[2018] KEHC 7735 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO 130 OF 2016

IN THE MATTER OF ARTICLES 22, 23, 25 (A) AND ARTICLE 29 &

49 OF THE CONSTITUTION OF KENYA 2010 AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL

RIGHTS AND FREEDOMS UNDER ARTICLES 25 (A) AND

29 (A),29 (C), 29 (D) ,29 (F) & 49 (C) AND 49 (F)

OF THE CONSTITUTION OF KENYA 2010

G N B............................................................PETITIONER

VERSUS

THE ATTORNEY GENERAL.................RESPONDENT

CONSOLIDATED WITH

PETITION NO. 131 OF 2016

S N M...........................................................PETITIONER

VERSUS

THE ATTORNEY GENERAL................RESPONDENT

AND

PETITION NO. 120 (A) OF 2016

P K K.............................................................PETITIONER

VERSUS

THE ATTORNEY GENERAL..................RESPONDENT

JUDGMENT

1. This judgment disposes three consolidated petitions, namely numbers 130of 2016, 131of 2016, 120A of 2016. The common thread in the said petitions is alleged violation of each of the petitioners fundamental rights by the police and/or state agents particularly torture and inhuman/degrading treatment. As a consequence, the Petitioners seek declarations that their rights were violated. They also claim damages for violation of their constitutional rights.

2. The respondent is the honourable Attorney General of the Republic of Kenya and the Principal Government legal adviser.

3. G N B, the petitioner in petition number 130 of 2016 states that she was arrested in February 1995 and taken to Chepkube Police Station where she was repeatedly raped by Police men. She was taken to Kimilili Police Station and denied access to family members, friends or an advocate. She adds that while at the said Police Station, she was periodically taken to Kepskwony Divisional Police Headquarters where she would be tortured, and after a three months detention, she was forced to sign a confession that she was a member of an unlawful association, namely, February Eighteen Revolutionary Army (FERA) and that she had taken an oath to overthrow the government of the day.

4. She also states that at the time she was set free, she had an infection to her left ear which led to a total deafness of the left ear. She states that she suffers stiffness on both legs due to beatings on her knees and experiences severe periodic headaches and generalized body aches and pains. Annexed to her affidavit are two medical reports detailing her history and condition as at the date of the medical examination.

5. S N M is the petitioner in Petition No. 131of 2016. She avers that she was arrested by Police at her home on 15th January 1995 together with her seven months old baby, and was taken to Chepkube Police Station where she was accused of being a "Mwakenya" collaborator. Further, she adds, she was made to sit down on donkey droppings and was compelled to clean a donkey shed and had to lay the baby at the shed. She adds that on 16th January 1995, the police under pressure of good Samaritans released her. She complains that she was subjected to forced labour and that she suffered psychologically. Medical reports annexed to her affidavit conclude that she suffered from post traumatic disorder.

6. P K K,petitioner in No. 120 A of 2016 avers that he was arrested on 10th January 1995 at his home in Bokiabi by a police officer by the name Cpl Peter Komora. He was blindfolded and bundled in a police vehicle and driven to various police stations and finally Kakamega Police Station. He was transferred to Naivasha Maximum prison where he was detained and tortured daily. He claims that his testicles were tied, pulled using electric wire, and he was beaten fracturing his ribs lost consciousness. He claims he was accused of training as an officer of unlawful movement, namely, February eighteen movement.

7. He adds that he was eventually taken to Nyayo House, Nairobi where he was detained for many days in dark cells and was tortured and interrogated daily. Further, he states, he was held in isolation, without food or a sleeping mat and was denied drinking water for days and was forced to sign a confession that he was a member of an unlawful organization called February Eighteen Revolutionary Army (FERA) and that he had taken an oath to overthrow the then government, and for the entire period, he was denied access to family members or an advocate. He states he suffered physically, psychologically and economically. Medical reports annexed to his affidavit conclude that he suffers from depression and post traumatic stress disorder.

8. The hounourable Attorney General did not file any response to the Petition. In fact on 28th June 2017, I granted the Hon. Attorney General leave to file Responses (if they so wished) and directed parties to file submissions within 14days from the said date. On 27th September 2017, the matter was mentioned before me to confirm compliance, but the A.G had not filed any Response or submissions. I granted a further 14 days . Again on 22nd January 2018, no response or submissions had been filed. On 5th February 2018, after noting the A.G.'s failure to comply, I fixed the matter for judgement on 16th April 2018, but, also granted the AG liberty to file judgement within 14 days from the said date. As at the expiry of the 14 days on 19thFebruary 2017, (yesterday) no Responses or submissions had been filed, hence I proceeded to write the judgment.

Petitioners Advocates submissions

9. Citing violation of the Petitioners constitutional rights under the repealed constitution and comparable court decisions, counsel for the Petitioners urged the court to hold that the petitioners rights were violated and award each petitioner Ksh. 6,000,000/= as damages. Upon consideration of the facts and submissions, I find that three issues fall for determination, namely, (a)whether this suit is time barred, (b) Whether the Petitioners proved violation of their Rights, (c) Whether the Petitioners are entitled to damages.

Whether this suit is statute barred.

10. The alleged cause of action took place in 1995. Actions against the government ought to be filed within one year as provided under the Government Proceedings Act.[1]The three consolidated Petitions were all filed on 7th April 2016, a delay of over twenty years.

11. There are numerous decision of this court holding that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights.[2] However, a section of our judiciary has held that a court must always consider whether the delay in filing a petition alleging violation of constitutional rights is unreasonable and prejudicial to a respondent’s defense.[3] On the other hand our courts have consistently held that the state cannot shut its eyes on its past failings[4] nor can the court ignore the dictates of transitional justice discussed below.

12. It is undisputed that the jurisprudence on the issue of limitation is that courts will be reluctant to shut out a litigant on account of limitation of time unless there are obvious reasons to do so. In considering such delays, a principal consideration has been the court cannot avoid taking judicial notice of the immense difficulties which prevailed at the period of the alleged violations making it impossible for aggrieved persons to file cases of this nature against the government. It is also beyond challenge that it is the promulgation of the constitution of Kenya 2010 that opened the doors of justice thereby making it possible for aggrieved persons to institute cases of this nature.

13. As stated above, these Petitions were filed on 7th April 2016, over 20 years after the promulgation of the 2010 constitution, but about 7 after the promulgation of the 2010 Constitution. I appreciate that 7 years is a long period of time. Worse still, the delay has not been explained. However, considering the prevailing political situation prior to the promulgation of the 2010 constitution which made it impossible for victims to file cases of this nature in court and bearing in mind the dictates of transitional justice, and in particular the need to uphold and strengthen the rule of law, and to hold the perpetrators of violations of human rights accountable, and the need to provide victims with compensation, and the need to effectuate institutional reform, I find that it would be unfair to uphold the defense of limitation in the circumstances of the present case.

14. The end goals of transitional justice in general should be to prevent similar recurrence of human rights violations in future; to repair the damage caused through systematic patterns of human rights violations; to uphold the rule of law; to recognize the human dignity and worth of those who have been victimized and to create a stable and governable political environment."

15. As I have severally stated in numerous decisions, the primary objective of a transitional justice is to end the culture of impunity and establish the rule of law in a context of democratic governance. In general, therefore, one can identify the broad objectives that transitional justice aims to serve:- These are; establishing the truth, providing victims a public platform, holding perpetrators accountable, strengthening the rule of law, providing victims with compensation, effectuating institutional reform, promoting reconciliation. Transitional justice is not a special form of justice. It is, rather, justice adapted to the often unique conditions of societies undergoing transformation away from a time when human rights abuse may have been a normal state of affairs.[5]

Whether the Petitioners proved violation of their Rights

16. As stated above, the Honourable Attorney General opted not to file any Responses or submissions despite being granted time by the court to do so on numerous occasions. Thus, the only evidence on record is the evidence tendered by the petitioners. The Petitions are uncontested. Failure or refusal to file Responses in clear disregard of the court orders enumerated above means that the evidence adduced by the Petitioners against the Respondent is uncontroverted and therefore unchallenged.[6] In short, the petitioners evidence remained unchallenged.

17. In similar decisions determined by this court, I have severally stated that regarding the constitutional issues raised in these petitions, it must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions.[7]

18. All the Petitioners narrated the torture and inhuman treatment subjected to each one of them by the police. I have repeatedly held that every act of the state and its organs must pass through the test of constitutionality which is stated to be nothing but a formal test of rationality. The repealed constitution just like the 2010 constitution prohibited torture and acts of inhuman and degrading treatment.

19. The callous acts of police officers such as squeezing the testicles of a person in their custody or raping a female victim under arrest as happened in this or subjecting a mother to forced labour as happened one of the petitions cannot be justified in any way, not to mention the brutal beatings. The repealed constitution out rightly outlawed such inhumane and degrading treatment and it is regrettable that security agents had degenerated to such a level. Such acts should only be consigned in the dustbin of our history never to resurface again.

20. Chapter 5 of the Repealed constitution contained the Bill of Rights, that is Protection of fundamental rights and freedoms of the individual. The notion of inhuman treatment covers at least such treatment as deliberately causes suffering, mental or physical, which, in the particular situation is unjustifiable. The word torture is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be de-grading if it grossly humiliates him before others, or drives him to an act against his will or conscience.[8]

21. The term "harassment" in its connotative expanse includes torment and vexation. The term "torture" also engulfs the concept of torment. The word "torture" in its denotative concept includes mental and psychological harassment.[9]The actions visited upon the petitioners in my view amount to torture and a gross violation of the petitioners constitutional rights.

22. It is a correct statement of the law that when a citizen is arrested on allegations of committing an offence as was alleged in the present case, his/her Fundamental Rights are not abrogated in toto. Also, his or her dignity cannot be allowed to be comatose.

23. Inhuman treatment has many a facet. Other than inflicting physical pain, it would also include a treatment that is inflicted that causes humiliation and compels a person to act against his will or conscience. It is also correct to state that there is no shadow of doubt that any treatment meted out to a citizen which causes pain, humiliation and mental trauma corrodes the concept of human dignity.

24. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the State is governed by rule of law which must be paramount. When citizenry rights are sometimes dashed against and pushed back by the members of the police force, there has to be a rebound and the Constitution springs up to action as a protector.

25. The normative idea underlying this broad consensus is that fundamental rights are owed to persons as a matter of human dignity and should be honored no matter what form of government a particular community chooses to adopt. As David Feldman has written, "there are certain kinds of treatment which are simply incompatible with the idea that one is dealing with a human being who, as such, is entitled to respect for his or her humanity and dignity."[10]

26. The rights of political freedom, right to life, freedom from inhuman and degrading treatment, due process, and equal protection are among the minimal rights that the world has come to demand of any society. In the words of the U.S. Supreme Court, these rights are "implicit in the concept of ordered liberty."[11]

27. The restrictions imposed on fundamental rights have the sanction of law by which the enjoyment of fundamental right is curtailed but the citizens basic human rights are not crippled so that the police officers can treat citizens in an inhuman manner. On the contrary, they are under obligation to protect fundamental rights of the citizens and prevent all forms of atrocities. I find that the police subjected all the petitioners to inhuman and degrading treatment which was not justifiable at all under the repealed constitution.

Whether the Petitioners are entitled to damages

28. Having found that the Petitioners rights were violated, the next question is whether they are entitled to damages as claimed. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights.

29. When the court moulds the relief by granting 'compensation' in proceedings under Article 23 of the constitution or seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen.

30. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen or by subjecting the citizen to acts which amount to infringement of the constitution.

31. It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. The quantum of compensation will, however, depend upon the facts and circumstances of each case.

32. Award of damages entails exercise of judicial discretion which should be exercised judicially and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion.[12]Arriving at the award of damages is not an exact science. Also, no monetary sum can really erase the scarring of the soul and the deprivation of dignity that some of these violations of rights entailed.[13]

33. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him/her compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action in law.[14] An award of compensation will go some distance towards vindicating the infringed constitutional right.

34. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in helping the court arrive at a reasonable award. The court must consider and have regard to all the circumstances of the case.

35. An injury suffered as a result of discrimination, harassment or inhuman and degrading treatment is no less real because it does not possess tangible physical or financial consequences. And the difficulty in assessing the amount of compensation for that type of injury should not deter a court from recognizing its potential.[15]

36. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. I am persuaded that the petitioners proved to the required standard that they were tortured, treated to inhuman and degrading treatment and that their rights were violated by the police.

37. Considering the nature of the violations of the constitutional rights, the injuries sustained by each Petitioner as demonstrated by their respective medical reports, the torment they were each subjected to and considering the above legal principles and bearing in mind the fact that it may not be easy to quantify denial of fundamental rights and freedoms, I find that the petitioners are entitled to an award of damages as enumerated below.

38. Doing the best I can, I find that the following awards would be reasonable in the circumstances.

a.G N B................................Ksh.4,000,000/=

b.S NM................................Ksh.4,000,000/=

c. P K K.................................Ksh. 4,000,000/=

39. Accordingly, I enter judgement in favour of the petitioners against the Respondent as follows:-

i.A declarationbe and is hereby issued that each of the petitioners Fundamental Right and Freedom from torture, degrading and inhuman treatment was violated by the police and pr state agents.

ii. A declaration be and is hereby issued that the petitioners are entitled to damages for violation of their Fundamental Rights enshrined in the Repealed constitution.

iii. Thatjudgement be and is hereby entered in favour of the petitioners against the Respondent by way of general damages as follows:-

a. G N B ............................Ksh.4,000,000/=

b. S N M................................Ksh.4,000,000/=

c. P K K....................................Ksh. 4,000,000/=

iv. That the above sums shall attract interests at court rates from date of filing suit until payment in full.

v. The Respondent do pay the costs of these proceedings to the petitioners plus interests thereon at court rates.

Orders accordingly.

Signed, Dated, Delivered at Nairobi this20thday of February2018.

John M. Mativo

Judge

[1]Cap 40, Laws of Kenya

[2]See Joan Akinyi Kabasellah and 2 Others vs Attorney General, Petition No 41 of 2014, Dominic Arony Amolo vs Attorney General, Nairobi High Court Misc. Civil Case No 1184 of 2003 (OS) [2010] eKLR, Otieno Mak’Onyango vs Attorney General and Another, Nairobi HCCC NO 845 of 2003

[3] Joseph Migere Onoo vs Attorney General, Petition No. 424 of 2013

[4] Gerald Gichohi and 9 Others vs Attorney General Petition No. 487 of 2012

[5]http://www.un.org/en/peacebuilding/pdf/doc_wgll/justice_times_transition/26_02_2008_background_note.pdf

[6] Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001

[7] See Mudholkar J in Sakal Papers v Union of India AIR 1962 SC 305 at p 311

[8] Greek Case 1969 Y.B. Eur. Con. on H.R. 186 (Eur. Comm'n on H.R). Also see Lenaola J. (As he then was) in the case of Milka Wanjiku Kinuthia & Others vs The Attorney Gneral

[9]See Joginder Kumar v. State of U.P. (1994) 4 SCC 260, paragraph 23

[10] David Feldman, Human Dignity as a Legal Value -Part I, 1999 Pub. L. 682, 690-91.

[11] Palko v. Connecticut, 302 U.S. 319, 325 (1937).

[12]Mbogo & Another vs Shah{1968} EA 93

[13] Koigi Wamwere v Attorney General{2015} eKLR

[14]Attorney General v Ramanoop [2005] UKPC 15, [2006] 1 AC 338

[15]This concept was well expressed by Mummery LJ in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318, at 331: -