By Aggrey Juma,
NAIROBI, Kenya, Jun 25- On May 17 this year, the bodies of two young men were recovered from Thika River in Gatanga, Murang’a County. Their families identified the two as Nicholas Maithya, 18, and Asman Kamau, 22 who they claim were fishermen.
A post-mortem report later revealed that the two had been tortured while handcuffed. They had been arrested in a swoop against illicit brewers by police officers and a chief.
A week later, on May 23, 2021, the body of a businessman Bashir Mohammed who had been missing for days was discovered dumped in a mortuary. A post-mortem report showed that he was tortured to death. To date, we are yet to know who was behind Bashir’s killing.
These are just recent cases of torture; Kenya has a rich history of torture. As early as colonial times, many natives were routinely tortured by the colonial authorities to gain information or submission. The colonial law-enforcement curriculum seems to have been rich with options for torture and their application.
Today, as millions of people around the world mark the International Day in Support of Victims of Torture, the nation is rife with survivors of torture. Over the years, many have been declared by courts of law to be victims of torture committed by the State, its agent’s acting under the direction or acquiescence of the State.
While some of the judgements by courts came posthumously for some survivors, many others have subsequently passed away in pain and poverty as they awaited reparations by the office of the Attorney General.
With a government that owes over one trillion shillings in court-sanctioned reparations or compensation covering many years and sectors, it is unlikely that victims of torture are on the Attorney General’s priority list. The Survivors of the Nyayo Torture Chambers are a case in point.
Going by post-mortem reports published in media, torture seem to be officially sanctioned in the country today. However, a rich apprenticeship program seems to be in existence exhibited by reports of torture in the public domain occasioned by new-age law enforcement operatives and private citizens alike.
A contemporary indicator of the torturous nature of the country can be sourced by scrutinizing reports by the government pathologist – commonly referred to as post-mortem reports. These reports effectively trace the lives of deceased victims of torture on the journey to their demise.
On June 23, 2016, lawyer Willie Kimani, his client Josephat Mwenda and driver Joseph Muiruri were abducted after a court hearing in Mavoko law court.
The recovery of the bodies stacked in gunny bags a week after they went missing was an early indicator that torture was in play. This was confirmed by the testimony of the government pathologists in court.
In the Habeas Corpus case filed following their disappearance, Justice Kimaru stated that “it was clear that the deceased petitioners were tortured before they were killed. Willie Kimani’s cause of death was head injury due to blunt force trauma, Josephat Mwenda’s cause of death was due to head, neck and chest injuries due to blunt force trauma and Joseph Muiruri’s cause of death was ligature strangulation and head injury due to blunt trauma. From the post-mortem reports, it was clear that the deceased petitioners met a violent death in the hands of their killers.”
When committed by law enforcement, torture is an effective tool for human control. While it has previously been referred to as a law enforcement mechanism, this has been proven inaccurate since the law cannot be enforced by criminality.
The effectiveness of torture in gaining information, punishment or extortion, through threat to life and limb and short time human compliance is unmatched. The same is true for its long-term psychological effect and mind shift for example radicalization.
Torture is a bypass to the legal system. It is a form of instant or speedy injustice. This is because it lacks parameters for proportionality or accountability. When committed by law enforcement to avoid the challenges faced in the criminal justice system, it catalyzes the lack of trust and legitimacy in the very system by the public.
This, in turn, encourages anarchy marked by self-help approaches to law enforcement including mob injustice.
Torture is categorized legally under crimes referred to as “mala in se” – meaning inherently wrong or criminal. Due to its gravity, perpetrators go to extreme lengths to cover up the commission of torture. This explains the close interconnection it has with the ultimate cover-up – enforced disappearances, and killings including extrajudicial executions.
Specifically, in cases of enforced disappearances, it has been found that families of the disappeared suffer psychological torture. This is especially true when the whereabouts of their loved ones remains unknown. Amnesty International has referred to this as a continuing crime of enforced disappearance – and consequently the continued crime of torture to loved ones.
Unfortunately, many families suffer this continuous torture. The Kehancha Police Station case of Daniel Baru Nyamohanga (Petition 2 of 2017) is a good example. Mr Nyamohanga was arrested and placed in custody at the said station only for him to go missing a few days later. It is now four and a half years since he was last seen. His whereabouts remain unknown.
An appreciation of the torture his family has undergone is evident in his elderly father’s plea to be given his son’s body for burial.
This is the kind of anguish most families experience in private. Unlike the case of Daniel Baru, most households whose loved ones have been forcibly disappeared do not enjoy the limelight of publicity to share their pain.
Such families are many, helpless and fearful since those responsible for the disappearance of their kin are known and continue to operate with impunity.
In the Constitution of Kenya, torture is one of the four rights that cannot be limited. As far back as 2017, we enacted legislation christened “Prevention of Torture Act.”
The Act defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person to obtain information or a confession, punishment or any reason based on discrimination of any kind.
A maximum imprisonment sentence of twenty-five years upon conviction for the offence of torture is provided. This sentence is enhanced to imprisonment for life in the event the victim dies.
The Act explicitly omits exceptional circumstances or justifications such as state of war or emergency or internal political stability as justification for torture. Immunity and amnesty are ruled out for perpetrators of torture. Further, protection is extended for persons who disobey an order requiring involvement in torture.
The act declares information, confession or admission obtained as a result of torture as inadmissible in Court. Finally, the Act makes it an offence to aid, abet, counsel, procure or conspire to commit torture with a maximum sentence of fifteen years or a maximum fine of one million shillings.
Other offences related to torture include assault and grievous harm or maiming under the Penal Code. While assault as an offence is considered a misdemeanour that attracts a sentence of five years, grievous harm attracts a sentence of life imprisonment.
With the foregoing in mind, it is not surprising that the country is yet to see the office of the Director of Public Prosecutions file a charge for an offence of torture.
Prosecution Counsel seemingly prefers, and rightly so, the direction of grievous harm in cases of torture due to the enhanced prison sentence.
There is however an opportunity for the office of the DPP to charge accused persons with torture in cases that do not amount to grievous harm and are not as well defined in the Penal Code or other statutes.
Aggrey Juma is a Senior Manager at the International Justice Mission (IJM).
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