Kenyan police must guard against using excessive force during elections

By Abdullahi Boru Halakhe Nairobi, Kenya,

By Abdullahi Boru Halakhe

An ominous cloud hangs over this week’s elections. Fearing a repeat of the violence that followed the 2007 election, police are poised to break up protests and have pinpointed what they are calling violence ‘hotspots’.

Some incidents of violence already occurred during the campaign period.

Supporters of rival governorship candidates clashed in the western city of Eldoret on 19 July, leaving five people injured, as well as in Marsabit in northern Kenya on 26 July, where four people were injured.

Presumably the Inspector General of Police Joseph Boinnet had electoral violence in mind when he authorized the purchase of anti-riot equipment, including armored personnel carriers, tear gas and 36 water cannons, for use around the elections.

Of course, Kenya’s police have a duty to protect people from violence, but they must do so in a way that respects both national and international law
Abdullahi Boru Halakhe, East Africa Researcher

Of course, Kenya’s police have a duty to protect people from violence, but they must do so in a way that respects both national and international law.

According to the Waki Commission of Inquiry which investigated the post-election violence in 2007-8, of the 1,133 people who were killed, close to 36% died of gunshot wounds from the police.

And, in May last year in Nairobi, police carried out a brutal crackdown on opposition demonstrators calling for new electoral commissioners. Many will remember the image of a heavily armed policeman stamping a protester’s head into the pavement, which grabbed the world’s attention at the time.

It is understandable, then, that some have raised concerns about the purchase by the police force of the new crowd control equipment. Such devices are by nature indiscriminate and have a high potential for harm. Their use must be strictly limited to situations of generalized violence and when all other means to contain the violence have failed.

People will almost certainly pour into the streets after the results are announced, either to celebrate their candidates’ victories or bemoan their losses. Their public displays could take various forms, including demonstrations, meetings, processions, rallies or sit-ins. The role of the police is to facilitate these peaceful assemblies, not to disperse them.

While the police should, of course, position their resources where violence and loss of life is likely to occur, officers deployed in the areas identified as violence ‘hotspots’ must not believe they have carte-blanche to use excessive force
Abdullahi Boru Halakhe, East Africa Researcher

If violent acts occur during such events, police have a duty to protect people from harm, but they must not use the violent acts of a few to restrict the rights of others. Any decision to disperse an assembly must be a last resort. In the event that they have to use force, police must observe the principles of necessity and proportionality. Under international law, firearms must never be used simply to disperse an assembly.

Kenyan law forbids it as well. Both the National Police Service Act and the Public Order Act restrict the use of firearms to exceptional circumstances. In particular, the two laws say firearms must only be used to save or protect life or in self-defense against imminent threat to life or serious injury.

While the police should, of course, position their resources where violence and loss of life is likely to occur, officers deployed in the areas identified as violence ‘hotspots’ must not believe they have carte-blanche to use excessive force.

Boinnet has, in various media interviews, said the force will maintain order “in strict compliance with the law” – fine words, which must now be put into practice.

Boinnet also stated that more than 100,000 officers drawn from the police, prison and forest services have been trained as part of the preparations for the election. These officers must be warned against using unnecessary, excessive and disproportionate force as they would be breaking the law.

Since 2007, the police force has undergone various legal and institutional reforms aimed at transforming it into to a professional, efficient and accountable police service that is trusted by the public. These efforts will come to nought if this year’s election sees another heavy-handed response that violates the rights of those the police are sworn to protect – the Kenyan people.

Abdullahi Boru Halakhe is East Africa Researcher at Amnesty International