Freedom fighter Charles Rubia. PHOTO | FILE | NATION MEDIA GROUP
The family of Kenya's first African mayor and former political
detainee, Charles Rubia, has been awarded Sh17 million as compensation
for his illegal detention and torture by the Moi regime, marking the end
of one of the cases that has put the Judiciary on the spot over delayed
justice.
Justice Weldon Korir also awarded the family of the politician, who died in December last year, Sh226,200 and £68,980.84 being costs of his medical expenses and accommodation in London.
The Sterling Pounds will be paid at the exchange rate prevailing at the time of the satisfaction of the court's decree.
The
court found the State is liable for the wrongful detention of the
deceased in 1987 and for the torture, inhuman, cruel treatment and
punishment that he was subjected to while in detention for the nine
months following his second arrest in 1990.
The
petition that has been in the judicial system since January 2013 saw the
judiciary on the receiving end of criticism during Rubia's burial after
his lawyer Irungu Kang'ata said courts had delayed delivery of justice.
'TOO HIGH'
In the case, the deceased wanted an award of Sh5 billion in general damages.
But
Justice Korir said the claim was not backed by support of any local
jurisprudence and that only the awards that can be sustained by the
economy should be made.
"Claimants in similar
circumstances should receive similar awards and any divergence in awards
ought to be accompanied by reasons," he said.
He cited
cases of other political detainees such as the late Kenneth Matiba who
was awarded Sh15 million, Koigi Wamwere Sh12 million and Peter Kariuki
Sh15 million.
"Even taking inflation into account, the
award cannot be ramped up to the Sh5 billion prayed for by counsel for
the estate of the deceased. It is obvious that what is sought in this
petition is mindboggling and I do not think that even the world’s best
economies can meet or sustain such awards," stated Justice Korir.
Mr
Kang'ata in his submissions had urged that those who fought for the
second liberation of the country should be adequately compensated, while
pointed out that over Sh600 billion is lost to corruption annually.
But Justice Korir found that, all that notwithstanding, the proposed figures were beyond comprehension.
"After
factoring inflation, and considering that the deceased was detained
twice unlike Matiba, I award the estate of the deceased a global sum of
Sh17 million as general damages for his unlawful detention, in the first
instance, and violation of his constitutional rights and fundamental
freedoms in the second instance," the judge ruled while declining to
award the family the exemplary damages.
In his ruling,
Justice Korir observed that the State has improved in its respect of
human rights and that the taxpayer should not be burdened with heavy
awards in claims touching on the public purse.
Rubia
moved to court in January 2013. The petition was premised on the facts
and events revolving around his arrest and subsequent detention by the
government on two separate occasions.
UNLAWFUL DETENTION
He
stated that his arrests and detentions were unlawful and that he was
subjected to inhuman and cruel treatment and torture which caused the
drastic decline in his health as well as irreversible damage to his
political career and business empire.
When serving as
MP for Starehe Constituency in February 1987, Rubia was arrested on the
false allegation that he was sponsoring and financing Mwakenya in an
effort to overthrow the government.
He was kept in
detention at Nyayo House for five days and subsequently released without
being arraigned in court or any charges being preferred against him.
It
was the deceased’s evidence that during the first instance of arrest he
was bundled into a car by the Special Branch Police and driven around
in circles while blindfolded.
He was not informed of the reason of his arrest nor the offence he was suspected of having committed.
The
second instance of his arrest followed a press conference he had called
called together with Kenneth Matiba on March 3, 1990 where they urged
the government to repeal Section 2A of the repealed Constitution,
dissolve Parliament and hold fresh elections devoid of rigging, end the
mismanagement of public affairs and institute better socio-economic
policies in Kenya.
On July 4, 1990 he was arrested by
Special Branch Police officers pursuant to a detention order issued by
the Minister for Internal Security and held in a solitary cell, which he
later ascertained was at the Naivasha Maximum Prison.
'KEPT NAKED IN COLD CELLS'
While
particularising the inhumane treatment and violations to his right to
dignity and freedom, Rubia said he was also kept in long and dark
underground cells in solitary confinement.
He was also mistreated at Nyayo House by one Jeremiah Opiyo who made him strip naked and lie on cold ground in very cold cells.
The
court heard that Mr Opiyo was in charge of interrogation of detainees
and interrogated Rubia twice daily during his detention.
Rubia
was denied good nutrition, food and water for many days, forcefully
made to lie on a pest-infested mattress and cold ground without
sufficient cover, denied good medical treatment and subjected to poor
and unhygienic sanitary conditions.
During the second
instance, which lasted nine months, he was not allowed to see friends
and members of his family on a regular and scheduled basis.
Instead, he was ferried to an unknown destination to meet family members.
COLLAPSED BUSINESSES
He
was finally released after nine months as his health had deteriorated
and had to seek medical treatment both in Kenya and in the United
Kingdom which seriously strained his finances.
As a
result of his incarceration by the government, he suffered financial
loss due to the collapse of his business and financial ventures, which
included Mwamba Distributors Ltd, Giant Printers, Peponi School, Rweru
General Stores and directorship in Provincial Insurance (now UAP
Insurance), Co-operative Bank and ICDC Investments Co. Ltd.
In
response to the petition, the Attorney General filed a replying
affidavit sworn on December 22, 2015 by Ambassador Monica Juma who was,
at the time the Principal Secretary in the Ministry of Interior and
Co-ordination of National Government.
STATE RESPONSE
Ms
Juma stated that the Kenya Police Service as a professional organ does
not perform torture or harassment as part of its mandate and therefore
denied the allegation of such violations.
Ms Juma swore
that she was not aware of the allegations of torture, harassment,
inhuman and degrading treatment as alleged in the petition and that the
deceased had failed to prove the same by way of empirical evidence and
therefore the allegation should not be entertained by the court.
It
was further averred for the Attorney General that the court should
disregard the allegations surrounding the deceased’s ill-health as there
was evidence by way of a medical report proving that he had recovered
from his alleged ailments and was undergoing the normal ageing process.
The
AG did not call any witnesses and the replying affidavit of Ambassador
Juma was adopted as a defence to the deceased’s claim.
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