Ouko, John D. v. Kenya

Ouko v. Kenya, Afr. Comm’n Human & Peoples’ Rights, Comm. No. 232/99 (2000).
Download Judgment: English
Country: Kenya
Region: Africa
Year: 2000
Court: African Commission on Human and Peoples' Rights

The Complainant claimed to be a students’ union leader who Secret Service Department (SSD) authorities detained without trial for ten months at a notorious basement detention center at SSD headquarters in Nairobi for his condemnation of the Kenyan government and for his demands for judicial inquiry into the murder of his late uncle, a former Minister of Foreign Affairs. The Complainant alleged that during his detention, he suffered both physical and mental torture in contravention of both the right to personal liberty under Article 6 of the African Charter on Human and Peoples’ Rights (Charter) and the right to freedom from torture and cruel, inhuman and degrading treatment under Article 5 of the Charter. Specifically, he claimed that a 250-watt electric bulb remained illuminated in the facility for the entirety of his detention and that authorities denied him use of bathroom facilities. Insofar as the Government of Kenya did not permit the Complainant to express his political opinion, the Complainant also claimed Kenya violated his right to free expression under Article 9 of the Charter. He further alleged that the Government of Kenya violated his rights to association and to movement under Articles 10 and 12 of the Charter, respectively. The Complainant claimed that after his release, he fled to Uganda, where he was denied asylum, and then began residing in the Democratic Republic of Congo. The African Commission on Human and Peoples’ Rights (Commission) reviewed the Complainant’s claims for admissibility and determined that he had constructively exhausted all local remedies because he no longer remained in Kenya and the Office of the United Nations High Commissioner for Refugees had found he could not return to Kenya based on a well-founded fear for his life. Accordingly, the Commission declared the complaint admissible during its 27th Ordinary Session. Thereafter, the Government of Kenya neither provided any requested information concerning the case, nor contested any of the Complainant’s allegations.

The Commission found that the conditions in which the SSD held the complainant violated his right to freedom from inhuman and degrading treatment under Article 5 of the Charter; however, the SSD was not responsible for violating the Complainant’s right to freedom from torture because the latter could not substantiate allegations of torture. Nevertheless, with regard to freedom from inhuman and degrading treatment, the Commission concluded that State Parties to the Charter have a duty to respect “the dignity inherent in every human being.” Furthermore, Principle 1 of United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires that States particularly respect the inherent dignity of persons detained and imprisoned. Principle 6 of that document also states that no circumstances justify cruel, inhuman or degrading treatment or punishment. In addition, the duration of the Complainant’s detention without trial violated his right to liberty and the security of his person within the scope of Article 6 of the Charter. The SSD’s inhuman and degrading treatment also violated his right to information and political expression under Article 10 of the Charter and his right to freedom of movement within Article 12. The Government of Kenya should therefore facilitate the safe return of the Complainant to Kenya, if the Complainant wishes to return.

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