By Justus Nyang’aya
The Bill of Rights… The Constitution… Governed by the rule of law… Human rights…
These have become buzzwords that many of us drop whenever it is convenient to do so.
Everyone talks about them, even despots. But these aren’t just high sounding words to grace
those flowery speeches at international conferences. Back at the grassroots, they are real and
they mean the world to the millions of people who don’t have a platform to speak out. They are
about our civilization, our nationhood, our social fabric, our sanity, our progress and our
future… I could go on on. But I am disappointed and miffed. In fact, I was so disappointed that I
could not organize my thoughts around this for days.
A person believed to be police officer, according to a video which has been doing the rounds,
shoots two young boys dead at close range in Nairobi’s sprawling Eastleigh suburb on
allegations of being hardcore criminals. Cameras zoom in and out to capture the incident clearly
from different angles. After doing his thing, he walks away with a spring on his feet. No chills.
This action by itself is not totally surprising. Kenyan police stand accused of carrying out
hundreds of extrajudicial killings and enforced disappearances in the last one year alone. The
most prominent case of the past year is that of human rights advocate and lawyer, Willie
Kimani, his client and their taxi driver, who were slaughtered like animals by suspected police
officers. Their bodies were dumped near a river in Machakos County.
What is shocking is the way Kenyans reacted in the aftermath of the Eastleigh killings. There
was a sense of excitement, celebration and thumbs up on social media and on the streets.
Congratulatory messages flew in from different parts of the country. The reasoning seemed to
be, “two thugs off our streets makes us safer” and “the criminal justice system is not working so
police action is justified.”
Wait a minute! We are either a society governed by the rule of law or the rule of the jungle. We
are either a civilization or a collection of savages. We are either progressing or retrogressing.
Except in self-defense, nothing justifies the taking away of another person’s life. It doesn’t
matter what the police know. Every Kenyan has a right to a fair trial and can only be sentenced
to appropriate punishment when a competent court of law finds him/her guilty of the
accusations.
We celebrated the killer cop on the belief that he only executed a “criminal”. What then
happens tomorrow when the same police officer fells a man over a deal gone sour and plants a
pistol on him to justify his action? Will we support him or condemn him? Can you point me to
the red line that separate what is justifiable and what is not? The fact is that if the rule of law is
set aside so that we can deal with “criminals” then none of us can be safe. Although there have
been improvements in the past, the police service setup continues to suffer fatal flaws and
unofficially allowing them to be the investigators, the prosecutors and the judges, would be
risking our own civilization.
Despite the reform, reports by human rights groups and media demonstrate that the security
agencies involved in security operations have been committing human rights violence. One of
the reasons the police execute criminals and terror suspects is they are incompetent in
gathering evidence. As a result, they either opt either to kill or disappear suspected terrorist
instead of taking them to the court to determine their guilt or innocence.
For instance, according to IPOA, “Overall, 64% of the felony cases reviewed never met the
minimum evidentiary threshold to charge a person with an offense” and since the passage of
POTA 2012 there has been very few successful trial and conviction under the law. This is despite
multiple media reports of arrest of alleged suspected terrorists.
Kenyans must condemn extrajudicial killings irrespective of who is involved. It is barbaric,
retrogressive and outright sloppy. Yes, there are weaknesses in the criminal justice system but
that, too, is our burden. It is ours to fix. The weaknesses are not just in the judiciary. It is in the
whole chain. We got ill funded, ill-trained and shamelessly corrupt police officers who either
cannot connect the dots when it comes to criminal investigations or simply opt to look the
other way when money changes hands. Many of the cases are usually brought to court with no
legs to stand on and the judges find themselves with only one option: dismiss the cases for lack
of evidence. Yet, the same police officers will execute an alleged criminal whose case they
bungled through shoddy investigations.
Since 2009, enforced disappearances and extrajudicial executions have been well-documented
by civil society organizations and the media, particularly in the context of counter-terrorism
operations conducted by multiple security agencies including police, army and para-military
police. These include at least 119 cases of enforced disappearance and 131 cases of
extrajudicial executions. These reports have all established that majority of extrajudicial
executions are preceded by enforced disappearance, which significantly increase whenever
security agencies are engaged in eliminating suspected members of organized criminal groups.
It is time for citizens to step up and reject mediocrity in our governance. The basic qualifications
many a Kenyan voter consider before casting their ballot will shock anyone from a functioning
society: One, is he from my tribe? Two, is he affiliated to a political party my tribal chief
supports? Three, is he wealthy enough to finance a well-oiled campaign? The source of the
aspirant’s money usually doesn’t matter. Issues such as hunger, ill health, crumbling schools,
traffic gridlock, corruption and incompetence, among others, only come to play when the
elected leaders have assumed the reins of power. But even so, supporters are often reluctant
to criticize their tribal lords for fear of sabotaging their leadership. They blame everything else
but the man or woman in charge.
There is an intricate relationship between the quality of leaders we elect and the quality of the
criminal justice system. You want a criminal justice system which works, give work to people
who respect the rule of law, whose priority is not self-aggrandizement at the taxpayers’
expense and whose sole mission is to uplift the quality of life of ALL citizens irrespective of their
political affiliation. Only we can do that. And while at it, with the exception of situations where
an officer’s life is in danger, extrajudicial killings will never be justifiable under any
circumstances.
Nyang’aya is Executive Director LEAD Africa.
justus@leadafrica.co.ke