Kenya: Sudanese Family Seeks Millions From Kenya for Refugee Convicted After Death

Sudanese refugee El Naim Gizoly Adam had lived in Kenya for three years and was set to go back home in 2014 to reunite with his sister. He had lived in the Kakuma Refugee Camp since 2011.

The rough life at the refugee camp only made things more difficult for El Naim, who was schizophrenic. Court papers also indicate that he may have struggled with drug addiction.

El Naim had twice been admitted at Mathari National Teaching and Referral Hospital in Nairobi. He left Mathari in 2014 to chart a journey back to Khartoum in the hope that his sister would become his caregiver.

But an episode at Jomo Kenyatta International Airport (JKIA) just minutes before he was to fly back to Sudan would lead to a narcotics possession charge. He was convicted of the offence nearly two years after dying aged 28 from tuberculosis while in remand awaiting a judgment.

El Naim’s family is now seeking millions in compensation from the Kenyan government, arguing that the State owed their relative justice and the duty of care while he was in custody.

His brother Mohammed Elgizoly Adam has filed a petition in the High Court, arguing that the State denied El Naim proper medical care as a vulnerable person living with a mental disability.

Mohammed adds that the courts should have prioritised El Naim’s case, which was marred by endless mentions without a way forward until February 2018, when a judgment was finally delivered.

“The long delay in delivering judgment and the lack of mentions to fast track the matter by the DPP denied El Naim his constitutional right to a fair trial,” Mohammed says in the petition.

“The right to life which is a constitutional right was wrongfully deprived from El Naim when the second respondent (Commissioner-General of Prisons) failed to offer medical assistance and support to him despite having knowledge of his mental history.”

Neither the Director of Public Prosecutions, Kenya Prisons Service nor Kibera Law Courts has responded to the case.

El Naim arrived at the Kakuma Refugee Camp in 2011. He was schizophrenic but court papers also indicate that he may have had a drug problem.

After being admitted to Mathari Hospital’s rehabilitation centre in 2014, El Naim asked for assistance to get back home.

Court papers show that El Naim left Mathari after the hospital failed to help him in the quest to return home, and that he walked 337 kilometres to Matunda in Kakamega County.

While the documents do not indicate what El Naim was looking for in Matunda, they show that he called a friend from Sudan, only identified as Mr Sinali, while in Kakamega.

Mr Sinali was based in Nairobi and promised to ensure El Naim returned to Sudan, where he would be reunited with his sister. Mr Sinali sent El Naim Sh1,500 for fare back to Nairobi.

Once in Nairobi, the two met and Mr Sinali put him up in a city centre hotel for 20 days as his travel documents were being prepared.

Changed his mind

On September 15, 2014, Mr Sinali escorted El Naim to JKIA, where he was to board a Kenya Airways flight to Khartoum.

But at the airport, El Naim changed his mind and wanted to stay in Kenya. When he became violent, immigration officers arrested him and placed him in a holding cell with eight other people. The eight were later transferred to another cell as El Naim was continuously banging the wall.

Officers would then find him with two pellets and a white powder. The substances were taken for testing at the Government Chemist, and the results showed that the pellets were cocaine while the powder was heroin.

El Naim was charged with possession of narcotic drugs on September 17, 2014. He said he had found the pellets in the cell.

A judgment was expected on February 22, 2016 but it was not delivered. The case was then to be mentioned on March 9, 2016 but was adjourned because El Naim was not presented in court.

At 3pm on August 29, 2016, El Naim was visited at the Industrial Area Prison by his brother Mohammed.

Mohammed says El Naim looked healthy but requested medicine to manage schizophrenia.

The following morning Mohammed went to the prison to inquire on possibility of getting his brother medicine to manage schizophrenia, but was informed that he had died.

Medical reports show that El Naim fell sick on the morning of August 30, 2016 and was rushed to Kenyatta National Hospital, where he died while receiving treatment.

The Kibera court was informed of El Naim’s death on October 12, 2016 and a mention was set for two days later. It did not take place.

Lawyers for El Naim and Mohammed filed a complaint with the Ombudsman on January 20, 2017 but they are yet to get a response.

The magistrate handling the narcotics case wrote a judgment convicting El Naim on April 27, 2017, nearly eight months after he died.

But the court file went missing, further delaying the matter as the parties in the case were not aware of whether the verdict was guilty or not. Finally, on February 23, 2018 the file was found and the judgment delivered.

The magistrate, who signed the papers as Hon. Juma SPM, held that all 10 prosecution witnesses had provided enough evidence to show that the drugs found on El Naim belonged to him.

“If the accused was alive he would have been fined Sh1,000,000, in default to serve life imprisonment for both count one (cocaine possession) and two (heroin possession) but since it is clear that he has gone to meet with his maker the sentence shall remain in abeyance. Inquest (on El Naim’s death while in custody) to be opened as directed,” Magistrate Juma ruled.

Mohammed indicates in court papers that there has never been an inquest on El Naim’s death.

Under Kenyan law, an inquest must be held for anyone who dies in the custody of security authorities.


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Author : Nation

Publish date : 2021-10-05 07:06:02

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