Mungiki Violence or Police Extra-judicial Killings?

The Choice of the Rule of Law Would you rather die gangster-style or through police bullet style? It seems like these are the choices facing Kenyans. This between-a-wall-and-a-hard-place dilemma is clearly epitomised in the Mt. Elgon situation. The people underwent brutality under the Sabaot Land Defence Force (SLDF) for a considerable period when the government was largely inactive. When the military-police operation was finally launched, complaints of torture and extra-judicial killings became the order of the day. The government seems to have taken a problematic stance: either you have security or you have human rights. This is the similar position that Bush had taken by resorting to torture in Guatanamo Bay to fight terrorists. Happily, President Obama (the Kenyan) has begun taking measures to reverse this false choice between our safety and our ideals by an executive order to close the Guatanamo Bay facility. When the government resorts to extra-judicial killings in a shoot to kill policy, it means that the judiciary is rendered irrelevant and redundant judges might as well stop the pretence and go home. Effectively, the police become the legislator, the prosecutor, the judge and the executor law unto themselves. If you do not know what a police state is, this is exactly it. Do not get me wrong, I am not saying that I have no issues with the judiciary. On the contrary and far from it, like many Kenyans I have little faith in a judiciary that it metes justice in proportion to the size of the pocket rather than according to its merits. The Right to Life and the Use of Force What is the position of the law regarding the taking of life? The Constitution guarantees the right to life of everyone under the jurisdiction of Kenya. Section 71 (1) states that: No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted. What this means is that, in Kenya, death penalty is permissible under the law. There are four crimes that attract this penalty viz. treason under section 40 of the penal code by for example imagining the death or maiming of the president, murder under sections 204, robbery with violence under section 296 (2) and attempted robbery with violence under section 297 (2). Although the courts continue to hand down the death penalty in respect of these crimes, there has been a de facto moratorium and no-one has been hanged since 1987 when the failed 1982 coup leaders including Hezekiah Oyugi were executed. It is important to note that increasingly, the death penalty is seen as a violation of the right to life as well as the right to be free of torture or inhuman and degrading treatment or punishment. Whether the Court of Appeal will hold that the death penalty is unconstitutional as sought by a convict, Godfrey Ngotho Mutiso, remains to be seen. Although there has been talk about abolition, the death sentence is still legal and Kenya is yet to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on abolition of the death penalty. In fact, it seems Kenya is hell bound to go against the tread of abolition of the death penalty if the proposal to amend

the Firearms Act to provide for death penalty for possession of firearms is anything to go by. Under the law as applicable in Kenya, apart from death penalty as prescribed by a court of law, there are five other circumstances where the life of a person can be legally taken away include which included use of force incidental to:

Defence of any person from violence or for the defence of property Effecting a lawful arrest Preventing escape of a person lawfully detained Preventing the commission of a criminal offence An lawful act of war

The important qualification is that when such deprivation of life is legal only as the result of the use of force to an extent as is reasonably justifiable in the circumstances. Legally, this means that use of force has to be in pursuit of a legitimate or legally sanctioned objective and secondly it has to be proportionate to that objective hence any excessive use of force is criminal. The onus is on the killer to justify that the use of deadly force was necessary as captured by the Kenya Police Manual: A policeman may have to use his firearm if he cannot by any other means which are available to him carry out his duty of protecting life, suppressing rioters or effecting the arrests, or preventing the rescue of escapees described above, but however well justified a police officer may consider himself to be in resorting to the use of a firearm, the act, whether or not it results in loss of life or injury, will become the subject of legal investigation. He must, therefore, be prepared to prove that he acted with humanity, caution and prudence, and that he was compelled by necessity alone to have recourse to firearms.1 (Emphasis mine) For taking any of any life to be legal this high threshold is required otherwise use of disproportionate force or for unjustifiable situations that results in death of a person becomes murder or manslaughter (where there is immediate provocation). Further, it important to note that in regard to use of deadly force, our Constitution falls short of international standards in the sense that it allows killings in situation other than the gravest circumstances and it is noteworthy that United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that: Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.2

The upshot of the above is that it is illegal for, among others, the police to shoot persons who are fleeing, or shoot innocent people in pursuit of gangsters at all costs; to pump countless bullets on criminals; shooting of persons suspected of committing minor crimes, and to fire live bullets at demonstrating public. It is hoped that the constitutional reform process that is underway will provide an opportunity to bring the law to be in tandem with international standards. Lynching witches and thieves- part of culture of impunity There are many facets to the culture of impunity. Unfortunately and to as evidence of double standards of many of us, we only recognise some aspects of impunity and even then only in relation to others. For example, Mungiki can only see the extra-judicial killings while the state can only see the beheadings. The matatu personnel can only feel the Mungiki harassment and extortion but when they express their frustrations on wathee they do not see it as part of the impunity. While citizens participate in mob justice they can only see the evil of thieves and not the impunity in the blows and tires they put on suspects such crimes some of whom may be innocent. Unless we break this vicious cycle of impunity we shall never really address the serious underlying problem. It is as if the Kenya society is schizophrenic. At one time, we applaud trigger-happy policemen who execute criminals and another time we lament killings of innocent people by the same police. When neighbours have suspicious lifestyles and other neighbours experiencing hardships points finger- the next day headlines: six witches killed in Pokot (and of course in Kisii where this is notorious). Some people support the shoot to kill policy as the solution to gang violence. This is misguided as you cannot support extra-judicial killings by the police and fail to support mungiki beheadings the logic is one. Much as the lynchings are deplorable and are criminal, it must be emphasised that when the state engages in extra-judicial killings, this later acts are much more deplorable as reflected by Alston, the UN Special Rapporteur on extrajudicial, arbitrary or summary executions, in his preliminary findings when he said: But a democratic Government operating under the rule of law does not respond to terror with more terror. Surely we have moved beyond the point where it needs to be stated that the proper response to criminality is not to shoot a suspect in the back of the head and dump the body in a forest, but to investigate, arrest, and try the suspect in accordance with law. It is therefore important to note that condemnation of extra-judicial killings by the police does not translate into support of criminal activities. Neither does it mean blind faith that the judiciary will perform it role as it should. The implications of advocating for the rule of law and fair trial under a competent, impartial and independent judiciary, that even member of parliament of Kenya do not trust to do justice as seem by their rejection of a local tribunal to try perpetrators of post-election violence, is that serious institutional and cultural reforms are implied.

Rule of Law The rule of law demands that it is only the court of law that is to determine whether or not a person is or is not guilty of a crime and it is to do so applying a high threshold of beyond a reasonable doubt. Further, there are procedural safeguards to protect the rights of accused persons in the course of the trial process. It may seem that the law leans in favour of criminals but we must never loose sight of three fundamental principles. Firstly, everyone has a right to be presumed innocent until proved guilty which means that the treatment of accused persons should reflect this crucial principle. Deviation from this standard, as seen by extra-judicial killings and mob justice will mean that injustice could be meted on innocent people either deliberately or inadvertently. Secondly, the beyond-reasonable-doubt criterion, although not full proof, is premised on that principle that it is safer to release a guilty person than to punish an innocent person. Any system with a different standard would result in miscarriage of justice by punishing those who are innocent and nothing could be more revolting than this. Thirdly, even those who are guilty are entitled to treatment that is consistent with intrinsic dignity of the human being hence for instance torture and inhuman treatment should never be used to extract information to secure conviction. The State is Guilty of Several Counts On the question of extra-judicial killings, the state is guilty in several respects both for acts of commission and omission. When the state is directly active through issuance of shoot to kill orders and for maintaining of police death squads, it is guilty. When no attempts are made to hold to account the police who engage in arbitrary executions of suspects, this is violation of the law. When the state condones or fails to provide security to its citizen, it is guilty of abdicating on one of its core mandate by which it justifies its existence. When the state condones mob lynchings, as it often does, it is guilty of failing to uphold the rule of law. When the state institutions of administration of justice are so subverted that there is virtually no public trust, it is another aspect of the states guilt. When criminals (big and small) are let loose and the innocent jailed, the state is guilty. What is to be done? As we come to terms with the reality of point blank assassinations of human rights defenders Oscar Kamau and Paul Oulu GPO, we must remember that this is a country in need of radical surgery. The culture of impunity is too entrenched and the solution is not easy. We must arrest this culture of impunity or the country will disintegrate. In the present Kenya it is as if there are no laws in relation to violence and the right to life. Either people have a government or they dont. Either there is rule of law or the rule of the jungle. These are the choices. Kenya belongs to us all. We may send top perpetrators of post-election violence to the Hague but we cannot all take flight from Kenya. We may choose to shift blames like the Gicherus, the Karuas, the Wakos and the Ringeras are doing or we might, like the Principals, even bury our heads in the sand like the proverbial ostrich and pretend all is well. Suffice to say, short of a total overhaul of the whole administration of justice system from the police force to the judiciary and to the prison system, everything else will just be a palliative. There is however a crucial caveat here for everyone, unless we all

resolve to ditch the culture of impunity as exemplified by our electing ethnic crooks, and stop our participation in mob lynchings and ethnic fights, we can as well forget any solutions. Yes We Can reject the false choice of Mungiki violence, police extra-judicial killings and mob lynchings in favour of the Rule of Law! Githii Mweru Advocate & Programme Coordinator

Chapter 11 Use of Force and Firearms, Kenya Police Manual 1980. This reflects section 28 of the Police Act (Cap 84) 2 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials .Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990