An Open Letter to Chief Justice Martha Koome

19 mins read
The Kenya Government is already disobeying Court Orders With Help From the Judiciary.

The Judicial Service Commission has condemned comments from members of the Executive and the legislature mulling for disobedience of court orders.

JSC Chair Martha Koome in a press address on Monday said the continuous attack on the judiciary and planned disobedience of court orders is an assault on the constitution.

The press address was attended by commissioners of the Judicial Service Commission.

“The threats are serious and assault to the constitution and the rule of law and the very stability of any nation and can lead to chaos and instability,” she said.

Koome said the independence of the Judiciary is more important now adding that continuous attacks put the country on the precipice of a constitutional crisis.

“The declaration that they will not obey the orders granted by the court is unattainable and counts to contempt of court,” she said.

“The robes that we wear as judges and JSC magnify the conduct and stand out. Judges must be held to a high ethical standard if they are to keep the trust of the people,” she said.

She further added:

“Our prayer tonight is that we safeguard the constitution according to the law.”

Koome said transparency, diligence and commitment to upholding the rule of law are paramount in guiding the proper conduct of their duties and fostering public trust in the legal system that they are supposed to represent. 

I am very happy to let our Chief Justice Martha Koome know that despite her good intentions in asserting that the government should never disobey court orders, our government is already disobeying every court order I know of, regarding victims of human rights abuses who have been awarded compensations for torture at Nyayo House and Kenya jails. The worst part of this hell hole for torture victims is that the Kenya government is disobeying court orders with great help from the judiciary.

I am one such victim so I am speaking from direct experience. I was first arrested in Kenya on August 3, 1982, and was locked up in police cells for more than 5 months.

At Langata Police Station I was thrown downstairs from one floor to the next down and my head was blown up I had no idea where I was until I woke up in a room with my head being operated on.

After 5 months at the police stations with my head covered in stitches and bandages, I was taken to Industrial Area Remand Prison with 66 other students from Nairobi University and we were held there for another 6 months, and later released when the charges against us in court were withdrawn by President Moi and we were released.

I made it back to college and finished my studies and graduated with a Bachelor of Commerce (Accounting) in 1984. I was employed as a lecturer at Mombasa Polytechnic and enjoyed teaching there until I was arrested again this time in the middle of the night at my own house in Mombasa.

I thought I knew how the Moi cops torture and brutalize people but I knew nothing yet.

This time, I was taken straight to Nyayo House Torture chambers and was nearly killed there in the swimming pools where we were locked for weeks, naked in freezing water and you can’t lie down and can’t sit so you stand in there until you fall asleep standing and fall with a thunderous landing that shakes the whole floor. When you wake up you are half-conscious, and when you can’t make it to the toilet you just poo and pee in the same pool of water where you are sleeping.

The torture at Nyayo House was to force Kenyan human rights activists to confess to charges cooked up by Moi and his Special Branch police. Because people were dying at Nyayo House, Moi knew we would be forced to accept bogus charges and be sentenced to jail.

They had a guy called Karanja who was a rally driver in Nakuru and they put him at Nyayo House and he got so sick in the swimming pool that when they took him to Kenyatta Hospital he couldn’t move or open his eyes and the SB still put handcuffs on him to tie him to the hospital bed where he died in less than a day.

So when you were at Nyayo House you knew what was coming and it was death or jail.

When I agreed to their charges the SB took me to the CID headquarters because that is where you get charged and taken to court and the SB will just come to court as observers. When the CID gave me the charge to sign it was outrageous and I refused to sign it. Then it was back to Nyayo House for me and I found my good friend Njuguna Mutonya at the CID office. When were back in SB car going to Nyayo House again he asked what the heck I did to make the cops so mad. I told him the charges against me were just way too much and it is all a lie.

Back at Nyayo, another month of torture, and then I told myself I would accept the charges if they were not too crazy. So this time they charged me with having Mwakenya and other clandestine literature which they knew was just a made-up thing because the SB never got anything in my house. But this charge was going to send me to jail for 15 months while the other charge I refused was for 5 years.

From the court, I was taken to Kamiti Medium Prison and it was just beatings and violence against the human rights activists every day.

One time I got lucky because I got so sick they were scared I was going to die in there. So they took me to the Sick Bay and there you get medication and all that. But you don’t go for the terrible manual labour and you can lie down.

After one month at the Sick Bay, I asked the prison officers why the guy lying down next to me never wakes up. They tell me he has acute TB and could be dead anytime. I was completely outraged. I asked them how do you put me next to a guy who was about to die from TB because that means I will get the TB and I will be next. When the medical people came to see me that day I told them I was in fantastic shape and I am ready to go back to the main prison and leave the Sick Bay.

I wanted to get out of the place so badly.

After leaving jail and going back to work, the SB came again for me and I left the country escaping to Tanzania by foot through Musoma to Dar-es-Salaam and was accepted as a refugee by the United Nations High Commission for Refugees (UNHCR) who took me to Canada in 1989.

I made it back to the country in 1995 after my father passed away. Later on, after Moi was deposed from his dictatorship I like many other victims of human rights abuses in Kenya sued the government for compensation.

On March 28, 2014, Justice Isaack Lenaola the presiding judge in my case ruled that I was tortured and abused many times by the Kenya government and I was entitled to a compensation of Sh. 4 million with cumulative interest. I thought the matter was over with and I could go on with my life. Very wrong assumption that our government could actually obey the court ruling.

Justice Lenaola did his job but it is the government that has to pay the compensation and they don’t care about that.

Now here 9 years later and I am just reading right in front of me a court ruling on my case made by Justice Jairus Ngaah on my contempt case against the Kenya government for refusing to pay the full amount of my compensation after all these years.

My contempt case was filed in 2016 and 7 years later, Justice Ngaah made a ruling on September 25, 2023, about the matter and he did his best but when will I get paid my full compensation?

Here is the final statement on Justice Jairus Ngaah’s 20-page ruling which I have right here with me.

“Penal notice: Take that non-compliance with, disobedience or contravention of the terms of this order amounts to contempt of court for which contempt proceedings against you shall commence”

“Here the alleged contemnor is being warned of “contempt proceedings” rather than the punishment that will be meted out against him as a consequence of the contempt. This, in my humble view, is not sufficient warning contemplated under law.

For these reasons, I decline the applicant’s motion but I make no orders as to costs since the decree is yet to be fully settled. It is so ordered”

My contempt court “Application No. 250 0f 2016” has gone on for 7 years and in most cases, the government representatives don’t even bother to show up in court. They seem very confident that the courts will never make any rulings against them, so why waste time coming to court?

At first, my contempt application was against Karanja Kibicho who was the Principal Secretary for the Interior ministry. He paid here and there but never wanted to pay the full compensation.

Now our case is before new PS Raymond Omollo who is in charge of the Interior Ministry and he has shown no interest, in even sending representatives to the contempt hearings. In the last minute of the hearing ruled on by Justice Jairus Ngaah in September 2023, the PS made a belated last-minute claim that the compensation had all been paid. Obviously, he has no clue about the case and he is sure the courts will never hold him and the government accountable.

For how long is this going to happen when the Judiciary is telling Kenyans that court rulings must be obeyed? Is there a specific provision in our constitution that says that any court ruling on abuse of human rights should never be obeyed by the government?

We have Kenyan victims of human rights abuses who have died in the streets poor and homeless while they had won compensation cases and the Kenya government refused to pay them.

Most of those victims will tell you one thing. They will let you know as soon as you win a compensation case against the Kenya government that they are waiting for you to die so they never pay.

In my case, that was close in 2021 when they put me in this big hospital for two months.

When I came from the refugee camp to Canada they told me I had ulcers and they can fix it. That was fine. Then that bleeding in the head at Langata Police Station came back and two years ago the medical experts here told me they needed to drill a hole in my head and they could stop the bleeding.

I told the medical folks that nobody is drilling a hole in my head and I would rather be dead than be living under those conditions. I sent those medical records from that hospital to the court dealing with my contempt case in Kenya telling them I needed to resolve that compensation matter and deal with other things like my health from that torture in Kenya. Do they care? Their record speaks for itself.

I have a friend who lives in Ottawa in Canada and he was detained in Kenya for many years when he was a professor at our university. He is now 84 years old and I told him he needs to file a case on human rights abuses for compensation. He told me there is no point doing that because the Kenya government will never pay and he doesn’t want to waste his time with that now. That is where things stand now in our legal system and our government.

And now that so many Kenyan human rights organizations like LSK, KHRC, KNCHR and JSC are speaking about the Kenya government obeying the laws of the country can they all go to court and ask the government to release the Truth Justice and Reconciliation Commission report as required by the 2010 constitution and the matters raised there dealt with immediately.

That commission took years to get the job done and the report is at State House hidden in one of the toilets gathering dust. How fair is that to Kenyans who had so much hope with that commission which cost Kenyans a lot of money? This is what contempt of laws and the constitution in Kenya looks like in real life. It is terrible.

And one last thing. In August 2022 the Supreme Court ruled that the NG-CDF as presently established in the constitution was illegal and ordered that the CDF should no longer be released to the MPs. What has the Ruto government and the MPs done about that ruling?

They have ignored and trashed that Supreme Court ruling and now they have the NG-CDF money flowing into the pockets of the MPs. That is not just contempt of court, it is government contempt of the Supreme Court itself and they know there will be no consequences for that contempt.

That is how our government and the judiciary system works. Kenyans tried to change things in the 2010 Kenya constitution which many Kenyans died to achieve but that too means completely nothing to the government.

Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

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