Former MP gets Sh20m for unlawful detention

A former MP has been awarded Sh20m compensation for unlawful detention during the attempted 1982 coup.

Lady Justice Kalpana Rawal ruled that the detention of former Alego-Usonga MP Otieno Mak’Onyango for five years without trial was unconstitutional, illegal and unjustified and that he was entitled to payment of damages for the inhuman act committed by state officers.

“No role can be done by state officers without remedy. Mr Mak’Onyango lost five years without friends or family and the violation of his rights he went through cannot be wished away. Sh20 million is therefore a fairer and reasonable amount to compensate him,” ruled judge Rawal.

The judge, however, absolved former president Moi from any liability, ruling that there was no evidence of personal misconduct in the detention of Mr Mak’Onyango and that it is the Attorney General who should carry the burden of illegal acts perpetrated by the government.

She said that the facts that Mr Mak’Onyango was unlawfully held in custody was not in dispute, adding that the AG failed to explain why he was held for 14 days at the GSU headquarters without being told the charges against him and being denied opportunity to talk to his family or his lawyers.

Solely liable

She ruled that the state is solely liable for holding Mr Mak’Onyango in detention without trial even after a chief magistrate directed that he be charged in a court of law.

The judge dismissed the AG's defence that Mr Mak’Onyango’s lawyers had signed a consent to delay his trial for eight months, ruling that an illegality cannot be cured by a consent even if the complainant agreed to it.

She ruled that the state contravened statutory laws by denying the former MP a fair hearing after failing to establish any evidence linking him to the attempted coup.

While discharging the former president from any liability, the judge ruled that the complaints raised by Mr Mak’Onyango were perpetrated by police officers who were under instructions to enforce the law.

“Any court shall not hesitate to hold the former president liable if proved he committed any unlawful act but in this case, it his personal involvement as head of state has not been proved and therefore discharge him from any liability,” ruled the judge.

Mr Mak’Onyango had submitted that Mr Moi should be personally held responsible for his detention because as the head of state, he had the preserve of ordering people to be detained and that the security officers only acted on his behalf to execute his wishes.

Personal honour

Lady Justice Rawal, however, declined to award the former MP claims for exemplary damages for loss of employment, personal honour and dignity.

She ruled that although it was not in dispute that he lost his job as a journalist, it was not right to claim he has been deprived gainful employment since he went on to publish a magazine and was one time a Member of Parliament for five years after being released from detention.

Mr Mak’Onyango sued the AG and the former president for his arrest after the 1982 attempted coup and subsequent four-year detention without trial claiming they should be held responsible for the misconduct and action of torture meted on him by the police.

The former MP was arrested in August 1982 from his place of work at the Standard newspapers without a warrant of arrest and held at the GSU headquarters for 14 days before the AG terminated his case and subsequently released by the High Court.

He was, however, re-arrested soon after the release and detained for four years without trial. He cited the particulars of malice as lack of evidence linking him to the attempted coup, inhuman treatment, torture, cruelty, loss of employment and demanded a total of Sh1.4 billion compensation.