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LITIGATING TORTURE in KENYA and CAMEROON Litigation Workshop Report Nairobi, Kenya 28-29 August 2019 Introduction

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LITIGATING TORTURE in KENYA and CAMEROON Litigation Workshop Report Nairobi, Kenya 28-29 August 2019 Introduction LITIGATING TORTURE IN KENYA AND CAMEROON Litigation Workshop Report Nairobi, Kenya 28-29 August 2019 Introduction This is a report of a Litigation Workshop that took place in Nairobi on 28-29 August 2019 involving lawyers and medical professionals from Kenya and Cameroon and the Gambia, led by REDRESS with the involvement of Trauma Treatment International, the Independent Medico-Legal Unit, and Three Crowns. The workshop was designed to look in particular at the strategies and tactics for implementing judgments, and utilizing a collaborative approach between medical and legal professionals to seek justice for victims of torture. This report summarises the main conclusions of the workshop. The workshop brought together twelve practitioners, including lawyers and medical professionals from Kenya, Cameroon, and The Gambia to share their experience in litigating human rights cases in their respective countries and before the African Commission on Human and Peoples' Rights, at the regional level. The workshop focused on sharing knowledge on the holistic care of survivors of torture which ensures that survivors of human rights violations obtain the necessary medical and psychosocial care to heal and are better able to participate in the legal process that seeks justice for the violation of their rights. One of the goals of the workshop was to build and strengthen the capacity of lawyers, activists and medical professionals to facilitate holistic strategic litigation against torture. The workshop was also able to strengthen partnerships with key NGOs, create new opportunities, and nurture the development of a community of practice amongst professionals working in this field to ensure that survivors can obtain the necessary medical and psychosocial services while seeking redress for their violations. 2 1. LITIGATING TORTURE USING PUBLIC INTEREST LITIGATION Through strategic litigation, human rights lawyers seek to Securing justice for torture enhances the rehabilitation and challenge both the individual act of torture and the policies well-being of torture victims. However, the litigation process and practices that enabled the torture to take place. Through itself can often trigger the psychological effects of the this approach you can obtain accountability for the torture, trauma experienced, distorting and fragmenting memories, and campaign for policy and legal reform to make it more heightening emotions or leading to shut down. To avoid difficult for the torture to be repeated. In addition to bringing this, lawyers and activists must adopt a holistic approach, legal cases, strategic litigation will also use other civil society where all the needs of the survivor are provided for, and techniques to campaign for change, such as advocacy they have a central role in the litigation and the strategy. This (national, regional, international), activism, and engaging means ensuring that they have proper psycho-social support the media. through the process, that they are provided with other forms of social support, and that they are accompanied throughout. This form of human rights litigation has a cause beyond the case, and a community behind the client. 3 2. HOLISTIC STRATEGIC LITIGATION AGAINST TORTURE IN CAMEROON AND KENYA Cameroon abuses they have suffered, alongside continuing efforts to achieve a resolution of their cases. In last few years, Cameroonian security forces and military have, in the context of increasing violence, resorted to the Kenya use of torture and enforced disappearances to silence the population of the English-speaking part of Cameroon. These Kenya, despite being a signatory to United Nations recent violations of human rights, including torture, are not Convention against Torture and Other Cruel, Inhuman or rare in Cameroon. President Paul Biya, who has been in Degrading Punishment (UNCAT) and other human rights power for over 30 years, has frequently employed torture treaties, continues to struggle to address the high prevalence and inhuman treatment to stay in power and silence the of torture and ill treatment and provide reparations for persons emphasizing with or belonging to the separatist the victims. Security, military forces, and police are often group from the English speaking part of Cameroon (see accused of torture and ill treatment in the context of security Human Rights Watch, “Cameroon: Detainees Tortured, operations and other counter terrorism measures and post- abuse, incommunicado detention at Yaounde Prison; election violence or in detentions. Enforced Disappearances”, August 2019). The Cameroonian human rights groups have been reporting and documenting Kenya has struggled to address the past abuses of torture serious human rights abuses in the country, including deaths and ill treatment from the Moi era and others through in custody, arbitrary arrests, arson attacks, and torture of a political process. The Truth and Justice Reconciliation detainees. There is particular concern over the treatment Report, which calls on the Kenyan government to provide of suspected separatist insurgents and other activists. reparations for victims of serious human rights violations, Investigations of crimes committed by security forces has has yet to be discussed in the Parliament. In 2015, President not been systematic or transparent. Uhuru Kenyatta in its State of the Nation address publicly apologized for the atrocities committed and called for the Efforts made by victims of human rights abuses to seek creation of a Victims Trust Fund to provide assistance to the justice have often been frustrated by a perceived reluctance victims of human rights violations. However, four years later on the part of the Cameroonian government to engage the Victims Trust Fund has yet to be established and many with redress mechanisms, whether at local, regional, or victims continue to suffer. international level. The United Nations Human Rights Committee has made recommendations in eight cases Given the lack of political will to push for real accountability brought by individuals in relation to human rights abuses, for torture, the Courts in Kenya remain often the only hope but it appears that in only one of these cases has Cameroon for the victims to get justice and redress. The Kenyan courts fully complied with the recommendations made. These have experience addressing cases of torture and delivering difficulties emphasise the importance of the role of national justice for the victims, but the implementation of these practitioners in supporting the victims – often traumatised judgments is often not carried out. by their experiences – by providing a holistic response to the 4 3. WORKING WITH VICTIMS OF TORTURE Photo credit: REDRESS. Ebenezer Ackwanga is a Cameroonian activist and a client of Redress who was arrested in 1997 and tortured for campaigning peacefully for the rights of the people of Southern Cameroon Our minds tend to operate in three general “systems”: the A robust body of research has demonstrated that drive, the soothing, and the threat system. When working discrepancies and inconsistencies are normal and expected with torture victims, the aim of providing psychological with people recounting traumatic events irrespective of support is to help them navigate out of the threat system whether or not they have PTSD arising from that event. into the soothing or drive system. Because of how trauma People with PTSD are less able to describe details of the memory operates there may be elements of the traumatic event. In accordance with the threat system, survivors may episode that survivors do not remember, these memories appear numb or disconnected, which in turn may make it may not be linear. Similarly, aspects of any memory are likely appear as if they are lying. to contain discrepancies, particularly when redescribing an event multiple times. 5 CASE STUDY: with Disabilities and due to his status is unable to care KENNEDY MWANGI MURITHI V. ATTORNEY for himself and get a gainful employment. In the lawsuit GENERAL against the Attorney General and the Commissioner of Prisons, Civil Petition No. 3 of 2015, Kennedy successfully Kennedy Mwangi Murithi is a victim of inhumane and argued that his fundamental rights were violated. He also degrading treatment at the hands of prison officers. sought damages for the permanent disability and punitive Kennedy was a convicted felon and sentenced to death. damages to punish the perpetrators. The Court awarded During transfer to a different prison, which Kennedy Kennedy KSH1,500,000 for general and aggravated refused as he was worried that his appeal would be damages and KSH100,000 for punitive damages. jeopardized due to the move, the warders beat him till he was unconscious. When he woke up, he was unable In addition to physical injuries, Kennedy exhibited to move his lower limbs. He continued to have limited symptoms of depression and anxiety, often displayed or no access to medical facilities. The brutal beatings left anger and dissatisfaction. Even though he was receiving Kennedy paralyzed from the waist down and unable to psychosocial assistance, that assistance was limited in hear well on his left side as a result of a torn ear drum. time and scope. However, the collaboration between the The paralysis has severely impacted Kennedy’s ability therapy provider and lawyers yielded positive benefits as to find employment. Following his release from prison, the lawyers were better able to understand the behaviour he had to register with the National Council for Persons of the client and prepare accordingly. Lawyers should think strategically about how to deal with the roles of the therapist and the lawyer in the process of these issues when preparing written witness statements, seeking justice and life of a client in general. In countries as well as oral testimony. In moments of disconnection, where clients are poor, the roles of lawyers and therapists when witnesses appear to mentally relive their trauma, it is may expand beyond the professional obligations. It is important to, in a soothing manner, reassure them of their therefore essential that clear boundaries are established safety and bring them back to the present by “grounding” between the client and the professionals.
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