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US Supreme Court to hear 1998 embassy bombings case

Wednesday August 7 2019

KEVIN J. KELLEY
By KEVIN J. KELLEY
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Lawyers representing hundreds of Kenyan and Tanzanian victims of the 1998 embassy bombings are optimistic that the United States Supreme Court will rule to award a total of $4.3 billion (Sh440 billion) to their clients.

The top US court agreed in June to take up the case during its term beginning in October.

A ruling on whether the multibillion-dollar payment must be made to the Kenyans and Tanzanians by the government of Sudan will be handed down sometime prior to June of next year.

At issue is an appeals court's rejection in 2017 of the Sh440 billion award in punitive damages that a trial court had ordered as part of the $10.2 billion (Sh1.1 trillion) compensation from Sudan.

US courts have already agreed that Sudan is liable and awarded $5.9 billion (Sh600 billion) in compensatory damages and Sh440 billion in punitive damages to some of the Kenyans and Tanzanians harmed in the US embassy attacks. The punitive damages award was overturned by an appeals court.

“If there was ever a case where punitive damages should be upheld, it is this one,” William Wheeler, a US attorney involved in the lawsuit, said on Tuesday.

COMPENSATION

The lower court's ruling against payment of punitive damages reflected its view that a 2008 change in US law allowing for such payments could not be applied retroactively to the embassy bombings that had occurred 10 years earlier.

Under US law, compensatory damages are meant to compensate victims for their losses. Punitive damages serve as punishments levied against parties responsible for causing the losses.

A group of 570 individuals are plaintiffs in the case to be heard by the US Supreme Court. More than 300 of them are Kenyan citizens, 80 are Tanzanians and the remainder are African victims of the attacks who subsequently gained US citizenship.

All of those covered by this case were employed either by the US embassies in Nairobi or Dar es Salaam, or were working for private contractors who did business with the embassies.

LITIGATION

None of the potential total of $10.2 billion (Sh1.1 trillion) in damages will be available to any of the thousands of Kenyans or Tanzanians who were harmed by the attacks but who were not employed by the US embassies or contractors. Litigation involving that large group of victims has stalled in the US court system for several years and is not expected to reach a settlement anytime soon.

The majority of the 224 people killed in the twin attacks on August 7, 1998, were not connected to the embassies or to contractors. Most of the 214 persons killed in Nairobi were passers-by or were working in nearby buildings, as were several hundred Kenyans who suffered injuries — some grievous — when the bombs exploded.

Suits seeking compensation were filed in the US against Sudan because its former government had harboured Osama bin Laden and al-Qaeda operatives while the embassy attacks were being planned.

“I think Sudan is going to have to pay,” Gavriel Mairone, a Chicago-based attorney for Kenyan and Tanzanian embassy or contractor employees, said on Tuesday.

SUDAN

Mr Mairone, who specialises in representing victims of terrorist attacks, said that Sudan must make court-ordered payments as one of the conditions for the country's removal from the US list of states that sponsor terrorism. Sudan has long been eager for that designation to be erased so that it can become a full participant in the global economy.

“If Sudan wants to join the community of civilised nations, it has to come to terms with the horrible damage it has done,” said Mr Wheeler, another US attorney representing embassy bombing victims.

“The only way to do that is to make amends to the victims. Otherwise, Sudan should not be taken off the state sponsors of terrorism list.”

SPECIAL FUND

A significant number of Kenyan and Tanzanian embassy or contractor employees have already shared substantially in a $1.1 billion (Sh114 billion) payout from a special US fund established to compensate victims of terror attacks.

They received the awards in 2017, Mr Mairone noted. Money for the special fund comes from penalties levied against companies or individuals who violate US sanctions imposed on countries designated as terrorism sponsors.

Mr Mairone said he would not specify the amounts paid to Kenyans from the fund because such information “could put our clients' lives in danger.”

The attorney suggested that Kenyans benefiting from payments that “have totally changed their lives” could potentially become “targets for criminals.”

IRAN

Another group of some 2,400 Kenyan family members of US embassy or contractor employees recently began pursuing separate monetary judgements against the government of Iran.

Mr Mairone noted that it has been shown in court that meetings were held in Tehran in 1996 to 1998 for the purpose of coordinating the actions of various terrorist organisations.

One result of those meetings, he said, was that the head of Iran's military agreed to provide training to al-Qaeda members on how to carry out bombings similar to those that destroyed the the US embassy and Marine Corps barracks in Beirut in 1983, killing more than 250 Americans.

Iran may also have provided the explosives that destroyed the US embassy in Nairobi, Mr Mairone added.