Pio Gama Pinto ‘killer’ awarded Sh2.5 million for torture
High court has awarded a 74-year-old man believed to have assassinated Pio Gama Pinto Sh2.5 million for being tortured by the police.
Kisilu Mutua was charged before Sir John Ainley, then Chief Justice, and sentenced to death in 1965 for the murder of the freedom fighter.
Pinto was the first Kenyan politician to be assassinated, on February 19, 1965, after independence as he drove out of his house in Nairobi.
Kisilu was then 22, and a cart pusher in Nairobi city.
His appeal to the then East African Court of Appeal for Easter Africa was dismissed on November 12, 1965 without any written judgement. The appeal proceedings lasted only for 30 minutes before the dismissal.
He was held in various prisons in the country including Kamiti MAximum and Naivasha prisons for a period of 36 years until July 4, 2001 when he was released by the orders of the then president Daniel Arap Moi.
Mr Kisilu told Justice John Mativo of Nairobi Milimani High Court that he was arrested on February 24 and was tortured at police station.
He claimed that his private parts were squeezed until he lost consciousness and was taken to Westland’s where someone had been killed and after he refused to answer questions put to him he was taken back to the police station.
He was forced to sign a prepared statement, the court heard.
He sued Attorney General in a case filed in 2015 seeking damages on the alleged torture and mistreatment subjected to him by the police saying that he suffered physical and psychological injuries.
Mr Kisilu also claimed that upon his release, former president Moi promised him a parcel of land.
In response, the Attorney General opposed Mr Kisilu’s petition arguing that he did not discharge the burden of proof and did not make out a case for torture since he did not avail medical reports. The AG further said that Mr Kisilu is guilty of inordinate delay.
A sworn affidavit by Henry Barmao, a commissioner of Police, filed on August 31, 2015, averred that the law cannot be applied retrospectively, hence, the petitioner cannot rely on the provisions of the 2010 constitution.
Mr Barmao indicated that the murder trial was in accordance with the law as he denied allegations of torture as no evidence was tendered in support of the injuries.
The court observed that though the petition was five years after the promulgation of the 2010 constitution, it could not be blocked considering the prevailing political situation which made it impossible for victims to file cases of this nature.
Also bearing in mind the dictates of transitional justice, the need to uphold and strengthen the rule of law and to hold the perpetrators of violations of human rights accountable, and the need to provide victims with compensation.
The judge observed that, owing to the political climate of the day, it was not possible for victims of human rights abuses to seek court redress and the door was opened by the promulgation of the 2010 constitution.
“The former constitution just like the 2010 constitution prohibited torture and acts of inhuman and degrading treatment. How can the callous act of a police officer squeezing the testicles of a person in their custody be justified? Such inhumane acts should only be consigned in the dustbin of our history never to resurface again,” stated justice Mativo.
He said police had a duty of protecting the suspect and ensure his fundamental rights are respected.
Mr Kisilu proved to the required standard that his rights were violated by the police considering the nature of the violations of the constitutional rights, the court noted.
“I must clarify that this award is for the torture subjected to the petitioner while in the hands of the police, but not for trial and conviction,” said Justice Mativo.