On Friday, a video emerged showing an alleged undercover policeman shooting dead a suspected gang member in Eastleigh. That is in spite the suspect surrendering. Next to the suspected criminal lies the lifeless body of his suspected colleague who had already been gunned down. Locals claim the two were members of a criminal group he Super Power Gang who have been terrorizing them.
The debate about what was the right thing to do has thrust human rights into the limelight. There are those like the Law Society of Kenya Chairman, Isaac Okero who have condemned the act as inhuman and undermines the justice system. Others have applauded the undercover policeman for ensuring that “those who lived by the sword also died by it.”
In seeking to discuss whether the criminal has rights, let us first establish who a criminal is and whether they deserve the same rights as others. The public most often will refer to a criminal as a person who perpetuates an illegality or a crime. In law, a criminal can be defined as a person who is charged with and convicted with a crime.
The executed gang members were suspected career criminals. The locals claim that despite their (frequent) arrests, most of them found their way back into society and in most cases, marked those who reported them to the police for reprisal attacks.
Is a criminal a lesser human being for breaking the law? In law, an accused person enjoys the right to be presumed innocent until the contrary is proved. Further, even arrested persons and prisoners also have rights.
There is a general perception that a criminal is a human being of a lesser variety who is undeserving of any rights. Reports of police brutality and extra-judicial killings by the Kenya Police are not new.
In 2009, UN Special Rapporteur on extrajudicial killings Philip Alston accused the police officials of running death squads within the force. After the much-acclaimed police reforms, one would expect a different narrative. That forced disappearance of suspects stops.
Prof Alston had come into the country at the height of Mungiki killings. He accused Maj-Gen Hussein Ali, the then Police Commissioner of Police of having “utterly failed to devise any law enforcement strategy worthy of the name for dealing with Mungiki and other forms of criminality”. Perhaps the scale of violence right now is not of the same magnitude as in 2009, but nonetheless, one life lost to a trigger-happy policeman or thug is one too many lost. Violence often begets violence.
Yet police killings are not exclusive to Kenya. In the Philippines, the name Rodrigo Duterte causes shivers down the spines of many from drug users, drug peddlers, financiers, beneficiaries and people affiliated with the mentioned.
President Duterte has declared that he doesn't care about human rights and praised the disturbing statistics of police killings (7,000 in the year he has been in office) as a show of success of his war against drugs. Some of Kenya's opinion leaders agree with him.
“Justified and targeted killings of terrorists is underpinned in sound law. The doctrine of necessitas facit licitum quod alias non est licitum basically indicates the necessity of making lawful that otherwise would have been unlawful.” said renowned Nairobi lawyer Donald Kipkorir.
He adds: “Those wanting us to read the Bill of Rights to terrorists, gangsters and cattle rustlers, speak to the parents and friends of Westgate and Garissa University attacks, survivors of robbery and rape and people who have been left destitute and orphans by cattle rustling.”
“The rights of criminal suspects end where the freedom and rights of law abiding citizens begin,’’ said Collins Wanderi, a lawyer and security analyst.
Be it as it may, the war against organized crime can be won only the law is applied. Such killings don't promote law and order. Rather, they undermine it. What is to stop someone from hiring police to eliminate business rivals or such other person for the mere reason that they don’t like them? The thing is, there are many grey areas and an eye for an eye will certainly leave everyone blind.
Ms Nyang'ai is a Practicing Advocate, Corporate Governance Specialist, Researcher & Commentator nyangaij@gmail.com
