Long struggle for justice after failed Kenya coup

8 October 2021 · Carmel Rickard

Reverberations from Kenya’s 1982 coup attempt were felt once again last week, this time in a high court case brought by former members of the armed forces, tortured in the wake of the failed coup. The plotters had tried to get rid of the then president, Daniel Moi. After being held for more than a year, one of the former members of the armed forces involved in the litigation was subsequently let go without any charges. The others pleaded guilty to coup-related offences and served time, but now claim that they were forced into the guilty pleas by threats of continued torture. The high court declared all ten officers had been victims of unconstitutional treatment and they were awarded damages plus legal costs and interest.

Read judgment

Almost 40 years after a coup attempt that shook Kenya to its foundations, ten former officers have won a long battle for compensation. This followed their detention and torture in the wake of the failed attempt to overturn the government.

The 10 were arrested in the first days of August 1982, as it became clear that the coup had failed. More than 100 soldiers and twice as many civilians are estimated to have died in the attempt to overthrow the then president, Daniel Moi, and in its bloody aftermath.

According to the 10, after they were arrested, they were subjected to ‘brutal, cruel, inhuman and degrading treatment’ by soldiers. This included being stripped naked in public, being forced to ‘march’ on their knees across concrete floors, being whipped, kicked and bludgeoned all over their bodies and transported in open trucks, still naked, in full view of the public.

Waterlogged

In detention this kind of treatment continued. They were held in uninhabitable, waterlogged conditions, prevented from sleeping, refused medical attention for wounds, refused food, drinking water and toilet facilities for ‘days on end’.

After 376 days, one of the 10 was released without charge. The rest, nine soldiers, were forced to attend a court-martial where they were ‘coerced to plead guilty’. The nine were convicted and sentenced to imprisonment where the cruel treatment continued. After their release they were dismissed from the armed forces on grounds of ‘redundancy’.

What did they want to achieve by their court action? Their case, launched in 2014, was brought because they wanted a declaration that their treatment, including torture and imprisonment, was unconstitutional and an infringement of their rights.

Arbitrary

They said they also wanted their dismissal from Kenya’s armed forces declared arbitrary and unlawful as it was based on unlawful pleas of guilty extracted from them following severe torture.

Finally, they asked for damages and legal costs plus interest.

The first petitioner, whose affidavit was similar to those of the rest in many respects, was Preston Kariuki Taiti. He recalled hearing about the uprising on the radio while at home over a weekend. All officers were told, by radio announcement, to report back to their nearest police station or military base.

Naked

He therefore reported to the Department of Defence headquarters, where army officers immediately pounced on him, stripped him naked and began to beat him up. After days of continued torture, he was escorted, still naked, to a maximum security prison where he was threatened with execution, and kept under inhuman conditions for more than a year.

Some 376 days after his initial detention, he was taken from the cells, given civilian clothes and presented to senior army officers who informed him that he was being released from prison and that he had already been dismissed from the armed forces.

The applicants said they did not feel able to bring their case earlier because of the effects of the torture and unlawful detention: it had left them ‘completely traumatised’. They could not even think about bringing a case for constitutional violations during the rest of the Moi’s reign.

Tortured

It was only after the present constitution was promulgated in 2010 that they begin to feel certain Kenya had changed and that they would be able to access justice. Further, because they had no employment, it took time to raise the funds they needed to bring legal action.

Nine of the petitioners explained how they had come to plead guilty to charges at the court martial they faced: after months of being tortured and held incommunicado, a lawyer appeared who advised them to plead guilty in exchange for a lighter sentence.

They did so and were given a range of sentences to serve. One said he was later informed that his 16 years had been reduced but in fact the reduction did not reflect his statutory right to a third off his sentence.

Confess

Another of the group said he was at home during leave to recover from an injury when the attempt coup took place. He too reported to a military base as instructed on the radio, and there was met by officers who stripped him naked and began to ill-treat and torture him. After severe beatings he was forced to confess to involvement in the coup and eventually signed a statement without knowing its contents in exchange for an undertaking that his solitary confinement would come to an end.

Similar affidavits were made by the rest of the group.

As far as the head of the defence force and the attorney general were concerned, the 30-year delay in filing this suit prejudiced the petitions, and the claim that they fear filing earlier because they did not believe the judiciary was independent, was ‘not believable’.

Judiciary

This response from the AG and the defence force highlighted one of the most difficult issues the court had to decide: was it too long after the event for the claims to be legitimately still pursued?

The petitions offered three grounds for their ‘delay’: they couldn’t afford to litigate because they were unemployed; they still lived in fear after their experience, and they did not trust the judiciary during the period of the previous constitution because it was seen as lacking in independence.

High court judge, William Korir, who heard the case, said that the court of appeal had dismissed the first two grounds when previous litigants had quoted them to explain a delay in bringing petitions.

Confidence

However, ‘with utmost respect to the Court of Appeal, I am of the humble view that the lack of confidence in the Kenyan judiciary pre-2010 is a good enough reason for entertaining constitutional petitions that were filed immediately after the promulgation of the 2010 constitution.’

That Kenyans had lost confidence in their judiciary became clear with the 2010 constitution which required judges and judicial officers to be ‘vetted’ before they could serve under the new constitutional dispensation, Judge Korir said.

The state had a duty to ensure that rights were protected and that ‘in conducting arrests, detention, prosecution, sentencing and imprisonment, the rights and fundamental freedoms of the persons involved are secured.’ Chiding the defence force chief and the AG, the court added, ‘Denial of existence of violation of rights is not the best line of defence especially when the facts speak for themselves.’

Brutalities

Pleadings before the court showed the ‘extreme brutalities’ to which the petitioners were subjected. Though medical records would have helped the court, the petitioners had been held incommunicado for long periods of time and were unable to access treatment.

Satisfied that they had indeed been tortured, the court noted that most of the petitioners were court-martialed, convicted and sentenced after pleading guilty. However, even if they had committed the crimes with which they were charged, these crimes ‘did not throw the Bill of Rights out of the window.’

The former officer who had spent longest in prison, before then being released without charge, was awarded damages of just over USD27 000. The other eight were awarded between USD16 000 and USD25 000. They were also awarded legal costs and interest from the date of the judgment.

“A matter of justice”, Legalbriefs, 5 October 2021

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.