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Kenya: African Rights Report
Kenya: African Rights Report
Date distributed (ymd): 970108
Document reposted by APIC
African Rights
Co-directors: Rakiya Omaar and Alex de Waal
11 Marshalsea Rd, London SE1 1EP, UK.
Tel: 0171 717 1224; Fax: 0171 717 1240;
E-mail: afrights@gn.apc.org. For further information contact:
Rakiya Omaar 0171 717 1224 (W)
KENYA SHADOW JUSTICE
Press release, 12 December 1996 (excerpts)
'Justice' is a growth industry in Kenya. Last year, the
justice system attracted unprecedented international aid. By
this year, $2.4 million had been donated to justice in Kenya.
In the Kenyan press and in regular seminars of human rights
and legal non-governmental organisations, there is intense
interest in the judiciary and its reform. In 1993, the Kenyan
government itself established legal reform task forces.
Shadow Justice places the urban-elite debate about legal
reform in the context of ordinary citizens experience across
the country. It measures the image of Kenyan justice against
the reality. Based on testimonies, documentary evidence, and
time spent in courts, the book reveals that Kenyan justice is
corrupt and abusive. ...
Shadow Justice does not, therefore, confine itself to studying
discrimination based on ethnicity, gender or language because
the system discriminates comprehensively. The professional
rituals which structure the Kenyan legal system, the wigs and
coats, and the formal protocols of the High Court disguise a
crisis of politics and morality which threatens the very
foundations of the rule of law. The average Kenyan does not
turn to the formal mechanisms for justice, but lives in fear
of them.
THE POLICE OFFICER
The police are the most common point of contact between the
average citizen and the law. In Kenya they represent the first
real barrier to justice. They generate widespread fear of the
judicial system, acting primarily in their own interests or
under government direction. Countless citizens of Kenya and
some foreigners are seized and detained in police stations
under a military-style use of the law. ... Any stay in police
custody carries the prospect of serious injury or even death.
Abuses suffered by political detainees are most likely to
achieve publicity, but ordinary criminals are most at risk. A
doctor's report on Justin Gachoki Ndegwa, aged 64, reveals
that Kenyan police use torture as standard practice in
obtaining a confession.
<< The above named person was arrested by police on 19/4/96.
He was detained in Kianyaga Police Station for one day where
he was subjected to torture. He was then taken to Wanguru
Police Station where he was subjected to more torture before
being transferred to Sabasaba Police Post. At Sabasaba Police
Post he was subjected to very severe torture until he lost
consciousness. After regaining consciousness he was subjected
to more torture. ... Torture involved beating
with rungus, iron bars, squeezing (genitals, kidneys) with
boots, beating with gun butt among others. He sustained
injuries in the head, chest, arms, legs, back, feet, elbows,
shoulders among others. He urinated blood after his genitals
were kicked. In Embu Hospital, he was found to have
cellulitis, septic wounds, septic arthritis,
ostsomyelochondritis and deformed swollen, tender knee joints.
He could not move the legs, stand or walk. . . Attempts to
correct the deformity in the swollen, tender knee joints
(both) using plaster and physiotherapy have been
unsuccessful.>>
It is dangerous to assume that individual examples of police
brutality occur within an otherwise professional institution,
as many diplomats and donors tend to do. Financing training
and education programmes for the police cannot overcome the
reality that they are licensed to commit abuses by a
political framework of institutions, controlled by the
President. ...
THE MAGISTRATE
A day in a senior magistrates court in Western Kenya
demonstrates that although a court may be the least violent
encounter between a suspected petty criminal and the 'law',
access to a fair trial is at the discretion of the magistrate.
Two small boys, about ten to twelve years old, stand in the
dock. The police prosecutor tells the court that in February
1996 the accused stole one hen and ten grams of beans. The
magistrate listens to the prosecution and then asks for the
'mitigating' facts. The boys answer in barely audible
whispers; the older one speaks for a few minutes in KiSwahili,
which is not translated.
Their case highlights the shortcomings of the adversarial
court system in a country where most of those accused will not
have access to professional representation. The magistrate in
this instance is sympathetic. ... Without his intervention the
boys' side of the story would remain untold and they would
undoubtedly be condemned to a prison term. He explained
afterwards:
<< I realised, after I listened to the boys, that there is a
big misunderstanding between the mother and the father here.
The father beats the mother very badly, and the boys say they
eventually ran away from the house because the father was so
violent he tried to hang the mother from a tree, and then he
chased them out of the home. The mother doesn't have anywhere
to live, so they are all living hand to mouth. I have given
them bail, but I realise the father won't come and pay, so
they will go back to remand. >>
A rural magistrate has the freedom to define his own role to
a large extent. In an effort to compensate for the failings of
the system, this magistrate is prepared to abandon his role as
an 'umpire' and to blend customary principles with statutory
law in an effort to resolve disputes. Even so, the boys are
endangered by remand, where they will undoubtedly suffer. ...
THE PRISONER
The odds are stacked against poor people: corruption in the
courts is routine. Shadow Justice details many examples of
gross injustice. As the following testimony shows, prisons are
overburdened; they have become the dumping ground for the
human debris of a collapsed judicial system. Michael (a
pseudonym) and his neighbours staged a protest when their
County Council reallocated a plot of land which they had
depended upon for access to the market. ... Michael and some
of his neighbours were arrested. At the first court
appearance, with the help of a lawyer, he was given bail and
was able to return home. He was almost immediately
re-arrested. This time the magistrate acceded to pressure to
incarcerate Michael. ...
Michael remained in remand for ten days under appalling
conditions.
<< Remand is as bad as everyone says it is. ... The warders
are very brutal to the prisoners. If you don't kneel to them
they beat you terribly. If you don't give them money, and tip
them, they put you in the toilet overnight. The money they ask
for is shared between them and the prisoners who have been
chosen to be leaders and assistants. One room in prison holds
about 180 people. It is about twelve feet by sixty feet. That
night, I slept with four other newcomers in the toilet. It
stank. We had to stand all night. I saw one prisoner beaten
badly when he asked for his ration of food. He had only had a
very tiny piece of his ration and so he asked for more. He was
called, noted and then the warders used their batons on him,
hitting him on his joints. He was beaten on his knees,
knuckles and elbows. He screamed and cried, and then he slept
for so long I thought he was dead.>> ...
POLITICAL MANIPULATION: OUT OF NAIROBI AND INTO PROVINCIAL
COURTS
The Kenyan judicial system is exploited by the government to
impede political change. Despite its commitment to multi-party
democracy, with the repeal of Section 2A in 1991, it continues
to use the courts to stunt the growth of the opposition. Most
of the blatant manipulation of the courts, common during the
struggle for multi-partyism in 1990-92, has now gone. Instead
... the government has developed new methods to evade
criticism and possible sanctions from donors while continuing
to arrest and detain members of the opposition. Political
opponents are no longer likely to face trial for sedition in
the high-profile Nairobi courts, but may instead expect to be
arrested on criminal charges and tried in a rural court. These
are not conventional 'political' trials but ostensibly the
prosecution of common criminals. Not only are international
observers scarce in the provinces, but most national pressure
groups, journalists and lawyers are also urban-based, so such
trials receive little publicity. Moreover, the relative lack
of professionalism in the rural courts leaves them open to
manipulation by the government. The experience of Jacqueline
Wangui Ngujuna, the wife of political activist G. G. Njengi,
shows many of the methods used by the Government of Kenya ...
In August 1992, Jacqueline was arrested by ten plain-clothes
policemen at her home in Molo, Rift Valley, along with her
husband, teenage daughter and elderly uncle. They were charged
with possession of firearms and tortured by the Criminal
Investigation Department headquarters to extract a confession.
Jacqueline spoke of her ordeal.
<< There were four policemen and a woman officer. I was with
my daughter. They tortured us both with a soda bottle holding
us on the floor and forcing it up. They started with me, and
my daughter had to watch. They held me on the floor with the
men holding my arms and legs apart. ... Then they did the
same to my daughter. I was trying to talk to my daughter,
because she was beaten so much. I told her to agree with them
after they put the bottle in her. When they said to my
daughter: "Now we will do to you like your mother", I cried
and shouted. I screamed while they did it to Lydia. They did
it again to me after that. ... ">>
All of the family pleaded not guilty. After three months they
managed to get bail, but were soon rearrested and back in
remand. Jacqueline and her daughter eventually managed to get
bail, but she continued to be brought before the courts every
two weeks for two years. Her husband was charged in November
1993 with a capital offence, robbery with violence. He was
found guilty after a seventeen-month trial and sentenced to
four years with six strokes of the cane.
LAND AND THE PEOPLE: THE POLITICS OF DISPOSSESSION
Land is the layman's crisis of justice, making it one of the
most explosive political and legal issues. Land rights are in
dispute all over Kenya. Even today English, Indian and
customary laws all apply to land ownership in different parts
of the country. ... Tribunals composed of elders,
land holders and experts which were established in 1991 as the
latest in a succession of measures attempting to take land
disputes out of the courts are both subject to political
influence and uncertain of their role.
Since 1991, KANU has openly sought to create ethnically 'pure'
homelands to strengthen its national support and control. In
1992, the ruling party actively stoked land disputes in the
Rift Valley and in Western Kenya. The 'clashes' emerged out of
a heritage of contradiction and confusion regarding land law,
but they were fuelled by political engineering. One
such place was Bungoma, widely regarded as an opposition zone.
In 1992-93 the Sabot and Kalenjin, who were associated with
the ruling party, attacked the Bukusu community, who were
associated with the opposition. The result was deaths on both
sides, although most of the victims were Bukusu, and thousands
of people were displaced. The clashes have stopped, but the
land disputes are still far from being resolved.
Violet Wanjuga and her extended family were displaced in the
conflict. She now lives with her elderly mother in Sirisia
marketplace. Her brother was killed during the battles and her
sister was shot in the head. Although she and her family have
been impoverished by the clashes in 1992, like most of the
displaced or dispossessed, she has not sought recourse in the
courts.
<< We did not think of using the courts. We never thought
about it. We have no funds to use the courts and I can't know
how to start, or what procedures to use. >> ...
NON-GOVERNMENTAL ORGANISATIONS: MAKING CHANGES?
Kenya has a higher concentration of NGOs than any other
country in sub-Saharan Africa, including thirteen main legal
and human-rights-oriented NGOs. They have a crucial role to
play in helping to build public service institutions and in
promoting access to justice for the Kenyan people, but to date
their impact has been limited. In the 1990s the thrust of the
NGO rhetoric is 'grassroots empowerment', yet most of the
rural-based population remain untouched by their efforts.
Legal and human rights NGOs in particular perpetuate an
urban-elite bias, with new national NGOs largely following the
agendas which were set by their international counterparts and
focusing on Nairobi court cases almost to the exclusion of all
else. NGOs are constrained by their need to court funding in
an increasingly competitive sector. One member of a
human-rights organisation was frank about the importance of
wooing the donors: 'You have to go to the right cocktail
parties... meet the right people, and have programmes where
the donors can see what you're doing.' Donors also admit that
it is easier to focus on the urban accessible poor. ...
Introducing innovative programmes in the provinces would
endanger individuals, and place organisations at risk of
losing funds. Maina Kiai of the Kenya Human Rights Commission,
the highest-profile human rights organisation in Kenya, spoke
of the dilemmas facing NGOs.
<< You have to be urban-based, because every time you go out
into the provinces you get beaten up and sent back. Moi rules
through the chiefs and through the licensing laws, and there
are plenty of examples of people trying to get into the
provinces and being chased away by the security forces. In
Nakuru in 1995, the KHRC tried to have a joint seminar with
the Justice and Peace Committee [of the Catholic Church]. But
as soon as we got there, the police started scaring people
away. It severely hampers provincial, rural work. I have no
illusion that those operating outside Nairobi have it harder
than we do here. The level of control in rural areas is very
high, and people are treated harshly.>>
Such fears are understandable. Nonetheless it is imperative
that both national and international NGOs strive to go beyond
their typically elite focus, radicalise the human rights
agenda and become responsive to the needs of the country as a
whole. If not , there is a danger that rights NGOs will merely
help to construct a facade of democracy, behind which human
rights abuses continue or even intensify.
'MOB JUSTICE'
Where formal justice decays, alternatives thrive. In the words
of one Kenyan, "the 'law of the streets' seems to be the most
popular, most efficient and the most bloody."
In Mathare Valley, one of Nairobi's most crime-ridden slums,
'mob justice' is commonplace. One of its residents, Emmanuel,
has personally recorded 260 incidents of 'mob justice' since
1992. He gives an eye-witness account of the killing of a
sixteen-year-old street child.
<< The boy was very hungry he had tried begging but needed
food. He went to a farm where there were lots of maize plants
ready for harvest. He begs the people there to give him one,
but he is chased away. With nothing, the young man takes his
chances and decides to sneak into the farm in the evening. He
steals two cobs of maize, and then starts running back towards
Mathare.>>
<< The man from the farm saw the boy running with the maize
and started running after him, raising the alarm: "Thief!
Thief! The thief is this one!" No sooner had he finished
shouting than a crowd started running after the boy.
Eventually they caught up wit h him. The crowd has now
swollen, and they didn't spare him any mercy. The crowd beat
him and beat him. Within a few minutes, he was unconscious
with a swollen face. A man immediately comes running with a
tyre. The tyre is put round the neck of the unconscious boy
and paraffin is poured in the tyre and on him. Then a ruthless
individual sets ablaze the boy a fellow human being. The young
boy starts crying in pain and agony as he is burning alive.
Yet the people are just watching. They stand and watch as he
is dying and screaming.>> ...
Both the police and the government are apathetic in the face
of 'mob justice.' They have effectively abdicated
responsibility and in some cases have encouraged lawless mob
action. Even an internationally recognised human rights
lawyer, and opposition member of parliament, Kiraitu Mirungi,
felt obliged to use the threat of 'mob justice' to control a
notorious gang in his local constituency after, he said, 'all
administrative and legal channels had failed.'
AN ARRAY OF FAILINGS
Justice is not being done: Kenyan people either fail to engage
the formal system or exploit it. The result is an emerging
culture of impunity where alternative unregulated actions
flourish. Shadow Justice exposes the dimensions of the problem
and explores the possibilities for its resolution. ...
Shadow Justice concludes that genuine and far-reaching change
is necessary. Justice in Kenya is in a state of crisis. The
formal, open system has essentially ceased to function, to be
replaced by a 'shadow' system based on money and influence.
Slowly, the entire mechanism of the rule of law is being
undermined, a development with ominous implications for basic
human rights and political stability in Kenya.
Kenya: Shadow Justice may be ordered from African Rights at a
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This material is being reposted for wider distribution by the
Africa Policy Information Center (APIC), the educational
affiliate of the Washington Office on Africa. APIC's primary
objective is to widen the policy debate in the United States
around African issues and the U.S. role in Africa, by
concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and
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