This article is part of Right to Protest, a partnership project with human rights organisations CELS and INCLO, with support from the ACLU, examining the power of protest and its fundamental role in democratic society.
The Kenyan police force has a history of repressive response to peaceful protests, with interventions by police characterised by death, indiscriminate use of force, serious injury, abuse of firearms, unlawful arrests and detention under the pretext of maintaining law and order. These repressive responses came under sharp focus following the violence that ensued after the announcement of the presidential election results in 2007; a commission of inquiry established to investigate the violence found that police management of the demonstrations was ‘inconsistent in its basic legal provisions, jeopardised the lives of citizens and was in many cases characterised by grossly unjustified use of deadly force.’ (A total of 405 people died of gunshot wounds, while 557 suffered gunshot injuries.)
Ten years on, the Kenyan police seem to have learnt nothing, as is evident from their response to peaceful demonstrations organised by citizens, civil society and political parties in 2016 and 2017. The case studies below illustrate how the Kenyan police continue to undermine fundamental human rights and freedoms while failing to investigate a range of abuses that have been a direct result of repressive policing of public protests.
Police violence and repression of protest
1. Anti IEBC demonstrations
The Coalition for Reform and Democracy’s leaders and supporters campaigned to have the Independent Electoral and Boundaries Commission (IEBC) disbanded, and peaceful demonstrations were organised in different counties in Kenya from 25 April to 6 June 2017. This was after one of the daily newspapers reported that some officials from the commission had allegedly received bribes running into millions of shillings during the procurement of electoral materials.
Most of the protests began peacefully and in all instances turned violent only after police armed with anti-riot gear, live ammunition, water cannons and tear gas forcefully dispersed demonstrators. The force used by police officers saw many protestors’ sustain serious injuries; some died from gunshot wounds. Some protestors were also unlawfully arrested by police and charged with taking part in an illegal assembly in Nairobi. These protestors were later released on bond of Ksh 100,000 (1,000 USD).
According to a report by the Independent Policing Oversight Authority, 24 protestors in Kisumu County sustained gunshot injuries, while four women sustained gunshot injuries in Homa Bay County. These indiscriminate attacks by the police saw innocent bystanders and people in their homes shot at as police engaged protestors in running battles. A young boy, Jeremy Otieno Onyango, aged six, was shot in the back while playing on the balcony of his house in Kasule-Manyatta Estate. In another incident, a one-year old-was critically injured after a tear gas canister was lobbed into their house in Migosi Estate in Kisumu.
In Nairobi, opposition supporters clashed with police as they marched towards the IEBC head office at Anniversary Towers in an attempt to force the commissioners out of office. As the protestors approached the gates, police fired tear gas into the crowd, thus forcing protestors to run for safety, with some sustaining serious injuries after being run over by other protestors. In Kisii County, police fired several times in the air and engaged the demonstrators in running battles. This happened barely minutes after the protestors had been addressed by their leaders at the county government headquarters.
2. Protests by civil society organisations
Civil society organisations and human rights defenders have borne the brunt of repressive policing practices during their peaceful protests against systemic human rights violations and corruption. Since independence in 1963, successive regimes, including the current Jubilee administration, have been bedeviled with serious allegations of embezzlement of public funds.
In 2016, a series of scandals within the Jubilee administration caused public uproar after it was disclosed that billions of shillings had allegedly been looted by public officers or lost in botched procurement deals. On 3 November 2017, a peaceful demonstration by the Kenya Human Rights Commission and other civil society organisations to express public indignation about government corruption was viciously scuttled by the police before it had properly started. Dressed in red T-shirts and chanting anti-corruption slogans, the protesters were in Uhuru Park preparing to embark on a procession to Harambee House. However, before they had even left, police surrounded all entrances to the park and used live bullets and tear gas to disperse protestors. At least 13 protesters were unlawfully arrested, while others were severely beaten up as they fled.
One of the protestors stated that some police officers had disguised themselves as protestors to feed colleagues with intelligence on what the protestors were planning prior to leaving the park. Journalists and human rights defenders who have reported or documented violations during protests such as this are subjected to harassment, intimidation or prosecution by the police.
3. 2017 post-election violence
A general election was held in Kenya on 8 August 2017, with millions of Kenyans bracing the long queues to cast their votes. Three days later, the electoral results were announced with the Independent Electoral and Boundaries Commission declaring the incumbent, Uhuru Kenya, as the president elect.
Opposition supporters from the National Super Alliance (NASA) in Mombasa, Kisumu, Siaya, Migori, Homa Bay and Nairobi took to the streets soon after, chanting “Uhuru must go”, following allegations that the vote was rigged. The police, armed with anti-riot gear and live ammunition, dispersed the protest by firing tear gas and water canisters. Protestors responded by throwing stones at the police, blocking roads and burning tyres.
On 11 and 12 August 2017, police carried out door-to-door operations, beating up or shooting men found in their houses in Kisumu. Where the police were unable to break in they threw tear gas canisters into houses, forcing occupants out, severely beating them and then arresting them on trumped-up charges, whether or not they had taken part in the demonstrations. At least ten people, including a six-month-old baby, were killed. The baby reportedly died from severe head injuries after police violently broke into the house and subjected all its occupants to beatings with gun butts and batons.
According to an Amnesty International and Human Rights Watch report, police also clashed with protestors in Nairobi on 12 and 13 August 2017. In Kawangware, Mathare, Babadogo, Kibera and Dandora police actively confronted protesters, breaking up gatherings with tear gas, pepper spray from water cannons, truncheons and live ammunition – sometimes firing into the air but also directly aiming at individuals, and firing randomly into crowds and residential areas. At least 23 people were allegedly shot dead by police, three were beaten to death, three died of asphyxiation from tear gas and pepper spray and two were trampled to death.
A report released by the Independent Medical Legal Unit in November 2017 recorded 23 deaths following the August presidential elections. Post-mortems on 12 of the victims raised a clear case for an independent inquiry on lethal force by police. In two cases, police had noted on the P23 forms that they were shooting to protest themselves from attackers with machetes; yet the supposed attackers were shot in the back.
The police response: a complete lack of accountability
The above case studies indicate that police used excessive force and brutality, including on women and vulnerable people such as children and people with disabilities. They also subjected protestors to arbitrary arrests and unlawful detention. This repressive response is now normalised and seems to be the accepted state practice on how to manage and police peaceful protests in Kenya.
However, despite multiple reports by civil society organisations and the media, the national police service in Kenya has never acknowledged or taken responsibility for any deaths by its officers. Protestors have, instead, been warned of further serious consequences, while damning reports by civil society organisations have been dismissed. The police have further denied the use of excessive force during the anti-IEBC demonstrations, and no officer has been held to account for the blatant violation of fundamental rights and freedoms.
A recent report released by World Internal Security and Police Index ranked Kenya’s police service as the third worst in the world. This is an indictment on the entire national police service; the general public no longer has faith in their ability to maintain law and order, despite numerous efforts made towards reforms. Kenyans continue to suffer numerous human rights violations as a result of ruthless techniques employed by the police to disperse protestors. Less than a week after the report was released, it was business as usual for the Kenyan police, as they violently dispersed opposition supporters as they welcomed back leader of the opposition Raila Odinga from a trip to the United States. News feeds from various media houses reported multiple deaths after the police used live bullets, tear gas and water canisters to disperse protestors.
How do we address gross human rights violations in Kenya?
The right to freedom of expression and assembly are widely considered as cornerstones of any democratic society. These rights, enshrined under Articles 33 and 37 of the constitution of Kenya and a number of international legal instruments, have enabled citizens to publicly and legally express their grievances against the state, demand for change and hold the government to account. The role of the police is to provide security and maintain law and order, while ensuring that this is done with due regard to human rights and other fundamental freedoms.
The national police service in Kenya is mandated to comply with constitutional standards of human rights and fundamental freedoms. It is also guided by the provisions enshrined in the Public Order Management Act, which requires organisers of public protests to notify the police between 3–14 days in advance.
Despite these constitutional and legal provisions, it is evident that law enforcement agencies in Kenya are determined to limit fundamental rights and freedoms at any cost. This repressive practice is not only a claw back on constitutional gains but also a breach of international law. While the acting interior cabinet secretary issued a ban on peaceful demonstrations by opposition supporters in the run up to the 26 October repeat presidential election, the High Court issued temporary orders that prevented the police from unlawfully arresting demonstrators, a clear demonstration and commitment by Kenyan courts to uphold fundamental human rights and freedoms.
Similarly, people taking advantage of peaceful protests to commit criminal acts and other human rights violations should be held to account through courts of law. Police officers who have been implicated in human rights violations when dealing with public protests should be held to account. This should include both civil and criminal liability at individual level and command responsibility level. In the same vain, the National Police Service Commission should institute disciplinary action against police officers implicated in committing human rights violations in the cause of policing peaceful public demonstrations.
More importantly, the police should train all officers on public order management and the use of force as envisioned in the sixth schedule of the National Police Service Act. This would go a long way in ensuring that they are able to police protests in a manner that meets internationally accepted standards. A clear chain of command should be established by the police force to deal with situations of crowd control and management. The provision of medical services should be strictly enforced as is provided for in the sixth schedule of the National Police Act.
Repressive policing of peaceful protest by Kenya’s police has led to systemic human rights violations; the police remain a grave threat to the human rights of freedom of expression and assembly. The use of often-lethal crowd-control weapons and unlawful use of firearms is now normalised and seem to be the accepted way of dealing with crowd control and management. This has not stopped organisers from convening peaceful demonstrations to express their dissatisfaction with critical issues of national and public importance. But peaceful protestors continue to pay the ultimate price in their quest to freely exercise their constitutional rights.