BY PETER KIAMA
Annually, on June 26, the world marks the International Day in Support of Victims of Torture.
This day has been commemorated for the last 26 years by the United Nations since its declaration on 12th December 1997, as an opportunity to call on all stakeholders including UN Member States, civil society and individuals everywhere to unite in support thousands of people around the world who have been victims of torture.
As we mark this day we also commemorate 30 years of the Independent Medico-Legal Unit (IMLU).
This is an organization established in the dark, early 1990s in response to torture and other atrocities committed by the undemocratic KANU regime.
Led by Dr Ling Kituyi, Dr Mohamud Said, Pravin Bowry, Pheroze Nowrojee, Fr Gabriel Dolan and other patriots, IMLU is a shining example of volunteerism, courage and passion.
IMLU has for more than three decades supported over 6,000 survivors and victims of torture, extra-judicial executions and enforced disappearances.
This number represents only but a small fraction of the total number of victims of the state’s use of unwarranted force since independence.
Kenya has made steady progress as a state party to the UN Convention against Torture, with regular periodic reporting to the Committee against Torture (UNCAT), the enactment of the Prevention of Torture Act 2017, the provisions against torture in the National Police Service Act 2011, the National Intelligence Service Act 2012, and the Kenya Defence Forces Act 2012.
The Constitution of Kenya 2010 prohibits torture under all circumstances. In summary, Kenya has the requisite legal and constitutional safeguards against torture cruel, inhuman and degrading treatment or punishment.
Sadly, the good story ends there.
In 2023, hundreds of Kenyans continue to experience torture, extra-judicial executions and enforced disappearances.
Law enforcement agencies, especially police officers are the main perpetrators.
Case files and trend analysis by many human rights organizations including IMLU and Social Justice Working Group clearly indicate a systemic abuse of power by the state and not limited to a case of a few rogue officers.
Today and unlike the high-profile torture cases of the 1990s that involved prominent pro-democracy activists, the survivors and victims of modern-day torture and ill-treatment are mainly young, poor and male who are largely ignored by the mainstream press and the public, attracting minimal attention.
It is only the sustained and gallant efforts by civil society organizations, survivors and victims’ support groups that have kept hope alive.
The campaigns for accountability, justice and rehabilitation have been relentless.
Some of these valiant efforts have resulted in compensations but no single perpetrator has to date been investigated, arrested, charged or convicted for the crime of torture, cruel, degrading or inhumane treatment or punishment, even after the enactment of the Prevention of Torture Act in 2017!
To add insult to injury, survivors and families of victims who have won constitutional petitions and awarded compensation for their loss, have been subjected to impunity from the State in its failure to live up to their obligation and pay the sums awarded by courts.
Sadly, in all court decisions, the government has not been ordered to provide rehabilitation for the medical and psychological harm, or livelihoods lost due to the heinous actions of state agents.
Statistics of cases won and the number of unpaid compensations is a serious indictment of the state.
IMLU case files indicate that the state is yet to pay over KES. 30 million (approx. USD200,000) in compensation for atrocities dating back to 2007.
These include the bludgeoning and stabbing to death of Nairobi hawker Irungu Kamau by Nairobi City Council law enforcement officers in 2013, to punishment-oriented shootings by police officers in the 2017 elections in Migori County.
These are only two out of the many cases of failure by the state to comply with court orders.
To date, the state has not established an effective victim reparations mechanism which is still subject to endless bureaucracy between the treasury, parliament and the office of the Attorney General, as survivors and families of victims continue to suffer.
The Victims Protection Board has been in place for years but it has been unable to support victims due to lack of funding by the National Assembly and Treasury.
In another indication of the government ‘s lack of good will is failure to gazette the Victim Compensation Fund Regulations.
The stonewalling of the mechanisms of justice is extremely disturbing.
A small glimmer of hope lies in the recent reactivation of the Task Force on the compensation fund regulations.
Hasten, hasten, the victims cry!
As we mark the International Day in Support of Victims of Torture this month, it is imperative that the state lives up to its obligations and pays out all outstanding court awards to survivors and families of victims.
The state also needs to fast-track the gazetting of the Victim Compensation Fund Regulations and allocate adequate budgets to ensure timely payment for all future court awards and other victims’ support interventions.
Investigative and prosecutorial agencies must move with speed to commence investigations and prosecutions of all culpable of the atrocious crimes of torture and related violations, under the new Torture Charge Sheet and Rapid Response Guide.
As we commemorate this day, let us remind ourselves that though reparations will provide, justice, healing and accountability, true healing can only come with the elimination of torture and ill-treatment in Kenya today.
Peter Kiama is an ardent human rights advocate and Executive Director of the Independent Medico-Legal Unit. @KiamaPeter1
Edited by Albert Nyakundi