Introduction by Katiba Institute
The Star reported about a decision by Justice Chacha Mwita on an Air Force corporal’s case, who got damages for cruel treatment under President Daniel Moi earlier this month.
But we were delighted to find on-line this simple but engaging account of this case, showing how people outside Kenya are paying attention to the ways in which our Constitution has empowered people. It is the latest in a series of legal actions brought for dreadful treatment under the Daniel Moi regime, whether in Nyayo House (like Koigi wa Wamwere who was awarded Sh2, 500,000 in 2015) or in prison after the attempted coup of 1982.
A legal issue that may be unfamiliar to readers is the idea that after a time it may become impossible to pursue a case. Because memories fade, and in order to encourage people to seek justice quickly, the law often gives time limits, even as short as one or three years, after the harm took place, for the injured person to go to court. You may realise from cases such as that of an Australian bishop, recently convicted of covering up clerical abuse of young people, which often in criminal cases there is no time limit. But the case of the Air Force corporal was not a criminal case: It was to get compensation not to punish anyone guilty of the mistreatment. Kenyan courts have realised how people were afraid to try to seek justice through the courts, so long as the head of state under, whom they were abused was still in power. That they are now prepared to do so is a tribute to the constitution and our revitalized judiciary.
Carmel Rickard has written about the law, human rights, justice, judgments and judicial matters for many years. A former legal editor of The Sunday Times, South Africa's biggest newspaper, she is now a columnist on legal issues. She has an LLM cum laude, was a Harvard Nieman Fellow and currently is working on a PhD in legal writing.
This piece was originally published in the “A Matter of Justice” column produced by Carmel Rickard for Legalbrief. We are grateful to the author for permission to reproduce this, and also to the South African law publishers, Juta.
A long, long time ago, in 1976 to be exact, John Muruge Mbogo joined the Kenya Armed Forces and was detailed to serve with the Air Force. In the next six years, before his life changed forever, he rose to the position of corporal. Then, in 1982, he was detained and handed over to the army on suspicion he was part of an aborted coup.
That was the start of a detention that lasted well over four years. He says he was never tried and during his detention, he was tortured to extract a confession, stripped naked, kept in solitary confinement and otherwise treated in a way that infringed his fundamental rights. Finally, he was released in December 1986 and immediately sacked from the army.
Now, decades later, he has filed a petition asking for a court declaration that the entire period of his four year and five-month detention was unlawful and unconstitutional and breached his right to dignity.
CAN YOU CLAIM SO LONG AFTER THE EVENT?
Most readers of the man’s petition will immediately wonder about the obvious obstacles to his success: Would the court agree to hear a matter involving events from so long ago, and how could he prove, so many years later, that he was tortured and treated in the way he claimed?
Not surprisingly, the defence force response was to deny all Mbogo’s allegations and to say the court should not even consider the case because of the delay. To that particular criticism – that he had taken so long to bring a case – Mbogo had this answer: “He had taken so long to file the petition because the political environment was hostile; he was traumatised; he had no money and was terrified by the regime. He also stated that he did not believe that if he filed the case he would get justice.” But with a new Constitution in 2010, followed by judicial reforms, he gained enough confidence to file a petition.
Despite all denial of wrong-doing, the defence force conceded that Mbogo had indeed been arrested and held in custody. But that arrest was lawful, they claimed. He was never ill-treated but he was held as part of the army’s obligations to keep the country safe. Contrary to Kenya’s recently repealed Constitution, however, Mbogo’s detention was not ‘periodically reviewed’, and other safeguards were ignored.
There were also letters written to and from his family during his incarceration, and other letters signed by the official in charge of ‘restricted and detained persons’, all of which showed that indeed, Mbogo had been held, without trial and without access, during the period he claimed.
The fact that none of the safeguards that should have been in place to ensure people such as Mbogo were assured of their rights, were in fact observed, meant he was held ‘in violation of his human rights and fundamental freedoms’, the judge found.
What about his claim of torture? There was no evidence that he could produce to prove the claim, but the judge found a way around the problem by distinguishing between ‘torture’ – often difficult to prove years later – and ‘other treatment’ which was outlawed by the constitution. In the view of the judge the ‘other treatment’ that was prohibited would cover Mbogo’s claim. ‘It should be given a broad and flexible interpretation to include any treatment unusual to human beings, intended to humiliate for sadistic pleasure. His claim that he was stripped naked in public, forced to walk on his knees across concrete floors and held in waterlogged cells, would all fit under that heading, as would the fact that he was held so long without trial.
One of the hallmarks of Justice Mwita’s decision is its reference to significant judgments from other jurisdictions on torture, infringement of rights and bringing delayed court action in matters like this. They included a decision by South Africa’s Constitutional Court in which the judges noted how difficult it was to prove ‘acts of brutality and torture’ that took place long before in an era when much that happened was ‘shrouded in secrecy’.
‘Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling,’ and it was difficult to produce ‘corroborative evidence that could survive the rigours of the law’.
THE JUDGE’S RESPONSE
Mwita accepted the reasons given by Mbogo for the delay in bringing his petition and held that there was in any case ‘no limitation period within which to file claims challenging violation of human rights and fundamental freedoms’.
It is true that very few people dared file claims against the then government for violation of their fundamental rights. A few tried after President Moi left office but there was still hesitation because not much had changed, said the judge.
This began to change with the 2010 Constitution, and Mbogo had brought his case three years later. “It is not in doubt that there is no law in this country limiting the period within which one should file a constitutional petition for violation of constitutional and human rights,” the judge concluded.
To ignore the violations suffered by Mbogo would be “to run away from the fact” that the courts had a duty to protect the human rights enshrined in the bill of rights.
He was aware of the prejudice that could be suffered by the other side in such a case, but since there was no limitation clause in the constitution, or even clear pronouncements on the subject by the highest court, it would be ‘difficult’ for him (the judge) to hold that Mbogo had lost his right to ask for help.
Considering the level of damages awarded by other courts in comparable matters, he ordered Mbogo be paid Sh7 million plus costs and interest.