UNIVERSITY OF PENNSYLVANIA - AFRICAN STUDIES CENTER
Kenya: African Rights Report
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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. ...
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 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.
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.
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From: email@example.com Date: Wed, 8 Jan 1997 22:32:22 -0500 Subject: Kenya: African Rights Report
Editor: Ali B. Ali-Dinar
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