Monday, April 9, 2012

Koigi awarded Sh2.5m for Nyayo House torture


By WAHOME THUKU
Former Assistant minister and Subukia MP Koigi wa Wamwere has made a name as a crusader for democratic and political rights. And he has paid dearly for that.
On August 9, 1975, Koigi was arrested by police in Nakuru town and locked up at Elburgon Police Station.
On September 3, he was detained without trial for allegedly working with persons who were "hostile to the popularly elected Government of Kenya and his Excellency President Jomo Kenyatta" with intention to overthrow the Government. He was freed on December 12, 1978 after Kenyatta’s death.
On August 5, 1982, days after a coup attempt, Koigi, then Nakuru North MP, was arrested and detained without trial up to December 12, 1984. He then fled into exile in Norway. On October 8, 1991, Koigi was again arrested in Uganda and brought to Kenya. He was charged with treason before a Nairobi Chief Magistrate court. He was remanded at Kamiti Maximum Security Prison up to January 19, 1993 when the State terminated the case.
On November 5, 1993, Koigi was again arrested and charged with attempting to rob a police station. He was convicted and jailed but was acquitted by the High Court on appeal in November 1997.
In 2003, Koigi won Subukia parliamentary seat and was appointed Assistant minister for Information by President Kibaki. He lost the seat in the 2007 General Election.
On December 30, 2009, he filed a petition at the High Court seeking to have the two detentions, his incarceration at Nyayo House and the trial for treason and attempted robbery declared violation of his rights under sections 72, 74, 77 and 79 of the old Constitution.
Reasonable grounds
He asked for Sh100 million in damages and another Sh100 million as compensation.
State contested that the petition lacked clarity and precision. The Attorney General argued that the petitioner had not proved that the violations were committed by State officers and not private persons in which case the Government would not be liable.
He submitted that the petition was stale and should not be entertained by the court. Lady Justice Mumbi Ngugi heard the case.
Koigi claimed the two detentions were unlawful since no reasonable grounds were given as then required by Section 72(2)(a) of the Constitution. He was not told whom he had been associating with.
He explained at length how he was tortured while in detention. He was subjected to racial discrimination by being fed of food scale A, meant for Africans. He was denied meals in scale B, C and D such as rice, potatoes, chapatis, tea, coffee or milk, which were reserved for whites and Asian detainees and fed on ugali, sukuma wiki and sugarless porridge that injured his health.
He was exposed to mosquitoes, not allowed to see his children, to read newspapers or listen to radio, and was denied medical treatment.
He claimed at Nyayo House, where he was detained for 11 days, he was beaten, denied food and water and kept naked in cells.
The judge acknowledged that detention without trial was a reprehensible violation of individual rights and freedoms. Under the current Constitution, it’s provided for in Article 132 (4)(d) but only during times of war and public emergencies.
"Hopefully the occasions will be few and far between and no Kenyan will have to languish for years in detention without being afforded a fair trial," Justice Ngugi said.
She, however, observed that detention without trial had been expressly provided for under Section 83 of the former Constitution and the now repealed Preservation of Public Security Act. As such, Koigi’s detention was permitted under the law hence not a violation of his rights, the court held.
Apparently, Koigi and three other detainees Kang’aru Wachira, George Anyona and Dr Edward Oyugi had in 1984 filed a suit challenging their detention. They had raised the same issues that he was raising in the petition.
Justice A H Simpson had then ruled that there was no violation of their rights arising from the detention. "The issues raised in this petition were fully canvassed before a court of competent jurisdiction close to 30 years ago, "Justice Ngugi observed.
She said Koigi was trying to re-litigate matters, which had been determined by the court three decades ago and was asking her to sit on appeal of judge Simpson’s decision.
On the issue that the petition was stale, Koigi explained that he could not have filed it earlier because the Judiciary had not been reformed.
But most of the authorities he used to support the petition had been decided in 2003 and 2004 when he was assistant minister, indicating that the Judiciary was working, the judge observed.
Attempted robbery
Koigi claimed that after the 1991 arrest, he was held in custody for 11 days before being charged, contrary to Section 77 of the then Constitution. The court noted that he was charged with treason, which was a capital offence hence police had up to 14 days to hold him before being charged.
Koigi argued that the trial for attempted robbery was illegal and riddled with constitutional irregularities. The fact that the conviction was quashed indicated the charges were fabricated.
The court disagreed holding that he was given a fair hearing leading to appeal and acquittal. The acquittal did not on its own imply the trial was malicious or charges fabricated, Ngugi observed.
On claims of torture in detention, the judge said, "I must, regretfully, find that there were no acts of torture as recognised in law committed against the petitioner during his detention in prison. What he was subjected to was the same deplorable conditions to which other prisoners in Kenya are subjected to. The poor diet, lack of adequate medical and sanitary facilities have all been hallmarks of prison conditions in Kenya."
Allegation of torture
Ngugi said if she ruled that poor prison conditions amounted to torture, which entitled Koigi to compensation, she would open doors for similar claims by all who have passed through the Kenya prisons. She said in any case, Koigi should have raised the issues in the case he filed in 1984. Koigi claimed that the period he was in exile in Norway amounted to violation of his constitutional rights. The judge rejected that reasoning, saying the decision to go to exile was made voluntarily but prudently by Koigi and his family.
But the allegation of torture at Nyayo House had not been controverted by the State, hence there was no reason to doubt him.
After analysing previous decisions on similar claims, the judge, on March 28, this year awarded Koigi a global sum of Sh2.5 million as damages and compensation for the Nyayo House torture. She also ordered the State to pay him costs of the suit plus interest on damages.
The writer is a court reporter with the Standard Group
Email: wthuku@standardmedia.co.ke

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