Mburu, 24, drove past the hospital gate because he was trying to help a child who had drowned to get emergency care.
On Tuesday, Daniel Mburu, a boda boda rider, was fatally shot by an Administration Police officer at Mama Lucy Hospital in Nairobi. It is alleged that before he was shot, he was accosted and taken into custody by hospital guards for accessing the premises while on his motorbike - contrary to hospital regulations that require motorbikes to be parked outside the premises.
Mburu, 24, drove past the hospital gate because he was trying to help a child who had drowned to get emergency care. He sped past the gate, proceeded to the emergency reception area and carried the child into hospital, thereby saving a life.
On his way out, he was reportedly confronted and assaulted by the hospital security guards who placed him under arrest and took him to the hospital security room where he was fatally shot in the chest.
The National Police Service Act and Police Standing Orders dictate that use of force and firearms must be legal, accountable, necessary and proportionate.
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In determining whether any form of force or use of firearms is legal, police action must fulfil every facet of the above mentioned four-part test.
Which begs the question, how did the officer in question end up discharging his firearm yet Mburu was already subdued and in custody in the security room? A careful assessment would reveal that the use of a firearm should not have come into play in the first place, thus it was unnecessary under the circumstances.
Moreover, such force was disproportionate because the principle of proportionality requires that an officer is only allowed to put a person’s life at risk by using force or firearms if it is for the purpose of saving and protecting another life. In Mburu’s case, he was already subdued and placed under arrest.
For the sake of justice, this incident should be thoroughly investigated by the Independent Policing Oversight Authority for purposes of determining whether the AP should be charged.
Friction between boda boda riders, police officers, city council askaris, regular drivers and members of the public is not new. There is a general acceptance that the boda boda sector is grossly underregulated or unregulated. In Nairobi, it is not uncommon to sees police officers ignoring boda boda riders, while keenly continuing to stop and scrutinise cars and matatus.
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Most boda boda riders lack valid driving licences, insurance and regularly flout traffic rules with impunity. Boda boda operators complain that they are mistreated, harassed and extorted by the police and city askaris. A common complaint is the indiscriminate impounding of hundreds of motorbikes and the excessive use of force during arrest.
A boda boda rider recently alleged city askaris normally use their clubs to trip the motorcycle wheels, causing the riders to fall, sometimes causing serious injuries and even death.
The prevailing situation has led to many accidents, deaths, disabilities and injuries involving riders, pedestrians, passengers and even regular drivers.
Today, every major hospital has special wards to deal with those injured as a result of boda boda accidents.
Riders have also been linked to gang and criminal activity such as muggings, robberies and drug trafficking.
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According to the boda boda association, there are about 42,000 boda boda operators in Nairobi alone, a testament to its impact in terms of employment of youth, and its popularity as an alternative means of transportation that is both quick and convenient.
As such, the national and county governments, Parliament, boda boda associations and other stakeholders need to urgently come up with a framework that will bring sanity.
This is precisely the reason why Cabinet Secretary for Interior Fred Matiang’i and his Transport counterpart appointed a task force in May 2019.
As we wait for the task force report, we must insist that all stakeholders look at the bigger picture, ‘come with clean hands’ and strive for safety, fairness and smooth flow of traffic.
We need policies, rules and regulations that enforce the dignity, rights and economic needs of riders, while holding them accountable for their actions.
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Michuki rules transformed the matatu industry in 2004. We can do the same with boda boda if riders, citizens and government make the right move.
Mr Kiprono is a constitutional and human rights [email protected]