Supreme Court rejects Arshad Sharif widow's bid to compel prosecution, upholds Sh10 million award

The Supreme Court has dismissed an appeal by the family of slain Pakistani journalist Arshad Sharif, declining to compel the prosecution of police officers involved in his fatal shooting and refusing to enhance the Sh10 million compensation awarded to his widow.

In a landmark judgment, the apex court held that while Sharif's constitutional right to life was violated when he was fatally shot by police in Kajiado on October 23, 2022, it could not direct the Director of Public Prosecutions (DPP) to institute criminal proceedings because the office exercises independent constitutional powers.

The appeal had been filed by Sharif's widow, Javeria Siddique, and two other family members seeking to overturn aspects of the Court of Appeal judgment. They argued that the appellate court erred by declining to order the prosecution of the officers involved, refusing to direct the government to issue a public apology, and failing to increase damages beyond the Sh10 million awarded by the High Court.

The family also maintained that the shooting amounted not only to a violation of the right to life but also constituted torture, cruel, inhuman and degrading treatment.

However, the Supreme Court agreed with the Court of Appeal that although the fatal shooting violated Article 26 of the Constitution, guaranteeing the right to life, the evidence did not support a finding of torture or inhuman treatment.

"The reckless shooting of the deceased, resulting in his death, was a clear violation of his right to life, which is sacrosanct under our Constitution and International Law," the judges held.

The court said claims of torture or cruel, inhuman and degrading treatment require proof that the victim was subjected to pain or suffering while alive and under the control of the perpetrators.

"To subject someone to torture, inhuman, cruel, or degrading treatment, ordinarily presupposes that the victim is alive and under the custody, control, or influence of his or her tormentor," the court stated.

It added that the appellants failed to produce evidence demonstrating that Sharif experienced prolonged pain and suffering before his death.

On the request to compel prosecutions, the court reaffirmed that prosecutorial decisions fall exclusively within the constitutional mandate of the DPP and cannot be dictated by the Judiciary except where the exercise of those powers violates the Constitution.

The judges also declined to interfere with the award of constitutional damages, finding no legal basis to enhance the compensation. Sharif's family had argued that the award should be increased to reflect comparable constitutional rights cases in which courts awarded between Sh15 million and Sh25 million.

The appeal also challenged the Court of Appeal's refusal to order a public apology and acknowledgement of responsibility by the State. The family argued that such an apology forms part of reparations under international human rights law, but the Supreme Court declined to grant the relief sought.

The judgment nevertheless reaffirmed that the State bears responsibility for the unlawful killing and upheld previous findings that Sharif's death resulted from an unjustified police shooting after officers mistakenly identified the vehicle in which he was travelling.

The decision brings to an end the family's constitutional appeal over accountability for the journalist's killing while leaving intact the earlier declaration that the State violated his right to life and the Sh10 million compensation awarded to his widow.