Kenya’s Curfew: Crowd Control Should be Within the Law
A curfew that was meant to stop the spread of coronavirus in Kenya has turned into a nightmare. The police have taken advantage of the situation to terrorize anybody found outside their home between 7pm and 5pm. In some parts of the country, Mombasa for example, the police started beating up people as early as 5pm. This brutality has led to two reported deaths and hundreds of injuries.
“Excessive use of force is an overarching principle and there should be no compromise. Personal responsibility for individual officers is important. The fact that the recent incidents resulted in the death of a child in Kenya shows that the police are not paying attention to international best practices and the principles espoused by our constitution,” said Ms Elsy Saina , Deputy Executive Director of the Kenyan Section of the International Commission of Jurists (ICJ-Kenya).
Like many other countries in the world, Kenya is currently dealing with the Covid-19 Global pandemic. The first day of the state-sanctioned curfew saw Kenyans witness blatant disregard of human rights. The curfew started off on the wrong foot, with police across Kenya using excessive force, beating and tear gassing crowds of people on their way home from work.
Some police officers in various parts of the country flogged and clobbered motorists and pedestrians who were found outside their homes past 7pm. As a matter of fact, In Mombasa, media reported that police started beating people who were queuing to board the ferry, the only means of transport home to the mainland after work, more than two hours before the curfew.
- A 49-year-old man succumbed to injuries after being beaten by police in Mombasa.
- A former General Service Unit officer succumbed to injuries sustained in a beating by police in Matuga Sub-county.
- Another boda boda rider succumbed to injuries at Rachuonyo Sub-County Hospital. He was assaulted by police at Kosele trading centre , Rachuonyo South Sub-county.
This brutality caused public outcry where many Kenyans rushed to social media to condemn the use of unreasonable force under the hashtag #PoliceBrutality
Human rights groups have emphasized the need to protect human rights in the indefinite 7:00pm-5am curfew. Kenyan Police have a history of rights abuse, even during law enforcement operations and the specific officers are rarely held responsible. This begs the question then, what is the law on crowd controls and do affected people have remedies?
The law requires Police officers to discharge their duties with diligence and most importantly respect for human rights that are guaranteed in Chapter Four of the Constitution of Kenya. Despite this legal provision, Kenyan Police are often quick to use unreasonable force to disperse crowds.
The National Police Service Act (Revised 2014) elaborates the instances and conditions under which police officers may use force. The rules on the use of force are provided for in the sixth schedule of the Act. The rules stipulate that police officers should always attempt to use non-violent means first and force may only be employed when the non-violent means prove to be ineffective.
The schedule further provides that the force used shouldl be proportional to the objective to be achieved, the seriousness of the offence and the resistance of the person against whom it is used only to the extent necessary and within the law. Most important, following superiors orders is not an excuse for unlawful use of force.
The law also requires that in the case of use of force that results in injury, death or other grave consequences, the officer is supposed to immediately report to the Independent Oversight Authority (IPOA) to investigate the case.
Read more on when the police can use force.
Petition to extend curfew time or suspend it
The Law Society of Kenya (LSK) filed a petition seeking to extend the curfew time to 10pm instead of 7pm or suspend it.
They also want the curfew declared illegal on account that it flouts the Public Order Act. “The petitioner (LSK), exercising its statutory duty to protect and assist the public, challenges the curfew order as unconstitutional because it is blanket and indefinite, and because it is ultra vires (contravenes) the Public Order Act.”
LSK President Nelson Havi, in a public statement, termed the 7pm to 5am curfew as unconstitutional, further accusing police officers of abusing their authority in enforcing it. He also called upon Interior Cabinet Secretary Dr. Fred Matiang’i to take personal responsibility and resign for contravening Article 10 of the Constitution.
Havi also urged Kenyan citizens to document all incidences of police brutality and forward them to LSK for purposes of prosecuting the responsible police officers.
Remedies for citizens
Respect for human rights has become an essential component of policing in Kenya. The National Police Service (NPS), which comprises the Kenya Police Service (KPS), the Administration Police Service (APS) and the Directorate of Criminal Investigation (DCI) is supposed to uphold human rights in execution of duty and to be accountable.
So what remedies exist for citizens who have been injured or have to endure the pain of losing a loved one? First, citizens have the option of reporting the matter to Independent Police Oversite Authority (IPOA). It has a mandate from the IPOA Act to undertake several key functions which include; investigating police misconduct , investigating deaths and serious Injuries caused by police action and to review the functioning of the internal disciplinary process. Secondly citizen my resort to seeking damages or compensation against the National Police Service in court through a litigation process.
On 1st April 2020, President Uhuru Kenyatta apologized to victims and Kenyans in general for the police brutality witnessed at the beginning of the ongoing dusk-to-dawn curfew. Speaking during a live video call with two Kenyans who have been cured of the Covid-19 on Wednesday, President Kenyatta regretted the excessive force that was used on Kenyans but urged for cooperation from all quarters.
What Journalists should do
- Educate your audience on the mandate of the police based on National Police Act (revised in 2014), and Chapter four of the constitution.
- Highlight stories of people who have been assaulted by the police.
- Educate your audience on available remedies in case one is assaulted or killed by the police.
- Highlight cases where the police have followed the law as best practice.
- Talk to IPOA and find out what action they have taken against the police officers who used excessive
By Jenifer Githu