Compensating the displaced people is a rich minefield Story by DONALD B. KIPKORIR Publication Date: 5/10/2008
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.
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
Our law is developed beyond any peradventures of doubt that one who claims compensation must strictly prove his claim. It is so easy to prove one’s claim. A businessman cannot say that his shop was burnt, for example, at Kipkelion and that he was earning Sh1 million per month from it; he has to show his books of business and if they were burnt with the building, recourse has to be taken to his tax returns. And surely, we can easily show how many bags of maize were in one’s store. Rocket science isn’t required here.
Any claim by IDPs ought therefore to be directed at the people who caused the loss. Any intended compensation by the Government is not based on any sound law but on its magnanimity. It is because of this legal reality that the Government is calling the compensation ex gratia and by so doing, playing it safe.
Even if the Government is making the payments ex gratia, IDPs still have to prove their claims to the extent that there arose post-election violence and the extent of their loss and injuries.
To avoid legal pitfalls, America and Pakistan became legally creative in dealing with the disasters of Hurricane Katrina and the Kashmir earthquake respectively. In America, every household, not individual, was given $2,000 (Sh122,000) and then thereafter each person allowed to pursue civil remedies for additional remedies as against their insurers or the Government.
The US government has specific federal-government-funded programmes that victims of natural disasters and terrorism can claim from. Suits filed by victims of Katrina now even exceed the American annual budget of $13 trillion, but the US isn’t worried as the suits have to satisfy the law relating to proof of injury as well as the cause and extent of damage.
In Pakistan, each household was paid $1,667 (Sh102,000) for each death, irrespective of the number in the family; $833 (Sh101,000) for permanent disability and $2,917 (Sh175,000) for each house occupied by a household. As the Kashmiris affected were mainly agricultural communities, the government did not compensate for businesses.
The intention of the compensation was to help the victims to stand up and rebuild their lives, and was never meant to be a financial reward. At the end of the programme, Pakistan spent $333 million (Sh20 billion) only.
Thus, as the Government proceeds to compensate IDPs, it must be guided by the US and Pakistani examples. Past and future victims of tribal clashes, civil strife and natural disasters will surely be seeking similar treatment.
To help the IDPs to rebuild their lives and property is a noble cause, but the Government must not abuse the goodness of Kenyans to turn the compensation into a fraudulent lottery. Compensating victims must create consistency, fairness and equity across time, tribal and political affiliation.
The country has had its fair share of civil strife, terrorist attacks and natural disasters, and the victims and their relatives will soon seek compensation and will be entitled to it.
Let the resettlement and compensation proceed, but it should proceed on established principles of law. But, of course, the Government ought not to forget to resolve all the immediate and underlying causes of the post-election violence.
Resettlement and compensation cannot be used to ride rough-shod the permanent resolution to the land problems, historical injustices and inequities as well as pervasive negative tribalism in public service and discourse. We know our problems, we know the law reasonably well, yet our successive governments do not seem to care.

Shallow graves, shattered lives in Uasin Gishu
Published on June 30, 2008, 12:00 am
By Dedan Okanga
When things fell apart after the General Election, seeds of sorrow were sown in the hearts of many, among them families that lost beloved ones to brutal lynch squads.
Gangs struck homes, killing and maiming victims as Kenya’s worst political violence gripped the country.
The sad tale remains fresh in the memory of residents of Uasin Gishu District.
Families in Timboroa and Chagaya sub-locations contend with recollections how they were unable to bury their kin ruthlessly butchered by gangs.
One case sticks out in their mind. On February 29, a 35-year-old man left his family to join 16 other men to harvest maize in Nyakio in Timboroa.
This was the time when tribal skirmishes raged in the bowels of Rift Valley’s grain basket.
But the nagging call of fatherhood and the false promise of company nudged the young man to a course that would become a death trap.
As fate would have it, it was the last assignment of the father of four and a breadwinner of a struggling family. He was never seen alive again.
A gang that had set out to kill, steal and destroy attacked him and his colleagues with machetes and clubs. When the attackers were done, two young men lay dead.
One of them, Mr Daniel Kahumba, lay in an open well, near the maize farm.
But for his kith and kin, that was one dimension to the tragedy. The other was that the family could not find space and time to decently bury him as would ordinarily be to celebrate a young life cut short so brutally.
At the time of his death, the air above the village reeked of violence, with militia surging forward every day.
In haste and disorder, a handful of mourners interred Kahumba in a shallow grave, not more than one and a half metres deep.
"Everybody was fleeing the area as the attackers inched closer to the village and so we sunk a shallow grave and hurriedly buried the body of my husband, without any funeral rites," said Mrs Agnes Wanjiku, the widow of Kahumba.
She says there was not even a simple coffin for the body. The corpse was simply draped in pieces of cloth and disposed of without the simplest ceremony.
After the rushed exercise, the mourners scampered for safety shortly thereafter.
Impunity
Mobs of ferocious youths lurked in the dense forest overlooking Nyakio farm, baying for the blood of anybody within the vicinity.
As she grapples with the bitter experience and the accompanying trauma, Wanjiku says a decent burial for her late husband is not too much to ask from the Government.
"Of course, I would want the Government to help me rebuild my shattered life and educate my four children. But first, a decent reburial of my late husband," she says.
Kahumba did not own the land on which, and for which he was killed and buried.
Rather, it was offered to him by his uncle as a launch pad for his wage labour activities, from which he sourced his daily bread.
Calm has since returned to Nyakio village, but like many other victims who underwent such atrocities, Wanjiku is yet to go back to her pre-election home.
Not so much because of the lurking danger, but because of the trauma of patching up life in a compound that barely five months ago stirred with the youthful vigour of her industrious husband.
Wanjiku’s case is not an isolated one. The deserted fields and abandoned homesteads in Timboroa and Chagaya areas of Uasin Gishu districts are awash with tiny mounds of earth, graves for those butchered and then buried in a hurry.
According to the Timboroa sub-location Chief Jacob Njihia, it may take time before statistics on the killings is ascertained.
"The figure we have presently stands at nine, but other incidents occurred in Gilgil and Mosop. In Chagaya sub- location, seven members of the same family had been buried in shallow graves and without coffins. They were, however, later exhumed and given a decent burial," he said.
Mr Njihia could, however, not confirm whether there were plans to accord the deceased a decent send-off.
Mrs Grace Njoki, a resident, said many of her friends and relatives who died during the skirmishes are still lying in shallow graves.
She says reburial became difficult due to the disputes over the pieces of land on which the dead were buried.
"When we raised this issue with the authorities, we were supplied with seven coffins but these were hardly enough. Besides, some warmongers were still baying for our blood daring us to set foot on the disputed parcels of land," she recounts.
Most relatives say it is agonising to imagine a loved one lying in a shallow grave without a coffin.
"Traditionally, the spirit of the dead becomes restless in view of poor burials. How can the dead rest in peace if they were buried in chaos?" said Mr Muchunu Kihumba, an uncle of Kihumba.
A few residents are trooping back to the area to pick up their lives all over again. But the atmosphere remains gloomy. Numerous others have opted for cautious optimism, choosing instead to pitch camp at the Timboroa shopping centre and eke out subsistence on off-farm activities.
Wanjiku, too, prefers the township to her farm. But the town is equally in shambles, with some sections torched, looted and deserted at the height of the skirmishes.
Her husband’s tiny grave lies lonely on the steep and fertile grassland, choking with overgrown weeds and dry stalks of the maize Kihumba was harvesting when he met his death.
The picturesque ridges lying side by side are deserted, with months of farming inactivity.
In Kihumba’s deserted home, chirping birds and the occasional presence of wildlife have filled the space left by humans.
Occasionally, the dead man’s wife and his uncle sneak into the desolate compound to make sure the grave is not desecrated by marauding canines.

In May Kibakia and Kimunya said we have no money to compensate IDP's as a country.

In June Kibaki and Kimunya have sold off Grand Regency for much less than what it could have been sold for.

The difference (in billions) COULd have had a substantial impact on our IDP's lives if it had been maximized and then contribute to the IDP Harambee Kitty.

Now tell me, who is fooling whom. Come 2012, the IDP's will be where they were left.

And some mafias will be billions richer.

And Othaya will join the ranks of Gatundu, Baringo, Kajiado, Bondo, Mwingi, Funyula, Saboti and Vihiga who produced Presidents and VP's but were still poor.

Except of course the maginificent mansion of the politicians, the paved tarmack road leading to his house, the adjacent health center near his farm, the helicopter pad near his ranch and the many 4WD cars parked in his compound. And all his kids abroad for studies and wife shopping in Paris, Dubai and Mombasa.

Any person linking the plight of IDPs to these political events should have a self examination of their own value system.There shouldn't be any link.If indeed this linkage was supposed to whet our appetite into joining the bandwagon of joining the choruses of those condemning the so called mt.Kenya mafia then it fails fundamentally and leaves us with a very bad taste!It is an uncouth way of poking fun at the suffering of masses who had no relation to whatever your political complains whether they are true or hallucinations!

defending thieves just coz you come from the same kabila is proof of the "superiority of your value system"

enuff said!!!

Kabila,ethnic,tribe,nduriri.. blablabla.... Can you really write a post without using these three or so terms.Is it lack of vocabulary? We can offer help!Like i said we got raise our level kidogo tu!

This message has been edited. Last edited by: Ngii Ndune!!,

then dont judge people based on their "value system".

dont debase people using silent vernancualr titbits with laughter.

dont "pretend to live in a glass house and throw stones in the market place"

if your aim is to debate, stay on the debate line. not to fuata fuata people all over to debase them with hidden snide vernacular remarks.

of what use was "responding to this post" with vernacular messages? what "coded messages" are you sending to those who are not from there or who prefer not to isolate others?

quote:

of what use was "responding to this post" with vernacular messages? what "coded messages" are you sending to those who are not from there or who prefer not to isolate others?

There are some statements that can only be understood if they are in the original Language (they lose meaning on translation). Normally the summarise a situation(or description) eg Nyani haoni kudule.

That said, we should not stoop low. Kindly let us keep within the radar of rational, objective discourse.

Muhuthia, thanks a million! Well join the company I can tell you,it is a tough proposition to teach an old dog new ways!

yes, the old dog cant change its ways. its used to following others. LOL!!!

quote:

Originally posted by Ngii Ndune!!:
Muhuthia, thanks a million! Well join the company I can tell you,it is a tough proposition to teach an old dog new ways!

Well said Muhuthia

Have you considered that for the past couple of years, there have been people (especially from UK and USA) who have visited this site out of the desire to learn.

If you dont provide a translation for them, how would they know?

quote:

Originally posted by Muhuthia:

quote:

of what use was "responding to this post" with vernacular messages? what "coded messages" are you sending to those who are not from there or who prefer not to isolate others?

There are some statements that can only be understood if they are in the original Language (they lose meaning on translation). Normally the summarise a situation(or description) eg Nyani haoni kudule.

That said, we should not stoop low. Kindly let us keep within the radar of rational, objective discourse.

MM

for your benefit one such

Marohia Nda Magicunga translated may they burn their stomach as they doze.

the meaning is lost

the first one is forbiding as in "dont you dare" now you can see how far off the translation is

Muhuthia
Like I said I you wish luck and strength in this journey but it is worthwhile.It is going to be daunting,haunting and the success rate is very minimal!
'Ndindiko ii maguru'
'Ciunagwo rukomo, kimenyi akamenya ikiunwo'
'Cira wa kirimu utindaga kiharo'

when one sees someone who craves attention but does not get it and ends up piggypbacking on others is quite a show.

good luck.

quote:

Originally posted by Ngii Ndune!!:
Muhuthia
Like I said I you wish luck and strength in this journey but it is worthwhile.It is going to be daunting,haunting and the success rate is very minimal!
'Ndindiko ii maguru'
'Ciunagwo rukomo, kimenyi akamenya ikiunwo'
'Cira wa kirimu utindaga kiharo'

LOL!!!!

my brother that was so cool. LOL!!!

i understand. you made my afternoon.

i agree, sometimes it loses meaning when tranlsated.

so next time, put the english translation in comas for the others to understand.

but you made your point. my sincerest apologies.

i cant help but laugh at the proverb you gave.

good one!!!

quote:

Originally posted by Muhuthia:
MM

for your benefit one such

Marohia Nda Magicunga translated may they burn their stomach as they doze.

the meaning is lost

the first one is forbiding as in "dont you dare" now you can see how far off the translation is