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Case Digest2.Qxd 2/18/2010 12:34 PM Page 1 Case Digest2.qxd 2/18/2010 12:34 PM Page 1 SURVIVING AFTER TORTURE A CASE DIGEST ON THE STRUGGLE FOR JUSTICE BY TORTURE SURVIVORS IN KENYA Case Digest2.qxd 2/18/2010 12:34 PM Page 2 PUBLISHER KENYA HUMAN RIGHTS COMMISSION 2009 ISBN No: 9966-941-62-2 Case Digest2.qxd 2/18/2010 12:34 PM Page 3 TABLE OF CONTENTS ACRONYMS 5 ACKNOWLEDGEMENT 6 DEDICATION 7 INTRODUCTION 8 EXECUTIVE SUMMARY 9 1 OVERVIEW OF TORTURE IN KENYA 13 1.1 INTRODUCTION 14 1.2 TORTURE DURING THE COLONIAL ERA (1895-1963). 15 1.3 TORTURE AND RESPONSES BY THE POST INDEPENDENCE REGIMES (1963-2009) 18 a) Torture During The Kenyatta Regime,1963-1978 18 b) Torture During The Moi Regime, 1978-2002 21 i) Targetting Pro-Democracy and Human Rights Advocates ii) Massacres and Tortures iii) The Mithonge Cluster Of Torture Victims c) Torture During The Kibaki Regime, 2002- to date 26 2.0 THE JUDICIARY IN THE DETERMINATION OF TORTURE CASES 29 2.1 INTRODUCTION 30 2.2 CHALLENGES 30 a) Colonial legacy b) Executive interference c) Indecisiveness of the Magistrates on torture cases 2.3 THE EVOLUTION OF PROCESSES OF INSTITUTING CIVIL ACTIONS AGAINST THE STATE. 33 a) Plaint b) Originating Summons c) Originating Notice of Motion d) Petition 3.0 PRESENTATION OF COURT CASES 37 a) Joseph Kamonye Manje vs Republic b) Wanyiri Kihoro vs Attorney General c) David Mbewa Ndede vs Republic d) Dr Odhiambo Olel vs The Attorney General e) Dominic Arony Amolo vs The Attorney General f) Rumba Kinuthia & 6 Others vs The Attorney General 4.0 REVIEW OF OTHER NATIONAL AND INTERNATIONAL TORTURE CASES 69 4.1. THE NATIONAL CASES 70 a) Republic vs Amos Karuga Karatu b) Ann Njogu & 5 Others vs Republic c) Wallace Gichere's Case Case Digest2.qxd 2/18/2010 12:34 PM Page 4 4.2 REGIONAL AND INTERNATIONAL EXPERIENCES. 83 a) The Nancy Kachingwe and Wellington Chibebe Case b) The Experience Under South Africa's Apartheid Regime c) Supreme Court Of Israel Ruling On Torture Of Terrorist Suspects 5.0 PROGNOSIS AND RECOMMENDATIONS 101 5.1 PROGNOSIS 102 5.2 RECOMMENDATIONS 103 APPENDICES 105 APPENDIX I - Map of Nairobi: Location of Nyayo House 106 APPENDIX II - Cases concluded in court/ within out of court settlement 107 APPENDIX II - Cases pending in court 107 BIBLIOGRAPHY 108 Case Digest2.qxd 2/18/2010 12:34 PM Page 5 5 ACRONYMS CAT International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CID Criminal Investigations Department DC District Commissioner DCIO Divisional Criminal Investigation Officer DSI Directorate of State Intelligence EALR East African Law Reports FEM February Eighteenth Movement FERA February Eighteenth Revolutionary Army ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ-Kenya Kenya Section of the International Commission of Jurists IMLU Independent Medico-Legal Unit JJA Judges of Appeal J Judge KANU Kenya African National Union KHRC Kenya Human Rights Commission KNCHR Kenya National Commission on Human Rights KPU Kenya Peoples Union MP Member of Parliament NSIS National Security and Intelligence Services OMCT World Organization Against Torture PCIO Provincial Criminal Investigation Officer TJRC Truth Justice and Reconciliation Commission UDHR Universal Declaration of Human Rights Case Digest2.qxd 2/18/2010 12:34 PM Page 6 6 ACKNOWLEDGEMENT This CASE DIGEST has been authored by Davis Malombe, Wachira Waheire and James Mawira and published by the Kenya Human Rights Commission (KHRC). Wachira Waheire, the coordinator of the Nyayo House Torture Survivors, played a significant role in undertaking the requisite research of the cases; among other roles assigned by the team working on this assignment. James Mawira and George Miyare, while interning at the KHRC worked on this project at different times leading to the compilation and legal review of the cases in this publication. While George started the compilations, James final- ized on them and also provided legal input. Chris Gitari, a programme officer at the ICJ-Kenya did the initial content and legal editing. Caleb Khisa who also interned under this project provided insights into this project. Moreover, Louiza Kabiru and Tom Kagwe (KHRC), and Zarina Patel were instrumental in the final copy editing and proof reading. Zahid Rajan (Zand Graphics Ltd) undertook the design and layout of the publication. The KHRC also wishes to recognize the input and resilience of the Nyayo House Torture survivors in their unrelenting struggles for justice. Gitau Mwara, Rumba Kinuthia and Ngugi Muhindi, the lawyers representing the survivors in various litigations also provided very useful insights. In addition, the KHRC notes the critical role played by Davis Malombe, the pro- gramme officer in advocacy for conceptualizing and managing the production of this Toolkit. He also led the technical research of this publication. Finally, the KHRC wishes to acknowledge the support accorded by staff mem- bers and the development partners in this project. We appreciate the generous financial support from the Swiss Embassy in Kenya which has made this pub- lication possible. However, this publication does not necessarily reflect their opinions. Case Digest2.qxd 2/18/2010 12:34 PM Page 7 7 Case Digest2.qxd 2/18/2010 12:34 PM Page 8 8 INTRODUCTION Torture as defined in this Toolkit has been one of the major causes and man- ifestations of human rights violations in the society, since time immemorial. In Kenya, torture has been one of the major epitomes of impunity, stretching from the colonial era and finding its way into all the regimes after independence. All along, survivors of torture in Kenya have found ways of seeking truth, justice, reforms and reparations via the different tools and strategies of engagement. This publication, SURVIVING AFTER TORTURE: A CASE DIGEST ON THE STRUGGLE FOR JUSTICE BY TORTURE SURVIVORS IN KENYA presents a detailed review of how the victims of torture engaged courts with a view to pur- suing justice and promoting human rights. It also captures other related cases and incidents of torture experienced at the national and international levels. Chapter One, Overview of Torture in Kenya, traces torture from the colonial regime through the post-independence regimes under Presidents Jomo Kenyatta, Daniel arap Moi and the current Mwai Kibaki. It shows how succes- sive colonial and post colonial regimes made torture a weapon of choice and encouraged a vicious cycle of impunity which culminated in major human rights violations from 1960s to date. It comes out clear that it was the systemic torture condoned and practiced by the colonial and Kenyatta regimes that the Moi and Kibaki regimes managed to perfect as an instrument for political manoeuvring and managing political resistance. Chapter Two The Judiciary in the Determination of Torture Cases, constitutes the first part of the main body of this publication. The chapter traces the var- ious approaches that victims of the Nyayo House Torture Chambers have used to pursue justice through the Judiciary since the late 1980s to date. It also specifies how civil actions have, over time, been instituted in court through plaints, originating summons, originating notice of motion and petitions. Chapter Three on Presentation of the Selected Court Cases constitutes the sec- ond part of the main body of this digest by providing the details and outcomes of the six selected cases; that is Joseph Kamonye Manje vs Republic; Wanyiri Kihoro vs The Attorney General; David Mbewa Ndede vs Republic; Dr Odhiambo Olel vs The Attorney General; Dominic Arony Amolo vs The Attorney General; and Rumba Kinuthia and 6 others vs The Attorney General; in that order. Each case is analysed within the framework of the case overview, facts of the case, Court of Appeal decision and rationale, among others. Chapter Four, A Review of Other National and International Torture Cases analyses other relevant cases within Kenya and without. It especially seeks to establish how the issues emerging from the previous chapter compare and contrast with other developments and cases at the regional and international levels either at the same time, or at different times, between 1980s to date. Chapter Five mainly highlights Prognosis and Recommendations. From the four chapters, it emerges that torture is used as a weapon of repression. It is therefore imperative that reforms that are currently on-going within the judici- ary and other related institutions of administration of justice be carried out with speed so as to leave no stone unturned. Case Digest2.qxd 2/18/2010 12:34 PM Page 9 9 EXECUTIVE SUMMARY The torture cases in this digest are divided between criminal appeals and civil cases. The former refer to appeals from decisions obtained in cases where the accused persons were arrested, charged and convicted for certain crimes under circumstances that violated their fundamental rights and freedoms. The civil cases, on the other hand, exemplify instances where survivors of torture have sued the government for breach of their human rights and freedoms by one or more of its agencies.1 In the latter cases, survivors sought both compensation and a declaration that their rights had been violated. This CASE DIGEST cap- tures six out of the many other cases which were instituted beginning 1987 to 20042. The main human rights violations captured in this CASE DIGEST, involve sit- uations where the State, through the police, arbitrarily arrested suspects with- out warrants of arrest, searched their offices and homes, blind folded them and whisked them away to illegal underground cells. In these cells, that were cold, dark, and sometimes water-logged, those arrested would be stripped naked and sprayed with pressurised water. They were denied food, water, bed- dings and opportunities to sleep.
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