Police officers arrest activist Boniface Mwangi on Kenyatta Avenue in Nairobi on 25 July 2024 during anti-government protests.
That the National Police Service is the face of human rights violations is nothing new. Their brutality was even a subject of study for my law degree at a university abroad on how a brutal force with no regard for human lives looked like.
That is how infamous they are.
It was embarrassing to sit through a lecture to see your country’s reputation being sank even further by the violent behaviour of a police force whose constitutional role should be to maintain law and order but alas!
They are bang in the middle of another episode of police brutality and human rights abuses against peaceful protesters demanding for better governance and an end to corruption.
There are no laws in Kenya that allow for human rights violations by the police on Kenyans or any other security agency for that matter. Because taking away human life, punishing protesters or any other Kenyan by assaulting them through slaps, fists or batons is not the role of the police or even that of the courts in Kenya. I know former police spokesman Charles Owino claimed that there are instances where police are allowed to shoot in relation to protests; I beg to differ.
No authority to kill
Police have no authority to kill (read that as punish) anyone least of all innocent and peaceful protesters. Even if the protests turn violent, which sometimes it does, it does not give the police the right to open fire. The problem Kenya has, is that the criminal justice system lacks clear separation of powers between what the police, ODDP and the courts can do or if there are, the lines are clearly crossed over. The police are used to playing the role of the police, prosecution and the judge.
This is why they easily resort to a shoot-to-kill policy even when it is not warranted because they deliberately or are made to blur the lines within the CJS.
Culpability for police brutality and human rights violations in Kenya tends to be placed at the doorstep of the police. That may be so as they are the gun carriers and on the beat, however, there is need to rethink who is actually culpable in instances where police are under orders from other individuals above them such as a minister or even a President. The laws in Kenya are very clear on the right to peaceful protests. This has been the case since the Gen-Z movement started on June 25.
They even vocalised the fact that they were peaceful and only out to demonstrate as per the rights given to them by the Constitution. The protests turned deadly along the way or were provoked.
The jury may be out on that but, for now, I would like to make the argument that culpability of the deaths of protesters or human rights violations by the police is not borne by an individual police officer but those that gave orders for the said police officer(s) to use live ammunition on protesting Kenyans.
As our police officers lack independence, they end up bearing the burden of the appointing authority, which in this case is the Executive. It is, therefore, against the principal of justice to expect a police officer under command to be punished when those that gave the orders for human rights violations to occur go scot-free.
Human rights violations
International principle on command responsibility puts the culpability of human rights violations by the police on whomsoever gave the orders unless there is clear evidence that it was a lone officer who carried them out. In the case of protests in Kenya, that is unlikely.
There is need to strive for an independent and impartial police force. This is very crucial, and the main reason is to minimise the influence of the Executive on the workings of the police. If this influence remains unchecked, it will lead to more erosion of human rights and leave the police vulnerable to manipulation by the Executive. Police reforms have been talked about countless times and they have not been fully realised as the Executive has an upper hand on how, when and what of those reforms to approve.
It now appears to be a deliberate move by the Executive to sit on police reforms to slow down their progress and have them at their beck and call. This now calls for the need to establish an independent body that would oversee to the total welfare of the police.
The current set up where the police are ordered to take part in brutality against the citizens makes them sitting ducks and open to all manner of legal accusations. A police officer who shoots to kill on order is not guilty, but the order giver is.
Police independence and impartiality is therefore important for their safety and that of the citizens. It is also important in enhancing justice. The influence the Executive has on the police therefore needs to be curtailed to maintain police independence. It is time that senior government officials who give orders to police for human rights violations are held culpable.
Ms Guyo is a legal researcher. [email protected], @kdiguyo
