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Police killings in Kenya manifest systemic failure

COMMENTARY
By Suba Churchill | August 31st 2016
Job Omariba, who was a Meru based nurse, his body was discovered at a bush in Machakos County, police are linked to his kidnapping and murder

NAIROBI: The shooting to death of Jared Otieno Agalo on the night of August 17 in circumstances that clearly point to another case of extra-judicial killing is among the latest incidents in which police have used brutal force in situations that do not warrant it.

These continue to happen as mechanisms established to hold the police to account seem either overwhelmed or simply conniving to cover up blatant breaches of the law.

A report of the fatal shooting as covered in the newspapers quotes multiple eye-witnesses saying that Agalo, a jua kali artisan in Shauri Moyo, was having drinks with friends at Vine Pub on Jogoo Road when plain-clothes police officers shot him in the arm.

But even if one were to assume Agalo was a member of a gang, the initial shooting was sufficient to subdue him. But what happened next left no doubt that Agalo was part of the growing statistics on extra-judicial killings that the Kenya police commit with impunity.

"Jared ran back to the bar shouting that he had been shot. The police ran after him and dragged him out, locked the bar from outside and shot him three times in the chest."

There are no reports that Agalo fired back at the officers. It can only be deduced that the officers closed the bar from outside before shooting Agalo three times so that they could conceal their identity as they shot him.

Confronted with these facts, Nairobi County Commander Japheth Koome rubbished all the allegations that Agalo was an innocent patron of a bar killed in cold blood without any reasonable cause.

“He was among a gang of three caught red-handed robbing a woman. The other two escaped. From this one, a firearm was recovered. The others dropped a sword. Two mobile phones were also recovered. The woman was rescued,” he is reported to have claimed.

Asked if there were any investigations into the matter, the County Commander said that “nobody is complaining”! From this account, it is clear that even the “rescued woman” whose “distress call the police officers were responding to” was not a complainant in a case in which police officers had used fatal force in circumstances that clearly violate the law.

On the same date that Agalo’s next of kin were grappling with the loss of their loved one, two youths – Kennedy Waweru, 23, and Joseph Ndirangu, 22, had been fatally shot by police officers in Eldoret town on claims that they were “members of a four-man gang”.

According to family members, Waweru was a second-year student at a local university while Ndirangu had just completed a driving school course.

The only way it could have been established that Agalo, Waweru and Ndirangu had been engaged in criminal activities is if the police officers implicated in their killing had apprehended them, taken statements from those they may have robbed and arraigned them in court on the basis of evidence gathered in the investigation process.

That is what the principle of the rule of law as outlined in Article 10 of the Constitution as indeed the criminal procedure code demands.

The National Police Service Act, the law establishing the Kenya Police Service anticipates that there could be circumstances when police officers may be forced by circumstances that necessitate the use of force, including lethal force.

The law allows a police officer to use force, but he or she must use non-violent means first, only applying force when non-violent means fail to work.

The law requires that the force used be proportionate to the seriousness of the offence, the resistance of the person against whom it is used and the objective sought by the police.

When the police cause an injury, they are required under the law to immediately provide medical assistance and notify relatives or close friends of the person injured.

Any use of force must be immediately reported to the officer’s superior who is then expected to decide the next cause of action in line with the law.

Use of force that results in death or serious injury must be reported immediately to the Independent Policing Oversight Authority (IPOA). A police officer involved is required to secure the scene for investigations and notify relatives or friends of the person. Failing to do so constitutes an offence.

Koome’s statement that there are no ongoing investigations with respect to Agalo’s killing should be taken as the height of impunity.

It is obvious police officers involved in the instances cited broke the law, a situation that calls for investigation by both the Internal Affairs Unit and the Independent Policing Oversight Authority.

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