Part 4 of Kenya's 2010 Constitution concerns the National Police Service, which is one of the country's national security organs along with the Kenya Defence Forces and the National Intelligence Service.Art. 239(1), Constitution of Kenya (2010).The National Police Service, which 'shall function throughout Kenya', consists of the Kenya Police Service and the Administration Police Service.Art. 243(2) and (3), Constitution of Kenya (2010).
The 'objects and functions' of the National Police Service are set out in Article 244 of the Constitution:
The National Police Service shall—
(a) strive for the highest standards of professionalism and discipline among its members;
(b) prevent corruption and promote and practice transparency and accountability;
(c) comply with constitutional standards of human rights and fundamental freedoms;
(d) train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
(e) foster and promote relationships with the broader society.
The Constitution explicitly protects the right to life.Art. 26, Constitution of Kenya (2010).
(1) Every person has the right to life.
(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
There is also to be protected the rights to human dignityAccording to Article 28, "Every person has inherent dignity and the right to have that dignity respected and protected."and to freedom and security of the person. This includes the right not to be
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;According to Article 58, A state of emergency may be declared only when—(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared.
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.Art. 29, Constitution of Kenya (2010).
1966 Covenant on Civil and Political Rights (ICCPR)
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||State Party|
1981 African Charter on Human and Peoples' Rights
|1998 Protocol to the African Charter on the African Court||Not party|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
Detailed rules on police use of force are set out in the 2011 National Police Service Act. Under the Sixth Schedule to the Act:
1. A police officer shall always attempt to use non-violent means first and force mayonly be employed when non-violent means are ineffective or without any promise of achieving the intended result.
2. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
It is further stipulated that firearms
may only be used when less extreme means are inadequate and for the following purposes—
(a) saving or protecting the life of the officer or other person;
(b) in self-defence or in defence of other person against imminent threat of life or serious injury;
(c) protection of life and property through justifiable use of force;
(d) preventing a person charged with a felony from escaping lawful custody; and
(e) preventing a person who attempts to rescue or rescues a person charged with a felony from escaping lawful custody.S. B(1), Sixth Schedule, 2011 National Police Service Act.
These rules are more permissive than international law allows. Firearms may not be used purely to defend property or to prevent escape, other than in the case of a proximate, grave threat to life.
Also under the 2011 Act, an officer intending to use firearms must identify himself and
give clear warning of his intention to use firearms, with sufficient time for the warning to be observed, except—
(a) where doing so would place the officer or other person at risk of death or serious harm; or
(b) if it would be clearly inappropriate or pointless in the circumstances.S. B(2), Sixth Schedule, 2011 National Police Service Act.
According to Article 18 of the 2009 Penal Code:
Where any person is charged with a criminal offence arising of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.
Under Article 241 of the Penal Code:
Any person authorized by law or by the consent of the person injured by him to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.
Use of Force in Custodial Settings
Article 12 of the 1962 Prisons Act (as amended through 2016) governs the use of force by a prison officer. This provision allows any prison officer
to use such force against a prisoner as is reasonably necessary in order to make him obey lawful orders which he refuses to obey or in order to maintain discipline in a prison.
Firearms may be used against a prisoner where necessary if:
(a) he is escaping or attempting to escape and refuses, when called upon, to return; or
(b) he is engaged with other persons in breaking out or attempting to break out of any part of a prison and continues to break out or attempts to break out when called upon to desist; or
(c) he is engaged with others in riotous behaviour in a prison and refuses to desist when called upon; or
(d) he is endangering the life of, or is likely to inflict grave injury to, the prison officer or to any other prison officer or person and the use of weapons, including firearms, is the only practicable way of controlling the prisoner.
Kenya's Constitution establishest he office of the Inspector-General of the National Police Service.Art. 245(1), Constitution of Kenya (2010).The Constitution also gives the Director of Public Prosecutions the power
to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.Art. 57(4), Constitution of Kenya (2010).
The Independent Police Oversight Authority (IPOA) is an independent authority established under a 2011 law to provide for civilian oversight over the work of the police in Kenya.The Independent Policing Oversight Authority Act (No. 35 of 2011). Its vision is of:
A robust civilian accountability mechanism that promotes public trust and confidence in the National Police Service.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2013 Concluding Observations on Kenya's second periodic report on implementation of the 1984 Convention against Torture, the Committee against Torture remained
concerned by the persistent allegations of ongoing extrajudicial killings, enforced disappearances and excessive use of force by police officers, especially during “special operations”, as well as by the low rate of investigations and prosecutions of such acts.Committee against Torture, Concluding Observations on Kenya's second periodic report, UN doc. CAT/C/KEN/CO/2, 19 June 2013, §9.
The Committee urged Kenya to
ensure that all cases of use of lethal force and excessive force by security forces ... are promptly, effectively and independently investigated, and that the alleged perpetrators are brought to justice and if convicted, sentenced according to the grave nature of such acts.Committee against Torture, Concluding Observations on Kenya's second periodic report, UN doc. CAT/C/KEN/CO/2, 19 June 2013, §9.
In addition, it called on Kenya to
Properly regulate the use of firearms by the police, with a view to ensuring that they comply with the United Nations Basic principles on the use of force and firearms by law enforcement officials (1990); and
Adequately train all law enforcement personnel, especially police officers, on the use of force.Committee against Torture, Concluding Observations on Kenya's second periodic report, UN doc. CAT/C/KEN/CO/2, 19 June 2013, §9.
A year previously, in its Concluding Observations on Kenya's implementation of the 1966 International Covenant on Civil and Political Rights, the Human Rights Committee expressed its concern "at the slow pace of investigations and prosecutions into allegations of torture, extrajudicial killings by the police and by vigilante groups".Human Rights Committee, Concluding Observations on Kenya, UN doc. CCPR/C/KEN/CO/3, 31 August 2012, §11.
In October 2017, the African Commission on Human and Peoples’ Rights issued a Press Statement in which it expressed its concern
by reports of excessive use of force by security forces during demonstrations including the incident on 28 September 2017 which left 27 people with injuries, when students were assaulted with tear gas, beaten with wooden clubs, and robbed by police.Press Statement of the African Commission on Human and Peoples’ Rights on the re-run of the presidential election in Kenya on 26 October 2017 and the need for confidence-building African Union engagement, 23 October 2017, at: http://www.achpr.org/press/2017/10/d370/.
Munyao and others v. Attorney-General (2014)
The Nairobi High Court has received many petitions relating to excessive use of force by the police. In the Munyao case, the petititoner sought a declaration that his shooting, wounding, and maiming by a police officer was in the circumstances a violation of his fundamental freedom from being subjected to any form of violence contrary to Article 29(a), (c), (d), and (f) of the Constitution of Kenya.
In its judgment for the state, the Court referred to the earlier Court of Appeal decision in the Kimiti v. Mwenda case of 2010,Charles Munyeki Kimiti v. Cpl. Joel Mwenda and others, Nyeri CA Civil Appeal No. 129 of 2004  eKLR.where the Court stated:
Whether or not police have used excessive force in effecting arrest is a matter of degree dependent on the peculiar circumstances of each case. In deciding whether liability should attach for alleged careless or negligent use of firearm by police in effecting arrest, the court should take into account, among other things, that the pursuit and arrest of dangerous and armed criminals is a hazardous operation and that it is in the public interest that the police operations are not unreasonably impeded by the decisions of the courts.
The victim had been caught in the crossfire between the police and armed robbers. In its decision in the Munyao case, the High Court judge affirmed that:
The officers attempted to stop and arrest the robbers before they started firing. In my view, the fact of shooting in a crowded area is not, of itself, decisive of the respondents’ liability. The police are not prohibited from using firearms in a crowded place. It only means that they have to exercise extra caution when they are required to use lethal force in such conditions. The petitioner did not demonstrate by evidence that the police were careless. The evidence is clear that there were armed robbers who were being pursued. It was not unreasonable for the police to shoot at the robbers when they were being shot at. The result of the events is that there were two dead policemen and two dead robbers and despite the crowded nature of the market only two members of the public were injured.
The High Court concluded that "the shooting was likely accidental and an accidental shooting does not attract liability. "
Wamari v. Attorney-General (2014)
This case concerned the shooting of an escaping suspect. This time the High Court found for the plaintiffs, affirming that the
respondents have not shown that the officer could not otherwise prevent the escape, or that he gave any warning that he was about to use the firearm against the petitioner in the circumstances. It is also clea rthe petitioner was unarmed. In my view the officer had no apprehension of danger to himself and the shooting was unreasonable and the use of force unnecessary and unlawful.
Kimiti v. Mwenda and others (2010)
The Kimiti case cited above was the subject of a appeal. In 2010, the Court of Appeal at Nyeri stated that:
The deceased was shot dead inside a stationary matatu at a petrol station where there was light. ... The occupants of the vehicle were in a restricted place being inside the vehicle. Moreover, the two police officers were seeing them and the vehicle was stationary. The robbers did not shoot and apparently the toy pistol [one allegedly held] could not have fired.
The “driver” had already moved out of the vehicle and thus there was no fear that the robbers would drive away and escape. The police could also have immobilsed the vehicle before they approached it by deflating the tyres through gun shots. It seems to us that the two police officers just sprayed the stationary matatu with bullets not caring that the two occupants are killed or not.
The law only allows the police to use all means necessary to effect arrest and even then, they are not allowed to use greater force than reasonable or necessary in the particular circumstances.
Having regard to the peculiar circumstances of this case including the fact that deceased sustained multiple gun shot wounds, we draw the inference that the 1st and 2nd respondents had no reasonable apprehension of danger to themselves and that the shooting to death of the deceased was unreasonable use of force, unnecessary and unlawful and liability attaches to their action against their employer – the government. We agree that the trial Judge failed to critically analyse the evidence and to fully appreciate the circumstances under which the deceased and one robber were shot dead.Charles Munyeki Kimiti v. Cpl. Joel Mwenda and others, Nyeri CA Civil Appeal No. 129 of 2004  eKLR.
Makhanu v. Gitau (2016)
In this case, before the High Court, the Petitioner contended that he was subjected to physical and psychological torture by virtue of his being handcuffed and also being beaten by a baton and, further, being spat on and abused by the 1st Respondent. The Petitioner stated that this was contrary to and in violation of his guaranteed rights to freedom from torture and inhuman or degrading treatment under Article 29 of the Constitution. In his judgment, Judge J. L. Onguto found that
there was absolutely no need for the use of any force by the 1st Respondent in the circumstances. Even if the force appeared to be or is indeed minimal, the law prohibits the use of force unless warranted. It was incumbent upon the Respondents to show and establish that the use of force was warranted. They have failed to do so. Indeed, the Petitioner points out that force and violence were meted upon him even after he had been handcuffed. Effectively, he had been subdued even if the 1st Respondent’s version was to be accepted. This was uncalled for, and unwarranted and indeed contrary to the express provisions of the Constitution.
Judge Onguto held that the Petitioner's rights had been violated insofar as he was subjected to physical abuse by being struck by a baton while already in the custody of the 1st Respondent. He did not, however, find that by being handcuffed the Petitioner was subjected to cruel, inhuman, or degrading treatment:
The mere fact of being handcuffed alone is not adequate to establish cruel, inhuman and degrading treatment. Handcuffs are used by officers in the Police Service as temporary restraints. The officers have the discretion when to cuff a suspect.
Njeru v. Republic of Kenya (2006)
The Court of Appeal heard an appeal by a police officer against his criminal conviction for manslaughter. In allowing his claim that he acted in lawful self-defence in shooting to death an adult male, the Court stated that:
A killing of a person can only be justified and excusable where the accused’s action which caused the death was in the course of averting a felonious attack and no greater force than is necessary is applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack. In the present case, it is not in dispute that the appellant being a police officer on duty who was lawfully armed with a pistol shot the deceased and that the deceased died as a result of that shooting. It was therefore upon the appellant to show that at the time of the shooting he was in the course of averting a felonious
attack and that no greater force than necessary was applied. The appellant was bound to show that he was in immediate danger or peril arising from a sudden and serious attack by the deceased. In his defence, the appellant explained how he was confronted by ten people some of them armed with dangerous weapons and that these people would not surrender even when ordered to do so by the appellant after he had introduced himself as a police officer. The appellant further explained that when he fired two shots in the air, nine of the ten men ran away while the deceased who had a knife advanced towards the appellant and indeed inflicted some injury on the appellant’s hand.