21 May 2002
Kenya: Investigation of suspected case of torture

The IRCT has been advised by the Independent Medico Legal Unit (IMLU), its partner organisation in Nairobi, of the following case in which two doctors have received threats and been threatened with de-registration for making a finding of torture in a post-mortem report.

The case refers to the late Paul Kimani Wambiru, 32 years old, who was arrested for alleged theft in Endarasha in March 2002. He was held at Muiga Police Station and subsequently at Nyeri Police Station. According to the police report he was released from Nyeri police cells on March 25 2002 at 5.05 p.m. and was later found dead that evening on the street in Nyeri. There was no history of illness prior to his arrest and death.

Statements from fellow inmates refute that he was ever released from the station, as he was unable to walk.

On April 4 2002 the post-mortem was conducted by the Central Provincial Pathologist in Nyeri, Dr. Moses Njue, and independent pathologist, Dr. Andrew K Gachie. Dr Gachie appeared for the family and IMLU.

They found the left testicle crushed, and the bladder and intestines ruptured. The findings included peritonitis, bilateral haemo-thorax (blood in lung cavity), facial bruising and subconctival haemorrhages. The injuries were determined to have been inflicted by blunt objects and they concluded that the cause of death was torture in police custody.

The body was buried and five policemen were arrested and charged with murder. The accused requested a repeat post-mortem and an exhumation was conducted two weeks later. Their pathologist Dr. Olumbe (the Chief Government Pathologist but who here appeared in his private capacity) found the cause of death was brain inflammation. No comment has been made as regards the other injuries identified in the first post-mortem. The written report of the second post-mortem has not been made public.

On Thursday 2 May, the Director of Medical Services in Kenya, Dr. Muga, and the Permanent Secretary Ministry of Health, Professor Meme, called a press conference at which they threatened to de-register Drs. Njue and Gachie for lying.

On Friday 3 May, Drs. Njue and Gachie were summoned to the Ministry of Health and asked to harmonise their report with Dr. Olumbe's. The two doctors refused, and in response Dr Njue was dismissed as Provincial pathologist. Both doctors were again threatened with de-registration.

On Saturday 4 May at 6pm the Director of Medical Services called Drs. Njue and Gachie to attend a third post-mortem to be conducted by Professor Gatei of Nairobi University. They proceeded to Nyeri but the District Medical Officer's request to know on what legal basis the third post-mortem is being carried out.

After the second post-mortem, the body had been returned to the family for reburial. The local magistrate confirmed that there is no legal basis for the third post-mortem. The family and the State are satisfied with the first result and have not entered a complaint; the accused requested the second and has not entered a complaint. Who is it that wants a third post-mortem? The family refused to agree to an unofficial post-mortem.

On Tuesday 7 May, the Attorney General obtained a court order barring reburial (planned for Wednesday 8 May) and ordered a third post-mortem. This took place on 8 May. This post-mortem confirmed the torture-related injuries. Professor Gatei, who conducted the third post-mortem, will not make his report public.

On 19 May Dr Njue complained publicly of having been threatened by the Central Investigating Department and of having received death threats. Dr. Gachie has also been threatened.

The Director of Medical Services has now stated that doctors working in the Kenyan Civil Service and in the University may no longer carry out post-mortems for IMLU. The IRCT believes that this action, which interferes with the professional independence of doctors in Kenya, is a threat to the administration of justice in this and in any cases of suspected torture.

The IRCT joins the IMLU in expressing its concern about the way this case is being handled by the Kenyan authorities. It is sub judice to comment publicly on a case before it appears before the court. It is up to the court to decide which post-mortem it will rely on. Furthermore it is intimidation of witnesses to threaten disciplinary action and actually demote one of the doctors prior to them testifying in court. It appears that the civil service is being used to obstruct the course of justice.

The IRCT would like to ask for your assistance in bringing this case to the attention of the Kenyan authorities, calling on them to ensure the safety of Drs. Njue and Gachie and to guarantee that they can continue to undertake their normal professional duties without fear of reprisal.

Thank you in advance for your support

Jens Modvig, MD, PhD

IRCT Secretary-General

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