Kenya has become increasingly adept at recognizing human rights violations in court. Our Constitution guarantees access to justice, dignity, equality, and effective remedies. Courts have repeatedly found the State liable for torture, unlawful detention, police brutality, historical abuses and violations of socio-economic rights. Yet for many victims, a favourable judgment is only the beginning of another struggle: the fight to actually receive compensation, rehabilitation, or meaningful redress.
This is the uncomfortable truth of Kenya’s human rights landscape: we issue judgments, but too often fail to deliver justice.
Article 23 of the Constitution empowers courts to grant appropriate relief for violations of rights, including compensation. Article 22 gives every person standing to institute proceedings for enforcement of the Bill of Rights. Article 48 guarantees access to justice, while Article 159 requires justice to be administered without delay. These provisions were intended to make remedies real, not symbolic. Yet many victims who secure damages orders wait years for payment, face bureaucratic resistance, or receive monetary awards with no psychosocial or institutional follow-up.
This gap between judgment and implementation undermines public confidence in the rule of law. A right without an enforceable remedy is an aspiration, not protection.
Kenyan courts have made significant progress in affirming accountability. Victims of torture at Nyayo House successfully sued the State for atrocities committed during the one-party era. In Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment), the Court of Appeal reaffirmed that constitutional damages serve not merely compensatory but vindicatory purposes. The Court recognised that where the State violates rights, damages may be necessary to affirm the value of those rights and deter future abuse.
Similarly, in Coalition on Violence Against Women & 11 Others v Attorney General & 5 Others (2020), the High Court confronted the State’s response to sexual and gender-based violence during the post-election crisis. The case underscored that the state’s failure to prevent, investigate and remedy serious violations can itself attract constitutional responsibility. Yet even where courts recognize such harms, survivors often continue to wait for meaningful reparations.
These cases matter deeply. But they also expose a structural weakness: Kenya relies almost entirely on litigation to remedy human rights harm. Litigation is slow, expensive, adversarial and inaccessible to many survivors, especially the poor, rural communities, persons with disabilities, refugees, women facing stigma, or families of disappeared persons. Even when victims succeed, execution against government agencies can be cumbersome and delayed.
Comparative practice shows that courts alone cannot deliver meaningful reparative justice. Countries such as Colombia, South Africa, and Morocco have adopted administrative frameworks, including mechanisms under victims’ restitution regimes that provide registration, compensation, psychosocial care, education support, and land restitution without requiring individual litigation.
Kenya need not copy this model, but we should learn from a common lesson, reparations work best when institutionalised, not improvised. Kenya must think beyond one-off payouts. We need a National Reparations System anchored in law, adequately funded, transparent and survivor-centred.
First, Parliament should establish a National Human Rights Reparations Fund. This fund should be ring-fenced and financed through annual Treasury appropriations, a portion of recovered proceeds of corruption, court-imposed penalties for rights violations, and other lawful public revenue streams. Victims should not depend on whether an individual ministry decides to budget for an old decree.
Second, Kenya should adopt a standardised compensation matrix. Today, awards for similar harms vary widely depending on court, judge, legal representation and evidence available. While judicial discretion remains important, policy guidance could improve consistency for categories such as unlawful death, torture, enforced disappearance, sexual violence by state actors, arbitrary detention and protest-related disability. Equality before the law should include reasonable equality in remedies.
Third, reparations must extend beyond cash. A widow whose breadwinner was unlawfully killed may need school fees support for children, counselling, healthcare and livelihood assistance more than a cheque delayed for six years. Survivors of torture may need trauma care. Victims of unlawful eviction may need housing support and documentation restoration. Effective remedies should repair lives, not merely settle files.
Fourth, there must be a digital public accountability portal showing judgments entered against the State for human rights violations, payment status, pending claims and annual budget allocations. Transparency would reduce opacity and pressure institutions to comply.
Fifth, reparations should include guarantees of non-repetition. That means police reforms, command accountability, proper investigations, human rights training, preservation of evidence, and disciplinary consequences for repeat abuse. Compensation without reform simply prices injustice into governance.
Human rights remedies are not charity. They are constitutional obligations. Article 21 requires the State to observe, respect, protect, promote and fulfil rights in the Bill of Rights. Where it fails, repair is part of governance, not generosity.
Judgment is important. But judgment alone is not justice. Justice arrives when the widow is paid, when the survivor is healed, when the disappeared are acknowledged, and when institutions change so the next victim never exists.
By Faith N. Claudi
Legal Officer
Kituo cha Sheria- Forced Migration Programme