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Police brutality in Kenya during the election period

Master's Thesis 2019 75 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Table of content

Acronyms

Chapter 1
Introduction
1.1. Background of study
1.2. Statement of problem
1.3. Research objective and Research question
1.4. Significance of study
1.5. Research Methodology
1.6. Theoretical framework
1.7. Related literature review
1.8. Research outline

Chapter 2
Political (electoral), and socio-economic context in Kenya
2.1. Political (electoral) Context
2.1.1. Multi-party politics
2.2. Socio-economic context
2.3. Human rights instruments and policing in Kenya

Chapter 3
History of partisan policing in Kenya
3.1. Colonial Period
3.2. Independent period
3.2.1. 1963-2001, KANU regime
3.2.2. 2002-post KANU period

Chapter 4
Data analysis-cases of police brutality
4.1. Peaceful demonstrations disrupted violently by the police
4.2. Curfews, harassment, beatings and killings by the police officers
4.3. Arbitrary arrests, detentions, intimidation, harassment of the opponent’s party

Chapter 5
Discussing police brutality
5.1. Dimensions of police brutality in Kenya
5.1.1. Historical dimensions to police brutality
5.1.2. Contextual dimensions to police brutality
5.1.3. Structural dimensions of police brutality
5.2. Suggestion to the way forward

Chapter 6
Conclusion
6.1. Research findings

Reference

Acronyms

Abbildung in dieser Leseprobe nicht enthalten

Chapter 1

Introduction

This study explores and try to understand the persistence cases of police brutality, which has been a challenge in Kenya. Thompson and Lee (2004) helps me to understand what police brutality is. They define police brutality as the use of excessive or unnecessary force by police when dealing with civilians.1 Which may entail harassment, assault, false arrest, intimidation, sexual abuse, verbal abuse, or repression. In their view, brutality has two forms, physical, which includes assault, or non-physical brutality which includes verbal language.2 In Kenya, there are many cases of police harassment, physical and violent attacks to citizens whom they ought to serve and protect as reported by media and human rights groups. Police brutality has been heightened more during election times: before the elections trying to intimidate the competitors’ zones, and after the elections trying to contain protesting individuals with different opinions and disagreement with the elections results. The police torture and brutality has covered media headlines for the last years. Cases of Kenya police injuring, extra-judicial killing, killings through use of extreme violence and excess force to people demonstrating or those clamoring for change and demands for rights.3 The point here is, police in their action go against what is contained in Kenya bill of rights and directly violate Civilians’ rights.

1.1. Background of study

In the Kenya Police website, the motto reads in Swahili, ‘ utumishi kwa wote’ (service to all).4 However, when I read Mutunga (1990), I learn that the relationship between Kenya citizens and the police has been that of indifference due to open cited cases of police brutality and overt impunity.5 Further, from the Kenya police service strategic plan 2003-2007, the report shows that the Kenya police since its establishment in 1907 by then British colonial government, to the present democratic Kenya state is brutal.6 Police brutality, criminal behaviours and abuse of power has made public to lose trust with the Kenya police. Kagari and Thomas (2006) shows that the Kenyan public has viewed the Kenya police as playing the role of those in authority, and not being a service, the citizens can rely on. Kenya police enjoying the hand and protection of the authority and operates with outmost impunity. Most brutality cases being derived from order policing, from those in power, to ‘protect’ and safeguard their interests, as they deal with those gathering and protesting.7

I analyse police brutality from Mendes, Zuckerberg, Lecorre, Gabriel, and Clark (1999) work, where they argue that policing is inseparable from the political context in which it is situated8. The problem with Kenya policing is its colonial past. Where the British indirect9 rule imposed policing policies to Kenyans which were from an alien culture. The British indirect rule, using Indian police and local chiefs whom they appointed themselves was much brutal among the local indigenous communities for the colonial government sake.10 After independence, the new Kenyans lead government adopted the policing system as it was from the colonial government. However, in this case the brutality became entrenched on the tribal grounds and political ideology lines to contain any opposition from those of different ethnic groups and ideology. The first president Jomo Kenyatta and his predecessor Daniel Arap Moi used the Kenya police to rule with outmost brutality, very much like the British colonialists.11 Joe Khamisi opines regarding Kenya independence government that, “it is about impunity and disrespect for the rule of law it is about wananchi (citizens) getting a raw deal.”12

Following the promulgation of the new constitution in 2010, the question of the police reforms arose. These reforms were aimed at building trust, which has always been on the lower end between the Kenya police and the public. The public referred as Wanjiku 13 views Kenya police in three ways; as brutal, corrupt and the beholders of the impunity. Kenya police is still struggling with the reforms, moving away from being a police force into a police service,14 a process of building the image to the public. Kenyans are not surprised that the process of reforms has been so short lived and so slow. Recent human rights watch reports shows the Kenya police service is still the same Kenya police force.15 If differences be, they are minimal.

Human Rights watch data indicates police brutality in Kenya is a daily affair.16 However, massive brutality has been witnessed mostly in the elections and electioneering periods. The study recounts the most recent ones, in 2007, different reports show that, the 2007 elections period show an escalated police brutality than any other period post the repeal of section 2(A) of Kenya constitution and multiparty politics in 1992. In 2007, following the post-elections violence, there were 1,133 recorded death, 405 of the deaths were caused by gunshots wounds and according to the reports police were responsible for those deaths.17 The human rights watch reports have also shown that the 2017 Kenya general election was no exception. They tabled massive police brutality before and after August 2017 general elections. This has been the case regardless of the laws (National Police Commission Act), Bill of Rights in the 2010 Kenya constitution and massive police reforms. From August 2017, the Kenya media has been awash with news of outright police criminal activities and police brutality.18

In 2017 general elections period, the Kenya police has been accused of killing at least 33 people and injuring a dozen of them in some parts of Kenya. Those who were killed, some were under age children.19 In the process of containing the crowds, the police have been using excess brutality, denying Kenya people (especially those who differ politically with the ruling government) freedom of assembly and freedom of speech. This form of police brutality goes against individuals who have different political opinions rights to hold an opinion, which is in Article.19 and freedom of peaceful assembly, which is in Article. 21 of ICCPR20. The police have also threatened and harassed the vocal Civil Societies and human rights activists21. Those who have been demonstrating have been meet with the full force of law22 against the Chapter 4 of the Bill of Rights of the Kenya Constitution (section 37 rights to assembly, demonstration, picketing and opinion).23

The study looks onto the police brutality experienced under democratic regime. The extent of brutality shows that, even in democratic society, “the activities of the police can take place in compliance with the rule of the law and with full democratic accountability and respect for human rights or they can occur in a fashion which undermines the rule of the law and makes mockery of the facades of democracy and human rights.”24 It is within this political context this study is done, questioning if there can be a contextualized redress to a democratic policing. I take interest of Mendes et al who argue that, “protection of basic rights and compliance with law are twin pillars of good police forces in liberal democratic societies.”25

1.2. Statement of problem

Regardless of the decades of democratisation of both the police and the society in Kenya, it appears that despite the many changes, very little of what is envisaged has been achieved. While on paper the police are governed by the Constitution and the rule of law, they are still highly politicised,26 for example by president appointing27 police Inspector General (IG) and Deputy IG who he will control to discharge effectively his commands to meet his political agenda. Kenya has enactment police reforms and legislations. Within the 2010 Constitution of Kenya, the National Police Service Commission Act 2011, and the Independence Police Oversight Authority (IPOA) were enacted. However, various reports from the Amnesty International, Human rights watch and daily newspapers show prevalent cases of police brutality in Kenya.

This idea brings the hypothetical thoughts; the lack of change is an effect of goodwill from police, the political elites desire not to see any police reform. Or could it be a lack of a useful contextual understanding and conceptualisation of what democratic and human rights policing should entail? Maybe, most of the available police reforms have used alien approaches or more ‘modern’ ideologies, rather than being coined from the indigenous context to create meaning. This might have limited the conceptualisation of the ideas of policing within the local context. Mazrui (1980) advised African countries to re-conceptualise development for their use.28 What he meant is that, African countries should redefine development within their ‘contextual language’ to suit their individual indigenous needs. Is there need for local, and African informed perspective towards better police service and law enforcement? We have already witnessed an Africa approach deliver justice in Rwanda29, using both conventional and unconventional means.

What is seen in Kenya is an evidence of continuous trend of violence and police brutality. The trend is tied to the socio-economic imbalances, ethnic politics, as well as traditional authoritarian-patriarchal practices. Those in leadership, both under the former authoritarian and present democratic Kenya regimes, have combined their decision-making parameters with the use of police, and mostly in physical way to suppress their opponents. This ‘culture’ is the reason why police corruption, unthwarted extra-judicial violence and killings have remained in Kenya. The decades of police involvement in partisan-politics have motivated refusal to register complaints, arbitrary detention, torture and killings. This has been perpetrated by police at the goodwill which has resulted in an unprecedented level of public distrust and fear of the police. Police are often viewed as ‘mbwa’ ( dog) , of the politicians and those in authority. Kenyans contextualised notion of ‘ mbwa -kali’ 30 (fierce dog), root of the metaphor for ‘seri-kali’ [31] (police or government) under a legalized police/state brutality. Thus, metaphorical suffix ‘-kali’ (fierce, dangerous, nasty), is a contextually held perspective to the government authority, magistrate, parliament and police, as one and the same alien authorities propagating a suppressive and oppressive culture.

Regardless of democratic changes, no far-reaching reforms and reorientation which have brought the policing operations into conformity with Kenya constitution, regional and international human rights standards. Mendes et al holds that, the foundation value for any democracy is good policing.32 For better policing ideally means, more human rights. It is imperative therefore to say that there is a close link between better policing, democracy and human rights. How this can be effective in Kenya remains the question in this study.

1.3. Research objective and Research question

The overall objective of this study is to identify and discuss the cases of police brutality; which are typical and emblematic in Kenya. The main research question of this study is:

- Why the persistence of police brutality and the failure of the 2013 police reforms in Kenya?

1.4. Significance of study

I confine with Mendes et al, who shows that police officers across the world, including Kenya have popularly portrayed as serving at the goodwill of the ruling class rather than being the instruments of service to the citizens. Kenya police has mostly been portrayed as an organisation, that is selective in its application of law under a political influence leading to impunity, corruption and ineptness. It was against that backdrop that the Kenya government, after successful multi-party election win in 2002 attempted to introduce various police reforms targeted towards establishing a citizen friendly police institution. In 2002, the NARC government came into power with a promise to implement wide ranging police reforms.33 They made a major overhaul of the police institution. Several initiatives of administrative and operational reforms such as, police training from 9months to 15months (including basic understanding of human rights), increment in financial allocations (to avoid corruption) and a change on how police leaders are appointment.34

Immediately after the reforms were started, there were some initial and pragmatic steps. Serious venting of police officers under a civilian friendly IPOA appeared to have resulted in an increased police capacity, to respond to crime alongside improved police visibility across Kenya.35 However, despite introducing those reforms initiatives which were aimed at making the police more transparent (open to the public), accountable (reliable and taking responsibility) and effective (having public confidence and legitimacy) in fighting crime and being non-partisan36, evidences of the cases explored and discussed in my thesis pointed to structural and administrative challenges. Persistent hostilities between the police and members of the public are still rife, with increased insecurity and outright police brutality. This study shows that police reforms initiatives in Kenya did not succeeded in many fronts. The issues of police brutality and abuses of their power are still witnessed.37 In 2017 elections period, police went overboard in excessive use of force against Kenyan citizens.38

The above phrase shows incompatibilities between intentions to reform the experiences of realities of the context. This means, reform policies have been difficult or impossible to implement during elections. This study is contextually done, where contextual descriptions provide the raw information upon which measures of human rights have been based on a democratic policing in Kenya. The study therefore explores the advancement and setbacks in the promotion and protection of the human rights in Kenya through democratic policing.

1.5. Research Methodology

This study identifies and discusses cases of police brutality in Kenya during election periods. It focuses on the severity, continuous and persistence of police brutality experienced in Kenya, mostly in the period of election. Gathering material to aid the study will be done through an empirical document analysis39 (content analysis) approach. The aim is to investigates Kenya as a single-case, mainly, creating a national wide perspective. Within the research objective, I will identify and discuss the cases of police brutality using the most recent material and data available during election periods between 2010 and 2018.

The content analysis is done through; reports in newspapers, magazines, NGOs reports, related researches, policy papers and Government papers detailing cases of police brutality in Kenya. In the content analysis, the study takes note on the reports relating to the Kenya police involvements and routine operations during the election period. It explores relevant cases of police brutality in general as well as, police actions in containing political demonstrations. The study also explores cases of brutality to the politicians who are critical to the government policies during and after elections. The study also takes notes of the human rights research methods.40 The study explores the phenomenon of police brutality as a social issue of human rights concerns.41 Cases identified will be analysed thematically and discussed in the light of history of policing in Kenya and the social-cultural perspectives within the context aiding or averting police brutality.

1.6. Theoretical framework

I approach this study about police brutality in Kenya from an historical perspective, using the past to study the present. The historical foundation of the policing in Kenya may help in understanding why we have the police brutality. Kenya police has origin from history of colonialism. Though there were some form of policing which existed within different Kenya communities prior to colonialism, Jeffrey Fadiman (1993), doing his studies in Meru assent that ‘policing’ was centered within the ‘tribal cultural protocols’ based on virtues and moral codes. The policing were tied to the customs, taboos, norms, and values (including belief systems) which automatically became infused to the individuals, as part of the community. The society was egalitarian, with ‘no elite groups’ of unformed officers. Thus, every person member of the community was involved as a custodian of the community values and norms, hence ‘a police officer’. Violation was meant with dire consequences with restorative and retributive justices. The consequences included beating and material penalties. However, he opines that, the system got changed with the coming of the British colonialism and Christianity.42 Of course the effects were both positive in entrenching modernity, but negative in eroding the traditional cultural codes.

It was in the erosion of the traditional cultural codes when continuity with the tradition mode of policing was lost. Instead, those who went to established British schools became British conformist (referred to as British loyal subordinates), meant to turn against their culture and their fellow people. The metaphorical profiling of the British conformists was ‘muthomi’ 43 (meaning, reader, elite or those who copied British mannerism). This was the first social-cultural rift between the elites and non-elites. Some of the Kenyans-black elites were recruited by the British as chiefs, teachers, clerks and police officers, serving as the local representatives of the British government.44 They had to impose the new codes by force, especially to those who were not willing to adhere to the British rule. So, the first victims of the British system and brutality are those who did not conform to the British culture, rulership and leadership.45 This implies that, from its inception, the colonial system was about establishing culture and taming those of distinct cultural and ideological views, not about upholding some of the local embedded virtues and ethos. To meet their goals, the British government entrenched policing and indirect-colonial rule46 as its style of governance. Kenya police became part of the brutal colonial history. I therefore find Fadiman arguments vital in tracing the historical elements of the Kenya police and culture of brutality.

Kenya novelist Ngugi wa Thiong’o (1989) traces the brutality of Kenya police to colonialism and colonial culture. Ngugi holds that the colonial rulership legalised a ‘culture of brutality’. This was a culture of the ruling class of fear, the culture of oppressing minority and the culture of imposing total silence on a restive oppressed majority. Within the colonial regime, this culture was sanctified in the colonial administration by creating an occupation called the internal security.47 This composed Provincial Commissioner (PC), District Commissioners (DC), District Officers (DO), Chiefs, and Administration police (AP)48. These offices offered little services to the local natives.49 All those served in the above offices dressed in police ‘semblance khaki attires and wore colonial lord’s hat, creating a culture of fear as representatives of the colonial regime. Bates argues that the British set up bureaucratic structures; local governments (provincial administration) and Administration Police between 1895-1915. These structures were meant to protect the British and to keep order between the locals and the British land owners.50

Per Ngugi, what the colonial government did to the native Kenyans was passed over to the Kenya independent government. Which indicated brutality and fear, and thwarting those holding different ideologies. Ngugi argues, “…. A colonial affair…. now we are independent…. that’s the difference…he says. A colonial affair in an independent country, eh? The British jailed an innocent Kenyatta. Thus, Kenyatta learnt to jail innocent Kenyans. Is that difference?”51 That is why the 2010 Kenya Constitution created devolved system of government and needed to eliminate the Provincial system of governance52 which was under the Ministry of the Internal Security.

However, those in leadership went ahead and retained the Provincial administration under the new constitution against the will of majority. They retained this office which is supervised by Cabinet Secretary in charge of the Interior and Coordination of National affairs (CS-Interior). They did this despite the fact PC, DC, DO and Chief ‘were relics of the oppressive colonial regime and under one-party rule system in Kenya’.53 Those in leadership amended the 2010 constitution to retain the above offices. They did this to ‘contain the citizens’ for their own interests, hence denying citizens their voices. This was witnessed during the 2017 elections, where provincial administration were accused of openly campaigning for the ruling regime.54 This shows bureaucratic measures still exist within the current system. It is within this framework; this study is done.

1.7. Related literature review

I consider some literature, and researches conducted by different authors nationally and internationally on the topic related to this study. I have been inspired by Thompson and Lee (2004), who defines police brutality as any instance in which a police officer uses unnecessary, excessive and arbitrary force to or while interacting with members of public while performing his or her duties. These brutalities take two forms; physical and non-physical. Physical includes actions such as killing someone and non-physical includes verbally abusing the public.55

I find the work of Gary (2003) relevant in this study. He writes on the police brutality as part of South African colonial history. Gary relates police brutality with the history of the apartheid. He argues that during apartheid regime, most people (majority blacks), and the poor living in the South African townships suffered more brutality from the hands of the police than the whites and the elites.56 I see Gary’s arguments relating to this study due to the historical and socio-economic perspectives in relation to the police brutality in Kenya.

A Kenyan scholar, Mutunga, W. M (1990), has covered areas such as; arrests by police officers, custody in the police stations, first court appearance and rights of bail.57 Being a Kenyan and having written within the Kenya context, his study is relevant because it highlights the real contextual cases of brutality.

Chtalu K. A. Bruce (2011) wrote a thesis on the challenges related to police reforms in Kenya: A survey of Nairobi county, Kenya. He focuses on the challenges of the police reforms in Kenya.58 His research on reforms is relevant to this study, whereby it helps in answering my research question, ‘why there is still visible police brutality in Kenya regardless of the reforms’?

1.8. Research outline

Chapter one -The introduction sets the research background, presents the problem and research question. Presents the method and methodology used to answer the research question.

Chapter two -Presents the context of study, which entails; the political, social and economic. Additionally, the chapter mentions the human rights in relation to the policing in Kenya.

Chapter three -Chapter gives the historical development of policing. The use and abuse by the colonial regime and consequent use and abuse under different independent regimes.

Chapter four -Chapter presents and analyses cases of police brutality.

Chapter five -Discusses police brutality in Kenya context, related to the historical, socio-cultural and structural challenge.

Chapter six -This is the conclusion chapter of the study.

Chapter 2

Political (electoral), and socio-economic context in Kenya

In this chapter, I define the context under study. The definition entails the political (electoral), and social economic context in Kenya. Additionally, I mention little regarding the human rights in relation to the policing in Kenya; regional and international human rights instrument. I present this chapter for the reader to understand the nature of Kenya elections, where the stakes of the race are always high because of the ‘winner takes it all’59 scope of Kenya politics.

2.1.Political (electoral) Context

Kenya electoral context has always experienced tensions and contestation since independence, due to the consolidation of power in the executive branch of leadership. The elections in Kenya have been marred with continuous high-levels of corruption, human rights violations and other forms of injustice. Then came the period of multi-party politics, which ushered ethnic-party politics, moving from individual to community perception of the winner takes it all. This distorted the meaning of democratisation, with numerous ethnically charged post-election’s violence.

The promulgation of the new constitution brought a period of a relative peaceful elections in March 2013. This was a milestone forward in Kenya’s transition from political crisis, electoral injustices and respect of the rule of law. However, in 2017 things went back to the old trend, where the elections were marred with mistrusts following the mysterious murder of the key information technology (IT) electoral official Christopher Chege Msando.60 After elections, there were claims of electoral malpractices, which led to its cancellation by the Supreme court on 1st September 2017.61 It is such mistrusts, lack of transparency and free-and-fair elections which led to boycotts and also triggers demonstrations from the opposing sides. The police were called to contain the crowds and police were more brutal to the opposition demonstrators, in favour of the government. Following, is the context of multi-party politics in Kenya.

2.1.1. Multi-party politics

To understand the Kenya political (electoral) tensions, it is important to look at the arc of history. Kenya attained it independence from the British in 1963. Immediately after independent, Kenya adopted a centralised Westminster model of government62. The model vested power to the president to hire and fire cabinet ministers, dissolve parliament, appoint members of the judiciary and command police. President Jomo Kenyatta abused this position to create an autocratic regime, using police and his ethnic majoritarianism. Two parties were formed, by those who were discontented by his approach, these are; Kenya People’s party (KPU) and Kenya African democratic Union (KADU). Throup and Hornsby (1998) argue, “from the beginning of multi-party politics in Kenya, ethnicity and question of land distribution proved to be more powerful than ideology in determining political loyalties.”63 President Jomo Kenyatta became intolerant to any differing voice or opinion, hence; banning KPU and KADU political parties, detaining opposition political leaders and assassinating them. Since then, until 1992, Kenya remained a de jure one-party state under KANU.

After Kenyatta death in 1979, his long serving vice-president Daniel Toroitich Arap Moi assumed the office. President Moi under KANU continued with progressive intolerance and oppressive policies. Under his leadership, there were; massive corruption, detention without trial, assassination, massive intimidation of media, denying freedom of speech, excessive use of police force and other human rights abuses.64 Within this kind of context; the International communities, law society of Kenya, the civil society, the clergies, nation Christian organisations, university students and labour movement came together and demanded change towards multi-party system.65 Through such demands and pressure, President Moi bowed and repealed Section 2 (A) of the constitution and permitted the registration of the political parties. It was since then Kenya became a pluralistic and multi-party democracy society. Despite the milestone, Kenya remained tied to the authoritarian, centralised and powerful president who abused the office at will.66

The second wave of the multi-party politics in 1992 just like that of 1960s bred to ethnic divisions and politics. This made President Moi to win easily for two terms in 1992 and 199767 consecutively against an ethnically divided opposition parties, even though he was accused of rigging. Within ethnic politics rivalry, Kenya democracy was founded which has remained to date. Tug-of-war between ethnic groups and an ethnic-contest with less political ideologies are visible examples witnessed in contemporary Kenya. Kenya democracy has revolved around ethnic-alliances and ethnic majoritarianism which a Kenyan political analyst Mutahi Ngunyi referred as tyranny of numbers.68 As I stated earlier, the winner takes it all perspective has become ethnically powerful, which is perpetuating violence. Regardless of change of political system, the ethnic factor has remained constant within the Kenya democracy. Amid these ethnically tensed political landscapes, police have found themselves in the middle, compromised in taking sides in favour of the government and violating the rule of law and constitution.69

2.2. Socio-economic context

Githongo (2008) argues that, “what we have in Kenya is a contradiction within the political elite that has led to a failed election fracturing the nation along historic faults of resources inequality.”70 The way resources have been distributed, remains a factor that makes elections competitive and leadership positions lucrative in Kenya. Per Kwatemba the main reasons for the tribalization of politics are competition and confrontation over how resources are distributed.71 Those seeking position exploit tribalism for their own self-serving ends. Despite Kenya being the largest economy in East Africa and experiencing periods of economic growth, wealth has not been distributed equally among ethnic groups. Though the nation has seen some slight changes through devolved funds, per the United Nations Development Programme (UNDP) Kenya is among the most unequal societies by income, gender, and regional distribution of resources.72

Some regions, like Northern, Coast, and Upper-Rift valley parts of Kenya have always remained marginalised from the days of colonialism and present regimes. The Kenya National Assembly Official Record (Hansard) (2001), records statement from a Member of Parliament saying that, “North Eastern region was under the emergency law even during colonial times. When other Kenyans were struggling with independence, we were not even sure whether we were part of other Kenyans (…) Successive regimes in the country have capitalised on this very unfortunate situation.”73 Most youths in these regions lack nation identity cards,74 a violation of their right to citizenship and a basic right of all Kenyans. Poverty is highest in these regions, which are mainly semi-arid and arid. The regions have therefore witnessed some elements of radicalization, especially among most unemployed youths from the Somalia Islamist militia (Al Shabaab).75 This has made even those innocents to be subjected to police brutality, being associated with the Al Shabaab activities.76

2.3. Human rights instruments and policing in Kenya

Context where elections campaigns are volatile, ethnically divided and always held under a winner takes it all, disputes and demonstrations are inevitable mainly from the losing sides. The police are called to be non-partisan and to act in compliance with the Kenya 2010 Constitution and various regional and international legal instruments. These legal instruments require human rights to be respected, protected, fulfilled and promoted by state as well as individuals. Police officers are the primary duty bearers, tasked with ensuring that human rights are not violated and equally bound to observe the rule of law in highly-charged electoral periods. From an International law of enforcement, police as law enforcement agents have the statutory right to use force, including deadly force in certain circumstances.77 However, their actions should not violate human rights. International laws and standards are clear, whereby they limit police power and show to what extent they can use force.

Where force has been used, the police must account for and incase of unlawful killings or arbitrary use of excessive force, under human rights violation the police officer involved must be held criminally accountable. But, based on various sources, Kenya police have been accused of their failure to comply with the 2010 Constitution and International laws when handling election related disputes, demonstrations and protests. Mostly, they side with the government side, rather than being a non-partisan body meant to keep laws and orders protecting the interests of all Kenya citizens.78

[...]


1 Thompson, B. & Lee, J. “Who Cares If Police Become Violent? Explaining Approval of Police Use of Force Using a National Sample.” (2004), Sociological Inquiry, Vol. 74(3), pp. 381 – 410.

2 Thompson, B. & Lee, J (2004).

3 Darlington, Manyara, “Police shoot, kill Meru University student leader as protests turn ugly” in Standard Digital (2018), https://www.standardmedia.co.ke/article/2001271379/police-shoot-kill-meru-university-student-leader-as-protests-turn-ugly.

4 Kenya Police Service, http://www.kenyapolice.go.ke/.

5 Mutunga, W. M, the Rights of an Arrested and Accused person, (1990), Oxford University Press: Nairobi

6 The Kenya police service strategic plan 2003-2007,

http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/draft_strategic_plan_2003-07.pdf.

7 Kagari. M and Thomas. S. (2006), The Police, the people, the politics: Police accountability in Kenya. Common Wealth Human Rights Initiative.

8 Mendes. P E, Zuckerberg. J, Lecorre. S, Gabriel. A. and Clark. A. J. (1999), Democratic, Policing and Accountability: Global Perspectives. Ashgate: Aldershot, Brookfield, Singapore, Sydney, pg1

9 Before Kenya became British colony, there were no distinctive styles of administration and policing among its communities. When the British came, they established an indirect rule system, but to create uniformity among these tribes, they borrowed an idea from West Africa, where they created an office of Chief (an office which was never existence in all Kenya communities) and policing from India and Britain. The chiefs were appointed by the British themselves and meant to serve the interests of the British in a tax collection and keeping laws and orders in the black villages. While in other parts of Kenya, mainly urban centers and British areas. The British had brought some Indian police, who worked in collaboration with the British officers to enforce law and order.

10 Caroline Elkins, (2005), Imperial Reckoning: The Untold story of Britain’s Gulag in Kenya. Henry Holt and Company: New York. Also, David Throup, “Crime, politics, and the police in colonial Kenya, 1939-63” in David M. Anderson, and David Killingray, Policing and decolonization: Nationalism, politics, and the police, 1917-65 (1992), Manchester University Press: Manchester, pp127-157.

11 Branch. D. (2011), Kenya: Between hope and despair, 1963-2011. London: Yale University Press.

12 Joe. K. (2011), The politics of betrayal: Diary of a Kenya legislator. USA, Canada: Trafford Publishing, pgxii

13 In Kenya, Wanjiku is an Kikuyu ethnic girls name. However, the name has been used in defining an average Kenya citizen within the socio-economic and political context. Wanjiku represents an ordinary citizen (mwananchi), who is on the oppressive end of Kenya politics, experiencing police brutality and a victim of political betrayal. Wanjiku is the one who the constitution should guard zealously.

14 Law of Kenya: National Police Acts, NO. 11A of 2011,

file:///C:/Users/User/Downloads/NationalPoliceServiceAct11Aof2011.pdf.

15 Human Rights Watch, “Kill those criminals: Security forces violations in Kenya’s August 2017 elections” (2017), https://www.hrw.org/report/2017/10/15/kill-those-criminals/security-forces-violations-kenyas-august-2017-elections.

16 Human Rights Watch (2017).

17 The International center for Transitional Justice, “the Kenya Commission of Inquiry into Post-Election violence” https://www.ictj.org/sites/default/files/ICTJ-Kenya-Dialogue-Inquiry-2008-English.pdf. Also, the Commission of Inquiry into the Post-Election Violence (CIPEV), known also as the Waki commission, documented widespread allegations of attacks, including killings and rapes committed by police especially in the opposition areas.

18 Kenya: Post-Election Killings, Abuse: Investigate Police Use of Excessive Force; Uphold Right to Peaceful Protest, in https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse.

19 Kenya: Police Killed, beat post-election protesters (2017), in https://www.amnesty.org/en/latest/news/2017/10/kenya-police-killed-beat-post-election-protesters/.

20 International Covenant on Civil and Political Rights and

21 Kenya Human Rights Defenders and Activists, “Stop the post-election crackdown on peaceful activits in Kenya”, Amnesty Internationa l (2017): https://www.amnesty.org/en/get-involved/take-action/stop-the-post-election-crackdown-on-peaceful-activists-in-kenya/?utm_source=FBPAGE-IS&utm_medium=social&utm_content=1056244168&utm_campaign=Testing.

22 This term is well known by every Kenya citizen. It is a phrase that is always used by the Kenya police, Cabinet secretary Internal security, and Kenya leadership. The term is mainly used to warn those of different opinion and silence the mass from taking any action, including demonstrations, picketing etc.

23 The Kenya constitution (2010): http://www.kttc.ac.ke/images/Constitution_of_Kenya.pdf.

24 Mendes, pg1

25 Mendes, pg34.

26 Washington Osiro, “The Impact of Politicization of Kenya’s security Agencies: Repeat Attacks, loss of lives and as shattered sense of normalcy”, in Huffpost https://www.huffingtonpost.com/washington-osiro/the-impact-of-politicizat_b_7772742.html .

27 I put appointing in quotes since based on the 2010 Kenya Constitution the president does not directly appoint Police Inspector General, rather, after parliament venting.

28 Mazrui, A. A, (1980). “Beyond dependency in the Black World: Five Strategies for Decolonization” in A.Y. Yansane (ed), Decolonization and Dependency: Problems of Development of African Societies, 84-97, Westport: Greenwood Press.

29 In this case I refer to the Gacaca Courts in Rwanda towards restorative justice in post genocide cases.

30Mbwa kali’ is a sign which initially was put in the white settlers’ gates and estates to thwart African from intruding or they will get the consequences of a ‘tough/fierce’ dog attack. After the independence, the signs still exist, but mainly in the estates of the rich, and famous to stop intruders, and ‘robbers’.

31 ‘Seri-kali’ is a Swahili word defining the ‘police and government’. Its origin is from the two words , ‘siri’ (secret), and ‘kali’ (top), in ‘siri-kali’ (top secret). Or from ‘seria’ (law), and ‘kali’ (top), in ‘seria-kali’ (tough law). The two terms connect elements of ‘brutalization’ to the public from the government and those who effect government policies. All viewed as one and the same.

32 Mendes, pg3.

33 Joe Khamisi, pp 69ff.

34 Jerome Lafargue (ed.). (2009). The General Elections in Kenya, 2007. Dar es Salam: Mkuki na Nyota Publishers Ltd.

35 Esther N. (2015). “Institutionalizing police reforms in Kenya: lessons from 2012-2015”, in SAFEWORLD preventing violent conflict, building safer lives. file:///C:/Users/User/Downloads/institutionalising-police-reforms-in-kenya.pdf.

36 ‘Non-partisan’ in this case means. Leader of the Kenya Police was changed from Police Commissioner to an Inspector General. Before reforms, a Commissioner was a direct appointee of the President. However, an Inspector General position goes through an applications process. Those qualified are vented by parliament and then three names are forwarded to the President. In addition, there was established a civilian oversight body called Independence Policing Oversight Authority (IPOA). Whose aims and goals among other, are to provide civilian oversight to policing.

37 Njuguna (2015).

38 Human Rights Watch (2017).

39 Alan Bryman. (2012). Social Research Methods (4th ed.). Oxford: Oxford University Press.

40 Bård. A, Sano. H, and Lankford. S. M. (2017). Research Methods in Human Rights: A Handbook. Cheltenham, Northampton: Edward Elgar Publishing.

41 Coomans. F, Brems. E, Grunfeld. F, and Kamminga, T. M. (2009). Methods of human rights research. Antwerp, Oxford, Portland: Intersentia.

42 Fadiman. J. (1993). When we began, there were witchmen. California: University of Californian Press, pg2

43 Nthamburi. J. Z. (1982). A history of the Methodist Church in Kenya. Nairobi: Uzima Press, pg63.

44 Anderson, D. (2006). Histories of the hanged: Britain’s dirty war in Kenya and the end of empire. London: Phoenix.

45 Fadiman, pp1ff.

46 Stated earlier, the British borrowed chief leadership ideology from West Africa and policing from India. No know ethnic group in Kenya which was ruled by a Chief. This was a British misconception that all African culture were the same and homogenous. Without understanding that different ethnic groups had diverse ways of pointing things and each ad their own character.

47 Wa Thiogo. N. (1989). Detained: A writer’s prison diary. Nairobi: Heinemann.

48 The Administration police was under different leadership and command from Kenya police until after the 2011 Police reforms.

49 The Provincial Administration were mainly to; ensure that faring was going well in British owned farms, see to it that Kenyan remained in their ‘African reserves’, Kenya carried I.D (kipande), ensured that tax was paid and ensured that Kenyans attended school etcetera., Berman, B and Lonsdale, J. (1992). Unhappy valley: Conflict in Kenya and Africa. Book two: Violence and ethnicity. Oxford, UK: James Currey.

50 Bates F. (2015). “British Rule in Kenya”, in Spring Post 2015, https://history.libraries.wsu.edu/spring2015/2015/01/19/british-rule-in-kenya/.

51 Wa Thiogo, pg4

52 The provincial system of governance entails the PC, DC, DO, and Chiefs.

53 Mwiria. K “it is right that chiefs will be retained under new devolved government’ in Standard Digital (2013), https://www.standardmedia.co.ke/article/2000074343/it-is-right-that-chiefs-will-be-retained-under-new-devolved-government.

54 Wainaina. N, “Blame game, complaints cloud Jubilee Campaigns”, in Standard Digital (2017), https://www.standardmedia.co.ke/article/2001242883/blame-game-complaints-cloud-jubilee-campaigns.

55 Thompson. B. and Lee. J. pp. 381 – 410.

56 Wainaina. N. “Blame game, complaints cloud Jubilee Campaigns”, in Standard Digital (2017), https://www.standardmedia.co.ke/article/2001242883/blame-game-complaints-cloud-jubilee-campaigns.

57 Mutunga, W. M. (1990). The Rights of an Arrested and Accused Person. Nairobi: Oxford University Press.

58 Chtalu. B. K. A. (2011). “The challenges related to police reforms in Kenya: A survey of Nairobi county, Kenya”,

59 European Union Election Observation Mission, “Final Report Republic of Kenya General Elections 2017” (2018), in https://eeas.europa.eu/sites/eeas/files/eu_eom_kenya_2017_final_report_0.pdf.

60 BBC, “Kenyan election official Chris Msando ‘tortured to death’” Africa news (2017) http://www.bbc.com/news/world-africa-40807425.

61 BBC, “Kenya presidential Elections cancelled by Supreme Court” Africa news, (2017) http://www.bbc.com/news/world-africa-41123329.

62 Widner. A. J. (1992). the Rise of a Party-State in Kenya: From Harambee! To Nyayo, Nairobi: University of California Press.

63 Throup. D. and Hornsby. C. (1989). Multi-party politics in Kenya, Nairobi: East African Educational Publishers. pg9.

64 Mueller, S. (2008). The Political economy of Kenya’s crisis. Journal of Eastern African studies, 2 (2), 185-210.

65 Throup, pp54ff, and Appleby. R. S, (2000), The ambivalence of the sacred: Religion violence and reconciliation. Oxford: Rowman and Littlefield Publishers Inc.

66 Throup, pg92.

67 Branch (2011).

68 Amukowa, A. and Atancha, J.O, (2013). “The Tyranny of numbers and ethnic political patronage in Kenya: Lessons from the United States of America’s electoral college system.” The International Journal of social sciences. 28th March 2012, Vol.9 No. 1, ISSN 2305-4557.

69 Jina Moore, “Political Clashes in Kenya leave several dead”, in the New York times (2017), https://www.nytimes.com/2017/11/17/world/africa/kenya-police-raila-odinga.html.

70 Githongo, J. (2008). Kenya-Riding the tiger. Journal of Eastern African studies, 2(2), 359-367, pg363.

71 Shilaho Western Kwatemba, “Ethnicity and political pluralism in Kenya” in University of Witwatersrand, Johannesburg (2008), https://www.eisa.org.za/pdf/JAE7.2Kwatemba.pdf.

72 Victor Juma, “Kenya ranked among most unequal societies”, in Business Daily Africa (2010), https://www.businessdailyafrica.com/corporate/Kenya-ranked-among-most-unequal-societies/539550-1047230-i34iilz/index.html.

73 Kenya National Assembly Official Records (Hansard) (2001), pg.2990

74 Kenya National Commission on Human Rights (KNCHR), “An Identity crisis? A study on the issuance of National Identity Cards in Kenya”, in KNCHR Report (2007),

http://www.knchr.org/Portals/0/EcosocReports/KNCHR%20Final%20IDs%20Report.pdf.

75 Al Shabaab, which means in Arab ‘the youth’ is a jihadist fundamentalist group based in East Africa (base in Somalia) which has been designated as a terror organisation.

76 Masheti Masinjila, “Youth Radicalization in Kenya or Unemployment Crisis” in Collaborative Center for Gender and Development (CCGD),

file:///C:/Users/User/Downloads/Youth_Radicalization_in_Kenya_or_Unemplo.pdf.

77 United Nations High Commissioner for Human Rights Centre for human rights, “International Human Rights Standards for Law Enforcements” in http://www.ohchr.org/Documents/Publications/training5Add1en.pdf.

78 Kimani. N. and Peter W. W. (2015). Kenya’s 2013 General Election: Stakes, Practices and Outcomes, Nairobi: Twaweza Communications Ltd. pg. 179.

Details

Pages
75
Year
2019
ISBN (eBook)
9783668970298
ISBN (Book)
9783668970304
Language
English
Catalog Number
v492590
Grade
Tags
police kenya

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Title: Police brutality in Kenya during the election period