De­lays in pay­ment as State over­whelmed by court awards

Gov­ern­ment drafts a bill to make of­fi­cials re­spon­si­ble for their ac­tions and de­ci­sions

Daily Nation (Kenya) - - NATIONAL NEWS - BY WAL­TER MENYA

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The Of­fice of the At­tor­ney-gen­eral has been re­ceiv­ing an av­er­age of 1,700 com­pen­sa­tion cases an­nu­ally for the last six years, re­ports in­di­cate.

This rev­e­la­tion comes as court awards against the gov­ern­ment have been on the in­crease, with in­for­ma­tion that pend­ing claims lodged at the AG'S of­fice stood at Sh101.3 bil­lion as of May this year.

The com­pen­sa­tion con­sists of awards to vic­tims of tor­ture and for busi­ness lit­i­gants.

“There is an on­go­ing ex­er­cise to ob­tain data of pend­ing judg­ments and awards from State min­istries, de­part­ments and agen­cies,” the AG'S of­fice said in re­sponse to ques­tions sent to it by the

Some 1,293 com­pen­sa­tion cases were filed against the Nairobi AG'S of­fice in 2013 alone.

Some 1,579 cases were filed the fol­low­ing year, 1,667 in 2015, some 1,733 in 2016 and 1,861 in 2017.

When com­pil­ing the data this month, the Nairobi of­fice of the AG had re­ceived 2,740 cases.

“It is ev­i­dent that the num­ber of cases keeps in­creas­ing year af­ter year. This data is only for the Nairobi of­fice. It ex­cludes new cases be­ing re­ceived at our re­gional of­fices in Mom­basa, Malindi, Kisumu, Kisii, El­doret, Nakuru, Ny­eri, Embu and Meru,” AG Paul Kar­iuki Ki­hara's of­fice said.

Be­sides sur­vivors of the Nyayo House tor­ture, the other ma­jor groups su­ing the gov­ern­ment are vic­tims of tor­ture, vi­o­la­tions of fun­da­men­tal rights, un­law­ful dis­missals by mem­bers of the Air Force fol­low­ing the 1982 abortive coup, po­lit­i­cal de­tainees, per­sons ar­rested and tor­tured on sus­pi­cion of be­ing mem­bers of the Fe­bru­ary Eigh­teen Rev­o­lu­tion­ary Army in the late 1980s and civil ser­vants re­trenched dur­ing the Struc­tural Ad­just­ment Pro­grammes pe­riod.

Mem­bers of the lat­ter group say they were dis­missed from pub­lic ser­vice un­fairly.

Other claimants are civil ser­vants who left un­der the vol­un­tary re­tire­ment scheme.

The for­mer pub­lic of­fi­cers say they were duped into sign­ing un­fair agree­ments.

Mwak­enya and the 2007/08 post-elec­tion vi­o­lence vic­tims also want to be paid.

The AG'S of­fice says most sur­vivors of the Nyayo House tor­ture cham­bers have had their com­pen­sa­tion set­tled by the Min­istry of In­te­rior and Co­or­di­na­tion of Na­tional Gov­ern­ment.

“Those that re­main un­paid are at dif­fer­ent stages of pro­cess­ing or ap­peal where the same have been pre­ferred by the State,” he said.

The rev­e­la­tions of the tens of bil­lions of shillings owed to vic­tims of abuses and busi­ness lit­i­gants come just weeks af­ter two in­ter­na­tional tri­bunals saved Kenya from pay­ing Ki­nan­gop Wind Park Ltd and Cortec Min­ing Kenya (Pty) Ltd a to­tal sum of about Sh250 bil­lion the com­pa­nies were de­mand­ing for lost busi­ness.

“The cases we have won demon­strate that the gov­ern­ment will go to any length to de­fend the in­ter­ests of its ci­ti­zens,” Mr Ki­hara said.

Ki­nan­gop Wind Park had filed a case against the gov­ern­ment at the In­ter­na­tional Court of Ar­bi­tra­tion claim­ing $154 mil­lion (Sh15.8 bil­lion) and a sim­i­lar amount in dam­ages.

The court dis­missed all the com­pany's claims on July 5.

Cortec, on the other hand, had filed a case at the World Bank's In­ter­na­tional Cen­tre for Set­tle­ment of In­vest­ment Dis­putes de­mand­ing $2 bil­lion (Sh200 bil­lion).

The is­sue of court awards and com­pen­sa­tions has re­mained con­tentious in gov­ern­ment cir­cles for decades.

For those awarded com­pen­sa­tion, pay­ment of­ten drags for years and some vic­tims die be­fore get­ting a penny.

In some in­stances, the in­ter­est ex­ceeds the prin­ci­pal award be­cause of the de­lays in set­tling the claims.

For­mer Ford-asili and op­po­si­tion leader Ken­neth Mat­iba was in 2017 awarded Sh1.5 bil­lion for il­le­gal de­ten­tion but by the time of his death in April 2018, the gov­ern­ment had not set­tled the claim.

In July, Jus­tice Msagha Mbogholi of the High Court or­dered the gov­ern­ment to pay 16 Ugan­dan and Rwanda com­pa­nies Sh6.3 bil­lion for the goods they lost dur­ing the 2007-2008 post-elec­tion chaos.

The case was filed by Kam­pala City Traders As­so­ci­a­tion, Ka­traco Uganda, In­traspeed Lo­gis­tics and Mu­genga Hold­ings.

A month ear­lier, mem­bers of the Na­tional Assem­bly's Jus­tice and Le­gal Af­fairs Com­mit­tee said tax­pay­ers risk fork­ing out bil­lions of shillings in com­pen­sa­tion claims.

On the ques­tion of un­eth­i­cal be­hav­iour by some of­fi­cials be­lieved to be de­mand­ing bribes from vic­tims to ac­cel­er­ate the pro­cess­ing of claims, Mr Ki­hara said it can­not be ruled out.

How­ever, he added that de­lays in set­tling the claims are of­ten caused by any or all of the three fac­tors, namely high turnover of coun­sel which leaves con­cluded cases they were han­dling in­ac­tive, the fail­ure by many ad­vo­cates and lit­i­gants to un­der­stand the pro­cess­ing le­gal awards against the gov­ern­ment and the place of pub­lic fi­nance prin­ci­ples in the en­tire process.

“Ad­vo­cates and lit­i­gants de­lay in sub­mit­ting the req­ui­site doc­u­men­ta­tion to fa­cil­i­tate the pro­cess­ing of le­gal awards,” he said.

The other prob­lem is the lack of le­gal coun­sel/de­part­ments in sev­eral gov­ern­ment min­istries, de­part­ments and agen­cies ne­ces­si­tat­ing awards to be acted upon by non-le­gal of­fi­cers who lack un­der­stand­ing of their im­pli­ca­tions.

“The Of­fice of the At­tor­neygen­eral and the Depart­ment of Jus­tice have moved to ad­dress this gap by sec­ond­ing coun­sel — though not enough — to the min­istries with high num­bers of le­gal is­sues and cases,” Mr Ki­hara said.

To deal with claims from busi­ness lit­i­gants, the 2018 Gov­ern­ment Con­tract Bill places in­di­vid­ual re­spon­si­bil­ity on of­fi­cials who com­mit the State into con­tracts that end up cost­ing the pub­lic.

“This is an im­por­tant bill that will see gov­ern­ment of­fi­cials made per­son­ally li­able for en­ter­ing into con­tracts that are not well thought-out. It is im­por­tant that due dili­gence is un­der­taken at all times and by all,” the AG said.

For­mer Ki­haru MP and cab­i­net min­is­ter Ken­neth Mat­iba (in wheel­chair) af­ter open­ing an eye and den­tal hos­pi­tal in Kenol, Mu­rang’a County, on May 9, 2016. Mr Mat­iba was de­tained with­out trial for al­most a year in the early 1990s. He sued the gov­ern­ment years later and was awarded Sh1.5 bil­lion in 2017. He had not re­ceived any­thing by the time he died in April 2018.

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