Torture in Kenya

That citizens of Kenya were subjected to torture is readily acknowledged at the highest levels. No less a person than the Prime Minister was a torture victim under a previous government. The High Court has regularly compensated numerous individuals who suffered at the hands of the police. This was once again demonstrated as recently as April this year in the decision of Wachira Weheire v The Hon. Attorney-General.[1] A victim of the notorious Nyayo House torture chambers, Mr Weheire was awarded Ksh2.5m damages in recognition of the fact that certain of his fundamental, constitutional rights ‘were contravened and violated by police officers and other government servants or agents’.

Mr Weheire, a sales executive, was unlawfully arrested at his workplace in December 1986. Then followed 16 days of torture in the Nyayo House basement. Finally, he was taken before a magistrate and convicted on his own, albeit coerced, plea of guilty. He was sent to jail for four years.

Mr Weheire’s ordeal is, unfortunately, typical of those persons who entered that basement at Nyayo. He was interrogated whilst naked, hungry, thirsty and sleep-deprived. He was beaten, burned, and forced to stand ankle-deep in water in a dark cell without food or drink for days. He was threatened with death daily, until he broke down and ‘confessed’. The attorney general, who opposed Mr Weheire’s claim on various procedural grounds, nevertheless did not deny at all or seek to contradict the claims of unlawful arrest and torture.

The High Court found his arrest was unlawful and in breach of the Constitution. They also found that he was tortured and was not produced to a court within 24 hours of his arrest, or as soon as practicable. It was for these breaches of the Constitution that he was awarded compensation. Mr Weheire also complained that his rights were violated in relation to his conviction and the subsequent years that he had to spend in gaol. Yet the guilty plea that he says was a result of the torture he suffered and the intimidation of being in court with his accusers did not attract the sanction of the Court – nor did the subsequent years of imprisonment. Despite the fact that the plea could not be said to have been offered freely, the Court did not find that his rights had been violated in relation to the coercion suffered. Further, although this case was decided years after Mr Weheire’s release, the Court did not compensate him for the time spent in prison although almost cruelly, it did acknowledge that at least one of the prisons that he was sent to was ‘then notorious for [a"> high prisoner mortality rate’.

While one cannot help but feel immensely grateful that some of this man’s claims were, after over 20 years, upheld and he was awarded compensation that he so clearly deserves, the question remains about the import of the judgment in helping to stop torture today. The High Court has the authority to powerfully condemn the actions of the state and its agents. Many would argue that an award of compensation of this amount from the High Court does just that. In addition to the award of damages, however, and especially in a common law system dependant on precedent, the words too of the High Court have great value and can inch forward the protection of rights.

Consequently, it is disturbing that the Court accepted a coerced plea of guilt in the face of evidence of illegal detention and dreadful torture. They did not go beyond the acceptance that torture occurred; they did not lay down the consequences of a coerced plea on the outcome of the trial nor even dispute the veracity and legitimacy of the plea. The Court’s reasoning that the plea could stand and the time spent in jail as a consequence not be compensated, is thin. It is contained in only a few short paragraphs and seeks, mainly, to defend the actions of the Magistrate who dealt with Mr Weheire’s case.

First, this places an extremely unfair onus on the accused. The Court seems to say that it expects a person in Mr Weheire’s circumstance – under the total control of his tormentors and without the benefit of legal representation – to be able to defy the torturers and tell the Magistrate what has happened. Undoubtedly, someone who has been tortured for days and to the point of making a false confession could not be expected to have the physical or mental fortitude to make such a stand.

This, in turn, also makes light of an obligation that should be on magistrates to satisfy themselves of the health and well-being of a prisoner before them, as well as the circumstances of a prisoner’s arrest and detention before appearance in court. The central point is that Mr Weheire could not be said to have received a fair trial, even on the scant re-counting of that evidence in this judgment. We know only that he was in court with the very people that had tortured him, hence he was not free to speak in his own defence, nor did he have the benefit of legal representation. That is sufficient evidence to conclude that the procedure leading to his conviction and sentence were manifestly unfair.

Thirdly, seeking to absolve the magistrate of any blame – blame that Mr Weheire’s claim does not really seek to ascribe in any event – misses the point, and leaves out of the equation the Court’s duties to ensure that all elements of a fair trial are in fact in place and are followed.

What should be the case is that the logic of consequence prevails. The evidence that the High Court accepted was that Mr Weheire was unlawfully arrested and detained, and tortured for days to the point of making a ‘confession’. Inherent in accepting this evidence from Mr Weheire, undisputed by the attorney general, is an acceptance by the Court that the confession was a consequence of the lengthy detention and torture. In that situation, where a confession only comes about as a result of torture and ill-treatment, it should not be accepted by the Court. It may be trite, but it is well worth repeating that by accepting the fruits of tortuous practices, the practice itself is legitimised, if not encouraged. After all, what incentive is there for officials to shun unlawful activities if they are not themselves punished and the consequences of their actions are allowed to stand in a court of law? Further, and following this, the time spent in prison pursuant to an unfair conviction based on such a plea should not be held to be lawful and should be a basis for compensation.

The failure of the Court to not just condemn torture, but to wholeheartedly denounce the outcome as well as the practice, is the first lost opportunity in this case. There could have been a strong statement made that the end never justifies the means. The Court lost the opportunity to demonstrate leadership in this decision – that would serve not only as denunciation, but perhaps more importantly, would have the trickle-down effect to discourage the use of torture today. Only when the Courts steadfastly adhere to the zero-tolerance doctrine will the fruits of tortuous practices be unaccepted in any circumstances and the use of torture be effectively discouraged.

A final statement of the Court deserves further consideration: ‘in light of the acknowledged change in the government, and the attempts at dealing with human rights violation, we find it inappropriate to award exemplary or aggravated damages’. On one reading, what seems to be said in a larger context is this – we will compensate citizens for those atrocities that we cannot but acknowledge, yet we will not acknowledge that the same violations of rights at the hands of police continues to occur.

This point demonstrates the second opportunity that was lost in this case; the opportunity to bring home the point to those in power today that violation of constitutional rights by the state is not acceptable and will always be severely penalised by the courts. Looking at the possible improvements of today to judge what took place in the past appears to be a fallacious way of assessing the quantum of damages. Exemplary damages are meant to indicate the law’s displeasure and deter those who have abused power and broken the trust of the state vis à vis a citizen. Better behaviour at some future date is no inoculation for past ills. Even if the Court was inclined to be kindly, in reality even today the situation is that the government is being ordered to pay millions in compensation on one hand, yet on the other, police continue to arrest and detain people unlawfully, and at times torture them. As recently as 2009, Mr Philip Alston, the UN special rapporteur on extrajudicial, summary or arbitrary executions, found in his investigations in the country that there were ‘systematic, widespread and carefully planned’ killings by police, as well as evidence of incidents of organised torture. Reports continue to emerge about citizens being arrested, detained for days and tortured before their release – often without charge. As recently as April this year – a matter of weeks after the High Court delivered its judgment in Mr Weheire’s case – a Mr Kenneth Kirimi was arrested by plainclothes police, his whereabouts unknown for over two days. Mr Kirimi works for Release Political Prisoners (RPP), a grassroots movement. He was found three days after his arrest in a market, in serious pain, having allegedly suffered torture and ill-treatment during the time of his detention. He is one citizen of many who have suffered in this way as the culture of impunity continues.

It is this question of damages, and the payment of exemplary or aggravated damages, that could have been used to effect in Mr Weheire’s case. Exemplary damages primarily serve not as compensation to the victim, but to punish and deter, and express a court’s outrage. Further, they can be utilised by a court when it is felt that an award of simply compensatory damages would not provide sufficient deterrence. All of those features apply to this case. The Court accepted that Mr Weheire’s case was not an isolated example at the time that it occurred, and it would not have been a stretch to take judicial notice of at least continuing, credible reports of torture and illegal detention. As such, exemplary damages would send a signal that the Court is outraged at this kind of behaviour – as it should be – and that maximum deterrence is needed to dissuade the state and its agents from these practices.

What an award of exemplary damages could also have demonstrated was a form of institutional liability – the fact that even though the actors might change over time, the state must always bear the responsibility. While the best thing about this case was undoubtedly that Mr Weheire finally achieved some relief, the Court could have gone much further. These issues go to the heart of the integrity of the criminal justice system, and integrity is obviously lacking when torture occurs and there is not sufficient deterrence in the system to stop it.

Some may maintain that it is not within the jurisdiction of the High Court to take note of, or inquire into, current events in the context of determining a claim based on events of over 20 years ago. Yet when issues of such magnitude as torture and illegal detention are raised and said to be prevalent, this is exactly what many superior courts around the world have done. Courts can have an important role to play in both denunciation as well as in setting appropriate guidelines for police behaviour and practices.

Something must break the cycle – exemplary damages provide key condemnation and would help spur reluctant governments and policy makers along. Whilst the wrongs to Mr Weheire are in the past, a stronger signal from the High Court, as well as a more thorough examination of the issues, would have been welcome. Civil society is unanimous in its calls for torture and killings to stop. The government and police need to show that they too are serious about stopping it. Kenya’s police brass needs to make examples of those who transgress, and be open and transparent about the ways they conduct internal investigations. The government needs to immediately establish an effective, specialist and external police oversight body to deal with complaints and serious allegations of criminality, and to augment the role that the human rights commissions play. Improved detection and forensic skills also have a role to play in reducing the incidence of torture. These improvements to policing all need to be carried out with serious purpose and with concurrent compensation to the victims of unlawful police actions. Only then will the experiences of survivors such as Mr Weheire come close to being properly acknowledged by those in power.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article first appeared in Cocorioko
* Tennille Duffy is a programme officer at Access to Justice (East Africa)
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[1] Wachira Weheire v The Hon. Attorney General 1184/2003, 8 April 2010.