Victims of enforced disappearances and abductions have secured a major reprieve after the High Court ordered the government to preserve Sh105 million for their compensation as a legal battle over their exclusion from a reparation programme continues.
Justice Gregory Mutai on Tuesday said the petition before him raised important constitutional questions that needed to be settled before the affected victims could be denied access to compensation.
He directed the government to keep the money aside until the case filed by Gideon Kibet, Ronny Kiplangat and eight others is heard and determined.
“The first and second respondents are hereby ordered to set aside Sh105 million out of the compensation fund for purposes of compensating the victims of enforced disappearances and torture and abductions pending the hearing and determination of the instant petition,” Judge Mutai ruled.
The petitioners are challenging the exclusion of 35 verified victims of enforced disappearance from the government’s compensation and reparation programme for people affected by human rights violations.
The programme was introduced by the Kenya Kwanza administration following the creation of a panel of experts and presidential proclamations setting out the process for compensating victims.
Under President William Ruto’s Presidential Proclamation, the Kenya National Commission on Human Rights was tasked with developing and submitting a framework to guide compensation and reparation for victims of violence and human rights violations.
The petitioners had asked the court to issue temporary orders stopping the compensation and reparation exercise until their case was concluded.
The KNCHR, Independent Policing Oversight Authority, Panel of Experts on Compensation of Victims, Attorney General and Law Society of Kenya were named among the respondents.
A key issue before the court is the authentication process being used to establish which victims qualify for compensation.
Justice Mutai questioned whether the Panel of Experts on Compensation of Victims had the power to carry out the authentication process it had undertaken.
He said the court would also need to establish whether the list of victims prepared by the KNCHR was final. If it was not, he warned that some victims could be left without a way of seeking an effective remedy.
The judge further questioned the categories of victims selected for compensation, noting that those affected by enforced disappearances and abductions had not been included.
He referred to government communications issued in June and July, which listed victims of fatalities, severe injuries, moderate injuries, minor injuries and aggravated sexual offences as beneficiaries of the programme.
“What is missing from this list is victims of enforced disappearances. I am of the opinion that enforced disappearances and abductions are more deserving of prioritisation than the group entitled moderates and minor injuries,” the judge said.
“The exclusion of victims of enforced disappearances and abductions raises a genuine concern,” the judge added.
The court found that allowing the compensation exercise to proceed without addressing the concerns raised by the petitioners could undermine the case before it.
Justice Mutai therefore temporarily stopped the relevant state agencies from using or implementing the contested authentication process when determining victims of torture and enforced disappearances under the presidential proclamation.
He also directed that Sh105 million be retained in the compensation fund for victims of enforced disappearances, torture and abductions while the court considers the petition.
However, the judge did not suspend the wider compensation programme, meaning the rest of the exercise can continue as the court deals with the dispute over the excluded victims and the process used to verify beneficiaries.