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Cover Story

Extra-Judicial Executions (EJEs) by Police in Kenya

Volume 16, Issue 2  | 
Published 06/11/2019
  |

By: Anneke Osse (†) and Naomi van Stapele (ISS/EUR)

 

A policeman was filmed while executing two male teenagers in front of a crowd in broad day light in Eastleigh, Nairobi, on 31 March 2017. Two hours later he shot dead another two young men near Mathare, an urban settlement in Nairobi (personal observation and interviews by van Stapele, 31 March 2017). In the weekend of 11 August 2017, the same police officer was witnessed killing seven people in Mathare during the chaos that followed the announcement by the electoral body, the IEBC, which declared Kenyatta the winner in what were widely considered fraudulent elections (interviews by van Stapele between 11 and 14 August 2017). During that weekend, he was part of a wider police operation that violently clamped down on protesters. Local residents shared with one of the authors that the police officer who was filmed has killed many more young men since then, and in fact continued to patrol Eastleigh and Mathare every night until April 2019 (interviews by van Stapele with local resident, between February 2018 and July 2019). The fact that he was still on duty in Mathare and Eastleigh long after the '31 March' video went viral online shows the impunity with which police officers can kill young and poor men under the pretext of the War on Crime and/or War on Terror. This type of police killings persists in a wider context of policing where police use of force, including lethal force, is the instrument of choice to deal with law and order situations (related to for instance alleged political unrest, terror threats and/or criminal activities), but also to protect criminal enterprises by police (such as extensive extortion rackets), leading to countless dead and injured.

Over the past decade or so, several community-led, governmental, non-governmental and international human rights organizations have made courageous attempts to document the scale and scope of these killings, among them two UN Special Rapporteurs on Extrajudicial, Summary or Arbitrary Executions. The first, Philip Alston, stated in 2009 that there was ‘overwhelming testimony of the existence of systematic, widespread, and carefully planned extrajudicial executions undertaken on a regular basis by the Kenyan police.’[i] His successor, Christof Heyns concluded in his follow-up mission in 2011: ‘no concrete actions have been taken to implement many of the recommendations made by the [former] Special Rapporteur. Much remains to be done to address and overcome extrajudicial killings.’[ii] And if his successor would visit Kenya today, she would likely reach the same conclusion. These conclusions are also corroborated by different international and national media outlets (Al Jazeera, 2014[iii]; The Nation 2016[iv]) and by the ongoing documentation and campaigns by the social justice centres in Kenya (MSJC 2017[v]). However, the actual number of police killings in Kenya remains guesswork due to a lack of reporting by the police.

The high number of police killings in Kenya (Van Stapele 2016[vi]), indicate that these killings go beyond an occasional ‘rogue officer', as is often suggested by current political leadership in defence of allegations against the police. The killings repudiate the progressive legal frameworks and oversight institutions put in place following the adoption of the new Constitution in 2010. The new police legislation entails the National Police Service (NPS) Act (c.11a), the National Police Service Commission (NPSC) Act (c.30) and the Independent Policing Oversight Authority (IPOA) Act (c.35). These were products of on-going police reform in Kenya, which accelerated after the widespread police misconduct during the post-election violence of 2007/8 (CIPEV, 2008[vii]). However, the continuation of police killings as a structural policing practice brings into question the commitment to such reforms by the Kenyan government. For example, the Independent Police Oversight Authority (IPOA, or the Authority) has repeatedly complained that the police are actively obstructing their oversight[viii], for instance by tampering with evidence in investigations or inspections[ix]. What's more, several cases reveal how IPOA staff were threatened and even detained by members of the NPS[x]. The lack of Governmental and political commitment to the reforms is also evidenced by the considerable delays, and in some instances even refusal, to implement provisions of aforementioned Acts (Osse, 2016).

As a result, police reforms have had little impact on police performance let alone their use of force practices, and little has changed. Police are still characterized by a lack of competence, lack of accountability and public confidence remains low[xi] (Osse, 2016). Above all, there are serious indications that police killings continue to be excessive both in absolute as well as in comparative terms.[xii] Despite the new legislation, police officers hardly report deaths and serious injuries to IPOA, and there are no indications IPOA has ever acted upon such non-reporting, other than noting it in their performance reports. As a result of widespread non-compliance among police, and the subsequent inaction, the available accountability requirements have largely remained unable to ‘bite’.[xiii] This to some extent explains why police killings continue to occur: with few checks in place police use of excessive force remains largely unprosecuted and undisciplined.  Also, it should be noted that the killings are in fact seldom questioned by the general public, a rough and intuitive estimate based on newspaper comments shows that many Kenyans seem to agree this is a sound crime control strategy, despite evidence to the contrary, yet it leaves the question open why the wider public seems complacent in face of rampant killings by police.

Obviously, not all police killings are unlawful or extrajudicial, as indeed the police have a legal mandate to use (lethal) force, when absolutely necessary, to achieve a lawful policing objective, both under national and international law. As such, some deaths may be the result of lawful police action, some may be the result of unintentional, accidental, discharges of firearms, but most are suspected to be the result of the use of ‘unreasonable force’ and with the intention to kill, or better said: murder. However, investigating each case is the only way to find out whether a death is indeed lawful, unlawful or as a result of an accident—preferably by an independent body like IPOA and in accordance with international standards.[xiv] This requires police to report when someone is killed or seriously injured as a result of police action, and cooperate with the investigative bodies to establish the truth, as is stated in the NPS Act. The fact that police barely report their killings and this being left without consequences, can thus be taken as yet another indication of failing leadership which abdicates its responsibility to implement the prevailing legislation, and impedes, if not obstructs, holding the members of the police to account. This has given rise to an extremely dangerous situation in Kenya, where police can use lethal force at will and to protect their own interests, rather than that of the public, and which leaves large parts of Kenya under occupation of a hostile police force.


Endnotes

[i] Press statement by Prof Philip Alston, UN Special Rapporteur on extrajudicial, arbitrary or summary executions Mission to Kenya, 16-25 February 2009. 25 Febr 2009.

[ii] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns. Addendum
Follow-up country recommendations – Kenya. A/HRC/17/28/Add.4. 26 April, 2011.

[iii] Al Jazeera, Inside Kenya’s Death Squads, published online on 7 Dec 2014. https://www.youtube.com/watch?v=lUjOdjdH8Uk (accessed 1 March 2018).

[iv]See http://www.nation.co.ke/newsplex/deadly-force-database/2718262-3402136-ms1o0nz/index.html [accessed 17 April 2017].  The Nation’s project is formatted along the lines of a similar project by The Guardian, called ‘The Counted, people killed by police in the US’, which aims (according to the project’s website) to ‘count the number of people killed by police and other law enforcement agencies in the United States throughout 2015 and 2016, to monitor their demographics and to tell the stories of how they died’. See: http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database [accessed 18 April 2017].

[v] MSJC (Mathare Social Justice Centre) (2017) A Participatory Actions Research Report Against the Normalization of Extrajudicial Executions in Mathare. Nairobi: MSJC.

[vi] Van Stapele, N. (2016) ‘We are not Kenyans’: extra-judicial killings, manhood and citizenship in Mathare, a Nairobi ghetto.’ Conflict, Security & Development 16(4): 301-25.

[vii] Commission of Inquiry into Post-Election Violence, Republic of Kenya. 2008. Report of the Commission of Inquiry into Post Election Violence. Nairobi: Commission of Inquiry into Post- Election Violence (CIPEV Commission).

[viii] See for example: Cyrus Ombati, Joseph Boinnet blocking probe on police misconduct, Ipoa says. StandardDigital, 4 Aug 2016. See: https://www.standardmedia.co.ke/article/2000210869/joseph-boinnet-blocking-probe-on-police-misconduct-ipoa-says (accessed 1 March 2018).

[ix] Fred Mukinda, ‘Rogue police officers 'falsifying evidence' to avoid justice’, Daily Nation, 11 Febr 2014. See:

 http://www.nation.co.ke/news/-/1056/2202024/-/14ai7ln/-/index.html (accessed 1 March 2018).

[x] Fred Mukinda, ‘IPOA accuses Kayole OCPD of intimidating its staff’, Daily Nation, 2 Aug 2016. See:

http://www.nation.co.ke/news/Kayole-police-boss-accused-of-intimidation/1056-3327272-5becy8/index.html (accessed 1 March 2018)

[xi]  Anneke Osse (2016) Police reform in Kenya: a process of ‘meddling through’,

Policing and Society, 26:8, 907-924, DOI: 10.1080/10439463.2014.993631;

[xii] Several HRDs have argued in private conversations with the authors they believe police killings are on the rise.

[xiii] Maggie Fick, ‘Amid claims of police brutality in Kenya, a watchdog fails to bite’, Reuters, 23 Feb 2018, See https://uk.reuters.com/article/uk-kenya-police-watchdog/amid-claims-of-police-brutality-in-kenya-a-watchdog-fails-to-bite-idUKKCN1G7176 (accessed 1 March 2018).

[xiv] Principles 22 and 23 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials deal with establishing effective reporting and review procedures: ‘Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control’.

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