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Monday, October 31, 2011

Sacked military boss fights to regain ranks, medals



By Wahome Thuku
Peter Kariuki joined the Kenya Air Force (KAF) on June 12, 1964. He rose through the ranks to become a major general on May 14, 1981, when he was also appointed the KAF commander.
On July 14, 1982, Kariuki received information of an intended coup from Colonel Felix Njuguna, the then Nanyuki Air Base commanding officer.
He immediately passed on the information to Deputy Chief of General Staff Lt General Sawe and they both informed Chief of General Staff Jackson Mulinge. The information was passed to the military intelligence and the Special Branch for investigation under Mulinge’s supervision.
On Friday, July 30, 1982, Mulinge and Kariuki accompanied the then President Daniel Moi to open Nyeri Agricultural show, where the military including the Air Force were to make some displays.
When the President went to tour some stands, leaving Mulinge and Kariuki at the pavilion, the two officers discussed the intended coup.
Mulinge then instructed Kariuki to have one Lt Mwambura arrested. Kariuki agreed to execute the order the following Monday.
On August 1, 1982, while at his farm in Timau, Meru, Kariuki heard of the coup attempt by his juniors. He decided to go to Nanyuki Air Force base but on the way he was redirected to the army headquarters in Nairobi. There, he took part in calming the situation alongside other senior officers.
Days later, Kariuki was relieved of his duties and arrested. He was locked up in solitary confinement at Kamiti and Naivasha Maximum Security prisons for 147 days.
Four years in jail
On January 10, 1983, he was taken before a court martial and charged with two counts of failing to prevent and to suppress a mutiny.
The presiding officer was Maj-Gen Lenges while the judge advocate was then Senior Resident Magistrate E F Aragon. Lawyer Paul Muite represented Kariuki.
On January 11, 1983, Muite applied for an adjournment to fully prepare for the case. The adjournment was denied.
Top ranking military officers were called as witnesses. Muite applied to call Maj-Gen Mulinge to testify and confirm that Kariuki had actually informed him of the coup. The application was rejected. The court ruled that Mulinge would be embarrassed if he was called as a witness.
On January 18, 1983, Kariuki was convicted and sentenced to serve four years in jail on each count, both to run concurrently. He was also dismissed from the force, lost his rank, medals and other decorations and benefits.
Kariuki never appealed against the conviction or sentence. On July 6, 1983, he received a letter from the Commissioner of Prisons that he would not get remission of sentence. So he served the four years.
About 19 years later on July 21, 2006, Kariuki filed a petition at the High Court seeking various declarations of violation of his constitutional rights by the Government.
Through lawyer Gitobu Imanyara (Imenti South MP), the former KAF boss sought 14 declarations that various constitutional provisions were violated.
Kariuki claimed that Maj-Gen Mulinge ordered for the court martial to cover up his failure to act on the report regarding the intended coup.
He said refusal to grant him the adjournment to prepare his case was a breach of the military rules. The refusal to call Mulinge as a witness negated the purpose of the court martial and was a miscarriage of justice.
He claimed he was locked up in a cell with insane inmates in most inhuman and degrading conditions.
Kariuki sought Sh36.7 million damages. Most important to him, Kariuki asked for reinstatement to the rank of major general, his benefits, honours and declarations.
The case took five years in court as the Attorney General’s office and the Department of Defence made all attempts to scuttle it by refusing to release vital information.
On August 15, 2008, the AG filed a detailed defence in an affidavit sworn by the then Defence Ministry PS Nancy Kirui. The State denied all the allegations by Kariuki.
Ms Kirui said the events happened a long time ago and those involved had left the military.
The AG maintained that Kariuki’s trial was legal and proper. The Defence PS said they could not be held responsible for Kariuki’s suffering in prison as he was under the Commissioner of Prisons.
Last Wednesday, High Court judge Daniel Musinga delivered a detailed 53-page judgment.
The judge first held that Kariuki’s delay in filing the petition was not a bar to instituting the claim as argued by the State. But the fact that he did not appeal meant he was satisfied with the conviction and the sentence.
Justice Musinga considered how he would have dealt with the matter if he were to hear the appeal.
"Having carefully looked at the record of proceedings of the court martial, the appeal would have overwhelming chance of success," he said.
Miscarriage of justice
The judge made an in-depth analysis of the two charges and the entire trial and concluded that evidence tendered in the court martial did not support the charges. In short, there was no case against Kariuki.
He said Maj-Gen Mulinge would have been a crucial witness in the trial.
"The refusal to have him testify occasioned a miscarriage of justice thus dented the strength of the petitioners defence," Musinga held, adding that the court compromised Kariuki’s protection of the law.
The court also held that holding Kariuki for 147 days before taking him to court was a violation of his constitutional right.
Musinga cited various previous cases and legal authorities and declared that various constitutional provisions had been violated in the matter.
The judge, however, declined to restore him to the rank of major general in the KAF or to reinstate his benefits, honours and decorations given that Kariuki had not appealed against the conviction.
He also rejected the Sh36.7 million quoted by Imanyara as the minimum compensation.
Fight to the end
"I am of the view that a global award of Sh7 million would be sufficient compensation by way of general damages and I hereby award the same," Musinga said. The judge also ordered the AG to pay Kariuki all the costs of the five-year old petition.
Imanyara said they are dissatisfied with the judgement and on Friday, he filed a notice to appeal. The lawyer argued that having found that the trial was unlawful, the judge should not have shied away from reinstating Kariuki to his rank.
"My client does not even want to go back to the military service. All he wants is the honour and restoration of his ranks, medals, and his benefits for which he diligently worked for and will fight to the end," Imanyara said.
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