Peter Mwaura
12 September 2008
opinion
Nairobi — Initially, with the outpourings of emotion, the people displaced by the post-election violence were treated with compassion and concern.
Now the emotion has subsided, and the concern has gone with it.
The violence victims have been left to contend with the physical, financial and emotional effects of the mayhem with insufficient and, in many cases, botched government assistance.
The much touted Operation Rudi Nyumbani (Operation return home) is largely a failure.
Tens of thousands of IDPs remain homeless and live in miserable conditions. Ethnic tensions have not abated either, and there is the probability of fresh outbreaks of violence.
Many others are angry and frustrated. The Sh10,000 the Government has been dishing out is no compensation for people whose businesses were ruined, houses burnt as well as livestock and other property stolen or destroyed.
Even an extra Sh25,000, which Molo district commissioner Katee Mwanzia said would be given to those whose houses were burnt to buy building materials, is nothing to write home about unless one was living in a grass-thatch hut.
Compensatory damages are intended, as far as can be accomplished with money, to place one in the same position as one was before one's property was destroyed or stolen. Anything else is just a token.
The IDPs are also wondering why the Government is taking its time to pay even the little money it is supposed to be giving out -- more than two months after Operation Rudi Nyumbani began.
The Government says it will spend Sh1.3 billion as compensation for the displaced in Rift Valley Province. It says also that it will build 9,000 houses, while the Danish Refugee Council will put up 2,700.
So there is presumably a chance that the Government will still be able to redeem itself over the IDPs issue.
The violence victims' frustration has reached dangerous levels. Last week, a group accosted Molo MP Joseph Kiuna at Muchorwe centre in Kuresoi and accused him of being a traitor.
They surrounded him and shouted: "Ua! Ua! (Kill, Kill)". He was rescued by police.
The frustration boiled over again in Molo in the same week when more than 5,000 rejected the cash payout, arguing that the list of beneficiaries had been corruptly drawn by the provincial administration, and that genuine ones had been left out.
Many IDPs continue to live without homes, nine months after they were driven out of theirs because there was no government protection. The Government has a legal duty to protect its citizens.
If it failed to do so because it was negligent, it is bound by both common law principles and statutory law to pay compensation to the victims.
By all accounts, the Government did not take reasonable measures to prevent or stop the violence. It was negligent; it failed to do the required thing, resulting in harm to 350,000 people.
The negligence caused the harm, so this is criminal negligence, which is reckless disregard for people's safety. The Government omitted to do what is its duty, and showed wanton or reckless disregard for its citizens' lives or safety.
It would not be difficult for even a rookie lawyer to prove beyond reasonable doubt that the conduct in the circumstances showed a marked departure from that of a reasonable government.
A reasonable government would have foreseen that this conduct posed the risk of bodily harm and destruction of property.
The IDPs have rights, and they are not exactly powerless. They can sue the State for compensation, which they are not about to receive through benevolence.
Both the common law and the statutory law provide for action to obtain compensation for harm done to people because of government negligence.
The Government Proceedings Act, Chapter 40 of the Laws of Kenya, confers rights on individuals to sue the Government for civil liabilities, including "statutory duty" as well as liabilities in tort.
Victims of government negligence should obtain justice and compensation. The IDPs should stand up for their rights and seek legal redress.
And are there any good lawyers out there to provide free services for a worthy cause? The Law Society of Kenya should step forward.
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