Dr Charles Khamala
Huruma’s six-storey building was a corruption-infested construction engineered to collapse. It killed at least 49 people and seriously injured many others. Frantic 175-hour operations deployed the National Youth Service, Red Cross and military with sniffer dogs to rescue more than 140 victims. Crowds witnessed numerous power tools, two excavator vehicles and even bare hands yanking agonising bodies and crushed corpses from beneath massive concrete rubble.
What distinguishes this disaster from Kenya’s previous building tragedies is a heavy downpour. Moreover, its sheer magnitude sent catastrophic pictures splashing over global airwaves. Reportedly, demolition of its 198 dwelling rooms was earmarked by a regulatory notice, not only because the premises were “unfit for human habitation,” but also since it was erected barely 10 meters from a Nairobi County riverbank. Yet the government neglected to destroy it.
The following morning, Deputy Governor of Nairobi Johnathan Mueke admitted that “…these buildings were built without Nairobi County authorisation.” Is it possible that that Black Friday tragedy was attributable to “an act of God” rather than illegalities and negligence? Such defence is only legally available when “an event…directly and exclusively results from the occurrence of natural causes that” cannot be foreseen, or precautions taken.
Obviously, no one can prevent…an earthquake, a tidal wave, a volcanic eruption, or a tornado. Instead President Uhuru Kenyatta ordered officials “to undertake an immediate survey of all the houses in the area to find out those which are at risk of collapsing”.
Additionally, after a weekend of intense hide-and-seek, serious charges were preferred against its two owners, brothers Samuel Kamau and Henry Muiruri, as well as National Construction Authority Director Chrispas Ndinyo, Nairobi County Director of Planning and Compliance, Justus Kang’ethe and Mathare Sub-County administrator, Seline Ogallo.
At the Nairobi Magistrate’s Court, the five accused pleaded “not guilty,” reportedly to criminal manslaughter. If convicted of manslaughter contrary to Section 202 as read with 205 of Kenya’s Penal Code, the accused would face a maximum penalty of life imprisonment. Curiously, what has traditionally been preferred are charges under Section 244 proscribing “other negligent acts” by “which act or omission harm is caused to any person.” In the latter case, an accused is merely “guilty of a misdemeanour and is liable to imprisonment for six months”. One wonders whether such lenient sanctions are commensurate to a crime of gross negligent mass murder, or if they can deter greedy developers from ignoring building regulation standards, or prevent other professionals who must have licensed and authorised continuation of substandard works and bear contributory responsibility for criminal professional negligence.
Karl Marx (1852) remarked that “history repeats itself, first as tragedy, then as farce”. More recently, George Santayana (1952) clarified that only “those who cannot remember the past are condemned to repeat it.” That Kenyan incidences of so-called “accidents of development” remain frequent and widespread is partly attributable to institutional amnesia. Without litigation, public memory quickly fades. Kenyans seem to have forgotten our earlier Black Thursday of April 2, 2015. On that day, seven construction workers lay dead and dozens were buried beneath a six-storey building. It collapsed near one of Nairobi’s most popular malls, TRM at Roysambu. Similarly, the police, Red Cross, National Youth Service and Nairobi Fire Brigade galvanised a gallant rescue response.
Public inquiries and pending cases
Although, the following day, court action was initiated against four people, including the owner and developer as well as two engineers, it remains pending. Yet, Roysambu MP Waihenya Ndirangu reported being “informed that construction of this building had been certified to stop at third floor but the contractor went all the way up to the sixth floor.”
Moreover, between January and June 2015, eight buildings collapsed, killing several people and injuring others. It is true that, in lieu of punitive criminal prosecution, public morals may be recreated by inquires with a view to preventing recurrence, while mending relationships among offenders, victims and their communities of care. However, one wonders what value public commissions of inquiry serve when the causes lie in well-known professional negligence.
Another case in recent memory, yet pending before the courts, is the Kiambu Tower, which collapsed killing 16 people in 2009. Then the Architectural Association of Kenya called on the government to urgently establish a Building Audit Committee to examine all buildings in the country whether occupied or under construction. To date although prosecutions commenced, no convictions are reported to possibly deter recurrence.
Prosecutorial lethargy for unacceptable mass accidents may perhaps be attributable to the old Constitution being bereft of consumer protection legislation. Curiously, however, last year, rather than the Director of Public Prosecutions responding to the Roysambu building collapse, the Jubilee government chose to manufacture yet another administrative report. That Cabinet Report followed a three-month study by the National Construction Authority, revealing that only 42 per cent of Kenya’s buildings were safe to live in.
“The sector’s regulator inspected 7,835 construction sites across the country and found that more than 5,000 buildings were not compliant with the law, and required to be redone or brought down. Those not compliant are about 60 per cent,” said the report. Particularly, it revealed, by mid-June 2015 “three buildings (had) collapsed in recent months in Roysambu, Huruma and Makongeni, leaving 15 people dead and scores injured. Since 1996 more than 30 buildings have collapsed in Nairobi, Mombasa, Kisumu, Kiambu, Kisii, Meru and Narok.”
Clearly, mere bureaucratic reports seem ineffective in curbing Kenya’s building menace. Nor do registering contractors without sanction, suffice. Nonetheless, the NCA, in September 2015, ordered “everyone involved in the construction of buildings, roads or bridges” within six months “to register with the agency and ensure compliance with the regulations.” However, by January 2016, it revealed that “a total of 17 construction works, including buildings, collapsed last year.”
In December 2015, the Ombudsman “(wanted) senior officials in City Hall’s Housing Development Department prosecuted over the 2015 collapse of the Huruma building which killed five people”. Recurrence of identical deadly building disasters in Kenya’s construction industry is perpetuated by producing public reports or incomplete prosecutions. Recent reports confirm that “in 1998 in Tena Estate, another house collapsed killing at least four. The case is still on. Other cases that are pending in court include Karanja Road in Kibera in 2001, Kilimani Estate in 2001, Mombasa in 2009…and Pipeline, Nairobi, in 2011.”
Several aspects of the NCA’s conclusions regarding the Roysambu disaster are unclear. Were the regulator’s recommendations objective or skewed? Were any further investigations undertaken? Does it provide an accurate record clarifying the norm that shoddy buildings are unacceptable? An informal gesture to compensate victims moves beyond commissions of inquiry to restorative justice, entailing apologies and making amends. More is needed to underpin engineering ethics in law. It is unclear whether to constrain corporate manslaughter by criminalising complicity between property owners and public officials. Or should charges be expanded by investigating breach of collegiate standards to prosecute private professionals? What accounts for lethargy Judiciary to conclude cases?
By grace, in the wake of the 2016 Huruma collapse, Nairobi Country Governor Evans Kidero immediately announced that City Hall would sack negligent quality assurance managers for approving the construction of the building. Furthermore, the County gave Sh10,000 ($100) to each family for resettlement and an addition of Sh50,000 ($500) to families who lost their loved ones to help them with funeral arrangements. There are plans by the county government to bring down 250 houses that are termed as “disasters in waiting” the unfortunate part of it is that 78 of them are in Huruma.” If lives are of equal worth, whether victims destroyed at Kenya’s post-2007 election violence or Garissa terror attacks or from the collapsing buildings, or elsewhere by catastrophes, all deserve commensurate responses and remedies.
Beyond “benevolent”, knee-jerk responses immediately after the incident, some preventive measures must be undertaken. Demolishing unsafely designed structures is one preventive strategy. Given the failure of Kenya’s criminal justice system, it behoves public interest lawyers and practitioners to refine legal principles which may provide supplementary avenues of suing culprits. I have elsewhere discussed alternatives ranging from consumer protection law under the Kenyan Constitution or statutory law, to compensation under common law of negligence. This article focuses on professional ethics, the limits of public officer immunity and explores the possibility of strict criminal liability. English common law emphasises the value of the rule of personal liability of officers as a constitutional safeguard. Compare that with French administrative law where “a public officer who knows that he will have to respond with his own resources if he commits a fault…is less likely to act maliciously or outside the scope of his official functions than one who feels that he is acting only as an impersonal” cog-in-the-wheel.
Enforcing engineering ethics
The problem with regulating building construction projects is that there are very many players involved. Hence the complex locus of responsibility becomes obscured and difficult to allocate. Three broad questions emerge: First, who should be liable? What kind of liability should arise? Breach of contract, personal injuries or criminal liability? If criminal liability, should it be based on strict liability or require proof of intention? Second, considering that government officials either negligently approve the sub-standard construction or fail to demolish it, should they be held personally liable, or be protected by a rule conferring public officer’s immunity? Should the state indemnify its servant under vicarious liability and therefore compensate victims? Third, should professional bodies be held collectively responsible for the negligence of one member?
One theoretical framework for considering these issues is the law of professional responsibility. According to Larry May in “The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights” (1989) “all professionals are obligated to pursue some value or goal more diligently than non-professionals.” In “The Moral Foundations of Professional Ethics” (1980), Alan Goldman stresses the notion that most professions have special roles, which actually reduce their normal moral responsibilities and shield the professional from certain forms of common criticism. In his view, “certain other charges of misconduct in business and the professions are defended by the appeal to special professional goals, norms and roles: the need to pursue profit for business managers, the requirement to place clients’ interests first for lawyers, or to prolong life for doctors. Such disputes relate often to the well meaning behaviour of professionals in pursuit of the fundamental value of the profession.”
Therefore for May: “Regardless of what a particular professional actually knows, that professional is expected to be aware of things that the members of the profession are reasonably expected to know. The standard of due care requires that members of a profession minimise harms resulting from the exercise of their professional knowledge, and the professional cannot use ignorance as an excuse. When specific members create harm unknowingly, even though they should be aware of the potentiality of these harms occurring, they risk the charge of professional negligence.”
Fellow professionals have duties to call-out bad apples because “(f)rom the moment that individuals unite themselves into a profession, it is no longer possible to claim that the group is non public”. Instead, “insofar as the group attempts to lobby the members of the society for scarce public resources or relative status, the nonprofessional group ‘politicises’ itself.”
May concludes that “professional groups cannot appeal to their supposedly non-political nature as a reason for failing to make public statements about the harmful practices of their members, or about the harmful uses or abuses of their members’ works”. Rather, “once this public status is recognised, the group has the duty to attempt to minimise the harm that the members cause or that is caused by the misuse of their works. Failure to meet this duty implicates the group as a whole in the harms.”
Rev Fr Dr Githui Donatus Mathenge’s “Ethical Issues in the Construction Industry in Kenya: A Critical Analysis of the Professional Conduct in Engineering Technology Management” (2012) poses the following ethical questions: “what happens when professional codes and regulations lag behind technological innovations; what precautions must engineers take when trying to balance the benefits new technologies bring against risks to public safety, often associated with engineering innovation, and what are engineering and corporate responsibilities to the public for failed innovation; and should he hold the payments for the benefit of his organisation?” He laments that “professionals in general tend to believe that their obligations to their clients far outweigh their responsibility to others, such as public.”
Accordingly “construction contractors, in contrast with architects, have a reputation for unethical behaviour, the main problem being,” Mathenge observes, “a high level of disputes between proprietors and builders. Their generally poor behaviour has been said to have originated from the influx of new construction companies with new people who lack building construction ethics, with greed being the driver to unethical conduct.”
Mathenge collected data through a “pre-designed questionnaire…administered to a population of 600 in total (inter alia) by personally visiting the consultancy firms.” He found that “although all (100pc) the engineers, constructors and consultants are members of the Engineering Registration Board of Kenya (ERB)”, few (35pc) “knew about the existence of its code of ethics and code of conduct,” out of which only half had read them.
Ombudsman system
Moreover: “Majority of the surveyed individuals (75pc) stated faulty systems besides unrealistic estimates/targets to be the main cause of unethical behaviour of the organisations or individuals.” Pin-pointing the reasons for unethical practices “in Kenya, many projects have failed to achieve the designed course due to bribery, favouritism and political corruption.”
Remedially, “it was stressed that audit staff dealing with construction industry should have construction knowhow as they concentrate only on the financial aspects of the project neglecting the most important aspect i.e., the technical part”. Mathenge proposes that an “Ombudsmen system in all departments should be enforced to receive, discuss and minute complains (sic) in the construction industry in Kenya.” Enhancement entails “effective punishments such as penalties or even cancellation of licences.”
This article endorses his salient recommendation that, along with including ERB’s code of conduct in its by-laws, “the role of an independent Judiciary in the implementation of law cannot be overemphasised” in order to make it more effective. However, in my opinion empowering institutions seems more effective than merely heading civic bodies “by people with ethical training (presuming) they are more likely to ensure ethical practices in the institutions.” Mathenge’s core contribution is that “low performance… has been caused by unethical professionalism leading to unethical conduct, corruption and bribery, favouritism, unfair conduct, lack of strict rules and overriding of the audit process. Consequently, (in) the case of engineers, a specific focus should be put on ensuring that ethical considerations are adopted in the engineering approaches.”
To manage collapsing buildings, this article emphasises instead that critical issues demand restructuring of the law of criminal negligence so as to re-frame relationships between interconnected actors in the construction industry. For example, why are sixty per cent of urban buildings in Kenya, unplanned? How many professionals are contracted by County Governments, and are they sufficiently equipped, remunerated and adequately licensed to discharge their onerous construction duties to standards expected of them? Pursuant to the Kenyan Constitution’s devolution objectives, Article 174(f) aims to “promote social and economic development and the provision of proximate, easily accessible services throughout Kenya.” Further, Article 186(b) aims to “establish the principles of governance and management of urban areas and cities; and (c) provide for participation by residents in the governance of urban areas and cities.” Most of all, under Article 227(1), “when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.”
Public/state indemnity and strict liability
Laxity, incapacity or incompetence characterises the Kenya Police’s investigative policy regarding calamitous circumstances in which buildings frequently collapse. This reflects a prosecution policy that is apparently reluctant to inhibit innovators, developers or commercial investors from risk-taking ventures. Putting profits before people is an economics mantra that is incongruent of the ideal of pursuing justice before efficiency.
In “Justus Mwenda Kathenge v Director of Public Prosecutions” [2014], a building being constructed collapsed and some construction workers were fatally injured while others suffered serious physical injuries. Upon investigations, criminal charges were preferred at Kibera Chief Magistrate’s Court against the landowner, among others, including Kathenge, a Senior Planner and Acting Assistant Director, City Planning Department.
The petitioner faced four counts of manslaughter contrary to Sections 202 and 205 of the Penal Code, and three counts of negligent acts causing harm contrary to Section 244. Unfortunately, the collapse occurred on June 14, 2011, pursuant to enforcement notices when construction of the allegedly “illegal structure” was on-going. Its destruction was perpetrated despite the High Court having stopped the Nairobi County Government from demolishing the illegal structures or putting a stop to the on-going construction.
Dereliction of duty
According to the prosecution, the accused Planning Officer failed to “co-ordinate the enforcement of by-laws of the City Council and related laws” by taking the following measures: “(a) Surveillance of the site in question; (b) issuance of the pre-requisite enforcement notice; (c) stoppage of the construction/demolish(ing) the construction/arrest(ing) and charg(ing) the developer for failing to respond to the enforcement notice.” The Petitioner contended that “the collapse of the building aforesaid should and must be blamed solely on the developers who flouted the Building Code of Kenya, and later sought protection from the Court thus tying the City Council’s hands in demolishing the illegal developments.”
Lenaola J in the Constitutional and Human Rights Division, held that the alleged criminal “offences can only reasonably and logically attach, with sufficient evidence, on the owner of the land and the developer, both of whom have been charged alongside the Petitioner” but not on the latter in his capacity of “a public officer whose execution of his mandate was stopped by the High Court.” For that reason, a declaration was issued “that charges against the Petitioner are unjust as they violate his indemnity under Article 236 of the Constitution and Section 6 of the Physical Planning Act, Cap. 286 Laws of Kenya, indemnifying him on all administrative actions done in good faith.” The net effect of earlier and subsequent High Court orders were not that the DPP was prohibited from prosecuting public officials demolishing illegal buildings to vindicate people killed during such collapse. Rather, having been legally stopped from demolishing the illegal building, the Senior Planning Officer could not be prosecuted for its collapse.
The above reasoning of exonerating the Planning Officer from criminal culpability because he neglected his duty to demolish under “judicial authority” is an extrapolation of English administrative law. Under English law, the government is exempted from compensating victims, since even if a wrong had been committed by a public officer, there had been statutory authority. This represents a principle of strict personal responsibility. Hence, the loss should lie where it falls.
Conversely, under French administrative law, according to Léon Duguit in “Traité de Droit Constitutionnel” (1927-30) where “the activity of the state is carried on in the interest of the entire community, the burden that it entails should not weigh more heavily on some than on others. If state action results in individual damage to particular citizens, the state should make redress, whether or not there be a fault committed by the public officers concerned. The state is, in some ways, an insurer of what is called the social risk (‘risque social’).”
In the recent Kenyan tragedy, Governor Kidero commendably announced that victims of the Huruma disaster would receive compensation for relocation and towards burial. This adopts the French “droit administratif” basis of liability to the extent that the government took vicarious responsibility for its negligent public servants. It departs from English law’s archaic principle of official public immunity which safeguards against holding an officer personally liable for torts committed in the exercise of his functions. Admittedly, if Planning Officers can be sued for damages, they are likely to be timid and irresolute in their administration of the law that exposes them to such risks.
But, according to Maurice Hauriou “Precis de Droit Administratif” (1933), under French law, “The best way of keeping a public officer in check, of inspiring him with a sense of duty, is to warn him that there is a certain point at which he loses the status of impersonal cogwheel in large public service, at which he becomes a human being with duties and responsibilities, and as such he finds himself confronted by the average citizen to whom he will be declared personally liable.” While there is merit in deterring malice, however, “it seems unjust to impose on a minor public officer, who is generally poorly paid, the risks inherent in his functions and the duty of indemnifying from his meagre personal resources the victims of his tortuous acts.” It is alternatively possible to impose strict liability on developers under criminal law even where this would result in potential accused persons taking care to avoid the prohibited conduct.
Writer is advocate of the High Court of Kenya