Macharia wa Kamau and 2 others VS Attorney General
Petition No 207 of 2013
High Court of Kenya in Nairobi
Constitutional and Human Rights Division
Justice Isaac Lenaola
December 18, 2015
Macharia wa Kamau, George Gichuki Kamau and Joseph Kanyingi Kamau say they were fasting in a tent on March 3, 1992 at Freedom Corner, Uhuru Park, Nairobi, when they were attacked by officers.
The three men said they and their mothers were holding a peaceful demonstration for the release of their brothers, Hon Koigi wa Wamwere and Charles Kuria Wamwere and all 53 political prisoners in Kenya, when they were teargassed and "inhumanly and brutally" battered with boots and batons, slaps, rubber whips, kicks and blows by more than 100 Kenya Police and General Service Unit officers.
The three said they had no weapons. Their possessions were their clothes, blankets, water, Bibles and hymn books.
They also had a tent donated by a well-wisher. Other well-wishers, including Prof Wangari Mathaai gave them moral support, food, clothing and water as they waited on the government, through the Attorney General, to respond to their petition for release of the political prisoners.
The three said if the political prisoners were not released, they were determined to camp at the Freedom Corner and starve to death by going on a hunger strike.
The protesters were badly injured and some of the women, like Mathaai, were taken to hospital unconscious.
The protesters were arrested, bundled into police vans and allegedly taken to various police stations in Nairobi and thereafter deported to their rural homes.
Macharia, Gichuki and Kanyingi were taken to Murang’a district.
After one to five days at their homes, the protesters returned to Nairobi and began a peaceful campaign and hunger strike at the All Saints Cathedral compound.
They were hosted at the bunker of the church from March 4, 1992 to January 19, 1993.
All the political prisoners were released between June 24, 1992 and January 19, 1993.
Macharia, Gichuki and Kanyingi said while they were at the All Saints Cathedral, police and GSU officers continued to attack them in violation of their fundamental rights and protection from torture as guaranteed under Article 74 of the Repealed Constitution.
They said their physical, psychological, political and economic lives were "messed up" as they were tortured for expressing their fundamental rights and freedoms and that to-date they continue to suffer trauma.
On April 17, 2013, in a petition, Macharia, Gichuki and Kanyingi sued the Attorney General for Sh5 million each in general, exemplary and moral damages.
The respondent’s caseThe Attorney General opposed the petition on the grounds that is was filed after an "inordinate delay" of 20 years since the alleged violationhad been committed.
He said no reasons had been given for the delay.
The AG said the three petitioners had not proven the acts they complained of happened and that they were committed by the state.
He said newspaper cuttings do not amount to evidence under the Evidence Act.
The AG said it was not possible for the police to have tortured the three men for a whole year yet they had failed to seek medical attention for their injuries.
He said damages are not meant to restore a person to the state he was in before the alleged injury but to give a just satisfaction.
The AG said in the absence of any credible evidence, the Court should find that none of the petitioners had been tortured and that if at all the incident happened, the police officers were only carrying out their duties of dispersing the crowd at Freedom Corner as mandated by law.
He said damages are not awarded in cases where political circumstances have changed for the better.
The AG asked the court to dismiss the petition for lack of evidence and merit.
Determination
Justice Isaac Lenaola said the law does not impose time limitations for filing of proceedings to enforce fundamental rights and freedoms as enshrined in the Bill of Rights.
He said the alleged violations took place before the promulgation of the new constitution on August 27, 2010 and that the petitioners stated they would not get justice under the old law.
Lenaola said: "While it is true that there is no limitation of time on constitutional law cases and also true that the judiciary has over the last few years been providing redress for human rights atrocities that occurred in previous regimes, I am of the view that courts ought to examine each of the claims made keenly and only those that have been substantiated should be addressed."
On whether the petitioners’ fundamental right and protection from torture was violated, Lenaola said Section 74(1) of the Repealed Constitution protected the right not to be subjected to torture and other cruel and degrading treatment.
Furthermore, the law on protection against torture and other degrading and inhuman treatment is well settled under well known international human rights instruments, for example the United Nations Universal Declaration of Human Rights.
However, Lenaola said the petitioners did not produce tangible evidence to prove that they were beaten and teargassed.
He said Macharia stated that he was seriously beaten but he did not go to any hospital.
When cross-examined, he said he did not actually suffer any bodily injuries during the beatings and that upon arrest, he was taken to the Central police station, was not locked up but was instead taken to his village in Murang’a.
Gichuki testified that he was seriously beaten with kicks and sticks and upon arrival in his village in Murang’a he went to Kiriani Clinic because he was injured and he got medicine.
He stated that he arrived at Kiriani at midnight, was treated and returned back to Nairobi the following day.
"I know no rural clinic that opens at midnight", Lenaola said.
Kanyingi said he was beaten, slightly injured and was treated at Murang’a District Hospital.
"It is unclear how he found his way to Murang’a District Hospital the same night if he was taken to his rural home which certainly was not Murang’a town where the said hospital is situated," the judge said.
He said Gichuki and Kanyingi said they were given medical cards but did not produce them as evidence.
"Such evidence would have been sufficient to prove their claim. They also did not provide any medical reports or any evidence to substantiate their claims that they were beaten as alleged and that they continue to suffer trauma to-date. How then is a Court of law to believe them and rely on mere allegations that they were beaten without any evidence?"
Lenaola said the three could not state the dates then they were beaten while at All Saints Cathedral or events that occurred while they were there.
He said there were inconsistencies in their testimonies.
"For instance, they stated in the affidavits that they were at Freedom Corner agitating for the release of their brothers Koigi Wa Wamwere and Charles Kuria...However, in cross-examination PW1 [Kamau] stated that Koigi wa Wamwere’s family were his family friends while PW 3 [Kanyingi] stated he merely knew Koigi wa Wamwere and Kuria Wamwere and was not related to them."
Lenaola said the three were "most probably" beaten, tortured and detained, " but the court is deaf to speculation and imagination and must be guided by evidence of probative value."
He dismissed the petition.
By Star reporter. Read the case at kenyalaw.org/caselaw/cases/view/117168/.
