Many decades after they were detained and tortured, two prominent Kenyan activists who campaigned for multi-party democracy and human rights have been awarded posthumous compensation related to their detention and torture under previous repressive governments. The court that awarded compensation to them also made formal declarations that the fundamental freedoms of the two, Charles Rubia and John Serony, had been violated, as had their right not to be subject to torture and other unlawful abuse. Though it had been many years since the two were detained and tortured, the presiding judge said it was ‘not too late to peer into the past and correct injustices that may have occurred in our history.’
Kenya’s constitution says that the currency of that country ‘shall not’ bear the ‘portrait’ of any individual. So, when new bank notes were issued earlier this year, depicting the Kenyatta International Convention Centre with Kenya’s first president, Jomo Kenyatta, clearly distinguishable, seated alongside the building, the question arose whether the new notes were constitutional. Two of the presiding judges felt they had to solve the legal conundrum by deciding whether the bank notes bore a ‘portrait’ of Kenyatta – or if it was just a picture of a statue.
Three daughters have gone to court to fight for their right to inherit from their father. This, after their brothers had divided the estate among themselves, deliberately withholding from Kenya’s high court the fact that the sisters even existed.
As one of four daughters myself, I always enjoy a story where sisters stand up together against injustice aimed at any (or all) of them. This is just such a matter, involving the estate of Daniel Kamau who died in 2001. He left six sons and six daughters – but no will.
Our Women’s Month judgment this week comes from Kenya’s Judge William Musyoka. What makes his decision stand out is that he has found and highlighted an anomaly in the law dealing with rape, a particularly traumatic crime that is all too prevalent. He explained that the same set of facts could be considered under either of two provisions, but one could attract a much lighter sentence than the other. He said he did not understand why there should be two provisions and why, as in this case, the state would choose to charge the accused under the section that would result in a lesser sentence. It is a welcome and important step when judgments pay such close attention to the laws that affect so many – most of them women and children; when they point out anomalies that see perpetrators walking away with ‘a slap on the wrist’, as Judge Musyoka put it. His judgment is a challenge to the legislature to reconsider the law and close the escape route that could see a rapist spending very little time in prison despite the horrendous nature of the crime.
When a death row prisoner has his date with the executioner commuted and starts a lifelong relationship with the inside of a prison instead, he will usually continue to explore every avenue to escape a prolonged life behind bars. Those explorations seldom amount to anything, but in the case of two prisoners waiting out their life-term in a jail in Kenya, luck – and a failure of Parliament to sort out a conflict of laws – was on their side.
Peter Muindi and Jimmy Musila were originally charged and convicted of attempted robbery with violence. On conviction they were sentenced to death. Though the death penalty was commuted to life, they lost both their appeal attempts (to the High Court and the Court of Appeal) on the question of conviction and appropriate sentence. That seemed to be the end of the road: they would have to reconcile themselves to spending the rest of their lives in jail.