Thursday, Dec 18th 2014

YOU CAN SUE FOR BREACH OF YOUR CONSTITUTIONAL RIGHTS

Wednesday, April 13, 2011 - 00:00 -- BY JOHN CHIGITI

Recently in the news, there was a very disturbing case of sexual assault at a girls’ school in Kerugoya. A form one girl was sexually assaulted by her seniors. The reason for her assault was that she had refused to join them in their lesbian escapades. The form four students are reported to have assaulted the victim in various ways including inserting fingers into her private parts. The assailants were so heartless and merciless to the extent that they decided and actually inserted metallic objects into the innocent young girl’s private parts. She is currently admitted at the Kerugoya District hospital.

 This was not the end of the young girl’s agony. She was to endure and live with the pain for an unnecessarily longer period as a result of an administrative lapse. The victim reported the assault to the deputy head teacher who is supposed to be the girl’s guardian. The teacher dilly-dallied in taking any action.

 The teacher should have dashed the child to hospital immediately. In such situations, what usually follows under the Kenyan criminal justice system is the institution of criminal charges against the offending students. As we speak, the girls have already been arraigned in court. Crimes are usually pursued by the state; the victim coming in only as a witness.

 Under the Constitution of Kenya 2010, there is a provision for an individual to file a Constitutional Petition against another individual for breach of his or her right.

 Article 20 (1) states that the Bill of Rights applies to all law and binds all state organs and all persons. This therefore allows for horizontal application of the Bill of Rights whereby an individual can sue both a state organ for breach of his or her rights as well as specific persons responsible for the breach.

 In the Kerugoya case, the girl can sue the students who heinously perpetrated the act. They are responsible for the violation of the victim’s right to education under Article 43(1) (f). The victim is now lying in a hospital bed instead of being in school studying or playing like her peers. She can hardly even walk.

 The offenders are also responsible for violation of the victim’s right to higher attainable standard of health under Article 43(1) (a). By their heartless actions, the offenders may have compromised the ability of the victim to have children in the future.

 The offenders have also violated the victim’s right to freedom and security of the person under Article 29 (c) which includes the right not to be subjected to any form of violence from either public or private sources. The offenders have also violated the victim’s right to inherent dignity under Article 28.

 The deputy head teacher can also be sued for negligence in the manner she dealt with the victim’s complaint when she reported the matter to her.

 Under Article 23 of the Constitution, the Constitutional Court may grant various reliefs to a person who proves that his or her fundamental rights and freedoms were violated. One of the remedies provided in Article 23 (e) is compensation which suits such a situation.

 It is about time that Kenyans woke up to the fact that fundamental rights and freedoms can be violated by not only the state but also individuals. With the expanded Bill of Rights in the Constitution, we are living in very interesting times where one wrong step could land you in Court with a huge sum to pay as compensation. A keen reading of the Bill of Rights is strongly advised for all who care about their finances.