Why police will be held culpable for obeying unlawful orders

Ipoa chairperson Anne Makori  and Director of Public Prosecutions Noordin Haji during the launch of a publication on prosecuting sexual and gender-based violence in Mombasa on July 28, 2022.

Photo credit: Wachira Mwangi I Nation

The Independent Policing Oversight Authority (Ipoa) has warned police officers that they will take personal responsibility for any form of violence against Kenyans during and after the August 9 General Election.

Ipoa chairperson Anne Makori said officers who take advantage of the elections to violate human rights will carry their own cross.

She advised police officers to disregard unlawful orders from their bosses that would put them in conflict with the law.

“Police are not obligated to obey unlawful commands. If you do so, then you take individual liability. Therefore, you will be culpable if you obey an unlawful order,” said Ms Makori.

Noting that there are circumstances when police are allowed to use force and firearms to enforce law and order, she said they should be extremely careful when they do so because the same law will catch up with them.

“It is in their Acts and in their service standing order. They know them, so the minute you agree to obey an unlawful command, then you expose yourself as an individual,” she said.

Ms Makori spoke in Mombasa on Thursday at the launch of a publication by the office of the chief public prosecutor on prosecuting sexual and gender-based violence.

Director of Public Prosecutions Noordin Haji, who attended the function that also involved training on electoral justice, said his office has developed and implemented key policies and strategies to facilitate prompt response to election-related offences.

He said that last week, his office launched 24-hour toll-free phone lines and a call centre to help citizens with election-related matters.

“This will enhance our capability to receive and respond to queries and complaints incidental to the General Election. We have further adopted and continued to sensitise participants on the digital platform used to capture real-time data on election and related offences across all county offices,” he said.

The platform, he said, will facilitate real-time mapping of potential hotspots and prompt deployment of appropriate response mechanisms.

Mr Haji said that through its physical, psychological, verbal and economic manifestations of abuse, sexual and gender-based violence is a clear and present danger to fundamental human rights and freedoms.

The Kenyan government last month made several commitments to combat such violence, including adopting prevention and response mechanisms in crisis situations, including election-related gender-based violence.

The newly launched guidelines, he said will “provide an easily accessible resource for prosecutors, to facilitate a coherent, expeditious and efficient prosecution of cases”.

He said his office is “committed to upholding the rule of law and discharging our mandate with impartiality and wish Kenyans a free, fair, credible and peaceful election”.

The training brought together critical players in electoral justice with the objective of equipping prosecutors, investigators and others with the skills to handle hate speech and election-related offences.

Ms Makori said Ipoa was involved in developing a commander's manual on elections that will guide the police during and after the elections.

“For the first time, commanders have a manual that has been developed through a multi-agency team that will guide the police bosses on security matters during elections,” she said, adding that the agency will deploy adequate personnel to monitor the conduct of the police.

Mr Haji called for collaboration between the police and the public to ensure peaceful elections.

“Most officers are doing a good job but only a few are tarnishing the name of the service,” he said 

The DPP said his office has made a deal with Ipoa and the National Police Service to ensure that police officers observe discipline while on duty so that they do not violate human rights.