Therefore, Police brutality can be described as the use of excessive or unnecessary force by law enforcement officials, which results in harm or injury to civilians. This force can take many forms, including physical violence, such as beatings, shootings, and the use of chokeholds or tasers, as well as verbal abuse, intimidation, and other forms of misconduct. Police brutality often occurs when law enforcement officials abuse their power or act outside of their authority and can be motivated by various factors, such as prejudice, discrimination, or a lack of proper training. It can lead to physical injuries, emotional trauma, and even death.
In both the repealed constitution and the 2010 Kenyan Constitution the president is declared the commander in chief of the armed forces. When you have a broad view of how National Security is being governed you tend to see that the executive is mostly involved in the appointing, ruling and governance of National Security. National Security should be an independent body and should not be under any arm of the government.
In the case of Florence Amunga Omukanda & another vs. Attorney General & 2 others, the court noted that it is the obligation of the State to protect its citizens through the police service. The police service is the organ responsible for maintaining law and order, preservation of peace, protection of life and property, as well as prevention and detection of crime including the apprehension of offenders.[1]
The 2010 constitution has brought light among the people of Kenya as it seeks to re-organize the country into a new state by establishing full-bodied institutions and the framework for democratic governance conformable to the exercise of human rights as provided in chapter 4. Security is one of the key features addressed by our 2010 constitution. But the main question we ask ourselves is that we are 12 years after the promulgation of our 2010 constitution, but we are still struggling with instances of extra-judicial killings, police brutality, bribes, sexual assault by the police officers, coercion, dishonesty amongst the security officers, torture to force confessions from the police and abuse of authority.
The constitution defines ‘national security’ as the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity and other national interests.[2] Because of this broad definition, the national government must specifically identify the national security aspect it seeks to deal with and which it says is beyond the ability of effective county regulations. It is not enough to simply allege ‘national security’ without specific substantiation. This is seen in the case of Randu Nzai Ruwa and Others vs. International Security Minister and Another,[3] where the court held that when a complaint is made, as in this petition, that national security has been improperly used to restrict a basic right, the court must be convinced legally that the state’s action is reasonable and warranted. If this were not the case, the state would be free to choose any course of action and never be held accountable for it in the name of maintaining national security. The state can be tempted to overdraw with the blank check! So, it is both constitutional and consistent with public policy for the state to provide evidence that the limitation clause has been satisfied.
Laws against Police Brutality
Article 3 of the United Nations Code of Conduct gives two principles the principle of necessity requires that any force used must be the minimum required in the circumstances. The principle of proportionality limits the amount of force used in accordance with the level of threat posed by an individual or group and the seriousness of the offence that has been committed or is about to be committed.[4] Also, Article 4 of the African Charter provides that, Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of these rights.[5]
‘Police brutality isn’t just unlawful; it is also counterproductive in fighting the spread of the virus and, shockingly, people are losing their lives and livelihoods while supposedly being protected from infection,’ said Otieno Namwaya, senior Africa researcher at Human Rights Watch. Reports from Human Rights Watch indicate that in the year 2020 alone, more than 157 people were killed or disappeared at the hands of police officers. But no officer has been charged with either killing or in any of the more than 100 cases of killings Human Rights Watch documented in that period. This is happening even after undergoing constitutional dispensation, which is the relaxation of the law for the benefit of the citizens in a state. Are our citizens benefiting from this? Therefore, at any given time the police oath to respect the will of the people and must act in accordance that the will of the people prevails.
In our country, we have seen several cases where the police have misused their powers but the chief-in-commander who is the president and the deputy president in the absence of the president have neglected the cases and no justice has been served. A live example is the case of a seventeen-year-old high school student Michael Okelo who was shot in the back by a police officer, this is a 2017 case that was neglected by everyone including the former president and deputy president. The family of Michael Okelo has not found justice for their boy to date.
People demonstrated and ended up being killed by the police and this is against Chapter 4 of the Kenyan constitution on the right to life.[6] The police also violated Article 37 of the constitution which states that every person has the right, peaceably and unarmed to assemble, to demonstrate, to picket and to present petitions to public authorities.[7] Instead of the police taking care of the demonstrators, they end up shooting them without care, this was seen in the recent demonstrations in Eldoret. The constitution should limit the power of the executive in terms of being the commander-in-chief so as to try and reduce the misuse of our National Security Organ by the executive. The constitution being the supreme law of the land should declare National Security an independent organ and no arm of the government should be involved in it.
Human rights watch is accusing the Kenya Police Force of caring out extrajudicial killings, at least twenty-one young men and boys in the informal settlement of Nairobi in the year 2018 were murdered by the police. The Kianjakoma brothers were murdered on their first day of 2021 July. Over time various citizens of various countries have protested over various important issues that the government has subjected them to the issue of extra-judicial killings being at the topmost. Police before being recruited have to undergo humanity training, it is painful to see a member of the public, regardless of their status, being beaten by police officers.
More frequently than not, police officers end up going rogue. For example, a report by Kenya Human Rights Commission headed, ‘Kenya’s scorecard on security and justice: Broken promises and unfinished business, July 2017 at page 32 states that, however, the IPOA has faced a number of challenges. First, the success of the IPOA is dependent on total cooperation from the police they are investigating. Often the police fail to provide adequate cooperation for IPOA to prosecute police officers allegedly responsible for committing crimes. In March 2016, IPOA released a report stating that police deliberately bungle some of their investigations in order to protect fellow police officers…’[8]
Special report: Amid claims of police brutality in Kenya, a watchdog fails to bite
She was christened Samantha, but her delighted Kenyan parents quickly nicknamed their tiny daughter ‘Pendo,’ which in Kiswahili means ‘Love’. Six months later, in August 2017, the oversight authority promised to investigate the killing in Kisumu of Samantha Pendo, 6 months old, Pendo was lying in her mother’s arms at their one-room home in the western city of Kisumu when Kenyan police burst in. The riot officers were rounding up suspected troublemakers after opponents of the government had disputed the election result that month.
The police fired teargas and repeatedly clubbed Pendo’s father, and in the melee, an officer struck the baby on the head, said Lenzer Achieng, her mother. The police left without arresting anyone; days later, Pendo died from her injuries. ‘She was the joy of my heart. Nothing can fill the hole,’ Achieng told Reuters as she wept at her home last month. The baby’s death outraged a nation long hardened to police brutality. Even the national police chief, who has often publicly rejected allegations of police abuse, vowed to investigate. Yet three months later, the Independent Policing Oversight Authority (IPOA), a body created to hold the police to account, said it could not identify any policeman suspected of killing Pendo.
Instead, it recommended to the public prosecutor’s office that it open an inquest to investigate who was responsible. The inquest began on Feb. 19 in a Kisumu court. Prosecutors have the power to summon witnesses, and after the hearings, a judge will order a criminal trial if a suspect is identified or end proceedings.
- Hamisi Juma Mbega, 49, March 28, Kwale County, Coast region
A relative and two activists said that just before 7:00 PM, Juma, a 49-year-old former police officer who is a motorcycle taxi rider, volunteered to take a woman in labour to Mwahima hospital, Kwale county, in the coast region. On his way back to his house in Zibani village in Matuga constituency, relatives said, a group of police officers, stopped him, beating him with rifles and gun butts. A relative, Omar Abdallah Raisi, said that the police first threw teargas at Juma, a father of four, in the middle of the road at Mkunamnazi, Likoni: ‘He lost control of the motorcycle and fell. Police then just started beating him, leaving him for dead’.
- Eric Ng’ethe Waithugi, 23, April 1, Kwale County, Coast region
Two witnesses and one activist said that more than 20 police officers beat Eric Ng’ethe, 23, an accountant at a pub in Ukunda, Kwale County, to death, at around 7:00 PM, on April 1. One witness said that Ng’ethe was at work, but that he and other young men locked themselves inside the pub when curfew hours approached. The officers shot teargas into the pub and broke down the door, then beat Ng’ethe and 11 other people inside with wooden clubs. The Msambweni sub-county police commander, Nehemiah Bitok, told Kenyan media that Ng’ethe died in a stampede after the people inside allegedly defied police orders to open the pub.
- Yusuf Ramadhan Juma, 35, April 1, Kakamega County, Western region
The family of Ramadhan Juma, who had a mental disability, said he left their home on the evening of April 1 and never returned. One family member said they searched for him the next morning and found him in Kakamega County Referral hospital with serious injuries they believed were from beatings during curfew the previous night. Juma died just moments after the family found him. Kakamega central divisional police commander, David Kabena, told the media that the police were not responsible: responsible: ‘We have heard that the deceased had mental problems,’ he said. ‘Maybe he went out there touching other people’s property and was beaten by people who didn’t know he was sick’.
- Idris Mukolwe, 45, April 1, Kakamega County, Western region
Relatives and fellow traders at Mumias market told Human Rights Watch on the phone that Mukolwe, a tomato vendor, was hit by a teargas canister thrown at him by police who were dispersing traders due to the open-air market ban imposed by the county government of Kakamega. One of the traders narrated how Idris remained down after he was hit by a canister, and as he struggled to stand up, the officers laughed and mocked him. He collapsed moments later and died at the scene, according to the traders.
About a week ago, a 24-year-old trader fell victim to police brutality at the market in Mumias. Ms. Grace Muhatia, 24, sells Airtel sim cards at the market. Her mother Ms. Florence Makale said she left home early that morning for the market.
‘While at my place of work in Butere, she called to inform me that she had been shot by a police officer in Mumias. I rushed to Mumias and found her in hospital in the company of police officers,’ Ms. Makale said. She claimed the police officers apologized and pleaded with her not to expose them.
Speaking from her hospital bed, Ms. Muhatia said she heard a gunshot and shortly after, felt some coldness on her hand and abdomen.
‘Blood started oozing out of my abdomen and the hand. That was when I realized I had been hit by a bullet. I was rushed to the hospital by good Samaritans,’ she said. Ms. Imelda Poyi, the nurse-in-charge at the Monica Ward at St Mary’s Mission Hospital in Mumias said Ms. Muhatia was admitted with two gunshot wounds. She sustained a cut from the bullet that pierced through her abdomen and fractured her fingers. We are waiting for the surgeon to correct them. Otherwise, she is out of danger,’ she said. Ms. Muhatia’s mother wants the government to take charge of her daughter’s treatment and ensure the arrest of the police officer who shot her.[9]
Flawed files
Kenyan police often dismiss complaints of brutality, saying violent crime demands a violent response. In April last year, a video of plainclothes police shooting dead an unarmed man went viral. The police did not deny the shooting but justified it by saying the victim was suspected of killing an officer. In comments to Kenyan media after the killing, Nairobi police commander Japheth Koome was quoted as saying when ‘gangsters’ kill police officers, they will ‘get it’ from him. Koome did not respond to requests for comment for this article.
IPOA was set up in 2011 after police killed hundreds of Kenyans during violence that followed disputed elections in 2007. The agency can investigate police on its initiative or after receiving a complaint from the public, and it has the power to order any serving or retired officer to appear before it and to produce documents. IPOA submits the findings of its investigations to prosecutors, who decide whether to pursue a criminal trial or order an inquest.
Fear of retribution
Nicholas Mutuku, deputy director of public prosecutions, said that when IPOA files make it to court, many cases lack key components, such as post-mortem reports, complete witness statements or the names of suspects.
‘IPOA investigates crimes committed by the police. Yet they rely on the same police to assist them,’ Mutuku said, sorting through towering piles of files that nearly buried his desk. He has received 84 files from IPOA since January 2015. Mutuku said some were dismissed due to lack of evidence but declined to give details.
When police obfuscation fails to thwart an investigation, officers may turn to brute force, the two foreign policing specialists said. They cited a widely reported 2016 case where the commanding officer at a Nairobi police station locked up an IPOA investigator trying to serve him a summons. Kenya’s chief prosecutor had to intervene to free him. The IPOA investigator was not named in the news reports. Reuters could not reach the police commander.
In another case, human rights lawyer Willie Kimani sued police on behalf of a motorcycle driver who alleged a policeman had shot and wounded him in 2015. The bodies of Kimani, his client, and their taxi driver were dumped in a river in July 2016. Four police were charged with the murders. They deny the charges and their trial is ongoing. IPOA said it could not comment on the Kimani case because the trial is ongoing. The police did not respond.
Even after arrest warrants are issued, some police still escape justice. The Nairobi High Court ordered two policemen to be arrested in May 2016 for the murder of a civilian. The officers fled and are still at large. Top police officials ignored multiple court summons asking for an explanation of why the two were not arrested, according to court documents reviewed by Reuters. The last hearing was nearly a year ago. No more are scheduled. The police did not respond to a request for comment.
A spokeswoman for Kenya’s judiciary, Catherine Wambui, said a judge would dismiss a case when he saw it was ‘heading nowhere’. She said: ‘the onus is on the prosecution to produce witnesses and bring evidence. If they don’t, the judge has no choice but to dismiss’.
Despairing mothers
As baby Pendo’s parents also face an inquest, they are losing hope. The police have not handed over critical information, such as the roster detailing police deployments in the city on the night the six-month-old was assaulted, according to the two foreign specialists with knowledge of the watchdog’s investigation into Pendo’s death.
Pendo’s mother, Achieng, said: ‘If they only interrogated the police who were here, they would know who did this terrible thing. The police cannot say they don’t know the officers who were sent to our place’.
Another of IPOA’s unresolved cases is the very first one it took on. It concerns the death of Alexander Monson, a 28-year-old son of a British aristocrat, who was found dead in his cell in 2012 after he was detained during a night out in the coastal town of Diani. Monson’s mother, Hillary, said the watchdog promised the family that ‘this would be their showcase investigation’. But there has been no resolution: An inquest was not opened until 2015 and is still ongoing. IPOA’s investigation concluded Monson died from a drug overdose – which was the account given by police officers present the night he died. But two reports by government pathologists, seen by Reuters, concluded Monson died from blunt force trauma to his head. ‘IPOA is a rubber stamp for police brutality … They just don’t want to pin [the death] on anybody,’ Hillary Monson said. IPOA said the account Monson provided to Reuters contained inaccuracies. It declined to give details, saying it could not respond to questions about ongoing cases.
Thurgood Marshall once said that ‘where you see wrong or inequality or injustice, speaks out because this is your country. This is your democracy. Make it. Protect it. Pass it on’.[10] As a country, we are five years since our police underwent reforms in 2018 but we are still struggling with the issue of police brutality, the use of lethal force by the police force. Indeed, it is painful to see a member of the public, regardless of their status, being beaten by police officers. It seems that our police are always going rogue every time.
[1] Florence Amunga Omukanda & another vs. Attorney General & 2 Others, Constitutional Petition No. 132 Of 2011
[2] The Kenyan Constitution Article 282 (1)
[3] Randu Nzai Ruwa & Others Vs. International Security Minister and Another [2012] eKLR
[4] Article 3 of the United Nations Code of Conduct
[5] Article 4 of the African Charter
[6] The Kenyan constitution
[7] The Kenyan constitution
[8] Kenya’s scorecard on security and justice: Broken promises and unfinished business, July 2017 at page 32
[9] https://www.nation.co.ke/counties/kakamega/Man-dies-as-police-disperse-Mumias-traders/3444890-5517344-9d97y3z/index.html
[10] < https://www.nbcnews.com/news/nbcblk/moral-authority-justice-thurgood-marshall-transformed-society-n779821 >