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George
Anyona (middle) who had had earlierbeen
detained
by Jomo Kenyatta, landed introuble
in 1982 together with
Jaramogi Oginga Odingawhen
both were detained for seeking
to register apolitical
party, the Kenya African
Socialist Alliance (KASA).
|
From businessmen to politicians, journalists, students, and academics, no one was spared at the height of Kanu’s oppression.
And
one of the most abused legal instruments during this dark period in the
history of Kenya was a writ of habeas corpus that required a person
under arrest to be brought before a judge.
The essence
was to determine whether the custodian had lawful authority to detain
the person. If that was not the case, the detainee had to be released
unconditionally.
The Latin term literally means “you
may have the body or the subject”, and its principle ensures that a
prisoner can be released from unlawful detention.
On
April 12, 1987, the story of a Kiambu businessman, Stephen Mbaraka
Karanja, hit newspaper headlines with his arrest by police, his
subsequent disappearance, and the tortuous court battle that saw a judge
resign over the matter.
It still remains a mystery as
to whether Mr Karanja was a political dissident or a criminal, although
the police went with the latter.
The facts of the
controversial case, which shook the country, was to bring the Judiciary
under Moi’s rule in total disrepute over the manner in which the case
was handled.
Mr Karanja was arrested by the CID
officers on April 12 for interrogation in connection with an alleged
robbery. After his disappearance, his wife, Naomi, moved to court for a
writ of habeas corpus.
High Court judge Derek Schofield allowed the application and directed the police to produce the subject in court.
The
police, through the Attorney-General’s office then headed by Mathew Guy
Muli, failed to comply with the court orders and reported to the judge
that Mr Karanja was shot dead as he allegedly attempted to escape from
lawful custody.
The no-nonsense judge ordered police to
produce his body and cited the Commissioner of Police and the CID boss
for contempt of court.
After a lengthy cat-and mouse
game in the corridors of justice and an imminent jail sentence for the
two top police officers, what followed was a fruitless, gruesome
exercise where police exhumed 19 bodies at the Eldoret Municipal Council
cemetery in search of Mr Karanja’s remains.
EXHUMATION OF BODIES
This
writer and former Daily Nation senior editor, Mutegi Njau, witnessed
the day-long macabre exercise of exhumation of fresh bodies.
Pathologists had to go over each body in search of a bullet hole police claimed was the indelible mark on the body.
Back
in court and without the body, Justice Schofield’s only option was to
have the top security bosses put behind bars for contempt.
That
was the staw that broke the camel’s back. In a dramatic twist of
events, Chief Justice Cecil Miller, with orders from “above”, intervened
and transferred the judge to an up-country station.
Mr
Justice Schofield turned down the transfer and quit the Judiciary. He
later left the country to become the Chief Justice of Gibraltar in the
Cayman Islands.
It later emerged that Mr Karanja was
shot and his body burned to ashes in a thicket in Eldoret. An eyewitness
to the murder recalled Mr Karanja’s last words to the effect that:
“There is no God in Kenya.”
Journalists covering the
case were not spared either. Mr Paul Amina, then stringing for the
international media, was arrested outside the High Court and detained
without trial.
On January 18, 2013, Mr Justice
Schofield presented a paper on ethics and principles in the legal
profession at the Strathmore Law School and, reflecting on Mr Karanja’s
case, he explained that he was ready to lose his job and life, but not
his dignity and that of the court.
'FATHER OF THE NATION'
He said he was warned on many occasions that he was poking his nose in matters that concerned the “father of the nation.”
In
the mid 1980s, perceived political dissidents suffered in the hands of
security agents. A number of lawyers, including veterans John Khaminwa,
Gibson Kamau Kuria, and Paul Muite, were detained in total disregard of
the law for representing people accused of opposing the government.
University
students, journalists, lawyers, and human rights advocates were
arrested, tortured, and unlawfully detained or imprisoned for their
perceived opposition to government policies.
The
Judiciary, being one of the arms of government, was seen as an extension
of the Executive and happily cooperated in the abuse of peoples’
rights.
Suspects were sneaked into the courts under
cover of darkness without the benefit of a lawyer and made to plead on
trumped-up charges.
Lawyers Khaminwa, Gitobu Imanyara,
Mohammed Ibrahim (now a Supreme Court judge) and politicians Raila
Odinga, Kenneth Matiba, and Charles Rubia were detained without trial.
Mr
Kamau Kuria and Mr Kiraitu Murungi, then running a joint law firm,
sought refuge in the United States Embassy to avoid arrest.
A
former University of Nairobi lecturer and currently a member of the
Judges and Magistrates Vetting Board, Mr Ngotho Kariuki, fellow don Prof
Edward Oyugi, and former MPs Njeru Kathangu and George Anyona, were
arrested at a Nairobi bar in 1990 and charged with sedition.
At
the conclusion of their trial, the court declared them guilty of
plotting to overthrow the government and being in possession of
seditious publications. They were jailed for seven years.
They lodged appeals and were released on bail. They were later set free after the State decided not to defend the case.
Leading
the prosecution, then Deputy Director of Public Prosecutions Bernard
Chunga had tabled documents in court as exhibits alleging that Mr Anyona
had prepared a shadow Cabinet that was to be sworn in after Mr Moi had
been deposed.
SILENCING MR ANYONA
Some
prominent names to take up positions in the shadow government were
peddled only to be revealed later by the then assistant minister in the
Office of the President, Mr John Keen, that the allegations were mere
government fabrications aimed at silencing Mr Anyona.
Mr
Chunga was later to be rewarded by being appointed Chief Justice. He
was forced to retire in 2002 soon after the NARC government dethroned
Kanu.
Mr Anyona, who had had earlier been detained by
Jomo Kenyatta, landed in trouble in 1982 together with Jaramogi Oginga
Odinga when both were detained for seeking to register a political
party, the Kenya African Socialist Alliance (KASA).
Mr
Moi’s desperate bid to assert his authority banned the University
Academic Staff Union and its officials between 1993 and 1995.
Lecturers
Willy Mutunga (current Chief Justice) and Katama Mkangi were arrested
and detained for what the president described as “over-indulgence in
politics.”
The union and its officials sought the
representation of renowned lawyers Pheroze Nowrojee, James Orengo,
Kuria, Muite, Murungi, Otieno Kajwang’, and Kathurima M’Inoti, but the
court refused to hear the application challenging the ban.
In
1991, Moi also banned the production of George Orwell’s Animal Farm and
Ngugi wa Thiongo’s Kikuyu play Ngaahika Ndeda (I Will Marry When I
Want), which the government considered subversive.
The
worst of Moi’s regime was witnessed after the 1982 attempted
coup. Student leaders, including the chairman of the Students
Organisation of Nairobi University (Sonu), Mr Titus Adungosi, were
arrested in connection with the coup. Adungosi was jailed for 10 years.
He died at Kamiti Prison.
With the Moi government
acting tough on student leaders and lecturers, a group led by then
chairman Mwandawiro Mghanga, were expelled from campus. In 1987, student
leader Wafula Buke was jailed on suspicion of spying for the Libyan
government.
He earned his freedom after the introduction of multi-party politics.
MWAKENYA MOVEMENT
The
emergence of the clandestine London-based movement, Mwakenya, sparked
more widespread human rights violations by the Moi regime. More than 100
people were arrested, jailed, or detained for their association with
the proscribed “underground” movement.
The movement was
believed to have been started by some Kenyans in Europe who had fled
the country at the height of Moi’s repression.
A group
led by Koigi Wamwere remained behind bars for a considerable period and
it took the extreme action of their mothers stripping naked at the
famous Uhuru Park’s Freedom Corner between 1991 and 1992 as an
expression of a traditional curse that Moi was forced to release them
and other detainees.
Environmentalist Wangari Maathai,
who organised the Freedom Corner siege, and activist Njeri Kabeberi
paid a high prize for their daredevil action.
Besides
political activists, lawyers, lecturers, students, and journalists were
among the main targets of the Moi era atrocities. Most of them were
tortured, jailed, or detained.
Wahome Mutahi, popularly
known as Whispers for his humour column in the Sunday Nation, and his
brother, Njuguna Mutahi, formerly with the Kenya News Agency, were among
the pioneer journalists to be jailed for their alleged association with
Mwakenya.
Others were writers Mugo Theuri, Njuguna
Mutonya, and Jimmy Achira. Paul Amina and Otieno Mak’Onyango had been
detained earlier after the failed 1982 coup.
Theuri was
jailed for four years after he pleaded guilty to charges of taking part
in an unlawful oath and failing to prevent a felony.
Mutonya was arrested in Mombasa in 1986 and accused of sedition. He was released three years later.
When
security agents searched his house and found his nephew’s class essay
titled “Alexander the Sick Man of Europe”, the security agents claimed
that the writings were coded to refer to Moi.
And on
the eve of Good Friday in 1991, police raided the offices of Society
magazine at Tumaini House in Nairobi and arrested its publisher, Pius
Nyamora, his wife Loyce, and journalists Mwenda Njoka, Mukalo wa
Kwayera, and Laban Gitau.
SEDITIOUS MATERIALS
They were later taken to Mombasa and charged with various counts of publishing seditious materials.
After
they were denied bail, they were escorted to Shimo la Tewa Prison and
held for several weeks before being admitted to bail. A year later,
their cases were quietly dropped. Bedan Mbugua and David Makali of the
People Weekly, were jailed for four months for contempt of court.
The
newspaper had written an article accusing Moi of contempt of court when
he declared that the Universities’ Academic Staff Union would not be
registered despite a case waiting for determination in court.
The court ruled in favour of the State and refused to order the registration of the union.
Mbugua
and Makali were arraigned before the same judge who had presided over
the case and fined Sh400,000 and ordered to apologise. They refused to
agree to the contents of the court’s written apology and were
consequently jailed.
Finance magazine editor Njehu
Gatabaki and Nairobi Law Monthly publisher Gitobu Imanyara were also
tortured for their publications’ criticism of the government.
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