Inquest fails to uncover killer police, as court claims cover-up

On August 12, 2017 at around 9am, the life of nine-year-old Stephanie Moraa Gisemba was snuffed out by a single bullet fired by a police officer whose identity now remains unknown due to an active cover-up by his or her colleagues and bosses.

Efforts by the Independent Policing Oversight Authority (Ipoa) and the Director of Public Prosecutions (DPP) to have the identity known through an inquest have proved futile after the police service decided to protect one of their own from facing justice.

The young girl was shot dead as she played on her family's balcony in Mathare North Area 2 Nairobi during the 2017 post-election protests.

"I am almost certain that if the police service wished to identify and bring to book the officer who took away the life of Stephanie Moraa Gisemba, it would not take them a day to do so. I find that the death of the deceased was by deliberate shooting by a police officer whose identity has been frustrated by police officers covering for one another under the blue code of silence," Milimani Chief Magistrate Francis Andayi said Wednesday while closing the inquest.

No duty record

The officer remains unidentified because, ostensibly, there was no record of the police officers who were sent out on duty in that area on that day.

"At least, that is the official stance taken by the senior police officers in whose jurisdiction this unfortunate incident occurred when they appeared before this court when summoned. Try as this court did, there was no relenting on this position by the police until the close of the inquest," said the magistrate.

The cover-up was so deep that the bullet cartridge presented to the firearms examiner for ballistic examination was not the one used in the shooting, recovered from the scene by Mr Alfred Ochieng Obiero.

Chief Inspector of Police (CIP) James Onyango, a firearms examiner at the DCI Forensic Division, told the inquest that upon examining the cartridge, he found it had no projectile as a bullet, meaning it could not cause an entry and exit into the body of the deceased. It means that the bullet from that cartridge could not have entered and exited the body, causing a gunshot wound.

He was presented with the spent cartridge case by Irene Inoti, an Ipoa officer who investigated the shooting. Ms Inoti got the cartridge from Mr Obiero.

On his part, Mr Obiero said he visited the scene shortly after the shooting and found the child still lying on the ground dead. He saw a bullet hole on the wall and beside the child was a bullet cartridge.

He collected the cartridge and kept it until August 18, 2017 when he handed it over to officers from Ipoa.

Lack of cooperation

The Ipoa officer who conducted the investigation into the shooting concluded that lack of cooperation from the police in making available the requested police documents hindered the authority from ascertaining the formations of the officers deployed to the area, the stations where they were drawn from and the specific officer(s) responsible for the shooting.

Witnesses of the shooting described the officer who fired the killer shot as tall and light-skinned, dressed in jungle police uniform and helmet. None of them could physically identify the suspect.

The court recorded the evidence of 11 witnesses including neighbours of the deceased's family, her parents, pathologist, a firearms examiner at the DCI Forensic Division, Muthaiga Police Station OCS and the Starehe Sub-County police commander.

The court stated that evidence from the witnesses showed that there were two police officers in jungle uniform.

The two officers were clearly distinguishable, with one wearing a helmet, while the other one did not. The one who wore the helmet was further identifiable from his complexion, which was light brown.

'Blue code of silence'

"This information, together with the one which the senior police officers in whose jurisdiction the incident occurred failed to provide, was sufficient to identify the police officer who was culpable of the shooting. So, the police in this case have once again employed what has been described as the 'blue code of silence'," said Mr Andayi.

Unfortunately, he said, the incident is a reflection of what happens every election time in Kenya after the announcement of the presidential results.

Innocent lives are taken away by trigger-happy police officers who are comfortable to know that they will be covered by their colleagues and bosses under the guise of post-election violence, “so they shoot Kenyans at will, such as was the case here”, the magistrate noted.

"An innocent child standing at the balcony of the parents’ residence not even aware of what it entails for one to win or lose an election, leave alone participating in a demonstration, pays the ultimate price — death. Unfortunately, the person who took away her life cannot be brought to book because he is under the protection of the blue code of silence," said the magistrate.

According to the court, the most disturbing thing is that this pattern is repeated in many other instances.

While going through the inquest file produced by the investigating officer, the magistrate came across a report compiled by Ipoa, of the various incidents in which five people were killed after the August 7, 2017 General Election.

"It is worth noting that four of the five victims of this brutality at the hands of law enforcement officers expected to provide security to them, are children," said the magistrate.

In as much as these incidents are committed by a few undisciplined officers, the court stated, at the end of the day, when there is active cover-up of the identity of the particular officer, then the indictment unfortunately has to cover the entire service.

"Ipoa must be applauded for taking up these cases and bringing them up to the public, even as their efforts are frustrated by the blue code of silence," stated Mr Andayi.

He ordered that the ruling and the court's opinion be forwarded to the DPP for action.

Senior Superintendent of Police (SSP) Alice Jerotich Kimeli, who was the Starehe Sub-County police commander within whose jurisdiction the shooting happened, told the court that the incident was investigated by the DCIO Starehe, SSP Martin Mbaya, to confirm what had caused the death of the girl, but up to now the cause has not been established.

Ms Kimeli said she was asked to produce a list of officers who were called in to assist in containing the situation after the announcement of the presidential election results, but since this was an emergency, there was no Operation Order prepared.

Duty rosters

She said there are five police stations under her and police officers were deployed according to the police commander of that area. She said copies of the deployment are kept as the duty roster at the sub-county police offices.

"Interestingly, in this case, the duty rosters for the stations did not show the exact lock-up of Mathare Area 2, where the incident occurred. She said that on this occasion, some of the officers had live ammunition while some had blanks," said Mr Andayi.

Chief Inspector Roy Njeru was the OCS Muthaiga Police station at the time. It is the station within whose jurisdiction the incident occurred.

He told the inquest that on the day the presidential results were announced, chaos erupted in Mathare North, and people affiliated to different political parties were fighting, with some supporting the election results and others disputing.

Police officers from the Kenya Police, Administration Police and other formations were sent to the area to restore calm. On the material day, Mr Njeru received a report from a caller saying a girl had been shot by unknown people.

He visited the scene shortly thereafter. There was a large crowd that was hostile to the police and some people said they should lynch the OCS because he was the one who had killed the child.

However, the area elders and the father of the girl prevailed upon them not to. He called the area OCPD who sent reinforcements to the scene.

Hole in the chest

He saw the body of the girl, which had a hole in the chest. According to him, the hole could have been caused by a bullet or a knife. He said he never saw the post-mortem report.

Mr Njeru said police had strict instructions not to use live ammunition and even the officers who came from outside formations were not allowed to carry rifles. It was his evidence that no officer left his station with live ammunition.

However, the court found that in a scheme to cover up the identity of the police officer, there has been silence on the part of the senior police officers who were in charge of the operation, together with those who were on the ground.

"Thus, besides failing to produce the results of investigations into this unfortunate incident of an unruly police officer, the police also failed to provide information requested by Ipoa," said the magistrate.

The hidden information includes operation orders in respect of the General Election — from August 7 to August 16, 2017 — covering Mathare North Area 2 and incident reports by the staff officer operations reported by all officers on the ground at Mathare North area 2 on August 12, 2017.

Also withheld is the deployment list of officers assigned duties in Mathare North Area 2 on the said date.

"This has frustrated the Ipoa and this court from determining the identity of the culprit," stated Mr Andayi.

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