Intelligent. Kenyan.

Published: 10 months ago

Justice On Trial

by Robert Munuku

“We were bundled together in military trucks and taken straight to Naivasha Maximum Security Prison. On arrival, I was locked up in solitary confinement for two months without any communication or reason as to why I was locked up,” retired Airforce Captain, Frank Mũnũku, recounting the 1982 attempted coup d’état in Kenya.

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The year was 2012, a time that would later prove critical for my family in more ways than one. It was towards the last part of the semester and I was preparing for my final exams at the University of Nairobi, more specifically, I was reading ‘Philosophy of Law’ (or, jurisprudence). St. Thomas Aquinas defined the law as ‘a certain rule and measure of acts whereby man is induced to act or restrained from acting’. In other words, he saw the law as a disposition of reason, one whose relevance was only actualized in as far as it served the ‘greater good’ for the public. This would also be the same year that marked the 30th anniversary since an attempted coup d’état orchestrated by then Kenya Airforce private, Hezekiah Ochuka. Ochuka and a few others would later become the last Kenyan citizens, to date, to be executed after a death sentence ruling. My father, Frank Mũnũku, was a captain at the Kenya Airforce and was now, three decades on, seeking justice for victimization in relation to the botched coup.  

It is said that time heals, I however believe that such a recovery can only be a product where justice is a necessary part of the equation. In my father’s case, recovery was only half done after a three plus decade moratorium and it was finally time to seek reparation for ills done unto him.

My first conversation with him more than showed this, as he narrated:

“When young servicemen tried to overthrow the Government on 1st August 1982, I was not in my Barracks at Embakasi.  I was with my battery in Wajir Air Base guarding the airfield and carrying out my duties as assigned. The officers who were said to be the ring leaders were not in my Battery and I did not even know them.  I was informed by my radio operator about the coup in Nairobi on that Sunday morning. My first reaction was to call all my officers and soldiers to a parade and tell them to remain calm and await instructions for I had no idea what was happening.

I tried to call my base at Embakasi but could not get through. Inside the Air Force Base at Wajir, there is always an army battalion with its own camp and has its own operational procedure which does not interfere with Air Force operations. During this time it was under the command of Lt. Colonel Thirimu. His deputy was Captain Dan Munene – both officers were known to me.

I decided to go to the Army camp to find out if they knew what was happening in Nairobi. I found the commanding officer and his deputy and they told me that they did not know anything besides what I had heard on the radio. The commanding officer told me to tell my men to remain calm and wait for instructions. I went back to my camp and did exactly that.

My officers and men remained calm as I had instructed them and there was not a single incident of indiscipline. The following day Lt. Col. Thirimu and Capt. Munene visited me at our Air Force camp and informed that he had received instructions from Army Headquarters to disarm my men and I, and carry our interrogation on us to find out what we knew about the coup.

I obliged and ordered by my officers and me to hand over their weapons to the Colonel without any problem. The Colonel then set up one of the rooms for interrogation. ,During the interrogation, the Colonel asked me what I knew about the coup. I told him I did not know anything or anyone who could have planned it. He then ordered for me and a few of my officers to be locked up at the Police Station at Wajir to await transport to Nairobi.”

This was the first encounter I had with what would follow as a series of narratives depicting the dehumanizing treatment my father and other colleagues received at the time. The law is to be obeyed, that is the underlying philosophy of any law or rule. Obedience is usually a functional value and often laws followed lead to a better state of life for those that the laws govern. My father’s description of the insurrection of the 1982 coup, coupled with events that were consequential, is a crystal clear analogy of how the law and its obedience or disobedience oscillates on the same paradoxical axis. My father was actually following the protocol required to escalate a crisis of such a nature but irony would later punish his obedience and respect for the same protocol.  

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“As a Captain I was earning about KES 3,600 and a Hardship Allowance of KES 1,200 since most of the time I was out in the field.  Thus my salary in total was KES 4,800 per month.”

*

My father eventually got legal counsel and took the government to court. In our country, sadly so, it is not often the case that an individual wins a legal battle against the government even when the facts are as clear as the light of day. One such rare case is that of Judy Thongori, a Kenyan lawyer who successfully sued the Kenyan government for not delivering on the legislated 30% of women representation. Another is that by transgender activist, Audrey Mbugua who, after taking the KNEC (Kenya National Examination Council – a government parastatal) to court, successfully had her name changed on her school certificates. My father too, oddly enough, was eventually successful against the government, 2 years after he had revived past horrors by way of a lawsuit.  His ruling read: –

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In a nutshell, judgment is hereby entered in favour of the Petitioner against the Respondent in the following terms;

  1.         a)       A Declaration that the cruel, inhuman and degrading treatment subjected on the Petitioner upon his arrest and being taken into police custody and subsequent detention in the various prisons constituted serious breaches of the Petitioner’s fundamental rights and Freedoms as to liberty, humane treatment, and freedom against arbitrary  interference with his privacy, family and home, and right to earn an honest living as guaranteed under the Repealed  Constitution and Constitution of Kenya, 2010.
  2.      b)      A Declaration that the detention of the Petitioner for eight  (8) months with two months under solitary confinement (incommunicado) without arraigning or charging him in Court with any offence known under the law violated the Petitioner’s right of personal liberty under Section 72 of the Repealed Constitution and was illegal and a violation of the Petitioner’s fundamental right to equal protection of the law under Section 70(a) of the Repealed Constitution (now  Articles 27(1)&(2) of the Constitution of Kenya, 2010) and further grossly violated the Petitioner’s right to a fair administrative action as provided for under Article 47 of  the Constitution.
  3.        c)      General Damages of Kshs. 5 Million consequential to the Declarations of violations of the Petitioner’s Fundamental Rights and Freedoms.
  4.       d)      costs of this Petition.
  5.       e)      Interest at Court rates on (c) and (d) above.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Amolo holding brief for Mr. Gikaria for Petitioner

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The ruling, however, was a short-lived triumph, one that would later prove as a battle, rather than a war, won. The next phase of getting compensation from the government was the real fight and, to date, the government has not paid my father for his false incarceration and torture, the latter being a somewhat abstract thing to compensate – how does one qualify what is a ‘good enough’ compensation for psychological trauma? Initially, when my father had began the process of seeking legal redress, I battled internally with this question: what amount of money would be enough to heal psychological scars or how can one be even compensated for time lost? I then went on to get a detailed account of the psychological experience that my father went through, again, from a conversation with him which he vividly recollected:

“(…) my being locked up was just the beginning of a long and very painful experience. Being the boss, I was locked in a cell alone with nothing but a rug to sleep on. For three days I did not have any food or water. The heat and mosquitoes were beyond human imagination. By the time I was taken out on the third day I could hardly talk. I still have problems with my throat since that day. In the afternoon of the fourth day we were taken back to the camp where we found an aircraft waiting to take us to Nairobi together with the other officers. I was not allowed to go back to my room to pick up my belongings. I therefore lost all my clothes, a camera and a very expensive music system that I had bought in Wajir town.

We arrived at Eastleigh Air Force Base at around 7 pm. On arrival we found many other officers and servicemen. We were bundled together in military trucks and taken straight to Naivasha Maximum Security Prison. On arrival, I was locked up in solitary confinement for two months without any communication or reason as to why I was locked up.

In the third month, I was taken for interrogation. During the interrogation, I was told to tell the panel what I knew about the coup. I told the interrogating officers that I knew nothing and that I was in Wajir when it happened. One of the officers asked me why I was arrested if that was the case. I replied that I had no idea and that they should call Lt. Col. Thirimu and ask him why he arrested me. I was taken back to solitary confinement and kept in incommunicado for another three weeks which seemed like three years due to loneliness. I was treated like an animal. Even the guards who brought me food never talked to me.  They would not even respond to my greetings.

After three weeks, I was taken back for interrogation. I was not asked any questions; instead, the officer in charge told me that they had contacted Lt. Col. Thirimu and had indeed concluded that I did not know anything about the coup. I thanked him and, thinking that now that they knew I was innocent, they would release me and I would report back to work. However, I was instead taken back to the cell and locked up, this time along with my colleagues.

Another two months passed and I was still languishing at Naivasha Maximum Security Prison. After the Christmas of 1982, we were transferred to Kamiti Maximum Security Prison. The living conditions in this prison were horrible. Most of us suffered from diarrhea because of the pathetic food we were being given. We remained locked up there until 9th March 1983. That was the time we were released and given one month’s salary to buy clothes as we were still in uniform.

Despite the fact that the interrogating officers found me innocent, I was not released but was instead punished further for no reason at all. When I was released, I found that my wife and child had been evicted by the army from the married quarters which had been allocated to me by the Air Force. Most of my household items were broken or lost during the eviction process. My wife was traumatized as she did not know where I was all that time and whether if I was alive or not.

That week I reported to the Department of Defense to find out if I could go back to work. The officer who received me informed me that I had been fired and that I should report back to him for my certificate of service after a week. I asked if I could see the senior officer in charge to find out why I had been dismissed yet I had been informed that I was innocent. However, I was refused to see him and told to go away. I was so disgusted that I did not go for it until 1990, the same year that my third child was born. That is when I saw that my commission had been terminated for no reason at all.”

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The government actually appealed thrice to no avail and the court was adamant that compensation be made as per the initial ruling.  As citizens of our country, we are left wondering whether we should obey the law if the government itself, a custodian of the law, cannot.  Why should an individual follow the constitution if the government cannot?  Should students pay their loans to government if the government cannot pay compensation (of which a court of law has instructed) to those it has wronged?  How credible is our government?  These questions are but a taste of the stark realities that face Kenyans on an everyday basis, and I, like them, ask the same questions too.

Robert Mũnũku is a visual artist, writer & filmmaker based in Nairobi. Mũnũku is also the founder of Mau Mau Collective which is an organization that seeks to create a strong network of independent visual artists, filmmakers & performing artists on the continent. He also serves as the Regional & International Dialogue Coordinator for the Heinrich Böll Foundation (East & Horn Of Africa). Follow him on Twitter @robertmunuku

2 Comments.
  1. Kaige Kibe says:

    When a government does not respect the judiciary, what is a citizen to do? Revolt? Impeach those responsible? The truth is out there and it shall set us free….

  2. Sorry for what happened to your father. It was wrong, inhumane and disappointing of our govt. I believe that when all the people who feel like this country owes them something, either because they work in the govt or fought for independence, are gone and new patriotic leaders come into office is when we will see positive changes in our govt. I hope your father gets compensated.

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