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Firm action can end extrajudicial killings in Kenya

By Demas Kiprono | March 25th 2021
An active scene of a crime. [Picture, Standard]

March 24, 2021, marked the International Day for the Right to the Truth Concerning Gross Human Rights Violations.

The day pays tribute to Catholic Priest, Bishop Monsignor Oscar Arnulfo Romero, who was shot at the pulpit in 1980 for standing up for the rights of the poor and disenfranchised in El Salvador. The Right to the Truth has come to be understood as the day that gross violations of human rights and grave breaches of humanitarian law are highlighted without fear.

Like the bishop, those who highlight and shine the light on these violations often operate in environments riddled with systemic suppression of the truth. In the Kenyan context, these violations involve systemic police abuses, summary executions, enforced disappearances, missing persons and incidences of torture that have been epitomised by the abduction, torture, killing and enforced disappearance of human rights lawyer Willie Kimani, his client Josephat Mwendwa and their taxi driver Joseph Muiruri in 2016.

Recently, it was revealed that one of the officers charged in their killings was involved in two other murders in the same year. This means that if the oversight mechanisms involving public trust, reporting, investigations, discipline and prosecution were working, more lives would have been saved.

For the concept of the right to truth to be meaningful, a complete account of events, specific circumstances and those involved in the atrocities must be exposed and acknowledged. On Wednesday, the Missing Voices Initiative released data regarding instances of alleged extrajudicial killings and enforced disappearances in Kenya.

The initiative is a product of 18 Kenyan Civil Society Organisations that came together to collect, verify and publish the data on police killings and disappearances. According to their report titled ‘A Brutal Pandemic’, 157 people were killed or disappeared in 2020 against the backdrop of Covid-19 enforcement measures. It is noteworthy that Kenya always experienced a spike in police excesses, including unlawful killings, whenever there are public order operations in the offing.

The Missing Voices Initiative argues that Kenya needs true reforms and accountability, especially as we mark one year after the Covid restrictions and as we go towards a referendum and 2022 elections which, traditionally, increase public order operations, excesses and killings.

According to their data, the urban poor bear the brunt of these brutalities, especially in Nairobi, followed by Mombasa and Nakuru. Incidentally, after the killings, the president, in late April, issued a public apology that resulted in a steady decrease in such incidences and deaths that continued to September 2020.

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Over the past few years, the Independent Policing Oversight Authority (IPOA) alongside the Director of Public Prosecutions have caused the prosecution of a handful of officers. Recently, 15 police officers were charged for invading a home in Bungoma and brutalising a family. However, the case was withdrawn. Had the case proceeded, it would have demystified the kind of violence Kenyans were subjected to last year in the guise of fighting a pandemic.

Superior officer

Police officers as trained members of our disciplined services should always abide by the law as enforcers and defenders of the same. By law, any use of force should be lawful, accountable, necessary and proportionate under particular circumstances. As per the Sixth Schedule of the National Police Service Act, any use of force that results in death must be immediately reported to a superior officer, who then reports to IPOA. Does this happen in reality?

To break this cycle of violence, IPOA, the Director of Public Prosecutions, the Inspector General and the National Police Service Commission should create a culture of individual and command responsibility within the police service, especially for OCSs, regional commanders and officers in areas flagged for extrajudicial excesses and unlawful policing.

Currently, our laws only provide for individual responsibility, which lets commanders go scot-free in terms of their leadership and oversight role. Perhaps we may need to review our Penal Code, the Public Order Act and the National Police Service Act.

Mr Kiprono is a Constitutional & Human Rights Lawyer. [email protected]

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