Government compensation

Question

I am contemplating going to the courts over an issue that has persistent for decades in my area. Cattle rustling has really affected the livelihoods of the people of Samburu North Constituency (Northern Kenya).

Over the last two decades since the 1990s, the government of Kenya has engaged the issue in different approaches and currently we have 3 military camps in the Baragoi area. In my view they have failed to protect the people and their property. This is an area with two warring communities: Samburu (Maasai) and the Turkana. I can state with facts that the Samburu community has lost almost 1/8 of its young generation (the morans) through this problem. For example in the year 2012, 12 youths died in one incident, in 2014 again another 13 died in a similar incident. In 2015 one of my relatives was shot while grazing alongside 3 others who all died and about 500 head of cattle driven away by the bandits from the other community. Just a week ago, 2 people died again due to an exchange of fire, this time the issue was grazing area which started the quarrel.

There are contless other small incidents that led to loss of life between this communities. Even in the centre of the shopping centre (Baragoi) you can be shot at night - this happened before.

The setting is one side of the trading centre is occupied by the Samburu (the majority) and the other the Turkana (minority) perceived to be immigrants from Turkana county years ago. We are in Samburu County (since the 2010 constitution before it was Samburu District).

The Samburu would claim that this is their ancestral land and the Turkana would use the gun and advance their agenda of acquiring more grazing land (this they have succeeded to some extent); the Samburu have long accepted this because the present Turkana generation in Baragoi actually has birth rights here and in the spirit of the 2010 constitution also any Kenyan can live anywhere in Kenya. www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010

The government also lost about 40 police officers in the 2012 incident in the Suguta Valley. They were in pursuit of cattle stolen from the Samburu people.

I want to go to court on the above issue and at least sue the government and request them to compensate the poverty stricken people due to the loss of their livelihoods (cows) to the perennial attackers. No such thing has been done so far. I can extract all the families affected in the police Occurrence Book with support of the community administration.

My question is, does this issue carry some weight to be listened by the courts? The 2010 Kenyan constitution is a near to perfect constitution (borrowed from the developed countries) and one of the main roles of the head of state in the constitution is to safeguard the peoples' lives and property. I am not a lawyer but I will get a pro-bono lawyer.

I want to seek for compensation of loss of livelihoods. The people in those manyatta have been reduced to just paupers.

Answer 1

In general, the government of a county doe not have a duty to safeguard people from the actions of criminals or to reimburse citizens or other victims of crime for the damage done by criminals or alleged criminals.

However, the Constitution of Kenya has some unusual provisions.

Article 21 provides that:

21. (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights ...

(3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.

Article 22 provides that:

22. (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Article 23 provides that:

23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. ...

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including––
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review

Article 29 provides that:

29. Every person has the right to freedom and security of the person, which includes the right not to be ...

...

(c) subjected to any form of violence from either public or private sources

Article 40 provides that:

40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property ...

Article 43 provides that:

43. (1) Every person has the right— ...

(c) to be free from hunger, and to have adequate food of acceptable quality

..

3. The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

Whether a court case could be brought under articles 22 and 23 to enforce articles 29, 40, and 43 in a case such as this I cannot say, but on the face of the constitution it seems possible. A lawyer experienced in Kenyan Constitutional Law could give a better answer to this.

Answer 2

The Kenyan government has been sued a number of times over failure to protect issues. Getting information on the outcome of those lawsuits is very difficult. In the case Constitutional Petition No. 122 of 2013, the High Court found

violation of the Kenyan state to investigate and prosecute violations of the rights to life, the prevention of torture, inhuman, and degrading treatment, and the security of person

regarding post-election sexual violence. The grounds for the suit include violation of numerous constitutional provisions requiring the government to provide protection, and compensation was ordered. In Constitutional Petition No. 113 of 2009 Consolidated with Constitutional Petition No. 44 of 2009 and Constitutional Petition No. 48 of 2012, the court declares that

The State has a duty to maintain law and order including the protection of life and property. However, as a general rule, this duty is owed generally to the public at large and not specifically to any particular person within Kenya. For a person to succeed in a claim for alleged violation of constitutional rights as a result of damage to property, it must be demonstrated that there existed a special relationship between the victim and the police on the basis of which there was assurance of police protection, or where, for instance the police have prior information or warning of the likelihood of violence taking place in a particular area or against specific homes but fail to offer the required protection. In such cases, therefore the State may be held liable where violations of the rights protected and guaranteed in the Bill of Rights are proved even when those violations are occasioned by non-state actors provided that the duty of care is properly activated. Such a liability would however have to be determined on the facts and circumstances of each case.

The requirement, as framed by the Petition No. 122 court, would be that "it must be determined whether it [the State] did all it could, to prevent the violations of their rights by non-State actors". The government has, for decades, sent police and the army to fight this ancient problem, so this is not a case of flagrant disregard unlike the post-election sexual violence. A lawsuit is possible, but winning in court and getting compensation is unlikely.