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Kenya: Compensating the Displaced People is a Rich Minefield
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The Nation (Nairobi)
OPINION
10 May 2008
Posted to the web 12 May 2008
Donald B. Kipkorir
Nairobi
The resettlement of the internally displaced people (IDPs) was going on smoothly when a few of them demanded safety guarantees. They were then promised compensation before they left their camps.
The demand may sound legitimate as the Government has said repeatedly that all IDPs will be compensated from a multi-billion-shilling fund allegedly set up for the purpose. And if the fund truly exists, is it legal? Are IDPs entitled to compensation in the first place?
On August 7, 1987, terrorists struck the US embassy in Nairobi, killing 212 people and injuring more than 4,000 others. On September, 11, 2001, terrorists converted planes into missiles and flew them into US buildings, killing 2,998 people and injuring over 30,000.
On August, 29, 2005, Hurricane Katrina devastated New Orleans; on July 7, 2005, terrorists carrying back-bags became human bombs and killed 52 and injured over 700 others at a London subway; on October 14, 2005, an earthquake of unprecedented scale tore into Kashmir in Pakistan and killed 82,000 people and injured more than 3 million others.
The disasters and attacks in Nairobi, New York, New Orleans, London and Kashmir which were caused by both man and God caused untold human deaths, injuries and suffering as well as destroyed property worth billions of dollars and set back the clock of development.
Kenya, the US, England and Pakistan have to date failed to resolve fully or at all the issue of compensating the victims. Any cautionary steps were because of abundant wisdom and not absence of resources or goodwill.
In promising to compensate the IDPs, the Government maybe abandoning this caution. A government must never be emotional in its deliberations. The compensation fund was set up by Finance minister Amos Kimunya via the Government Financial Management (Humanitarian Fund For Mitigation of Effects And Resettlement of Victims of Post-Election Violence) Regulations, 2008.
What a mouthful piece of subsidiary legislation. The legislation, gazetted on January 30, 2008, is made allegedly pursuant to The Government Financial Management Act, 2004, and in setting up the fund, the minister invoked Section 26 of the Act.
Yet the section is very clear that any kitty outside the Consolidated Fund has to be established by Parliament. I cannot remember when the House set up the IDP Compensation Fund, for such a Fund has to be by way of an act of Parliament and not a ministerial order.
Rogue ministers may take a cue from Mr Kimunya and set up funds to compensate their families or close associates. Any cause, no matter how noble, must obey the law.
Even if the IDP compensation is legitimate, not every person claiming to be an IDP will be compensated. I am told that con artists are lining themselves for an expected windfall. The law relating to any compensation for personal injuries, death and loss of property is clear that one must establish a factual situation that entitles one to the compensation.
A claimant has to show that the injuries and loss sustained were caused by a party identified who owed him duty of care. It is not enough to allege them. In the celebrated case of Donoghue vs Stevenson, which every first-year university law student studied, legendary Lord Atkin in the House of Lords, England, said in 1932 that one must take reasonable care as to avoid acts or omissions that may injure his neighbour.
The principle enunciated in this case is a summary of those that create legal liability for our actions and omissions that cause injury and loss to people or their property.
The IDPs' claim therefore legally is against the person or persons that were directly responsible for the loss and injuries. To succeed in his claim, an IDP has to show not only that he suffered personal injuries or loss of property, but also that the guilty party caused that injury and loss.
A nexus must be established between the injured person, the injuries and loss he has suffered and the duty of care owed and broken by the person accused. If an IDP can identify the people who burnt his property and positively demonstrate it, then his claim is halfway successful.
Mere speculation that injuries or loss of property were as a result of post-election violence will not stand the test of the law. Names and faces have to be put to the victims and the perpetrators.
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The other half of the obligation to be fulfilled by an IDP is to prove the extent of the injuries and loss suffered and put a value to it.
One cannot ask the Government or any other party to write him a cheque of say Sh10 million for lost property without evidence.
Tax returns
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