26th Session: Commissioner Ben Salem
27th Session: Commissioner Ben Salem
28th Session: Commissioner Ben Salem
SUMMARY OF FACT
1. The Complainant claims to be a Student's Union leader at the University
of Nairobi, Kenya.
2. He alleges that he was forced to flee the country due to his political
3. He mentions the following as issues which led to his strained relations
with the government and to his arrest and detention and eventually to his
fleeing the country:
(a) The demand for the setting up of a Judicial Commission of Inquiry into
the murder of his late uncle and former Kenyan Minister of Foreign Affairs,
Mr. Robert Ouko;
(b) His condemnation of the seeming government involvement in the murder of
his predecessor at the Students' Union, Mr. Solomon Muruli;
(c) His condemnation of corruption, nepotism and tribalism in government;
(d) His condemnation of the frequent closure of public universities.
4. Prior to his fleeing the country, he was arrested and detained without
trial for 10 months at the notorious basement cells of the Secret Service
Department headquarters in Nairobi.
5. The detention facility was a two by three metre basement cell with a 250
watts electric bulb, which was left on throughout his ten months detention.
6. The Complainant alleges that throughout his period of detention, he was
denied bathroom facilities and was subjected to both physical and mental
7. The Complainant claims that he fled the country on 10th November 1997 to
Uganda, where he initially sought political asylum but was denied.
8. The Complainant alleges that since he could not obtain any protection in
Uganda, he had to leave to the Democratic Republic of Congo (DRC) in March
1998, and has been residing there to date.
9. The Complainant claims to be living presently in Aru, North-East of the
Democratic Republic of Congo.
10. The Complainant further alleges that until August 1998, when the war
broke out in the DRC, he was under the United Nations High Commissioner for
Refugees' (UNHCR) assistance programme.
11. Since the said war started, leading to the evacuation of UNHCR staff, he
has been living in a very desperate and despicable situation.
The Complainant alleges violations of Articles 5, 6, 9, 10 and 12 of the
12. At its 26th ordinary session held in Kigali, Rwanda, the Commission
decided to be seized of the communication and requested the Secretariat to
notify the parties.
13. On 18th January 2000, letters were dispatched to the parties notifying
them of the Commission's decision.
14. On 23rd May 2000, during the 27th ordinary session held in Algeria, the
Secretariat of the Commission received a letter from the Complainant
stating, among other things, that he has been in Kampala for medical reasons
since November 1999. In addition, he informed the Commission of his ordeals
in the Democratic Republic of Congo, including his being kidnapped and
forced to work as a computer operator for the rebels in Kisangani.
15. At its 27th ordinary session held in Algeria, the Commission examined
the case and declared it admissible and requested parties to furnish it with
arguments on the merits of the case.
16. On 12th July 2000, the Secretariat communicated the Commission's
decision to the parties.
17. The admissibility of communications brought pursuant to Article 55 of
the Charter is governed by Article 56 of the Charter. The applicable
provision in this particular case is Article 56(5) of the Charter, which
provides inter alia "communications relating to Human and Peoples'
Rights...received by the Commission shall be considered if they...are sent after
exhausting local remedies, if any unless it is obvious that this procedure
is unduly prolonged..."
18. The facts of this case reveal the following:
The Complainant is no longer in the Republic of Kenya;
The above condition is not based on his voluntary will - he has been forced
to flee the country because of his political opinions and Student Union
An attestation dated 30th October 1999, issued by one Mr. Tane Bamba, Head
of Sub Office of the United Nations High Commissioner for Refugees,
indicates that the Complainant "is recognised as a refugee Under UNCHR
mandate in accordance with the provisions of the OAU Convention of September
10th, 1969 to which he satisfied."
19. Relying on its case law (see communication 215/98 - Rights
International/Nigeria), the Commission finds that the Complainant is unable
to pursue any domestic remedy following his flight to the Democratic
Republic of Congo for fear of his life, and his subsequent recognition as a
refugee by the Office of the United Nations High Commissioner for Refugee.
The Commission therefore declared the communication admissible based on the
principle of constructive exhaustion of local remedies.
20. The Complainant alleges that prior to his fleeing the country, he was
arrested and detained for 10 months without trial at the notorious basement
cells of the Secret Service Department headquarters in Nairobi.
21. The Respondent State Party has not contested this claim. In fact, it has
not responded to the many requests made by the Secretariat of the
Commission. In this circumstance and following its well laid down precedent
on this, the Commission accepts the facts of the Complainant as the facts of
the case and finds the Respondent State in violation of Article 6 of the
Article 6 provides:
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his liberty except for the reasons and
conditions previously laid down by law.
In particular, no one may be arbitrarily arrested or detained.
22. The Complainant claims that the detention facility had a 250 watts
electric bulb, which was left on throughout his ten months detention.
Furthermore, that throughout his period of detention, he was denied bathroom
facilities and was subjected to both physical and mental torture.
23. The Commission finds the above condition, which the Complainant was
subjected to in contravention of the Respondent State Party's obligation to
guarantee to the Complainant the right to the respect of his dignity and
freedom from inhuman and degrading treatment under Article 5 of the Charter.
Article 5 provides:
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be
24. Such condition and treatment also runs contrary to the minimum standards
contained in the United Nations Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, particularly,
Principles 1 and 6.
25. Principle 1 provides:
All persons under any form of detention or imprisonment shall be treated in
a humane manner and with respect for the inherent dignity of the human
Principle 6 on the other hand states:
No person under any form of detention or imprisonment shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or other
cruel, inhuman or degrading treatment or punishment.
26. Although the Complainant has claimed a violation of his right to freedom
from torture, he has not substantiated on this claim. In the absence of such
information, the Commission cannot find a violation as alleged.
27. The Complainant alleges that he was forced to flee his country because
of his political opinions. He details some of the events that led to his
strained relationship with the government. Article 9 of the African Charter
Every individual shall have the right to receive information.
Every individual shall have the right to express and disseminate his
opinions within the law.
28. The above provision guarantees to every individual the right to free
expression, within the confines of the law. Implicit in this is that if such
opinions are contrary to laid down laws, the affected individual or
government, has the right to seek redress in a court of law. Herein lies the
essence of the law of defamation. This procedure has not been followed in
this particular instance. Rather the government has opted to arrest and
detain the Complainant without trial and to subject him to series of inhuman
and degrading treatments. The Commission finds this in violation of Article
9 of the Charter.
29. The Complainant claims that being a victim of political persecution, he
has been deprived of his right to freedom of association guaranteed by
Article 10 of the Charter. The Commission notes that the Complainant was a
Student Union leader before fleeing the country.
30. The Respondent State Party has not refuted this fact. The Commission
therefore finds the persecution of the Complainant and his subsequent flight
to the Democratic Republic of the Congo to have greatly jeopardised his
chances of enjoying his right to freedom of association guaranteed under
Article 10 of the Charter. Article 10 states:
Every individual shall have the right to free association provided that he
abides by the law
31. The Complainant claims that his rights to freedom of movement and to
egress and ingress have been violated. Taking the circumstances of the case
into consideration, the Commission finds this claim to have been
substantiated and therefore finds the Respondent State in violation of
Article 12 of the Charter. Article 12 provides:
Every individual shall have the right to freedom of movement and residence
within the borders of a state provided he abides by the law.
Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to
restrictions, provided for by law for the protection of national security,
law and order, public health or morality.
FOR THESE REASONS, THE COMMISSION finds the Republic of Kenya in violation
of Articles 5, 6, 9, 10 and 12 (1) and (2) of the African Charter on Human
and Peoples' Rights.
Urges the Government of the Republic of Kenya to facilitate the safe return
of the Complainant to the Republic of Kenya, if he so wishes.
Done at the 28th Ordinary Session held in Cotonou, Benin from 23rd October
to 6th November 2000.