American-based Kenyan journalist Peter Makori has accused Attorney General Githu Muigai of frustrating his compensation for torture and illegal imprisonment. Makori was awarded Sh5,053,671 in 2006, which has accumulated to about Sh7 million in interest.
He claims his effort to get paid has been frustrated over the years, with the AG’s office demanding that he forfeit close to Sh5 million of accrued interest on the award, in order to get paid.
Efforts by the Star to get an explanation from the AG's office over the delay were unsuccessful.
“Ever since the AG’s office was served with the court order to pay, officials at the State Law Office have been demanding that I ‘negotiate’ the accrued interest. The officials wrote to me in the recent past, demanding I accept Sh7 million out of a possible Sh12 million,” Makori said.
“I rejected the offer because it amounts to extortion, and the AG has no powers under any law to subject me to such negotiation,” Makori told the Star from the US.
Makori's is among hundreds of pending settlements — mostly from former President Daniel Moi’s era and the infamous Nyayo Torture Chambers — that lie in the State Law Office, some of whose claimants have died. And even though he can barely walk more than a decade later due to the torture, he is not giving up his stake without a fight.
HOW HIS TROUBLES BEGAN
Makori was arrested about 15 years ago while reporting on the killing of two chiefs in present-day Kisii county. He was later charged with the killing of an assistant chief, who was found fatally shot in his house in Bokeire sublocation.
He claims Flying Squad officers tortured him while in their custody, to extract a confession for a murder he insists he knew nothing about.
After spending almost 11 months in custody, Makori was released from Kodiaga Prison in Kisumu after the AG terminated his prosecution for lack of evidence.
He filed his complaint with the Kenya National Commission on Human Rights. The KNCHR Act, 2003, mandated the commission to constitute a quasi-judicial tribunal to hear cases of human rights violations and award damages to the victims.
The commission did so to hear his complaint. The tribunal found that the government was liable for the journalist’s torture and illegal detention and awarded him Sh5,053,671.
After the tribunal made its declaration of wrongdoing, Makori extracted the ruling and filed it in the High Court in Nairobi, where it was adopted as a judgment of the court.
Retired Deputy Chief Justice Kalpana Rawal directed the government to pay the awarded sum together with the accrued interest.
In 2013, Makori served the High Court order and decree for Sh8 million on the AG. He was urged to negotiate the accrued interest but refused, saying it was illegal.
“The AG is expected to uphold, maintain and protect the rule of law,” he says. “He has no powers to vary, modify or in any way seek to twist a court order to suit his whims.
“He is obligated under the law to pay the decreed amounts without question,” Makori insists.
A series of correspondence between Makori’s advocates and the AG’s office reveals the State Law Office's tenacious efforts to circumvent the court order.
In July 2013, Senior State Counsel Charles Mutinda wrote to Makori’s advocates, requesting that they negotiate the accrued interest on the awarded sum, despite the court order specifically directing the government to pay the compensation together with the interest.
“The solicitor general had on 1st July 2013 advised that we pursue a negotiated settlement with the Claimant. As such, I wrote to the Advocate for the Claimant on 17th July 2013 (folio 40) and offered to have this matter settled, at Sh5,053,671 being the amount awarded by the KNCHR tribunal without the accrued interest,” Mutinda said.
The State Counsel further wrote, “On instructions of the Claimant, his advocates, vide letter dated 22nd July 2013, rejected this offer for settlement and stated that the award by the KNCHR was filed and adopted as a judgment of the High Court and that there is no appeal against the judgment.”
Mutinda suggested that if the award cannot be paid, then the AG should consider filing a second appeal in the High Court to challenge it.
Makori dismissed this proposal, stating that the AG’s office ought to know that its right of appeal was exhausted more than 10 years ago.
“The Act in the repealed constitution, which established the then KNCHR, gave specific timelines on when an aggrieved party of the quasi-judicial tribunal ruling was to appeal. Where things stand, the AG’s office has no room to wriggle itself out. They must pay the money with interest as directed by the court or face further court action.
“After losing their appeal in the High Court, the AG’s office is using extralegal means to have their way.
“Either they have no clue that court-ordered interest takes care of inflation unless the compensation is honoured within a reasonable time, or they are guided with impunity to continue holding the payment, hoping that I’d one day cave in to their illegal demands.”
OUT-OF-COURT DEAL
In another curious development that shows poor coordination and confusion at the AG’s office, State Counsel Mary Murugi wrote to Makori’s advocates on July 7, 2014, asking for an “out-of-court settlement” of the award.
“Our client is still amenable to pursue an out-of-court settlement on the above in a bid to settle these matters once and for all, it is willing to offer your client Sh7,000,000 in full and final settlement (sic).”
In a recent letter dated May 8, 2017, Murugi wrote to advocate Ken Ogetto, for Makori, stating, “Our client is still amenable to pursue an out-of-court settlement on the above matter. In a bid to reach an amicable settlement and on a without prejudice basis, kindly quantify your client’s claim for our client’s consideration.”
Makori firmly stated, “I have refused, and I’ll continue to refuse these illegal and extortion overtures from the AG’s office. Even if it takes another 20 years to have this matter settled, I am not ready to compromise on what I believe is right and just. This is because the court did not say that interest on the amounts shall be determined by the AG.”
“The office of the AG has no mandate under the law to vary a court order. They can only appeal whatever they feel is questionable, but unfortunately, as it stands now, all their appeal avenues are closed,” he saud.
The journalist accused the AG’s office of usurping powers of the High Court to try and vary a court order, stating, “I cannot be party to extralegal mechanisms being employed at the AG’s office to undermine a legitimate court order.”
OTHER VICTIMS BLACKMAILED?
Makori alleged that he was privy to a number of torture victims who have been compelled to forfeit millions of their compensation money at the AG’s office after being blackmailed by officials. “They threaten the victims that their money will be withheld unless the claimants agree to a ‘negotiation’.”
“I am prepared to forgo the whole amount, if that is what it means to stand up for what is right. Evil cannot be defeated in society unless good people sacrifice for justice.”
Makori told the Star that two years ago, he sought the intervention of the office of Chief Justice (Rtd) Willy Mutunga to have the AG honour the court order, but Muigai set the CJ on a wild goose chase until the issue fizzled out.
“I petitioned the National Committee on the Administration of Justice — NCAJ — based at the CJ’s office, but each time, the AG promised the CJ to have me see him, I was given a runaround at the State Law Office until I gave up,” Makori said.
The journalist said he is still under treatment for the injuries he suffered in the hands of police almost 15 years ago.
“I have spent millions of shillings for treatment overseas, and therefore, the Sh12 million I am entitled to will be just nothing compared to the lifelong injuries I suffered.”
LIFELONG INJURIES
Dr Alvin Smith, a foot surgeon at Samuel U Rodgers Hospital in Kansas City, Missouri, in the US, who treated the journalist, said, “Makori suffered debilitating injuries and he shall live on constant medication for the rest of his life.”
In a 2010 evaluation, Smith said: “Makori admitted to a severe physical assault that resulted in injuries to both lower extremities. The patient admitted to being beaten in both feet with a wooden object by the Kenyan police in 2003.”
The foot surgeon said the journalist “has experienced pain periodically on both feet since that period. Makori experiences pain with palpation of the fifth metatarsal heads of both feet. The pain radiates along the lateral aspect of both feet in an ascending manner.
“The patient has taken multiple courses of non-steroidal anti-inflammatory medications, but he continues to experience pain. Makori suffers from chronic inflammation of the soft tissue fractures, for example, muscles, tendons, and nerves, due to this type of trauma.
“Makori has been informed that he may well experience this pain due to these injuries for the rest of his life.”