An aerial view of the aftermath of the bombing of the US Embassy in
Nairobi on August 7, 1998. PHOTO | FILE | NATION MEDIA GROUP
Lawyers representing hundreds of Kenyan and Tanzanian victims of
the 1998 embassy bombings are optimistic that the United States Supreme
Court will rule to award a total of $4.3 billion (Sh440 billion) to
their clients.
The top US court agreed in June to take up the case during its term beginning in October.
A
ruling on whether the multibillion-dollar payment must be made to the
Kenyans and Tanzanians by the government of Sudan will be handed down
sometime prior to June of next year.
At issue is an
appeals court's rejection in 2017 of the Sh440 billion award in punitive
damages that a trial court had ordered as part of the $10.2 billion
(Sh1.1 trillion) compensation from Sudan.
US courts
have already agreed that Sudan is liable and awarded $5.9 billion (Sh600
billion) in compensatory damages and Sh440 billion in punitive damages
to some of the Kenyans and Tanzanians harmed in the US embassy attacks.
The punitive damages award was overturned by an appeals court.
“If
there was ever a case where punitive damages should be upheld, it is
this one,” William Wheeler, a US attorney involved in the lawsuit, said
on Tuesday.
COMPENSATION
The lower court's
ruling against payment of punitive damages reflected its view that a
2008 change in US law allowing for such payments could not be applied
retroactively to the embassy bombings that had occurred 10 years
earlier.
Under US law, compensatory damages are meant
to compensate victims for their losses. Punitive damages serve as
punishments levied against parties responsible for causing the losses.
A
group of 570 individuals are plaintiffs in the case to be heard by the
US Supreme Court. More than 300 of them are Kenyan citizens, 80 are
Tanzanians and the remainder are African victims of the attacks who
subsequently gained US citizenship.
All of those
covered by this case were employed either by the US embassies in Nairobi
or Dar es Salaam, or were working for private contractors who did
business with the embassies.
LITIGATION
None
of the potential total of $10.2 billion (Sh1.1 trillion) in damages
will be available to any of the thousands of Kenyans or Tanzanians who
were harmed by the attacks but who were not employed by the US embassies
or contractors. Litigation involving that large group of victims has
stalled in the US court system for several years and is not expected to
reach a settlement anytime soon.
The majority of the
224 people killed in the twin attacks on August 7, 1998, were not
connected to the embassies or to contractors. Most of the 214 persons
killed in Nairobi were passers-by or were working in nearby buildings,
as were several hundred Kenyans who suffered injuries — some grievous —
when the bombs exploded.
Suits seeking compensation
were filed in the US against Sudan because its former government had
harboured Osama bin Laden and al-Qaeda operatives while the embassy
attacks were being planned.
“I think Sudan is going to
have to pay,” Gavriel Mairone, a Chicago-based attorney for Kenyan and
Tanzanian embassy or contractor employees, said on Tuesday.
SUDAN
Mr
Mairone, who specialises in representing victims of terrorist attacks,
said that Sudan must make court-ordered payments as one of the
conditions for the country's removal from the US list of states that
sponsor terrorism. Sudan has long been eager for that designation to be
erased so that it can become a full participant in the global economy.
“If
Sudan wants to join the community of civilised nations, it has to come
to terms with the horrible damage it has done,” said Mr Wheeler, another
US attorney representing embassy bombing victims.
“The
only way to do that is to make amends to the victims. Otherwise, Sudan
should not be taken off the state sponsors of terrorism list.”
SPECIAL FUND
A
significant number of Kenyan and Tanzanian embassy or contractor
employees have already shared substantially in a $1.1 billion (Sh114
billion) payout from a special US fund established to compensate victims
of terror attacks.
They received the awards in 2017,
Mr Mairone noted. Money for the special fund comes from penalties levied
against companies or individuals who violate US sanctions imposed on
countries designated as terrorism sponsors.
Mr Mairone
said he would not specify the amounts paid to Kenyans from the fund
because such information “could put our clients' lives in danger.”
The
attorney suggested that Kenyans benefiting from payments that “have
totally changed their lives” could potentially become “targets for
criminals.”
IRAN
Another
group of some 2,400 Kenyan family members of US embassy or contractor
employees recently began pursuing separate monetary judgements against
the government of Iran.
Mr Mairone noted that it has
been shown in court that meetings were held in Tehran in 1996 to 1998
for the purpose of coordinating the actions of various terrorist
organisations.
One result of those meetings, he said,
was that the head of Iran's military agreed to provide training to
al-Qaeda members on how to carry out bombings similar to those that
destroyed the the US embassy and Marine Corps barracks in Beirut in
1983, killing more than 250 Americans.
Iran may also have provided the explosives that destroyed the US embassy in Nairobi, Mr Mairone added.
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