entail responsibility for its infliction. Further, degrading treatment could involve less severe pain or suffering than torture; and would usually involve humiliation and debasement of the victim. The essential elements which constituted ill-treatment not amounting to torture would therefore be reduced to the intentional exposure to significant mental or physical pain or suffering.
- There was an evidential gap which was not surmounted by the appellants regarding whether they were arrested and subjected to torture. However, taking into account the violent nature of the disruption of the subject protest/assembly, it was more likely than not that the whole episode had a psychological traumatic effect on the appellants, who were at the locus in quo.
- Although the appellants did not exhibit any physical injuries or medical reports, the whole incident had a psychological/traumatic effect on them. That could be equated to inhuman treatment which was a violation of section 74(1) of the repealed Constitution. That was because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent, the appellants’ right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, that amounted to a violation of their human rights which were duly protected under section 74(1).
- Crafting of remedies in human rights adjudication went beyond the realm of compensating for loss as it was principally about vindicating rights. Though the appellants did not lead any evidence of the loss they could have suffered due to the violation of their right and freedom from inhuman treatment, it was important for the court to vindicate and affirm the importance of the violated rights.
- In awarding damages, courts exercised a very broad, open-ended remedial discretion taking into account what was just, fair and reasonable in the circumstances of the case. In the instant case, the damages the court awarded should not only serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of the case.
- The appellants’ counsel alluded to the fact that the High Court exhibited bias or prejudice against the appellants. That issue was neither raised at the Court of Appeal nor did it form the grounds of appeal to the instant court. It was raised for the first time in counsel’s oral submissions before the court. As such, the instant court was devoid of jurisdiction to entertain the same.
- A v Hoare ( 1 AC 844) — Explained
- Deynes Muriithi & 4 Others v Law Society of Kenya & Another (Civil Application 12 of 2015;  eKLR) — Mentioned
- Gacheru, Irene Wangari & 6 Others v Attorney General (Constitutional Petition 376 of 2014;  eKLR) — Mentioned
- Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (Petition 2B of 2014;  eKLR) — Mentioned
- Gichohi, Gerald Juma & 9 Others v Attorney General (Petition 587 of 2012; eKLR) — Explained
- Githiru, Njuguna v Attorney General (Civil Appeal 253 of 2017;  KECA 929 (KLR)) — Mentioned
- Gwer, Samson & 5 Others v Kenya Medical Research Institute & 3 Others (Petition 12 of 2019; eKLR) — Mentioned
- Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (Application 4 of 2012;  KESC 11 (KLR)) — Explained
- Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 Others; (Petition 4 of 2012; eKLR) — Followed
- Kinuthia, Kennedy & 3 Others v Attorney General (Petition 375 of 2014;  eKLR) — Mentioned
- Kinuthia, Milka Wanjiku & 2 Others v Attorney-General (Petition 281, 282 and 283 of 2011; (Consolidated)eKLR) — Mentioned
- Kioko, Wellington Nzioka v Attorney General (Civil Appeal 268 of 2016;  KECA 858 (KLR)) — Mentioned
- Koigi, Jane Nduta v Attorney General (Petition 115 of 2018;  KEHC 1757 (KLR)) — Mentioned
- Macharia, Samuel Kamau & another v Kenya Commercial Bank Limited & 2 Others (Application 2 of 2011;  eKLR) — Mentioned
- Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018;  KESC 34 (KLR)) — Explained
- Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei County Returning Officer Bomet County, Kennedy Ochayo, Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Sheikh (Application 16 of 2014;  KESC 12 (KLR)) — Explained
- Republic v Simon Wambugu Kimani & 20 others (Criminal Revision 1 of 2015;  KEHC 5499 (KLR)) — Explained
- Safepak Limited v Henry Wambega, Kea Sudi Jumaa, Dama Charo Mwango, Vincent Mwanyonyo Deche, Esther Tezi Wanje, Attorney General, Kathini Spring Water Limited, Cooperative Bank Housing Society, Cannon Assurance Company Limited, Hedge Farm Limited, Naaman Bin Ali Bin Muses & National Land Commission (Civil Appeal 8 of 2019;  KECA 510 (KLR)) — Mentioned
- Zipporah Seroney, Margaret Chepkosgei, Rose Jemutai, Florence Chepchirchir Seroney, David Kipkemboi Seroney & Christine Chekorir Seroney v Attorney General (Constitutional Petition 500 of 2013;  KEHC 7072 (KLR)) — Mentioned
- Vancouver (City) v Ward (2010 SCC 27) — Explained
- Laxmi Raj Shetty and Another v State of Tamil Nadu (1988 AIR 1274, 1988 SCR (3) 706) — Mentioned
- Attorney General of the Republic of Uganda & another v Omar Awadh & 6 Others (Appeal 2 of 2012;  RC 7 (KLR)) — Mentioned
- Barrios Altos v Peru (Ct. H.R. (ser. C) No. 75, 2(a) (Mar. 14, 2001) — Explained
- Ireland v United Kingdom (Application no. 5310/71); Ser A, No 25) — Explained
- Commonwealth Shipping Representative v P. & O. Branch Service ( UKHL J1214-1) — Explained
- Miller v Minister of Pensions ( 2 All ER 372) — Explained
- Mutua and Others v The Foreign and Commonwealth Office ( EWHC 2678 (QB)) — Explained
- Constitution of Kenya, 2010 — Article 23(3),25(a),27(1),29(a),29(c),29(d),29(f),39(3),40(1)(a),67(2)(e),159(2)(d)163(4)(a) — Interpreted
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. (Legal Notice No 117) — Rule 15,20 — Interpreted
- Evidence Act (cap 80) — Section 35,59,60,107,109 — Interpreted
- Land Laws (amendment) act, 2016 (Act No 28 of 2016) — In general — Cited
- Limitation of Actions Act (cap 22) — In general — Cited
- National Land Commission Act, 2012 (Act No 5 of 2012) — Section 15 — Interpreted
- Supreme Court Act, 2011 (Act No 7 of 2011) — Section 15(2) — Interpreted
- The Constitution of Kenya (Repealed) — Section 74,75 — Interpreted
- Branch, D (Ed) (2011), Between Hope and Despair, 1963-2011 (Yale University Press p 189)
- Collins, C., (Ed) (2011), Post-transitional Justice: Human Rights Trials in Chile and El Salvador (The Pennsylvania State University Press 1st edt. pp21-22)
- Kanogo.T.,(Ed) (2020), Wangari Maathai (Ohio University Press pp 1281-35)
- Murphy,C.,(Ed) (2017), The Conceptual Foundations of Transitional Justice (Cambridge University Press p1)
- The Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission., (2003), Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Nairobi: Government Printer p19)
- Webber, J.,(Ed) (2012), Forms of Transitional Justice (American Society for Political and Legal Philosophy; vol. 51 pp. 98–128.)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 — Article 1(1),16
Mr. Gitau Mwara for the appellants
Ms. Deborah Robi for the respondent