Why State should not pay families of kin killed by police less than Sh150m each

The President of the Republic of Kenya is one serious individual. A man full of compassion, unparalleled generosity, of utmost good faith and oozing in patriotism. Recently, he acknowledged that since 2017, Kenyans have suffered greatly while others have died needlessly during public protests at the hands of police. Their only offence? Being alive and in Kenya at that time. I guess after sleepless nights and soul-searching, the President put together a team of eminent persons to identify victims of such suffering, the extent of their suffering, the deadliness of their death and come up with a compensation framework to assuage their personal pain and that of their families, once and for all.

Dr Ruto has named Makau Mutua the Principal Coordinator of the “State Intervention and Compensation Framework.” Makau is Ruto’s Adviser on Constitutional Affairs. In his new role, he leads a panel of 17 others, tasked with “compensating victims of protests against the government”. Ruto has not told the Kenyan taxpayers whose taxes will pay these “experts”, their specific expertise in settling compensation for victims of rogue governments. He should.

It must however be borne in mind that there already exist sufficient substantive legal frameworks in the Constitution, the Kenya National Human Rights Commission, Victim Protection Act, 2014, among other legal instruments. You are right to wonder what would be so wrong with breathing life into the Constitution alongside other existing frameworks instead of setting up a whole panel in the Office of the President to address compensation. But Ruto and Prof Makau are learned men.

However, all Kenyans should applaud this unprecedented move. In the words of Makau, the professor, the move is “bold, unprecedented and historic in the area of transitional justice.” This decision to compensate victims of State brutality by offering reparations is actually the boldest, clearest and loudest admission that in fact, the government, elected by the people of Kenya, using resources from Kenyan taxpayers, has turned on Kenyans, beaten them to pulp, looted from them, maimed them, mowed them down with poisonous water canons, tear gas and bullets and murdered them in cold blood, with impunity and ruthless abandon. Whenever the government did not do all the above, it actively failed to protect the lives and property of Kenyans by enabling a state of lawlessness.

It is a trite principle of democracy that governments are established “in perpetuity.” Nobody knows this better than Mutua, Sunny Distinguished Professor of Law at Buffalo School of Law, The State University of New York. The appointing authority is none other than Dr William Samoei arap Ruto, PhD. These two should explain to Kenyans, slowly, and in a language we can all understand, what informed 2017 as the starting point for the compensation. Why should we ignore thousands of similar incidents of State-sponsored violence and lawlessness against Kenyans since independence? 

If the British government, having acknowledged the British gulag in Kenya, committed to pay reparations to Mau Mau war veterans and their families, Mutua’s job should actually begin from December 12, 1964, the day following Independence Day celebrations. And why not?

Perhaps being a Distinguished Professor of the law from America, and a former Dean of the Faculty of Law, who knows, he might just have a plausible excuse why, for example, those unarmed people in Kisumu who were killed by police during the official opening of the Kisumu “Russian Hospital” in 1969 after a verbal altercation between Jaramogi Oginga and Jomo Kenyatta should not be compensated by this government.

What about victims of the Wagalla Massacre, victims of the JM Kariuki murder aftermath, Pio Gama Pinto, Tom Mboya and Dr Robert Ouko's assasination aftermath?

Why should we ignore Kamukunji One and subsequent Saba Saba protest victims, multi-party crusaders, victims of Moi-era vicious crackdown on media houses?

The Mutugi Four, Bishop Alexander Kipsang Muge, Father Keiser and their families and church faithfuls, aren’t they victims of State terror?

Mwakenya and Pambana publications victims, alleged members of “February Eighteenth Movement” (FEM), and “February Eighteenth Revolutionary Army” (FERA)? Should we just forget the tribulations visited upon the leaders of university student organisations, lecturers, victims of forced exile, disappearances, detentions, police torture victims at Nyayo House, Nyati House and police stations?

How about the 2007-2008 victims of Post-Election Violence across the country? I suggest that the Kiambaa Church victims in Eldoret should get a special compensation package from the Makau Committee of Experts.

This government, having admitted to committing these heinous crimes and atrocities against her own people and therefore having pleaded guilty as charged, we must swiftly move to the quantum of damages; how much money should be paid to who, and why.

Among most African traditions, once a murder had been committed, the murderer was identified, isolated, punished appropriately and banished from the community. Meantime, his clansmen paid “blood money” as compensation for the murder..

Among the Bukusu, a sub-nation of the Luhyia, the price paid for taking another life is called “Kumurwe” (the head). The offending clan pays anything over and above one hundred heads of cattle. Once the offended clan names their price, there is absolutely no provision for bargaining. The offender is ostracised and banished to his maternal uncles. If the circumstances of death are as grave as per-meditated murder, the victim is rooted forever out of the clan and wanders the earth hopelessly,  aimlessly, till they die.

Not long ago, an incident took place between the Luo and the Luhyia. A river known as Siga is the boundary between the Luhyia in Khwisero Constituency in Kakamega County and the Luo in Gem Constituency, Siaya County. A son of the Luhyia was killed in cold blood by a Luo at Muhaka village across the river. After burial, an army of Luhyia men and women, carrying all manner of crude weapons, screaming their lungs out, invaded Muhaka village and wreaked havoc. They destroyed everything in their wake, cutting down plantains, maize, burning down food granaries, killing chicken, goats, dogs, cats, sheep and cattle. Anything, except human life. After about three hours of rampage, they retreated back to Shiatsala as aggressively as they had arrived. Importantly, nobody from the Luo community raised a finger against the marauding Luhyias as they destroyed property. But why? Because, that is the tradition. The Luo community was simply taking full responsibility for the action of their kinsman.

The Somali community have a detailed model of dealing with murder and murderers in their society. The clan of the murderer pays the offended clan handsome sums of “blood money.”  After the compensation, elders from both clans sit and declare a truce and peace prevails.

This kind of restorative justice has found a place in Kenya’s jurisprudence. In Republic V. Osman (Criminal Case E007 of 2021), (2024) KEHC 7873 (KLR), Judge JN Njagi observed that the Sh1,500,000 paid as blood money in a murder case adequately satisfied the following objectives of sentencing and criminal justice: Retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation.

In Things Fall Apart, Chinua Achebe writes about the ill-fated lad, Ikemefuna. It happened that a daughter of Umuofia was killed in Mbaino village. After negotiations, elders of Mbaino surrendered young Ikemefuna to be sacrificed in Umuofia to atone for the murder. That is West Africa.

Back home, Stephen Munyakho, a Kenyan who killed a Yemeni national while the two were working in Saudi Arabia was released last month after 14 years on death row. Under Islamic faith and tradition, the family of the deceased agreed to receive “blood money”, known as diyya for his release, instead of summary execution. His execution was postponed multiple times as the family of Munyakho, the Kenyan government and various Muslim organisations led by Muslim World League and clerics negotiated with the family of the slain Yemeni and the Saudi Arabian government. It was pure relief and joy when Foreign Affairs Principal Secretary Korir Sing’oei announced the breakthrough and eventual release of “Stevo.” The amount of “blood money” or compensation for the murder was set at Sh150,000,000 (One Hundred and Fifty Million Kenya Shillings).

This is the latest settlement and the most authoritative compensation for murder. In legal parlance, this settlement is “an Authority”, a point of referrence in dealing with similar cases in future.

This award puts to rest any need for the Makau Committee of Experts to burn the midnight oil trying to figure out a formula for compensation for a life lost. The Stephen Munyakho case is the freshest, clearest, straight-forward international yardstick. Mutua, (Professor, PhD) cannot possibly seek to depart from the Munyakho precedent. This was not a back-street, illegal, mafia-style or gangland settlement. This was a legitimate, government-to-government payout. The process was above-board, anchored on and pursuant to a court process and in satisfaction and fulfillment of a decree of a court of competent jurisdiction of the Kingdom of Saudi Arabia. In the event the experts deem it fit to adjust or vary the Munyakho compensation threshold, fair enough. But the Sh150 million can only be enhanced. Sh150 million is the irreducible minimum for every lost life. It is the current known and acceptable international standard.

While addressing the recent UDA-ODM Parliamentary Group meeting, Makau defended the government compensation move and cited global examples of transitional justice, such as South Africa’s Truth and Reconciliation Commission. He can’t run away from the Munyakho example. Saudi Arabia, Yemen and Kenya have provided him the way forward.

What is left for the panel to determine are other levels of compensation for different victims, taking into account the specific damage suffered, other than death. Some victims are living with permanent conditions caused by state brutality; medical bills, economic loss from looting. They will consider losses caused through vandalism, burnt businesses and premises as happened to several supermarkets during the last Saba Saba protests. Losses caused due to business closure during maandamano, lost job and business opportunities due to state-sponsored or state-enabled terror, lost intellectual development due to closure of learning institutions, state abductions etc. The panel will develop formulae to quantify mental anguish for families and friends of all victims.

If the aggrieved Kenyans had the mind-frame, the vigour and valour of the men and women of Shiatsala in Kakamega, they should have stormed the home of the seat of power in Nairobi and done there what Shiatsala tribesmen did to the Luos at Muhaka Village.

I just remembered something: Every village has that bully who proudly declares, “Nitakuchapa halafu nikulipie, shenzi!” (I will beat you up and pay you, idiot!) Now, you tell me, what is the difference? Even better, the government is like the proverbial rat that bites and soothes with soft breath when the victim wriggles a little. This broad-based compensation panel of experts is the anaesthetic soft breath.

Anyway, I lost my pair of bi-focal eye-glasses during the last Saba Saba demonstrations. I can’t wait to make my appearance and make my case before the experts.

I am not certain what the broad-based panel will award me for my glasses, but for those murdered by police, we now know that a figure less than Sh150 million should be called out for what it is: FRAUD.

- Mr Kutete is a lawyer