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Government to pay Sh5 million for messing with army captain

By Robert Munuku | Saturday, Jan 7th 2017 at 09:35
Captain Frank Munuku

It was a sad day, one that would rain untold torment on Airforce Captain, Frank Munuku. Thirty years after the 1982 attempted coup in Kenya, Frank’s son recounts the sufferings his father who has since retired from the service.

The year was 2012, a time that would later prove critical for my family in more ways than one.

It was towards the last part of the semester and I was preparing for my final exams at the University of Nairobi. I was reading ‘Philosophy of Law’ or jurisprudence if you will.

St Thomas Aquinas would forever be etched within special coffers in my mind, for him the law was ‘a certain rule and measure of acts whereby man is induced to act or restrained from acting’. In other words, Aquinas saw the law as a disposition of reason, one whose relevance was only actualised in as far as it served the ‘greater good’ for the public.

This would also be the same year that marked the 30th anniversary since an attempted coup d’état orchestrated by then Kenya Airforce private, Hezekiah Ochuka. Ochuka and a few others would later become the last Kenyan citizens, to date, to be executed after a death sentence ruling.

My father, Frank M?n?ku, was at the time of Captain rank (which he attained on 1st March 1979) at the Kenya Airforce and now, three decades on, was seeking justice for victimisation in relation to the botched coup.

It is said that time heals, I however believe that such a recovery can only be a product where justice is a necessary part of the equation.

In my father’s case, recovery was only half done after a three plus decade moratorium and it was finally time to seek reparation for ills done unto him. My first conversation with him more than showed this, as he, narrated to me:

“When young servicemen tried to overthrow the Government on 1st August 1982, I was not in my Barracks at Embakasi. I was with my Battery in Wajir Air Base guarding the airfield and carrying out my duties as assigned. The Officers who were said to be the ring leaders were not in my Battery and I did not even know them.

I was informed by my Radio Operator about the coup in Nairobi on that Sunday morning. My first reaction was to call all my officers and soldiers to a parade and tell them to remain calm and await instructions for I had no idea what was happening.

I tried to call my Base at Embakasi but could not go through. Inside the Air Force Base at Wajir, there is always an army battalion with its own camp and has its own operational procedure which does not interfere with Air Force operations. During this time it was under the command of Lt. Colonel Thirimu. His deputy was Captain Dan Munene – both Officers were known to me.

I decided to go to the Army camp to find out if they knew what was happening in Nairobi. I found the Commanding Officer and his Deputy and they told me that they did not know anything besides what I had heard on the radio. The Commanding Officer told me to tell my men to remain calm and wait for instructions. I went back to my Camp and did exactly that.

My Officers and men remained calm as I had instructed them and there was not a single incident of indiscipline. The following day Lt. Col. Thirimu and Capt. Munene visited me at our Air Force camp and informed that he had received instructions from Army Headquarters to disarm me and my men and carry our interrogation on us to find out what we knew about the coup.

I obliged and ordered by my Officers and me to hand over their weapons to the Colonel without any problem. The Colonel then set up one of the rooms for interrogation.

During the interrogation, the Colonel asked me what I knew about the coup. I told him I did not know anything or anyone who could have planned it. He then ordered me and a few of my Officers to be locked up at the Police Station at Wajir to await transport to Nairobi.”

This was the first encounter I had with what would follow as a series of narratives depicting the dehumanizing treatment my father and other colleagues received at the time. The law is to be obeyed, that is the underlying philosophy of any law or rule. Obedience is usually a functional value and often laws followed lead to a better state of life for those that the laws govern.

My father’s description of the insurrection of the 1982 coup, coupled with events that were consequential, is a crystal clear analogy of how the law and its obedience or disobedience oscillates on the same paradoxical axis. My father was actually following the protocol required to escalate a crisis of such a nature but irony would later punish his obedience and respect for the same protocol.

“We were bundled together in military trucks and taken straight to Naivasha Maximum Security Prison. On arrival, I was locked up in solitary confinement for two months without any communication or reason as to why I was locked up,” narrated my father.

“As a Captain I was earning about Ksh3, 600 and a Hardship Allowance of Ksh1, 200 since most of the time I was out in the field. Thus my salary in total was Ksh4, 800 per month”

My father eventually got legal counsel and took the government to court. In our country, sadly so, it is not often the case that an individual wins a legal battle against the government even when the facts are as clear as the light of day. One such rare case is that of Judy Thongori, a Kenyan lawyer who successfully sued the Kenyan government for not delivering on the legislated 30 per cent of women representation.

Two years after he had revived past horrors by way of a lawsuit. His ruling read: -

In a nutshell, judgment is hereby entered in favour of the Petitioner against the Respondent in the following terms;

a) A Declaration that the cruel, inhuman and degrading treatment subjected on the Petitioner upon his arrest and being taken into police custody and subsequent detention in the various prisons constituted serious breaches of the Petitioner’s fundamental rights and Freedoms as to liberty, humane treatment, and freedom against arbitrary interference with his privacy, family and home, and right to earn an honest living as guaranteed under the Repealed Constitution and Constitution of Kenya, 2010.

b) A Declaration that the detention of the Petitioner for eight (8) months with two months under solitary confinement (incommunicado) without arraigning or charging him in Court with any offence known under the law violated the Petitioner’s right of personal liberty under Section 72 of the Repealed Constitution and was illegal and a violation of the Petitioner’s fundamental right to equal protection of the law under Section 70(a) of the Repealed Constitution (now Articles 27(1)&(2) of the Constitution of Kenya, 2010) and further grossly violated the Petitioner’s right to a fair administrative action as provided for under Article 47 of the Constitution.

c) General Damages of Kshs. 5 Million consequential to the Declarations of violations of the Petitioner’s Fundamental Rights and Freedoms.

d) Costs of this Petition.

e) Interest at Court rates on (c) and (d) above.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Amolo holding brief for Mr. Gikaria for Petitioner

The ruling however was a short-lived triumph, one that would later prove as a battle won rather than a war won. The next phase of getting compensation from the government was the real fight and, to date, the government has not paid my father for his false incarceration and torture, the latter being a somewhat abstract thing to compensate – how does one qualify what is a ‘good enough’ compensation for psychological trauma?

Initially, when my father had begun the process of seeking legal redress, I battled internally with this question; what amount of money would be enough to heal psychological scars or how can one be even compensated for time lost? I then went on to get a detailed account of the psychological experience that my father went through, again, from a conversation with him which he vividly recollected:

“... my being locked up was just the beginning of a long and very painful experience. Being the boss, I was locked in a cell alone with nothing but a rug to sleep on. For three days I did not have any food or water.

The heat and mosquitoes were beyond human imagination. Despite the fact that the interrogating officers found me innocent, I was not released but was instead punished further for no reason at all.

When I was released, I found that my wife and child had been evicted by the army from the married quarters which had been allocated to me by the Air Force. Most of my household items were broken or lost during the eviction process. My wife was traumatized as she did not know where I was all that time and whether if I was alive or not.”

My father’s story is but one example of justice on trial. The government actually appealed thrice to no avail and the court was adamant that compensation be made as per the initial ruling.

As citizens of our country, we are left wondering whether we should obey the law if the government itself, a custodian of the law, cannot.

Why should an individual follow the constitution if the government cannot? Should students pay their loans to government if the government cannot pay compensation to those it has wronged? How credible is our government?

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