Policing the Kenya way

Consider this and think of the situation in Kenya as you read on: Last year, 52 officers out of a force of 34,565 officers from the New York Police Department intentionally fired 236 bullets during confrontations with suspects.

The officers reportedly shot and killed only eight people and injured 16 the whole year, in what the Police Department say marked record lows.

Of course the social and economic realities of Nairobi and New York are totally different but there are policing lessons to be learnt from these figures — especially when it comes to restraint.

Now fast-forward from the US to Kenya. On October 15, about 300 police officers fired over 1,000 bullets shattering windows and drilling holes into the wall of a house in Prudential housing estate, Buruburu, Nairobi. The idea was to flush out a suspect who had sought refuge io the house.

Deputy Police spokesman Charles Wahongo agrees that in the process of enforcing the law, “there are cases where officers have acted outside the law.” However, he says, in such cases action is taken against the officers.

A case in point, he says was, the arrest and prosecution of officers who shot dead Ibrahim Odengo and his son Joseph Nyamberi in Kawangware a fortnight ago.

“Kenyans should blame us where lives have been lost and we have not taken action,” he told DN2 on Friday.

What the NY police fired the whole year was just about 20 per cent of what Kenya police fired in hours in a single incident.

However, for the NY police, restraint appears to be the norm as the report further states that a quarter of the officers who shot at suspects fired only a single bullet.

Police officers worldwide know very well that carrying a gun is not a licence to use it, and if used, the law will only protect the officer if he has acted within it.

In almost all the incidents in Kenya, the police officers are the only ones firing, killing the suspects and recovering firearms and in many cases, toy pistols. There have been cases where witnesses have testified that they saw officers plant firearms on suspects they have killed.

In Siaya, for example, a robbery case was almost concluded before the court was informed that the same firearm had been produced in court as an exhibit in another case.

Police reports indicate that on June 8 last year, officers shot dead suspects along Ngong Road and recovered an M16 assault rifle.

On February 10 and July 22 this year, a similar rifle was recovered along James Gichuru and Mombasa roads respectively when police shot dead suspects.

In the last incident, questions were raised as to whether these were different rifles or the one ‘recovered’ during such operations, and why only a specific unit of the force was the one recovering that type.

Although there are cases where officers may be allowed to fire randomly, for example to flash out unseen enemies suspected to be hiding in isolated covers, every officer is expected to be economical, effective and efficient in the use of firearms in different situations.

Under the Four Marksmanship Principles, it is important that every shot fired must be followed through without disturbing the aim. This observation is also important as it allows the officer to see the movement of the enemy who may be changing the cover from one place to the other.

Even with the NYPD, there were eight cases involving the unauthorised use of firearms, and 22 instances of unintentional discharges, including three in which officers accidentally fired while chasing suspects.

There were also three suicides in which officers’ firearms were used, and two shootings that involved what the department described as personal disputes.

Within the Kenya police, there are units that operate professionally, with surgical accuracy. During the Prudential estate shooting, marksmen from the GSU’s elite Recce Unit were called in, arriving at the scene at exactly 5.30pm. Within three minutes, they had put an end to one of the country’s most dramatic, if not farcical, shootouts that had lasted for close to five hours. They fired only three rounds. A round is one bullet. The armed gangster was only armed with a Ceska pistol.

Dressed in civilian clothes the commandoes arrived in two Toyota Land Cruisers and left shortly after a few minutes to their base in Ruiru without talking to anyone. They were armed with American-made M16 rifles and wore bullet proof vests and helmets.

On arrival, they moved towards the house in a single file formation, whereby the commander takes the lead followed by the rest in a straight line, with their weapons interlocking.

“This is the only possible formation when the enemy is in a house or when fighting in a thick jungle or at night due to poor visibility,” said a senior GSU officer who sought anonymity.

The police have the right to use justified force while apprehending a suspect or trying to prevent a crime, and may use lethal or non-lethal means, depending on the circumstance.

For force to be considered justifiable, the threat itself must be unavoidable and immediate, and the amount of force used must be at an appropriate level under the circumstance. Secondly, justified force must stop once the threat ends.

In other words, every shooting should raise the question whether the officers needed to shoot.

Reasonable force

Kenya’s criminal law states that an officer may use firearms against any person in lawful custody charged with or convicted of a felony, when that person is escaping or attempting to escape, or any person who by force rescues or attempts to rescue any other person from lawful custody.

Section 19 of the Criminal Law clearly states that the means used to arrest a person must be necessary and degree of force reasonable having regard to the gravity of the offence.

However in many occasions the circumstances have not been justifiable. The Independent Medico-legal Unit’s Executive Director Peter Kiama has called on the police boss to not only institute independent investigations and criminal proceedings but also take immediate preventive measures to stem this re-emerging trend.

Kiama says that the police should always know that the presumption of innocence — the principle that one is considered innocent until proven guilty — is a legal entitlement for every suspect.

Early this year, Police Commissioner Mathew Iteere constituted a team to investigate the circumstances surrounding fatal shooting of three suspects along Langata Road on January 19. The suspects had surrendered but were later brutally shoot at point blank range.

The team, headed by Mr John Otieno (SSP) was formed after the senior officers at Vigilance House realised that there were certain discrepancies between their juniors’ version of events and what was captured by the media.

It emerged that in such a circumstance, it was not justifiable to use a firearm and questions were raised why the three were not arrested even after being subdued.

Kenya has too many unaccounted for murders – lives are expended on a whim -and the list is still growing, notwithstanding the expanded Bill of Rights in the new constitution.

In the NYPD report, officers fired only when confronted by suspects carrying guns. In nine episodes, the suspects fired at the police. In two cases, the police believed that the suspects were drawing a firearm, although the report does not indicate whether they were actually armed.

In eight other cases, the suspects attacked or menaced officers with knives or blades.

On November 23 police in Nairobi shot dead Ibrahim Ondego and his 14-year-old son Joseph Nyaberi in the wee hours of the morning as they were going to a shopping centre.

Ondengo was first shot and minutes later, his son. Police claimed that the two were armed and threatened the lives of the officers who were armed with AK47 rifles. This sparked protests with some residents claiming that they had heard the boy pleading with the officer not to kill his father.

But the story also took another twist when some drivers claimed that they saw a double cabin Nissan pick-up truck belonging to the CID’s Scenes of Crime services drive to the scene and that one of the occupants removed a pistol and a panga which they later placed beside the two bodies.

Dagoretti OCPD Mathew Gwiyo however said that the officers were responding to a distress call when they were confronted by the two deceased armed with pangas.

“They were then shot dead and police recovered two pangas and a Browning pistol,” said Mr Gwiyo.

The NY report also pointed out that the police responded to 206,874 radio calls involving reports of weapons, and further states that some cases were more difficult to categorise, like in the case where a person attacked a police car with a cobblestone and later tried to seize an officer’s firearm.

In its Baseline Report on Human Rights Violations in Kenya (2005-2010) The Kenya Human Rights Commission revealed that police brutality, extra judicial killings and torture increased especially during the post election violence period. Of great concern is the use of firearms.

A case pending before court is the killing of seven taxi drivers on March 11 last year where seven Administration police officers rushed to the scene where boda boda and taxi operators had clashed over business.

In a clash with the taxi drivers who reportedly resisted arrest, the seven of them were all shot dead. In another case on July 10 last year, detectives in Rongai shot dead a butcher who was wearing gumboots and carrying a basket and thus could not outrun them.

Then there was the killing of Solomon Ngali in Karen, Nairobi, in May. His father, Ambassador Mwanyengela Ngali, found his body at the City Mortuary with two bullet wounds on the chest, three deep cuts that exposed the skull and also two sharp punches below the left eye and on the jaw.

“That [the killer] was a professional, he aimed at the heart and the bullet blew it into pieces heart. He met his death in a very bad way since the nature of the cuts point to torture,” said the father, who by then still thought the son was killed by thugs.

The officer told him that the son was found stark naked, trying to rape a woman but when the father brought to his attention that Solomon had clothes and the bullet had gone through the clothes, the conversation ended.