of excessive force is “the use of force greater than that which a reasonable
and prudent law enforcement officer would use under the circumstances1.
BACKGROUND OF POLICE
(2010) argues that a police system that is arbitrary, unaccountable and often
violent has persistently emerged in Kenya since its foundation in the early
19th century. The Kenyan police served the colonial government in which rights
of the colonial masters were held prominent to the rights of common mwananchi. This led to a culture which
was typical of hostility to, mistrust of, disdain for and disregard of
civilians. After the colonial period, the police service had a duty to protect
the citizens with consideration of mwananchi
rights as prominent. Unfortunately, culture of impunity and
unaccountability had stuck and became a definitive feature of the Kenya police2.
the KANU government, when it took over, also used the police to protect the
interests of those who were in charge of the government. This gave loopholes
for premises such as Nyayo torture chambers which were hallmark for police
brutality. In 2002, with the NARC government, there was great hope for
transformation of the police with a more robust approach unto the formerly
predominant lukewarm approach3.
In 2003, there was created Police Reform Task
Force which was charged with identifying areas which required reforms and
proposing ways of instituting such reforms4.
However, in the 2007/ 2008 post election violence, the problem of police
brutality was evident again. Waki (Waki Report, 2008) associated most loss of
life in the 2007/2008 post-election violence to the excessive use of force by
police amongst other vices and omissions. Philip Alston?s reports on
extrajudicial killings also laid blame on police on deaths and disappearance of
youth without anybody accounting for them. Indeed he argued that several
shootings of citizens were associated with the police guns (Alston, 2009).
adoption of the 2010 Constitution set the pace for establishing a legal
framework for police accountability. This constitution gave a chance for
establishment of IPOA under the IPOA Act (No.35 of 2011). Oversight bodies, indicated below, were also
further strengthened hence different policing norms, also indicated below, came
to play. In the current Kenya, the major occurrences of police brutality take
place during control of riots and demonstrations. These are however part of
human rights as guaranteed by the constitution.
Oversight Authority (IPOA) – is mandated to investigate all forms of police
misconduct including deaths in custody and serious injuries as a result of
National Police Service
Commission (NPSC) – is mandated to undertake the vetting of serving police
officers, to oversee recruitments, appointments, transfers, promotions and
approve the training of the police, as well as to review of disciplinary action
taken against officers.
Commission of Administration
of Justice (CAJ)
Commission on Human Rights (KNCHR)
Internal Affairs Unit – This is an internal oversight
by police themselves
United Nations Code of
Conduct for Law Enforcement Officials
United Nations Basic
Principles for Law Enforcement Officials
African Charter on
Human and Peoples’ Rights (ACHPR) – this led to two major resolutions: a) Resolution 306 on Police and Human
Rights in Africa of 2015
b) Resolution 69
on Police Reform, Accountability and Civilian Police
Oversight in Africa of 2004
Constitution of Kenya – Article
2(6), 26,28,29,49,239 and 244.
National Police Service Act – 6th
entail implementing measures to correct undesirable situations within a society
or organization (World Bank, 2009). Police reforms across the world have been
seen as a constant of modern policing initiatives (Savage, 2007). The quest for
reforming African police services was driven by the fact that in the past they
had been portrayed as inefficient and in several instances brutal as they were
initially created for colonial suppression and providing security to the
colonial authorities (Waller, 2010; CHRI, 2006). This can case proved by a case study of the
Republic of South Africa, where their former Commission on Truth and
Reconciliation documented that: during the former apartheid system of
governance and policing, there was a creation of a specialized riot control
function within South Africa’s policing agencies which was essentially a
reaction to the disorder and political unrest associated with resistance to
apartheid… Since the nature of their task was inherently public, the police
units tasked with riot control played a prominent role as front line
‘enforcers’ of apartheid policies, and were viewed with a mixture of fear and
loathing by the communities in which they served. The units were para-military
in nature (by way of training, operational understanding and culture), and
brutal in the enforcement of bans on political protest. They operated within a
policy paradigm that accepted and supported the lethal use of force. This,
combined with the authorities’ complete intolerance of protest action, meant
that they frequently used maximum force5.
being under enormous pressure by both state and non-state actors to counter the
increasing wave of crime and the new threats to national security, including
those emanating from terrorism, the police must operate in accordance with law
and respect human rights at all times (CHRI, 2003). After independence the role
of Police was supposed to change from protecting the colonial interest to
providing security to the citizens. This necessitated reforming and
re-orienting them towards serving the members of the public in a
non-discriminatory manner. Police transformation and reforms across the world
has therefore been shaped by the need for a people friendly, professional
service with the ability to secure citizens and their property against
aggressors without violating their basic human rights (Lundman, 1980). These
are some of the reforms that should be enforced for proper performance of the
police unit and to curb the menace of police brutality:
should draft, design and pass proper laws which take to consideration the
constitutional principles of individual rights. Kenyan legislative arm has been
famous for passing unconstitutional laws. This was evident in the draconian
Security Law (Amendment) which was declared unconstitutional6.
This brings the need to pass proper laws which will be in conformity with International
regulations and the Constitution.
The National Police
Service should urgently establish a comprehensive training on public order
management with reference to other international standards. This training could
seek for external assistance from USA, Sweden and UK, countries that are
already involved in the Police Reform Program under the Ministry of Interior
and Coordination of National Government. This training should be inculcated in
the training curriculum using modern methods and best practices from other
countries. The training on this area should take into consideration
psychological, social and cognitive skills, where establishing a sense of trust
in the public, developing a sense of identity in society, and helping the next
generation prepare for the future, should be taken seriously in the service.
awareness – There should be education of the general public on available laws
and reforms. Most of the reforms are only popular to urban areas than the rural
areas in which such information are greatly and desperately needed7.
For instance, most people in rural areas
are not aware of the existence of IPOA and NPSC hence they end up living with
police brutal culture. Community members
in rural places have faced police brutality and failed to take action due to
the perception that little or no redress is available.
policing of the Police Service – Democratic
policing is a framework in which individual police are held accountable for
their individual actions and the institutions they belong to (National Police
Service) is also held accountable for the actions its members8.
This will ensure that the entire police force take a hire notch in ensuring
proper conduct of its members so as not to only protect their name but also to
acquit themselves of such accountability.
accessed January 19, 2018
In its strategic plan 2003 – 2007, the Kenya Police Force acknowledged that a
culture of impunity was pervasive in the service and presented among the
biggest challenges to accountability. See, Kenya Police Service, The Kenya
Police Service Strategic Plan 2003 – 2007, Draft 2, 2003:15 available at http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/draft_strategic_plan_2003-07.pdf
Accessed on Janurary 19, 2018.
Mbote and Akech, Kenya: Justice Sector and the Rule of Law, 2011
4 The transition to the
NARC Government in 2002 marks the start of a series of measures towards police
reform. These include establishment of the police Taskforce in 2003; the
community policing measures; appointment of an army brigadier to the position of
Commissioner of Police; the first-ever police force five-year strategic plan;
and other initiatives pursued with experts. With the spectacular failure of
policing in the 2007 and 2008 post-election violence, Kenya witnessed more
radical measures aimed at reforming the police and unequivocally introducing
oversight and accountability. The Constitution of Kenya 2010 in Chapter 14
legally transforms the institution from a ‘force’ to a’service’ and introduces
new oversight measures in the appointment of the police top hierarchy as well
as in their operations. See also M Ogada 2010.
Janine Rauch and David Storey, The
Policing of Public Gatherings and Demonstrations in South Africa 1960-1994,Paper
commissioned by The Commission on Truth and Reconciliation (TRC) Research
Department, May 1998.
accessed January 19th, 2018.
7 Patricia K Mbote and
Migai Akech, Kenya: Justice Sector and the Rule of Law, Nairobi: Open
Society Foundations (2009).
Gary T Marx, “Police and Democracy,” in eds. Menachem Amir and Stanley Einstein
Policing, Security and Democracy: Theory and Practice, vol. 2, Office of
International Criminal Justice, 2001; Samuel Walker, “Police Accountability:
Current Issues and Research Needs,” National Institute of Justice Police
Planning Research Workshop, Washington, DC (November 28-29, 2006).
Available at https://www.ncjrs.gov/pdffiles1/nij/grants/218583.pdf; Frank
Harris, “Holding Police Accountability Theory to Account,” in Policing 6(3):