When rights meant nothing

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.