Wakaba v Attorney-General [Kenya, High Court]
| Jurisdiction | Kenya |
| Judge | Okwengu J |
| Court | High Court (Kenya) |
| Date | 21 July 2010 |
Kenya, High Court
(Okwengu J)
Human rights Right to personal liberty Prohibition of torture and inhuman or degrading treatment Definition of torture Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Article 1 Right to hearing within reasonable time Right to freedom of conscience Right to freedom of expression Right to freedom of assembly and association Right to protection from discrimination Whether infringement of plaintiffs' fundamental rights and freedoms Whether justification for limitation of plaintiffs' rights under Section 70 of Constitution Whether threat to public security or public interest Whether appropriate to refer plaintiffs' claims to Truth, Justice and Reconciliation Commission Whether Kenya violating Constitution Constitution of Kenya, Sections 70, 72, 74, 77, 78, 79, 80 and 82 Whether declaratory relief and damages appropriate
Relationship of international law and municipal law Treaties Ratification Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 Definition of torture in Article 1 of Convention International Covenant on Civil and Political Rights, 1966 African Charter on Human and Peoples' Rights, 1981 Constitution of Kenya Interpretation Invocation of spirit of international instruments in Kenyan laws Universal Declaration of Human Rights, 1948 The law of Kenya
Summary:2The facts:The plaintiffs were each arrested, taken into custody, held incommunicado, interrogated and subjected to torture and inhuman and degrading treatment by police officers and other government agents. Most were charged with offences ranging from treason to minor offences. Those who pleaded guilty under duress were convicted and sentenced
to terms of imprisonment. Those who pleaded not guilty were remanded in custody where the inhuman and degrading treatment resumed. The plaintiffs filed suits, which were consolidated, under Section 84(1) and (2) of the Constitution of KenyaThe plaintiffs claimed that Kenya had violated their fundamental rights and freedoms in contravention of Sections 70,3 72(3) and (5),4 74(1),5 77,6 78(1),7 79(1),8 80(1)9 and 8210 of the Constitution of Kenya (the Constitution). They contended that the physical and psychological torture which they had suffered also contravened the Police Act, Criminal Procedure Code and various international human rights instruments, such as the International Covenant on Civil and Political Rights, 1966, and the African Charter on Human and Peoples' Rights, 1981. They sought declaratory relief and damages, including exemplary damages. The defendant, the Attorney-General, argued that the plaintiffs' claims should be addressed by the Truth, Justice and Reconciliation Commission.
Held:The plaintiffs' fundamental rights and freedoms had been violated in contravention of the Constitution of Kenya. Declaratory relief and damages were awarded.
(1) There was no justification for the limitation of the plaintiffs' rights under Section 70 of the Constitution. There was no evidence of a threat to public security or public interest (paras. 2930).
(2) While the right to personal liberty had been limited in accordance with Section 72(1)(e) of the Constitution, that right had been infringed in the many instances in which the plaintiffs had not been brought before a court within the specified period in contravention of Section 72(3) (paras. 312).
(3) Since Kenya had ratified the UN Convention against Torture, 1984,11 it was appropriate to adopt its Article 1 definition of torture in interpreting Section 74(1) of the Constitution, which contained no definition. This approach ensured that Kenya moved in tandem with the international community, invoking the spirit of international instruments in its domestic laws. Section 74(1) was identical to Article 5 of the Universal Declaration of Human Rights, 1948, which Kenya had also ratified. While the offences for which the plaintiffs were arrested were serious, law enforcement agencies had to exercise their responsibilities within the confines of the law (paras. 336).
(4) The plaintiffs had been subjected to torture and inhuman treatment in contravention of Section 74(1) of the Constitution, as defined in Article 1 of the UN Convention against Torture. Severe physical and mental pain had been inflicted by government officials at a government institution in the course of interrogation with a view to obtaining information or a confession (paras. 378).
(5) The plaintiffs who pleaded not guilty and were kept in capital remand for more than two years before charges were withdrawn had been denied a fair hearing within a reasonable time by an independent and impartial court in contravention of Section 77 of the Constitution since they had been given no reason (para. 39).
(6) There was no violation of the right to freedom of conscience in contravention of Section 78 of the Constitution since it had not been demonstrated that there was a particular school of thought, belief or religion that had been hindered (para. 40).
(7) There was no violation of the right to freedom of expression in contravention of Section 79 of the Constitution since actual interference with the freedom to hold and communicate specific ideas had not been shown (para. 41).
(8) Since the plaintiffs denied that they were members of any unlawful organization or assembly, there was no interference with their right to freedom of assembly and association in contravention of Section 80 of the Constitution (para. 42).
(9) Since the plaintiffs had not complained that they had been denied the right to move freely in Kenya or reside in any part, there was no infringement of Section 81 of the Constitution (para. 43).
(10) Since the plaintiffs had not suffered any discriminatory law or impartial treatment attributable to their race, tribe or place of origin, there was no infringement of the right to protection from discrimination under Section 82 of the Constitution (para. 44).
(11) It was not appropriate to refer the plaintiffs' claims to the Truth, Justice and Reconciliation Commission. The Truth, Justice and Reconciliation Commission Act 2008 came into effect after the plaintiffs had filed suit. The Court was mandated to deal with the claims under Section 84 of the Constitution, which was the supreme law of Kenya. The Commission's mandate was limited (paras. 457)
(12) The fundamental rights and freedoms of the respective plaintiffs were declared to have been grossly violated by police officers and other government agents in contravention of the constitutional provisions. Damages were thus awarded under Section 84 of the Constitution. They merely served to vindicate and restore dignity, and to send the Executive a clear message that it would be held responsible for acts of impunity committed by its servants or agents. The awards were global, taking into account the punitive damages element (paras. 4879).
The text of the judgment of the Court commences on the following page.
1. What is before me are 21 Originating Summons filed individually by each plaintiff under Section 84(1) and (2) of the Constitution of Kenya. The defendant in all the suits is the Hon. Attorney-General. The suits were consolidated by virtue of orders made by the Hon. Chief Justice on 30 June 2009 and 2 July 2009. The relief sought by each of the plaintiffs is identical. Each seeks determination of the following questions:
(i) A declaration that plaintiff's fundamental rights and freedoms under Sections 70, 72(3) and (5), 74(1), 77, 78(1), 79(1), and 80(1) and 82(3) have been and were contravened and grossly violated by the police officers and other Kenyan government servants, agents, employees and institutions, on dates which were specified in each case, and diverse dates thereafter.
(ii) A declaration that the plaintiff is entitled to the payment of damages and compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the Constitution.
(iii) General damages and exemplary damages on an aggravated scale, under Section 84(2) of the Constitution of Kenya, for the unconstitutional conduct by government servants and agents.
(iv) Any further orders, writs, directions, as this Honourable Court may consider appropriate.
(v) Costs of the suit, with interest at Court rates.
2. In support of the originating summons, each plaintiff has sworn an affidavit stating the circumstances in which the alleged breaches occurred. The Honourable Attorney-General, who was duly served with each summons, entered appearance in each case. Except for the case of Harun Thung'u Wakaba, where grounds of opposition were filed on 12 March 2008, the Attorney-General did not file any responses to the plaintiffs' summonses. Pursuant to directions given by the court prior to the order of consolidation, for the parties to file their submissions in each case, submissions were filed on behalf of each of the plaintiffs, but none was filed by the Attorney-General. After the suits were consolidated the Attorney-General filed written submissions on 22 July 2009 in the case of Wakaba and on 11 May 2010 in all other cases. For the plaintiffs, what were referred to as the 21 plaintiffs' joint written submissions were filed on 29 October 2009. A list of authorities was also filed by both the plaintiffs and the Attorney-General.
3. Each of the respective plaintiffs has sworn a supporting affidavit, which I shall refer to in detail in due course. Generally, the complaints take a similar pattern. Each plaintiff was arrested individually on a particular date, taken to a police station and thereafter to the Nyayo House Basement, where each was held incommunicado in a completely dark cell. Each of the plaintiffs was also subjected to interrogation, and various acts of torture, inhuman and degrading treatments, at the Nyayo House. After being held for a number of...
To continue reading
Request your trial