Kenyan government compelled to cough up after lengthy delay

28 Mar 2018

A KENYAN High Court has issued an order ‘compelling’ the government to pay the damages awarded against it for the unconstitutional treatment it meted out to a group of ten internal and external refugees in 2007/8. The latest order follows government recalcitrance to comply with earlier court decisions in the case and the total payable in damages has now escalated to more than R6m. But, as Carmel Rickard writes in her A Matter of Justice column on the Legalbrief site, this is simply one of a number of cases illustrating a worrying problem: the Kenyan government routinely flouts judicial orders and is the subject of a growing number of contempt applications.

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When Salim Awadh Salim and nine others won their case against the Kenyan government for illegal extradition and other unconstitutional treatment, it was hailed as an important human rights victory. But years later the ten are still waiting for the state to pay the sizeable damages award, ordered and authorised by the court.

The case highlights a growing constitutional problem for Kenya – its government persistently ignores and flouts court orders. Now the ten have won yet another judicial decision in their favour. Last week High Court judge George Vincent Odunga issued an order ‘compelling’ government to pay the debt it owed the litigants: more than R6m ‘together with all the accrued interest at 12 percent per annum’.

The ten claimed that between January 2007 and October 2008 they were victims of arbitrary arrest, unlawful, unconstitutional incommunicado detention without trial as well as torture, cruel, inhuman and degrading treatment in Kenya. This was followed by illegal, extra-judicial and unconstitutional removal to Ethiopia, and then torture in Ethiopia and Somalia.

Salim’s original case was particularly important because the court rejected Nairobi’s claim that national security interests justified its actions. At the end of his 2013 judgment finding the state acted unlawfully and was liable for damages, High Court judge Mumbi Ngugi wrote: ‘I must observe … that the state displayed what can only be termed a callous disregard for the rights (of the group) who appear to have been simple innocent people who had gone to Somalia in search of a livelihood. For the state to deprive them of their liberty and only bother to ascertain their identity when their relatives complained, months later, demonstrates an attitude that is totally out of touch with the duty of the state towards its citizens.’

The judge added that he had been given no evidence to indicate that any of the group was ‘linked to terrorism’, and they were all eventually freed without any charges. ‘However, even had they been linked to terrorism, I believe that it would not have been lawful’ to send them ‘to a state where they were likely to be subjected to torture’.

Since that 2013 judgment in their favour the ten have been unable to get the government to pay and have had to go back to court repeatedly for further orders. All the required paperwork was served on the relevant senior government members, ‘who … duly acknowledged receipt’. But officials have taken no action to comply with the judgments against them. Lawyers for the group said they ‘have made numerous subsequent follow-ups for settlement of the judgment debt but have all been met with resolute muteness’. This, even though the government has not filed notice of any appeal, nor has any court ordered a stay of execution of the judgment.

The lawyers said even though the government officials had the legal duty to pay, they had not done so. As a result of their ‘neglect, disobedience and violation’ of the court judgment and the final orders of the court, the amount due to be paid continues to grow because of the interest that keeps accruing.

The group told the court it was concerned to find that at no stage since they were awarded damages, had the significant sum they are due been included in Kenya’s annual national budget. In their view, this failure to make provision for the payment showed ‘disregard, neglect, disobedience and violation’ of the court’s orders. The government’s behaviour was a ‘violation of the constitutional values of the rule of law, equality before the law and human dignity’, and the continued violations of these values ‘is a grave and present danger to the constitutional order of Kenya’.

Commenting on the concern of the group that their damages award had not been included in the country’s budget, the judge said judicial decisions had made it clear that payment by the government of money it owed as a result of court orders was not conditional on budgetary allocation and parliamentary approval.

Salim and the rest of the group had asked the judge to ‘compel’ satisfaction of the judgment already made in their favour by the court. The judge said the government parties did not oppose the application, nor had they ‘given any reason’ why the order of payment, made by the court ‘has not been satisfied more than three years down the line’.

Salim and the other nine had asked the court to grant a mandamus – an order that the government must comply – and, said the judge, ‘if the court were to decline’ to do so, the group ‘would be left without an effective remedy despite holding a decree’.

The judge said he agreed with a High Court colleague who wrote that when someone won a judgment that person’s right ‘to enjoy the fruits of his judgment must not be thwarted’. Faced with a situation like this, the court ‘should adopt an interpretation that favours enforcement’, reasoning that it ‘is underpinned by the values of the constitution’.

This is far from the only recent case in which the state, or some of its representatives, has flouted court orders. When Raila Odinga, rival contender to the Kenyan presidential office, held a ‘mock swearing-in’ ceremony, government officials took independent television stations off air to prevent them covering the event. Despite court orders that broadcasting had to be resumed, these stations remained off air.

Even more sensational has been the case of lawyer and political activist Miguna Miguna who ‘presided’ over Odinga’s ‘swearing-in’ ceremony and who was then detained and deported to Canada, in the face of several judges’ orders that he be produced in court.

Contempt of court challenges are now being prepared in relation to the government’s flouting of judicial orders in the Miguna case, but the reported decisions so far this year indicate that there have already been a number of other applications and decisions in contempt matters arising from defiance of court orders.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)