Global Freedom of Expression

Javeria Siddique w/o Arshad Sharif v. Attorney General of Kenya

On Appeal Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    August 7, 2024
  • Outcome
    Decision Outcome (Disposition/Ruling), Judgment in Favor of Petitioner
  • Case Number
    Constitution Petition No. E009 of 2023
  • Region & Country
    Kenya, Africa
  • Judicial Body
    First Instance Court
  • Type of Law
    Constitutional Law, International Human Rights Law
  • Themes
    Access to Public Information, Digital Rights, Press Freedom, Violence Against Speakers / Impunity
  • Tags
    State violence

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Case Analysis

Case Summary and Outcome

The High Court of Kenya held that the fatal shooting of Pakistani journalist Arshad Sharif by Kenyan police officers was unlawful and violated constitutional and international rights, including the right to life, dignity, and freedom from torture. The Court found that the Petitioner, Javeria Siddique (Wife of Deceased Arshad Sharif), had met the required threshold by demonstrating violations of multiple constitutional provisions, such as Articles 26, 27, 28, and 29 of the Kenyan Constitution, alongside international obligations under the ICCPR and CAT. The Court criticized the respondents for failing to conduct independent, impartial, and effective investigations into the incident and for withholding critical information from Sharif’s family, breaching their obligations under Article 35 of the Constitution. It held the respondents accountable for their inaction and lack of transparency, awarding the Petitioners relief, including a global compensation of Kshs 10,000,000 (78,000 USD) for the family, and ordered independent investigations, public apologies, and accountability measures.


Facts

Arshad Sharif, a prominent Pakistani investigative journalist, was fatally shot on October 23, 2023, while in Kenya. At the time, he was living in self-imposed exile, having fled Pakistan two months earlier due to threats related to his investigative work. On the night of the incident, Kenyan police officers shot him in the head while he was a passenger in a Toyota Land Cruiser (V8) with the registration number KDG 200M, traveling near Tinga Market in Kajiado County. The officers claimed they were pursuing a stolen Mercedes Benz Sprinter van, registration number KDJ 700F, but mistakenly targeted Sharif’s vehicle. 

The Inspector General of the National Police Service admitted that police officers had “fatally wounded” Arshad Sharif and expressed regret for what he termed “the unfortunate incident.” He assured the public that investigations were underway, and the 4th Respondent also promised a speedy inquiry. However, the Petitioners alleged that no substantial investigations had been conducted. They claimed that any ongoing inquiries lacked promptness, independence, impartiality, effectiveness, and accountability. They further asserted that the perpetrators had not been prosecuted, and the family of the deceased had received no justice.

Javeria Siddique, the wife of Arshad Sharif filed a petition on behalf of Arshad Sharif under the Constitution of Kenya before the High Court of Kajiado. The Petitioner accused the respondents of deliberately covering up the incident, citing ignored requests for updates from the 1st Petitioner. She contended that the actions of the Kenyan police officers, including the arbitrary and excessive use of lethal force, violated constitutional and international protections of the right to life, dignity, and security. The petition highlighted breaches of Articles 26, 27, 28, and 29 of the Kenyan Constitution, along with provisions under the ICCPR, CAT, and the Banjul Charter. 

Kenya Union of Journalists and Kenya Correspondent Association also joined the petition with Javeria Siddique, as Petitioner No. 2 and Petitioner No. 3. The Petitioners collectively contended that the failure to investigate and prosecute the officers responsible amounted to violations of fair administrative action and effective remedy rights. Through their petition, the Petitioners sought various declarations, including that the use of lethal force against Arshad Sharif was unlawful and unconstitutional. The Petitioners demanded independent investigations, prosecution of the officers involved, and disciplinary actions. Additionally, the Petitioners requested the release of all evidence related to the incident, a public apology from the 1st Respondent, and compensation for the violations of constitutional and international rights.


Decision Overview

Justice Stella Ngali Mutuku delivered the decision. The primary issue before the Court was to determine whether the Petitioners met the threshold in this petition and if yes, then what reliefs are available to the Petitioners.

Javeria Siddique contended that Kenyan police officers unlawfully used excessive, arbitrary, and lethal force when they fatally shot Arshad Sharif, violating his constitutional and international rights. She contended that the killing breached Article 26 of the Kenyan Constitution, which protects the right to life, as well as Articles 28 and 29, which guarantee inherent dignity and protection from violence. [paras. 8-9] She also claimed violations of international instruments, including Article 6 (Right to life) of the International Covenant on Civil and Political Rights (ICCPR) and Article 4 (Right to life and personal integrity) of the African Charter on Human and Peoples’ Rights (Banjul Charter). Additionally, She alleged that the respondents’ failure to investigate or prosecute those responsible deprived Sharif of equal protection under the law and violated his non-derogable right to a fair trial. [para. 9]

Siddique further accused the respondents of covering up the incident and ignoring requests for a status update. She argued that the respondents violated their positive obligations under Article 47 of the Kenyan Constitution, which guarantees fair administrative action, and under various international treaties, including the Convention Against Torture (CAT). [para. 10] She held the respondents accountable for failing to discipline or prosecute the police officers involved, asserting that this omission contravened the constitutional mandate for police professionalism and discipline under Articles 244(a) and 246(3). [para. 11] The Petitioners sought declarations affirming the unlawfulness of the killing, orders for independent investigations, disciplinary actions, public apologies, and damages for the violation of their rights. [para. 13]

On the other hand, the 1st and 3rd Respondents contended that the Attorney General (1st Respondent), as a constitutional office established under Article 156(4) of the Constitution and Section 5 of the Attorney General Act, is tasked with advising and representing the National Government in legal matters but has no command over police officers. The State contended that Petitioner No. 1 i.e., Javeria Siddique failed to substantiate claims against the 1st Respondent or demonstrate a breach warranting its inclusion in the case. They contended that the Inspector General (3rd Respondent) independently commands the police under Section 8 of the National Police Service Act, while the 4th Respondent confirmed it conducted investigations, forwarded the file to the 2nd Respondent, and awaited further instructions. They maintained their non-involvement in the alleged incidents and sought to dismiss the petition against them.

The 2nd, 4th, and 5th Respondents highlighted their respective roles in the investigation. The 2nd Respondent explained its proactive measures in reviewing the investigation file of the fatal shooting incident involving Pakistani national Arshad Muhammad Sharif, coordinating with the 4th Respondent to address investigative gaps, and updating both Pakistani officials and the Ministry of Foreign Affairs. They asserted that their correspondence remains privileged to protect the integrity of the process. The 4th Respondent detailed its investigative steps, initiated upon learning of the incident through the media, and affirmed its compliance with the 2nd Respondent’s directives. The 5th Respondent emphasized its mandate under Article 246(3) of the Constitution, restricted to personnel management within the police service, asserting that it lacked authority over criminal investigations and was not implicated by the Petitioners. Collectively, the Respondents sought dismissal of the petition.

The Court first established its jurisdiction under Article 165(3)(b) of the Constitution, which empowered it to determine whether fundamental rights and freedoms in the Bill of Rights had been denied, violated, infringed, or threatened. [para. 59] The Court then addressed the fundamental principle of burden of proof, citing Section 107 of the Evidence Act, which placed the onus on the Petitioners to prove their allegations of rights violations against the five respondents. [para. 60]

The Court heavily relied on the case of Anarita Karimi Njeru v Republic, (1979) to establish the threshold requirements. This precedent mandated that Petitioners seeking constitutional redress must set out their complaints with reasonable precision, specifically identifying the constitutional provisions alleged to be infringed and the manner of infringement. This requirement was established to ensure justice was properly served in the Petitioner’s case. [para. 61] The Court further refined this principle through the Mumo Matemu v Trusted Society of Human Rights Alliance, (2013) decision, which clarified that while precision remains crucial, it should not be confused with absolute exactitude. The Court of Appeal in Matemu emphasized that precision serves the broader purpose of defining issues in litigation and adjudication, rather than demanding formulaic prescriptions of factual claims or formalistic utterances of constitutional provisions. [para. 62]

In applying these principles to the present case, the Court examined the undisputed facts surrounding the fatal shooting of Arshad Sharif, a Pakistani journalist, on October 23, 2022. The Court noted that the Petitioners had specifically identified violations of multiple constitutional provisions and international instruments, including Articles 26, 27, 28, and 29 of the Constitution, Articles 2 and 4 of the Banjul Charter, Article 6 of the ICCPR, and various provisions of the Convention against Torture. [paras. 63-67] The Court found that these allegations were pleaded with sufficient precision and supported by evidence, including correspondence showing attempts to seek information about the investigation’s status. [paras. 84-85]

The Court critically examined the responses of all five respondents, noting their attempts to deflect responsibility and their claims of privilege regarding investigation information. The Court found these responses inadequate, particularly given the constitutional obligations under Article 35(1) regarding access to information. While acknowledging that certain information might be limited under Article 24 of the Constitution, the Court found that the respondents failed to adequately justify their withholding of basic investigation updates from the deceased’s family. [paras. 86-89] The Court referred to the Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission case to emphasize that Article 35(1)(a) establishes a presumption of disclosure that can only be overcome in very limited circumstances. [para. 90]

After thorough analysis, the Court concluded that the Petitioners had successfully met the threshold by demonstrating violations of multiple constitutional rights. These included the right to life (Article 26), equality before the law (Article 27), human dignity (Article 28), and freedom from torture and cruel treatment (Article 29). The Court emphasized that each respondent had specific constitutional and statutory obligations they failed to fulfill, particularly in keeping the deceased’s family informed about the investigation’s progress. [paras. 93-98] Moreover, the Court found violations of international obligations under CAT and ICCPR, specifically regarding the positive obligation to investigate and prosecute violations of the right to life and freedom from torture. [para. 95] The comprehensive nature of the pleadings, combined with the evidence presented, satisfied the constitutional threshold requirements, leading the Court to find in favour of the Petitioners on this preliminary issue. [paras. 98-99]

The Court first acknowledged that while the Petitioners sought various reliefs, not all reliefs, especially compensation, would be applicable to all Petitioners. [para. 100] In determining appropriate reliefs, the Court grounded its analysis in both international and domestic legal frameworks. The Court examined relevant international law provisions, specifically Article 14(1) and (2) of the Convention Against Torture (CAT), which mandates that victims of torture must have an enforceable right to fair and adequate compensation, including means for rehabilitation. Importantly, CAT explicitly provides that in cases where the victim dies due to torture, their dependents become entitled to compensation. [para. 101] The Court also considered Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), which requires State Parties to ensure effective remedies for rights violations, including judicial remedies. [para. 102]

In considering domestic precedents, the Court referred to the case of MWK & another v Attorney General, [2017], which established that compensation represents an appropriate and effective remedy for constitutional rights violations. This case emphasized that while compensation is a recognized remedy in public law for fundamental rights violations, the quantum must be determined based on reason and principle rather than personal opinion or caprice. The Court noted that such claims are distinct from private law damages for tort. [para. 103] The Court definitively held that the Petitioner No.1  was entitled to reliefs, with specific emphasis on compensation for the Petitioner No. 1 and the deceased’s family. Notably, since the Petitioner No. 1 had not specified a requested amount, the Court exercised its discretion in determining appropriate damages. [para. 104] The Court acknowledged the inherent difficulty in monetizing the loss of life and the family’s suffering, referencing again the MWK case, which highlighted the challenges in assessing compensation for non-physical and non-financial injuries, such as mental distress, grief, and anguish. [para. 105]

After careful consideration of all circumstances, the Court awarded a global sum of Kshs 10,000,000 as compensation. [para. 106] This amount reflected the Court’s attempt to provide meaningful redress while acknowledging the impossibility of fully compensating for the loss of life and associated suffering.

The Court concluded that the Respondents, through their actions and omissions in performing their respective functions, violated the Petitioners’ rights, resulting in eight specific relief orders. The Court issued several declaratory orders affirming that: the use of lethal force against Arshad Sharif was arbitrary and unconstitutional; his shooting violated multiple constitutional rights including the right to life (Article 26), equal protection (Article 27), dignity (Article 28), and security (Article 29); the Petitioners were entitled to effective remedies under both domestic and international law; and the failure to conduct prompt investigations violated positive obligations under the Constitution and international conventions. The Court then issued mandatory orders compelling the Respondents to conclude investigations, take appropriate disciplinary action, prosecute the responsible police officers if found culpable, and provide investigation status updates to the Petitioners. Finally, the Court awarded a global sum of Kshs 10,000,000 in general damages to the Petitioner No. 1, to be paid jointly and severally by the Respondents, with interest at court rates from the date of filing until full payment, along with the costs of the petition.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The ruling in this case significantly advanced the principle of freedom of expression by affirming the protection of journalists’ rights to life, security, and dignity, which are essential for free and independent journalism. Arshad Sharif, a prominent investigative journalist, was killed while in self-imposed exile due to threats linked to his work, highlighting the critical need for governments to safeguard journalists from violence and intimidation. The court’s decision emphasized that the use of lethal force against Sharif violated his constitutional rights, including his right to life, dignity, and protection from violence, thereby reinforcing the notion that journalists must be free from arbitrary violence in their professional capacity. Furthermore, the court’s call for independent investigations and prosecution of the police officers responsible for Sharif’s death sends a clear message about the state’s duty to protect journalists and hold perpetrators accountable, thus fostering a legal environment conducive to free expression. By addressing the failure to provide timely updates on the investigation and demanding transparency, the ruling underscores the importance of accountability in the protection of press freedom. In contrast, the lack of response from the state actors and the failure to properly investigate could have undermined this freedom, perpetuating a chilling effect on journalists. Ultimately, the court’s orders for justice and compensation reflect a commitment to upholding the constitutional and international human rights standards that support and protect the freedom of expression.

Global Perspective

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

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