The failure of Kenyan authorities to address accountability for past abuses by police heightens the risk of police abuse around the August 9, 2022, general elections, Human Rights Watch said today. Kenya has a history of election-related violence including excessive, unlawful use of force by police, with few, if any, police officers held to account.
Victims' families, activists, government officials, and police officers, have expressed concerns about possible violence if the August 9 presidential election results are disputed. In the aftermath of the 2017 elections, Human Rights Watch and other Kenyan and international human rights organizations documented killings by police and armed gangs, of 104 people, most of the victims being supporters of the then main opposition party, the National Super Alliance (NASA). With just seven days to another general election, Kenyan authorities have yet to take steps to ensure justice for police abuses that characterized the 2017 general elections, or to credibly investigate allegations that police are involved in recent extrajudicial killings.
"The failure to tackle police abuse in previous Kenyan elections risks emboldening them to continue their misconduct around this year's general election," said Otsieno Namwaya, East Africa director at Human Rights Watch. "Kenya's government needs to enforce police accountability, including by restarting stalled police reform, and ending political interference of the police to end this worrying trend."
Between April and June 2022, Human Rights Watch interviewed 26 people, including 15 activists involved in police reform work, 3 police officers, including a deputy commissioner in charge of operations, 1 current and 2 former employees of the Independent Policing Oversight Authority (IPOA), a state-funded civilian police accountability institution, 4 journalists who report on police issues, and a middle level state officer at the national Ministry of Interior and Coordination.
Some of those interviewed attributed the problem of police abuse, including excessive and unlawful use of force as a crowd control tactic during election periods, to the long-standing culture of impunity for police abuses. Activists and others said that the failure of the Oversight Authority to carry out its work, especially in recent years, has been a major problem, and that political interference has weakened efforts to prosecute police abuses.
Human Rights Watch found that addressing the lack of accountability for police abuses has been hampered by political interference in police work, investigative failures by the oversight authority, a lack of police cooperation in investigating abuses by police, a lack of political will to end the abuses and ensure accountability, and stalled police reforms.
Another problem is the lack of budgetary independence of the police service and the Oversight Authority, which government officials have leveraged to undermine the independence of the two institutions. Kenyan authorities have also undermined the quest for accountability by their actions, including stopping the police vetting process in 2014, reinstating vetted officers earlier sacked for their role in abusive practices, and weakening laws enacted over the past decade that aimed to enhance police accountability.
The majority of those interviewed said they were worried that police will respond abusively to violence or public protests around any election results' disputes after the August voting. Several activists expressed concerns that the elections come at a time when the country is experiencing ongoing extrajudicial killings and disappearances, including those with alleged police involvement. In its annual report in April 2022, Missing Voices, a coalition of 15 civil society organizations including Human Rights Watch, documented 219 incidents in 2021 alone; 187 killings by police and 32 enforced disappearances.
Kenyan and international human rights groups, including Human Rights Watch, have documented excessive use of force by police, including execution of suspects and innocent bystanders between 2018 and 2020. Even though the identities of some individual officers implicated in the killings are known, Kenyan authorities have done little to end these killings. Kenyan authorities have also failed to investigate reports of threats by police against activists calling for accountability.
Current and former employees of the Oversight Authority said that police and other government officials frustrated the authority's efforts to investigate and prosecute officers implicated in the 2017 killings.
One former official said that, despite repeated written requests and a court order during an inquest into one of the killings, the police have declined to release the operational orders that were crucial to the authority's ability to identify the officers who did the killing. The current and former officials said that police and other senior government officials intimidated witnesses, shielded errant officers from justice, refused to abide by legal requirements to inform the Oversight Authority whenever a death occurred, and blocked officers from testifying against other officers. One said that allowing police to operate without name tags makes it difficult for victims and witnesses to identify abusers.
Allowing police officers to block investigations into serious abuses not only undermines justice for the victims, but also negatively impacts police credibility, Human Rights Watch said.
Kenyan activists, including Diana Gichengo of Amnesty International Kenya, attribute the persistence of police abuses and continued lack of accountability to, among other things, stalled police reforms, which had been strongly recommended by various government commissions.
The Commission of Inquiry into the post-election violence of 2007 found that police had raped, looted, and killed at least 405 people, among other abuses, and recommended police reforms to address systemic failures and partisanship within the police as well as some level of civilian oversight.
On May 7, Dominic Kisavi, a deputy police commissioner in charge of operations, told Human Rights Watch that police are not required to provide the information to the Oversight Authority and that the lack of accountability for the 2017 post-election abuses resulted from a lack of a clear command structure among the officers who had been deployed to quell the riots and not from a lack of cooperation by senior officers.
"We have now decided that the formalized units like the General Service Unit will only be deployed when necessary, and they will strictly work under the ground commander when they get deployed," Kisavi said referring to the killings in Kisumu and Nairobi that have largely been blamed on the GSU, who were receiving instructions from Nairobi rather than the ground commander. He said the problems with law enforcement operations in 2017 elections are being addressed as part of preparation for the 2022 election. Further, he said that complying with Oversight Authority requests would depend on whether doing so would compromise operations or undermine national security, a position inconsistent with Kenya's 2011 National Police Service Act, which requires police to cooperate with the authority.
Kenyan authorities should ensure that all police abuses, in the 2017 and earlier elections and more generally, are thoroughly and credibly investigated, and all the officers found culpable, including for obstructing justice and investigations into police abuse, are held to account in accordance with national law, Human Rights Watch said.
Under the National Police Service Act, lethal force is only justified when strictly unavoidable to protect life, in line with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The Police Service Act also requires police officers who use lethal fire to report to their immediate superior, explaining the circumstances that necessitated the use of force.
Kenyan security forces should abide by all aspects of the UN basic principles, which stipulate that law enforcement officials should use nonviolent means, use firearms only in extreme cases that involve an imminent threat of death and serious injury, and only when other less extreme methods are insufficient. The basic principles also require governments to ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offense.
On June 28, a Human Rights Watch team, led by Executive Director Kenneth Roth, met with William Ruto, incumbent deputy president and a 2022 presidential candidate, and Martha Karua, the running mate of Raila Odinga, another presidential candidate. Both promised to resolve any disputes that may arise out of the upcoming elections through the courts and pledged to continue to discourage their supporters from engaging in violence.
"Kenyan authorities need to do more to preserve the independence of the police and investigative bodies, and ensure that law enforcement operations, elections related or otherwise, are guided by national and international law," Namwaya said. "An accountable police service that upholds the law and protects the public from violence is in Kenya's interest."
For additional details and findings, please see below.
Background
In the August 9 general election, Kenyans will vote for members of county assemblies, county governors, members of the national assembly and senate, and the successor to President Uhuru Kenyatta, who has completed his two five-year terms allowed under the constitution. While the campaign period has been peaceful, there are concerns over possible violence if the presidential vote is disputed.
Kenyan police have for decades been implicated in serious human rights abuses, especially around elections, including in 2007 and 2017. The authorities have rarely investigated these abuses. Between 2007 and 2010, several government commissions made far-reaching recommendations to address abusive police conduct and lack of accountability, particularly around elections, but they were subsequently weakened or never carried out.
The 2008 report of the Commission of Inquiry into 2007-2008 Post Election Violence found that police had unlawfully killed 405 people, including children. The report implicated police in rape, murder, and looting, among other abuses. It recommended constitutional and institutional reforms to address systemic failures and police partisanship, as well as some level of civilian oversight.
The February 2009 report of the United Nations special rapporteur on extrajudicial summary executions concluded that there was a climate of impunity, corruption, and disregard for human rights among the police. The rapporteur found that police operated death squads that routinely kidnapped and murdered suspected criminals and dumped their bodies. The rapporteur recommended legal, institutional, and constitutional reform; removal of the police commissioner; and vetting of the other police officers implicated in human rights abuses.
In May 2009, a report by the Kenya National Task Force on Police Reforms, headed by Justice Philip Ransley, found that Kenyan police were brutal, oppressive, extortionate, abusive, ineffective, and corrupt. Justice Ransley recommended legal, policy and constitutional, and structural reforms to make police more independent from political interference, and accountable.
Based on these findings, and the views of the Constitution of Kenya Review Commission, which completed its work in 2001, the 2010 Kenyan Constitution included provisions aimed at reforming the police to ensure accountability and independence. In 2011, to carry out the recommendations, Kenyan authorities introduced new laws and created new institutions including the Oversight Authority; the National Police Service Commission, responsible for recommending senior police officials for appointment; and a restructured police service that included an Internal Affairs Unit to deal with internal police complaints.
In the decade since, these reforms have yet to lead to desired changes in police abuses and the culture of impunity. Between August 2017 and February 2018, Human Rights Watch documented the killing of 104 people by police and pro-government armed gangs, including 6-month-old Samantha Pendo in Kisumu, western Kenya, and 9-year-old Stephanie Moraa Gesamba in Nairobi. In November 2017, the director of public prosecutions ordered a public inquest into the killing of the two children.
Although the inquest found police responsible for the deaths, it failed to identify the officer who beat Pendo to death and the officer who shot Moraa. Police failed to comply with court orders to produce operational orders and the register of the movement of arms and ammunition that might have helped identify the officers.
Six Kenyan activists told Human Rights Watch that they do not believe recent police pledges for rights-respecting responses to any violence during or after August elections. They said that the authorities need to restart the stalled police reforms to enhance independence of the police and remove officers implicated in human rights abuses, including use of excessive force during elections.
Attempts to Undermine Reforms
Between 2013 and 2016, instead of taking steps to carry out police reforms, the authorities introduced legal amendments that largely weakened police accountability institutions created under the 2010 Constitution.
In 2014, the government passed laws that expanded the role of the president in appointing members of the Oversight Commission and the National Police Service Commission, undermining their independence. The authorities also threatened to cut the Oversight Commission's budget to discourage it from investigating politically sensitive allegations of police abuse. Authorities also introduced amendments in 2014 that compromised the independence of the Inspector General of Police, allowing the president to have the final say on the appointment of the inspector general, instead of the earlier requirement for the National Police Service Commission to recruit competitively and only submit the name of the final candidate to the president for appointment.
The 2014 amendments to the National Police Service Act undermined police independence. Activists said the amendments allow the executive branch of government to issue illegal orders from Nairobi that police are forced to carry out, especially around elections. A member of the Police Reforms Working Group, a consortium of Kenyan civil society groups advocating comprehensive police reforms, said that despite all efforts to reform the police, their lack of financial independence to act and make decisions without political interference has become more acute.
"The police budget is controlled by the Ministry of Interior," the person said. He continued:
"The IG [Inspector General] is taking orders from the president. Police commanders in the counties are taking orders from regional and county commissioners, who are officers in the Ministry of Interior. This is very deliberate and undermines the original purpose of reforms."
Stalled Police Vetting
The vetting process, established in the National Police Service Act, 2011, was important to identify and remove officers implicated in serious human rights abuses, including for the use of excessive force.
By early 2014, a vetting panel set up in 2012 by the National Police Service Commission had found 20 out of the 200 vetted officers, mostly top police commanders, unfit to serve, but Kenyan media suggested the number could have been as high as 300 officers. In 2014, the government then suspended vetting for the then 78,000-member police force indefinitely. It has not been restarted since.
Gichengo, of Amnesty International Kenya, said the vetting was also aimed at removing those who had failed in their command responsibilities and those implicated in corruption. Kenyan activists say that suspending the vetting process emboldened police officers previously implicated in abuses and further entrenched the culture of impunity that the reforms meant to address.
Members of the Police Reforms Working Group said that the authorities have not only failed to restart the vetting process but have since reinstated nearly all the 20 officers the vetting panel found unsuitable to serve. One activist said:
"It sends the wrong message when all the officers who had been implicated in human rights abuses and sacked after vetting, are suddenly brought back to employment at even more senior positions."
An activist involved in police reform work for close to two decades said it was a major blow to the fight for accountability within the police service. A third activist said that it is difficult to believe that police will not use lethal force at protests during or after the August election, or that if there are killings by the police, those implicated will be held to account.
Police Use of Lethal Force
Nearly all of those interviewed, including the former and current Oversight Authority employees, expressed concern at the rise in extrajudicial killings by police and the inability of the authorities to ensure accountability. A journalist who has been reporting on police issues for two decades said:
"It is no longer an issue of a few rogue officers. The killings are now happening across the county by many different officers. It is becoming the norm."
A former journalist, now an activist, who has worked for five years on police reforms said there is an unwritten police order to shoot to kill:
"It is never declared, but the officers are usually just given orders like 'We don't want to see nonsense. Go there and quell protests or deal with the criminals."
A serving police officer and a human rights activist, who has been documenting cases of police killings in Kenya, both said killings by police have become so rampant that it is possible there are more killings than there were before the police vetting process.
In a widely publicized case, in 2016, the bodies of an International Justice Mission lawyer Willy Kimani, his client, and a taxi driver, were retrieved from Ol Donyo Sabuk river, Kilimambogo, central Kenya. Four police officers were prosecuted, with three being found guilty of murder, by the courts recently. But such prosecutions are the exception rather than the rule.
In March 2022, residents of Yala, Siaya county, western Kenya raised alarm over bodies apparently dumped by unidentified people in the Yala river at night. The residents told the media that they had retrieved bodies from the river almost daily between July 2021 and January 2022, but police in the area had ignored these reports. In March, the residents were joined by several human rights activists from Nairobi and Mombasa to retrieve the bodies, and by mid-May they had retrieved more than 30 bodies from the river. Some of the bodies were of people who had, according to reports in the Kenyan media, long been missing, including that of an officer of the Kenya Wildlife Service, Francis Oyaro, who had been missing for months.
The bodies were taken to the Yala Sub-County mortuary, where pathologists took samples for testing to identify them, but police did little to investigate these deaths, said a Mombasa based activist. A Nairobi-based activists' protection organization that is not identified for security reasons said that some of the community leaders who had been at the forefront of bringing the issue to public attention have been threatened by people who identified themselves as police.
Some of those interviewed expressed concern that police have publicly defended extrajudicial killings or even celebrated them. An activist said:
"If police can feel this confident to kill, celebrate the killing and defend it publicly, why would anyone think they will not kill if deployed to quell violence at elections, especially when they know their bosses will help them to get away with it."
The police blame human rights standards for making their work difficult, said a longtime crime reporter. "Police accuse courts of freeing suspects for lack of evidence and claim the suspects then go ahead to commit more crimes," a journalist said. Some senior police commanders and political leaders have blamed the courts for failing to convict suspects while judges have blamed police for shoddy investigations.
Failures in Oversight Authority Investigations
Four activists who work closely with Independent Policing Oversight Authority expressed concern that its desire to ensure abusive officers are held to account seems to be waning, with at least three questioning whether the authority is still independent. These concerns may be linked to changes introduced in 2014 to the appointment of its commissioners and threats to its budget.
One Police Reforms Working Group member said that the Oversight Authority "appears more eager to please the executive and police than to truly ensure accountability. When you hear police saying they are very happy with IPOA, you should know that we have lost the fight on police accountability."
A journalist who reports on police issues said, "IPOA has dropped the ball. But it is not just IPOA, even the NPSC is no longer doing its work. It is controlled by police and the executive and therefore can do little that police do not approve. The idea of independence and accountability was lost the moment NPSC stopped the vetting of police and allowed sacked police officers to return to work."
Human Rights Watch has since April repeatedly contacted the Oversight Authority chairperson, Anne Makori, seeking an interview, but she did not respond. A senior officer at the Oversight Authority said that, by May 2022, the authority had successfully prosecuted 17 cases of abusive police officers, most accused of murder and use of excessive force, since it became operational in 2012. In the same period, another 141 cases were pending before the courts while over 4,000 reports or complaints relating to murder and excessive use of force have been filed against the police, according to the Oversight Authority official.
Most of the concluded and pending cases were investigated and filed in court before what Kenyan activists see as the authority's shift in approach to police accountability issues, which they say began slightly more than two years ago. The current officer described some of the institution's challenges with investigating abusive police officers as: lack of police cooperation, lack of political will or support from the government, interference from senior government officers, and internal weaknesses within the authority.
In June, Kenyan activists said they are concerned that the authority has been either unable or unwilling to respond to the recent cases of extrajudicial killings, and possible enforced disappearances, including instances in which police social media posts seem to boast about a killing or a disappearance.
An activist who works with one of Kenya's leading human rights groups said:
"The trend we have noticed is that IPOA is quick to investigate less politically sensitive cases." But they don't even attempt to open investigations into some of the killings and disappearances that we have witnessed recently. This is also the reason they are unable to investigate police killings during elections because these are politically sensitive."
While those interviewed agree that lack of cooperation from the police is a major stumbling block to police accountability, especially regarding the killings during the 2017 elections, they accuse the Oversight Authority of also lacking the political will to investigate these abuses. "If IPOA really wanted to investigate police killings in the aftermath of the 2017 elections, the officials would recommend a public inquest into the more than 100 killings reported during the 2017 elections, and not just two," said an activist who works with one of Kenya's pioneer rights organizations. "But that is not the case."
Some activists say they do not understand why the authority only recommended public inquests in the case of the killings of the two children when more than 100 people were killed by police and pro-government militia in 2017. "These two cases were low-hanging fruit that IPOA latched onto to appear to be doing something," another activist said. "Truth is that the state was embarrassed. There was no way to justify the killing of a 6-month-old or a 9-year-old who were just playing in their houses. Even then, no one has been prosecuted for the killing of these two children, five years down the line. IPOA has also made little attempt to investigate the numerous other cases."
