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We have put our strongest case and hope for the best, says victims lawyer

8 March 2019 - 17:03

By Susan Kendi and Sarah Nyakio

Mbugua Mureithi has won notoriety and admiration in equal measure for his work as a human rights lawyer. Named the 2014 winner of the prestigious Jurist of the Year Award for his role in promoting human rights and the defence of people suspected of involvement in terrorism, Mureithi is the lawyer for 15 petitioners seeking justice for police shootings that took place during the post-2007 election violence.

As an advocate of the High Court of Kenya since 2007, he has represented controversial clients such as slain of Muslim clerics Aboud Rogo and Abubaker Shariff Ahmed alias Makaburi as well as nine former Kenya Air Force officers who complained of brutal arrest and inhuman treatment during the 1982 attempted coup, winning a Sh19 million compensation award.

In an exclusive interview with Journalists for Justice (JFJ)’s Sarah Nyakio and Susan Kendi, Mureithi speaks about what the victims and petitioners in the police shootings case hope the High Court in Kisumu can deliver.

JFJ: Who is Advocate Mbugua Mureithi?

Mureithi: For this particular case, I am the advocate of the petitioners. I have practised as a human rights lawyer for 21 years and I have also worked for human rights organizations like the Kenya Human Rights Commission (KHRC) and Kituo Cha Sheria where I specialized in human rights litigation. I have been in private practice since 2006.

JFJ: How many years have you practised as a human rights lawyer?

Mureithi: I have been a human rights lawyer for many years. I started practising in 1998. I have continued litigating human rights issues even now that I am in private practice.

JFJ: What are some of the challenges you face as a human rights lawyer?

Mureithi: First, human rights cases are by their very nature difficult: you are dealing with people whose rights have been violated and who, by themselves, cannot finance the costs of the litigation process.  Second, at times you are dealing with courts that are not readily appreciative of where you are coming from. Third, a lot of work needs to be put into good human rights litigation. Last, sometimes you ultimately don't get the fruits of your litigation in good time.

JFJ: How did you become an advocate for Petition 18/2014?

Mureithi: I was approached by organizations that brought together the victims of the 2007 post-election violence from this region (Kisumu) who asked me to represent them. This was particularly the first petitioner; Citizens Against Violence (CAVI), and the second petitioner; The Independent Medico-Legal Unit (IMLU).

JFJ: What difficulties have you faced since you filed the petition in 2014?

Mureithi: Except for the usual challenges of preparing for this kind of huge petition, the challenges have not been major really. It's not easy. Personally, I've been required to travel to Kisumu a lot to meet the petitioners, to meet their witnesses and prepare them for their court.

We have faced challenges with the court system in the sense that there has been [staff] changes and the judges who have been handling this case from time to time and that has affected the progress of the case. Probably, were it not for the changes occurring in the High Court in Kisumu, the case would have been completed much early.

I am not saying those were factors that were targeted against this case. Such is simply the nature of the business of the court. Judges were transferred, and there were also occasions when the trial judge was committed to the 2017 election petitions before she was subsequently transferred from the Kisumu High Courts.

JFJ: Since you filed the case how many times have the judges changed?

Mureithi: Probably three times. When we first came here, the matter went before Hon Justice David Majanja, who could not hear it as he was part of the secretariat of the Waki Commission that investigated the post-election violence]. Therefore, he transferred the case to Lady Justice Maina. Lady Justice Maina took up an election court after the 2017 elections and was thereafter transferred from Kisumu High Court. The matter is now before Justice Fred Ochieng.

JFJ: What would justice for victims of the 2007 Post-Election Violence police shooting look like?

Mureithi: First, justice, in this case, will entail getting orders holding the police accountable for the violence meted out against my clients (the petitioners) through the excessive use of firearms.

Second, a declaration on whether adequate and prompt investigations were done after the shootings that left some of my clients maimed or their relatives dead.

Ultimately, justice must take the form of compensation for the victims of those who lost their lives and for those who survived to live with unforgettable scars of the unlawful shootings.

JFJ: How do you manage the victims’ expectations as their lawyer?

Mureithi: Well, I think from my experience one of the things you don't do is you don't guarantee success. If you went through that path you would end up a very frustrated lawyer.

I have made it very clear to the petitioners and the victims that all that is expected of us is to do our best. They do their best as witnesses, as petitioners, and I do the best as counsel. The rest we leave it to the court. Since I'm not the judge. I can't predict which way the case will go but we believe we have put our strongest case and so we hope for the best. Nevertheless, we also prepare to live with whatever judgment the court will pronounce.

JFJ: What’s your take on extrajudicial killings/police reforms in Kenya?

Mureithi: Extrajudicial killings are one of those permanent and ugly spots in the history of this country. Extrajudicial killings are unlawful, unconstitutional but unfortunately, they are an accepted way of life in this country. One is that Kenyans generally despite in the laws, the Constitution and the regular laws; killing without due process is unlawful then we have the other level; where Kenyans accept extrajudicial killings. Therefore, there is a dichotomy between what the law says and what the people have internalized as part of their lives.

If you carried out an opinion poll today in the streets of Kisumu on whether, for example, “a thief should be killed”, you might find the Yes in the majority. The police appear to operate on the basis of that misinformed public opinion that it is right for them to kill at will and for as flimsy grounds as protection of property, so my position is that; the police are wrong to kill people especially those who are unarmed and do not pose any danger to the officers. The police are also wrong in not reversing that policy, the unsaid policy that it is okay to kill. That should be removed from the mentality of the police totally. Kenyans are also wrong in quickly believing that the extrajudicial killing of criminals is justified. Hence, everybody is wrong and the only institution that is right is the law. The law speaks a different language from what the police and the people of Kenya speak.

JFJ: What’s your take on the Independent Policing Oversight Authority (IPOA)?

Mureithi: Well, I think convictions do not necessarily signify the success of an institution or the lack of success of an institution. So, if they have managed to get some convictions, we should appreciate them for that and we should commend them for that. A lot of police malpractice went unpunished and a lot of that misconduct was unaccounted for. Therefore, IPOA is doing something. In the context of the present case, I think the position I take is that it is still open for IPOA to investigate the incidences of post-election violence because we regard the un-redressed grievances of victims of post-election violence as continuing human rights violations. The fact that they have never found a resolution for what happened in 2007-2008, they have never been accorded any remedies, any reliefs, means the violations still continue.

I differ with IPOA when they think they should be held accountable for only those crimes that happened after they were constituted in 2012. They should consider the plight of the post-election violence victims as a continuing human rights violation.

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