Police may use force if it is necessary to protect law and order – that is a truism. But, like almost everywhere in the world, Kenyan police are bound by strict laws about when and how to use force. The law says, in short:
1. Non-violent means shall always be used as long as they are effective.
2. All non-violent means may only be used to an extent and have to be proportional to the objective that is to be achieved.
3. Firearms …… may only be used for saving lives and self-defense (not, for example, for intimidation, dispersion of crowds or for shooting fleeing suspects)
4. All use of force has to be documented and opened for an internal police investigation.
The Rules are very clear
The rules are to be found in Sec. 61. of the National Police Service Act, and in more detail in Schedule 6 of the Act (see below for both). The provisions are so clear and an easy catch that – instead of paraphrasing them – we just copy them into this post.
Everyone will be able to compare that to what the police has been seen to do.
Sec 61 of the National Police Service Act
Power to use firearms
(1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of non-violent means.
(2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.
Sixth Schedule to the National Police Service Act
A – CONDITIONS AS TO THE USE OF FORCE
1. A police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result.
2. The force used shall be proportional to the objective to be achieved, the seriousness of the offense, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
3. When the use of force results in injuries—
(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offense; and
(b) shall notify relatives or close friends of the injured or affected persons.
4. A police officer who uses any form of force shall immediately, report to the officers’ superior explaining the circumstances that necessitated the use of force and the supervisor shall judge the rightfulness and decide on the next step, subject to these regulations.
5. Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another direct superior of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.
6. The Inspector-General shall not be precluded by virtue of paragraph (5) from conducting investigations into the matter.
7. A police officer who makes a report to the Independent Police Oversight Authority in accordance with paragraph (5) shall—
(a) secure the scene of the act for purposes of investigations; and
(b) notify the next of kin, their relative or friend of the death or injury as soon as reasonably practical.
8. It shall be a disciplinary offense for a police officer to fail to report in accordance with these regulations.
9. An officer shall not tamper or otherwise damage any evidence from the scene of the act.
10. A Police officer in uniform shall at all times affix a nametag or identifiable Service number in a clearly visible part of the uniform
11. Following the orders of a superior is no excuse for the unlawful use of force.
12. The Cabinet Secretary responsible for Internal Security and the Inspector-General shall make regulations for giving further direction on the lawful use of force, and the regulations shall include, among other things—
(a) a list of lawful means to use force;
(b) training requirements to be allowed to use these means;
(c) procedures for reporting the use of the means of force, indicating whether the use of such means was necessary or not.
B – CONDITIONS AS TO THE USE OF FIREARMS
1. Firearms may only be used when less extreme means are inadequate and for the following purposes—
(a) saving or protecting the life of the officer or the other person; and
(b) in self-defense or in defense of the other person against an imminent threat of life or serious injury.
2. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed, except—
(a) where doing so would place the officer or the other person at risk of death or serious harm; or
(b) if it would be clearly inappropriate or pointless in the circumstances.
3. A police officer shall make every effort to avoid the use of firearms, especially against children.
4. Any use of a firearm, even if there’s no injury, shall immediately be reported to the officer’s superior.
5. Any use of firearms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct superior of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.
6. The Inspector-General is not precluded by virtue of paragraph (4) from conducting investigations into the matter.
7. A police officer who makes a report to the Independent Police Oversight Authority in accordance with paragraph (4) shall—
(a) secure the scene of the act for purposes of investigations; and
(b) notify the next of kin, their relative or friend of the death or injury as soon as reasonably practical.
8. The Cabinet Secretary in consultation with the Inspector-General shall make further regulations on the use of firearms which shall include regulations—
(a) that specify the circumstances under which police may carry firearms and the type of firearms and ammunition permitted;
(b) that prohibit firearms and ammunition that cause unwarranted injury or present unwarranted risk;
(c) to regulate the control, storage and issuing of firearms, including procedures that ensure that officers are accountable for the weapons and ammunition issued to them (in principle; don’t allow to take firearms home and officers are provided by their superior with a fixed amount of ammunition and have to explain at any time when requested if bullets are missing);
(d) for the selection, training, and testing of officers authorized to carry firearms including techniques that could diffuse tension and reduce the likelihood of the need to use force in order to ensure that firearms are used appropriately and with the least risk of causing unnecessary harm;
(e) to provide for testing of officers carrying firearms at regular intervals, but at least once a year;
(f) and provide for consequences when failing the test referred to under paragraph (e) which shall at least include that failing to pass the test shall result in losing the right to carry firearms until the officer does pass the test; and
(g) provide for a reporting system whenever officials use firearms in the performance of their duty.
C – SPECIFIC RESPONSIBILITIES OF SUPERIORS
1. Superior officers should do everything in their power to prevent unlawful use of force or firearms, and when such unlawful use of firearms does occur, they should report this immediately to the Independent Police Oversight Authority and to the Inspector-General.
2.
(1) Refusing to carry out orders that include unlawful use of force should not be penalized and should not be a disciplinary offense.
(2) Giving an order that would lead to the unlawful use of force is a disciplinary offense and may amount to a criminal offense.
(3) The station commander, or any other relevant direct superior, shall, immediately after the death or serious injury of a person who at the time of his death or injury, was in police custody or under the control of the Police or in any way the death or serious injury was the result of police action or inaction which includes anyone who may have been injured or killed being a bystander during a police operation—
(a) take all steps to secure evidence which may be relevant to that death;
(b) immediately report the case to the Independent Police Oversight Authority, using the means of communication that guarantee there will be the least delay, and confirm this in writing no later than within 24 hours after the incident;
(c) supply the Independent Police Oversight Authority with evidence of and all other facts relevant to the matter, including, if available, the names and contact details of all persons who may be able to assist the Independent Police Oversight Authority should it decide to conduct an investigation; and
(d) non-compliance with the above shall be an offence.
