The Invisible Line,Police

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch

On 1 August 2021, two brothers – Benson Njiru (22) and Emmanuel Mutura (19) – died in police custody in Embu in central Kenya. A few weeks later, John Kiiru (38) was “allegedly clobbered to death by officers” in Kayole, Nairobi. In both instances, the only crime the men seem to have committed was breaching the country’s curfew, which requires everyone (bar essential service workers) to stay indoors between 10 p.m. and 4 a.m. to help curb the spread of COVID-19. Kenyans are understandably in uproar about this tragic loss of life as reflected in local protests and social media commentary (#JusticeForKianjokomaBrothers), and statements by various civil society organisations and politicians.

Extra-judicial killings or executions (EJEs) by police and other armed security forces – such as the Kenya Wildlife and Forest Services – are commonplace in contemporary Kenya. As Peris Jones, Wangui Kimari and Kavita Ramakrishan noted back in 2017, “Though there is a glaring dearth of accurate data . . . there is a widely held perception of a spike in EJE during the mid 2000s in President Mwai Kibaki’s first term [2003-2008], then a relative decline in his second [2008-2013], before an upsurge since 2013.”

The spike in the mid-2000s is associated with a police crackdown on Mungiki – a much-feared ethnic militia – and the post-election violence of 2007/8 when the police are reported to have been responsible for 405 of 1,133 recorded deaths.

The latter triggered a series of police reforms, which sought to convert the police from a “force” with its roots in a colonial logic of control into a “service”, which would work for the Kenyan public. Most notably, these reforms established a clearer and more independent leadership structure, and an Independent Policing Oversight Authority (IPOA), which – despite limited resources and a lack of cooperation from police – has been able to investigate and successfully prosecute a number of police officers.

However, while these reforms have initiated some real change, they have failed to create a “service” and have instead gone hand in hand with an upsurge in police killings.

For example, between January 2013 and December 2015, Naomi Van Stapele estimated that in Mathare (i.e. in just one of Nairobi’s many informal settlements) at least one young man was killed by police per week on average. Over the same period, the Mathare Social Justice Centre lists 803 killings by police and other internal state security forces reported in the national newspapers.

Such everyday violence continued to be a reality during and after the 2017 elections. At least 92 people died in the wake of the first presidential election in August and around the fresh presidential election in October – “the vast majority executed by the police. More recently, 105 allegations of deaths and serious injuries at the hands of the police were lodged with IPOA between January and June 2021 – including 21 alleged deaths in police custody and 55 “from police action”.

These year-on-year numbers are shocking enough, but almost every report – be it by the media, civil society organisations, activists, scholars or IPOA – recognises that the numbers are likely to be a gross under-estimation.

At the same time, many officers do an incredibly difficult job with little thanks and at great personal risk, and sometimes show considerable restraint. Many also suffer from problems within the service. As Anneke Osse recognised in her 2016 article on police reform, individual officers are often “harassed, intimidated and denied their rights by other police officers”. However, the problem of extra-judicial killings is clearly more substantial than a few “bad apples”.

So how have limited police reforms gone hand in hand with such everyday violence?

The answer is two-fold.

First, and as Patrick Mutahi and Mutuma Ruteere have argued, the government has cherry-picked “what aspects of reforms to support and which to ignore. Most of the executive references to police reforms refer to increasing police numbers, salaries, and improvement of police housing and other hardware. In turn, little has been done with regard to the “software” or a police culture of unprofessionalism, lack of accountability and use of excessive force.”

This cherry picking reflects a lack of political will. As Anneke Osse explained, domestic and international pressure following the post-election violence of 2007/8 encouraged the political elite to “present themselves as reform-minded” and to “use ‘reform speak’”, but without the commitment required to ensure that this agenda was actually operationalised. In short, an association of political power with both wealth and status, and the deep involvement of many politicians in corruption and other illegal activities, ensures that “it serves the interests of the leaders of the executive to keep the police under their control and hold them accountable to the executive rather than to the public.”

At the same time, despite vocal calls for justice for particular instances of police abuse, there is, in general, limited public outcry or pressure for reform. This is the case even when the killings appear to be clearly extra-judicial or illegal; by Kenyan and international law, the police are only allowed to use lethal force in order to protect life.

This links to the second reason. There has been a delegitimization of protest or other activities that might foster tension or cohesion in the name of stability and development – what Nic Cheeseman, Justin Willis and myself have referred to as the rise of peaceocracy. This delegitimization, together with an underlying criminalisation of poor young men, has helped to demonize protestors, terrorists and criminals to such an extent that their unlawful murder can (at least in the eyes of many police and ordinary citizens) be regarded as justified and even necessary.

“It serves the interests of the leaders of the executive to keep the police under their control and hold them accountable to the executive rather than to the public.”

This reality of an often implicit, and sometimes explicit, justification of extra-judicial killings is evident when we look at the main victims – poor young men reported to either be alleged criminals, terrorists or protestors – and debates around the same.

The majority of police killings target suspected criminals with regular news reports such as the one of 28 August 2021 in the Saturday Nation, which detailed how police in Kisumu had “gunned down two people suspected to be members of a gang that has been terrorising the city dwellers during curfew hours.”

However, it is often unclear what threat to life the alleged criminals had actually posed at the time of their killing. In a recent piece for The Elephant, Stoneface Bombaa gives the chilling example of Ian Motiso, a known criminal, who, “On 9 August . . . sat down to take a late lunch at a kibanda in Mlango Kubwa, Mathare when a killer cop called Blacky passed by. Blacky took out his gun and shot Motiso down then and there. Just like that.”

Tragically, this story of extra-judicial killings is a common one: from a plain-clothed police officer filmed shooting two teenagers in broad daylight in Eastleigh in April 2017 to reports of alleged criminals shot in the back, or of guns, or other evidence of illegal activity, posthumously planted on their bodies.

However, while question marks surround the circumstances of many killings, and whether many of those killed had actually engaged in criminal activities, their alleged criminality appears to offer a sufficient “legitimating narrative that these young men embody an imminent threat to society at large and to police officers in particular.”

As Wangui Kimari summarised of the public response to the widely shared video of the Eastleigh execution of April 2017, “a majority of the newspapers framed their reporting of this incident in language that legitimized the actions of the police officer” and “a majority of the Nairobi residents interviewed in the media or speaking on twitter . . . responded in favour of the executions of these young men. A popular response was that the youths killed were “gang members” who “lived by the gun and so should die by the gun.”

A similar picture emerges when we turn to alleged terrorists. In 2011, Kenya invaded Somalia. As Abdullahi Boru Halakhe notes, “The intervention was a military exercise. However, once al-Shabaab retaliated with attacks on Kenyan soil, it was the police that responded to the “blow-back”. . . This response involved new abuses; it was also used to justify a relaxation of security laws that had been introduced as part of police reforms on the basis that they were inhibiting a ‘strong’ optimal response.” Once again, the killings that resulted, whilst often illegal, have been justified on the basis that such “strong-arm policing is the best way to deal with ‘criminals’ and restore order.”

In turn, while peaceful protest is a constitutional right in Kenya, protests are often characterised by a degree of violence or disruption – such as looting, stone-throwing, road blockades or arson – and by police killings. As occurred just recently on 25 August 2021, when police allegedly shot a man while “repulsing protesters in Kahawa West”, Nairobi, who were demonstrating against kiosk demolitions in the area.

A popular response was that the youths killed were “gang members” who “lived by the gun and so should die by the gun.”

In a similar way to the very real threat of terrorism or crime, the idea that protests are violent, or are likely to become violent, is used to justify excessive force. As Wangui Kimari summarised of the extra-judicial killings that followed the 2017 elections, “The police were seemingly not troubled by the questions asked by some citizens and leading human rights organizations about the unconstitutionality of this violence, and, in fact, denied it initially. When they finally, through their spokesman, offered a response, they claimed that theirs was a measured reaction to ‘acts of arson and thuggery.’”

Critically, this idea of a “measured reaction” is used to justify excessive force, or to silence criticism of allegations of the same, in a whole range of situations. To give just one example, two weeks after the 2009 mission of a UN Special Rapporteur on extrajudicial killings to Kenya, “Two activists who had been particularly active in reporting on police death squads were murdered”, with suspicion quickly falling on the police. As the Special Rapporteur, Philip Alston, later noted,

The police response was a classic. The police revealed a dossier which indicted – who do you think? – the two people who had been killed. In other words they announced that after carrying out a thorough investigation they had concluded that the two persons who had been assassinated had, in the past, been involved in criminal activity, as demonstrated by an allegation that the car they were driving might have been stolen. So there was no focus at all on who actually killed them, or why. But instead the police resorted to their time-honoured technique of trying to blacken the reputations of the two persons concerned – on the assumption that if they could be painted as criminals, then their assassination or their killing would have been more or less justified in any event.

Ultimately therefore, these justifications of force against alleged criminals, terrorists and protestors help to explain how limited reforms have gone hand in hand with an upsurge in everyday police killings whether it be of a criminal, someone who broke a curfew, someone who protests against the destruction of their livelihood, or someone who poses a threat to those in power. As a result, extrajudicial killings serve to uphold a culture of impunity, undermine public trust in the police and further fuel a sense of exclusion amongst many Kenyans that only further fuels criminality and potential instability.

As Stoneface Bombaa wrote of Ian Motiso, the thousands of men (and it is likely thousands) who in recent decades have lost their lives at the hands of the Kenyan police when they posed no immediate and clear threat to life, “did not deserve to be killed by the people whom we expect to protect us.” This may seem obvious, but it is only when it is widely accepted that it will no longer be possible for the police and others to justify extra-judicial killings. And it is only when such action can no longer be widely justified that more meaningful reform will become likely and a colonial police force can finally shift into becoming a police service.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch

If you want to see colonialism alive and well in 2021, one of the first places you should look is Mathare, or any of Nairobi’s informal settlements. These are places where people are still not treated as full citizens, but rather, as sources of cheap labor. Citizens deserve publicly provided or accessible water, electricity, healthcare, education, roads, etc. But the people of Mathare are not treated as citizens. They are treated as disposable.

One of the ways that disposability is made most clear are police killings. In August, there was one week when police gunned down seven uncharged, unconvicted young men. But, while criminal suspects in other parts of the city are arrested and jailed, police kills the “disposable” young men of the ghetto because society, in its complicit silence, has agreed that it is more efficient this way.

We know that Kenyan civil society has long spoken up against police killings. The recent murders of Benson Njiru Ndwiga and Emmanuel Mutura Ndwiga while in police custody in Embu have rightfully incited public outrage. But what about the seven young men who were shot dead by police in Mathare within that one bloody week in August?

*****

On 9 August, 2021, a young man called Ian Motiso sat down to take a late lunch at a kibanda in Mlango Kubwa, Mathare when a killer cop called Blacky passed by. Blacky took out his gun and shot Motiso down then and there. Just like that, Motiso is no longer with us. He was 21 years old.

Another extrajudicial execution. Another life cut short.

Even though police killings continue throughout Kenya, people are speaking up about it now more than ever. A couple weeks ago, the Ndwiga brothers were detained in Embu by police. While in police custody, police beat them to death. The public responded with anger. National news covered it widely. Lawyers have taken up the brothers’ cases.

But what about Motiso? What about the other six young men killed in Mathare within that week? Almost silence.

People say that the young men police kill in the ghetto are “thugs.” People say that those who speak out against police killings simply do not understand what it is like to be a victim of crime in informal settlements. I was born and raised in Mathare. I have been a victim of crime. I know the pain of being robbed of valuable property. I know the pain of beatings from heartless young men. I know the pain of losing loved ones to “boys” who stab with knives.

Motiso committed crimes. Motiso personally attacked me. And Motiso did not deserve to be extrajudicially executed. I believe this, even though I still have a wound behind my right ear from when he bashed my head.

Two months ago, Smater Zagadat and I had just arrived at the Mathare Social Justice Centre (MSJC) to lead rehearsals for the MSJC Kids Club as usual. MSJC Kids Club is an initiative that uses dance and community theatre to advocate for social justice. Smater and I are the coordinators. That afternoon, I was wearing a black T-shirt with the logo “Dance with Zagadat”—Smater’s brand—so Smater took our her phone to take a picture of it. Within seconds, three teenagers swooped in and snatched the phone. We ran after them down towards the river and managed to catch the guy who grabbed the phone. Some kids from MSJC Kids Club followed behind.

We grabbed the thief and dragged him back up to the office so he could return Smater’s phone. But, suddenly, a group of young men came out of nowhere and attacked me. I only remember feeling their punches coming from all directions. Their fingers were covered with heavy coated rings. My teeth almost came out. I could not see what was happening, but I could see blood coming out of my mouth. All of this happened in the early evening on Mau Mau Road, between the bridge that connects Kambi Safi Road to Kosovo Hospital Ward, a very busy area—yet no one came to my rescue, except for the MSJC kids who shouted and cursed the attackers. I recognized one of the attackers. Even though he recognized me back, he didn’t stop beating me. He felt no shame attacking someone he knew. He was Motiso.

Let me take you back, because I want you to understand something important. Motiso was born and raised in Mathare. He knew all six wards of Mathare very well, from the elderly to children. By the time he was 16 years old, he was already a very talented dancer and was a part of the Billian Music Family (BMF), together with Smater herself. The community loved these dance groups, and in return, the groups inspired many kids in Mathare, including myself.

The first time I saw BMF’s Dance group, I was just out of primary school. The dancers were performing “Vigelegele” by Willy Paul along Mau Mau Road. That was the first time I heard the name Motiso. The kids, yelling above the booming speakers, cheered for him as he danced.

“Umecheki vile Motiso amedo hiyo Stingo?!”

“Atakua dancer mgori!”

He was just that good, and I guess that’s why he easily became famous.

Growing up in Mathare, we all start out with beautiful dreams. A dream of becoming a doctor, police, engineer, professor, pilot, and so many more. Teachers used to tell us these dreams will only become true if you work hard. Maybe that’s why Motiso worked so hard to achieve his dream—to be a dancer.

Maybe if he wasn’t born into a poor family, his hard work would have turned his dream true. But Motiso was born into a place that reeks of all sorts of human rights violations, of poverty, of ecological injustice. His dream was shut down because of the environment he was brought up in. So, did he give up? Yes, Motiso gave up.

Imagine the struggle he passed through. First, he was unemployed. Motiso, like many of us in Mathare, was trapped in a cycle of wage slavery. You wake up, go to job, get a salary, barely make food and rent, sleep, repeat until you die. But your work never turns into a dignified life. You’re just trapped.

Second, Motiso was in the danger zone of being a man in his twenties living in the ghetto. As young men in Mathare, when we reach this age, we automatically become an enemy of the state. The ghetto is a place where a child grows up innocent, then later on becomes a victim of predators who target, hunt, and prey on them.

So Motiso went ahead and jumped on a bad bandwagon. He left dancing and got involved in crime like petty theft. The reason why he chose crime over a path of straightness is simple: He needed to survive.

Some people criticize his decision, asking why he should commit crime when the government has offered plenty of job opportunities to the youth, like one program called Kazi Mtaani. But, if those people understood that Mutiso was a victim of structural violence created by the system that we are born into, they would understand that they are demanding a young man to make “good” decisions while he chokes inside a system that has never treated him as a human.

Mutiso did try to join Kazi Mtaani, actually. A few months ago in Mathare, a group of young men went to the administration to register for Kazi Mtaani. But they were surprised to find that, in order to participate, they would first have to bribe the Area Chief 1,000 KES ($10). How can you look a young unemployed man in the eye, when you know he has no job, and ask him for money? Maybe the thieves who snatched Smater’s phone wanted to sell it in order to bribe the Chief and get a job.

Motiso will always be remembered as a thief. He robbed many. Many are still crying because of what he did.

But remember—he was also a friend. He was a family member.

He never deserved to be born into a system that does not care for poor people.

He never deserved to live in a world that kept poor people powerless in order to exploit them and, when they did what they wanted to survive, killed them off.

He did not deserve to be killed by the people whom we expect to protect us.

He never deserved that.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

By Gabrielle Lynch

If things continue as they are: 2020 will be one of the deadliest years on record for the police.

By 1st June 2020, 95 people had been killed by them.

That’s already more than what was reported in 2018 and more than half of what was reported last year by @missingvoiceske pic.twitter.com/VqozgXeOp1

— Odipo Dev (@OdipoDev) June 9, 2020

Covid-19 regulation enforcement has added a new dimension to police killings in Kenya. 18% of this year’s victims died as a result of police enforcing these rules. You can view data on #policebrutalityke in the database we built with MissingVoicesKE. View Database

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch

Published by the good folks at The Elephant. The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch

Every time there is a crisis in Kenya, the country’s fault lines begin to show, whether it is inefficient or corrupt institutions or a leadership that is only interested in its own survival.

During the deeply polarised 2013 and 2017 elections, for example, Kenya’s electoral body showed itself to be either unable or unwilling to conduct fair and transparent elections. Corruption scandals involving past and current electoral commissioners failed to get the commissioners removed, and questions about the validity of the tallying process have not yet been fully answered.

During the Moi regime, as the country’s economy stagnated under the weight of corruption and economic mismanagement, the judiciary proved to be an enemy of the people, always siding with the corrupt. Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day.

After the Westgate Mall terrorist attack in September 2013, Kenyans were horrified to learn that instead of subduing the terrorists and helping hostages within the mall to escape, security officers, including the Kenya Defence Force, had gone on a looting spree in the mall, whose shops were emptied of nearly everything during the four-day siege.

Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day

Under the debt-ridden Jubilee administration, Kenyans have watched their standard of living deteriorate considerably as the promised economic growth fails to reach the majority of the country’s population and as mega scandals, including importation of contaminated food and daylight robbery in government institutions, continue unabated. President Uhuru Kenyatta’s promise to bring corrupt individuals—including the “big fish”—to book has yet to result in convictions or to gain the trust of a cynical citizenry for whom corruption has become a way of life, thanks to the myriad bribes demanded every time they want a government service. With rising Chinese debt and now the coronavirus pandemic, Kenya’s economic future looks even bleaker.

But no matter what the crisis, the Kenya Police is the one institution that consistently fails to live up to its promise and motto (Utumishi kwa Wote – Service to All), as was demonstrated on 27th March when a nationwide indefinite curfew was imposed from 7 p.m. to 5 a.m. in response to the global coronavirus pandemic. Images of Kenyans being badly beaten and humiliated by police officers minutes after 7 p.m. began surfacing on social media. “The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”, posted a Kenyan on Twitter.

As with all types of police brutality in the country, the victims were mostly the poor. Informal settlements in Nairobi and other cities bore the brunt of police brutality during the curfew. (The clueless officers who beat up people with batons seemed completely unaware that they were putting their own lives at risk by violating the “social distancing” directive.)

“The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”

The level of the violence against civilians has once again underscored how poorly trained Kenya’s police “service” is and why it is the most dreaded institution in the country. While in other countries people run to the police for help, in Kenya, at least since the Daniel arap Moi “police state” days, most Kenyans, upon seeing a police officer, run the other way to avoid having to pay a bribe or being arrested on flimsy grounds. Stories of police officers actually assisting people in times of distress or during a crisis are few and far between. We hear of police reforms and “people-friendly” police uniforms, but we have yet to see their results. Police recruitment exercises are so riddled with corruption and rigging, it is not surprising that those who end up as police officers hardly qualify for the job.

Over the years, Kenyans have also become accustomed to riot police turning cities, and in particular low-income neighbourhoods, into battle zones. Officers who kill using live bullets are hardly ever prosecuted. Kenya is notorious for extrajudicial killings (mostly of young men in informal settlements) by the police, a fact that has also been highlighted by international human rights organisations. The Independent Police Oversight Authority—a body created by Kenya’s new constitution to keep police excesses in check—appears to be impotent in the face of all these human rights violations, partly because it has no authority to prosecute.

Police stations in Kenya are known for bribe-taking, and there have been reports of victims of crime being jailed instead of their statements being taken. As always, the poor, those without legal representation and the most vulnerable, such as street children and women vegetable hawkers, end up in police cells.

Meanwhile, the response of the police to the public outcry against the brutality inflicted on Kenyans during the curfew has been contemptuous and insensitive. The police spokesperson and other government officials have essentially blamed Kenyans for bringing the violence upon themselves by disobeying the curfew. Charles Owino, the police spokesperson, derided a news anchor for daring to ask him what instructions the police had been given to enforce the curfew, even suggesting that Kenyans are like “children” who need to be “disciplined”—an attitude reminiscent of the British colonial administration.

The worst part is that the people who were attacked by the police were not deliberately defying the curfew; many were just caught up in the transport chaos and delays precipitated by the curfew and “social distancing” directives. Some using the Likoni ferry in Mombasa found themselves in an unusual situation where the ferries (which have proved to be a dangerous mode of transport in Kenya due to their age and state of dilapidation—another consequence of corruption) had been overwhelmed. A man using the ferry who was badly beaten by the police died from the injuries inflicted on him.

It again feels as if the country is in the midst of a civil war. In 2007-08, as the country was hurtling towards what appeared like a civil war, the police unleashed violence on innocent civilians simply because they could. Traumatised Kenyans who hoped that the presence of police officers and other security agents would protect them from the post-election violence that had engulfed many parts of the country were in for a shock: the police turned against them, shooting innocent people whose only fault was that they happened to be in the “wrong” neighbourhood. Who can forget the image of the young man who was shot and killed in January 2008 by anti-riot police in Kisumu? Or those of people in Kibera and Mathare being shot at and teargassed for no reason other than that they were protesting?

The Waki Commission and human rights reports found that a large number of the casualties during that period were the result of police or security officers’ bullets. When the nation is in a crisis, the police turns against civilians. During the last election, civilians, including children, were shot at randomly. One baby lost her life.

The reality on the ground

The government’s response to the coronavirus pandemic has so far been swift. The health ministry has kept citizens informed of the spread of the virus in the country and the steps taken to quarantine people arriving from abroad, though I am not sure about the value of a night-time curfew if people can mingle during the day. The closure of bars and restaurants, in my view, was sufficient to impose a curfew on those who are likely to spend their evenings outside the home socialising.

President Kenyatta also announced a raft of tax breaks for the poorest percentile, and reduced VAT on items. These are praiseworthy efforts, but like India, which imposed a nationwide lockdown, and has seen the mass exodus of informal workers from cities such as Mumbai and New Delhi (some of whom were sprayed with bleach by the authorities when they returned to their villages), the government has failed to factor in the reality of the majority of citizens’ lives. What does a tax exemption mean to a hawker or a construction worker whose earnings have dwindled to next to nothing as a result of the curfew and social distancing directive? What does working from home look like to someone whose house is a cramped shack in a slum? How does someone who does not own a fridge stock up for a week or more? What do the majority of people in the informal sector do to earn a living when their work is dependent on people not social distancing? How will small businesses where each customer counts survive?

This is not to say that Kenya is exceptional and should not learn from other countries facing the same crisis. The United States and Italy were slow to respond to the pandemic, and as a result, are likely to see many casualties that could have been avoided. (In the interest of humanity, President Donald Trump should lift sanctions against Iran, which is facing a growing coronavirus crisis.) But any directive to handle the crisis must be made bearing in mind the reality on the ground. It would be a shame if more people in Kenya died, not because of the virus, but because they starved to death or because of a preventable illness. Already in India analysts are predicting that malnutrition and starvation levels are set to rise in the country, where more than 80 per cent of the workforce is informal. We must also not forget that there are other diseases in Africa that are likely to kill more people than COVID-19. About 400,000 people in Africa die from malaria each year.

There are things the government can do to take into account the reality of Kenyans’ lives. For instance, instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods. Kenyans willingly abided by the social distancing directive, so it is likely they will voluntarily obey a curfew. If the police is called in to enforce the curfew, it should be instructed not to use violence; those disobeying the instruction should be disciplined.

Secondly, if containment is a strategy to stop the spread of the virus, then people could easily be tested in situ. Mass testing has proved to be extremely effective in countries such as South Korea and Germany. Mobile clinics could go around cities and villages providing this service. Those found with the virus could be quarantined, while those free of it could be allowed to continue with their daily lives—but within certain limits.

Instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods

The United Nations and other international organisations are already mobilising funds for poor countries to help them deal with the crisis. Could these funds be used for mass testing in countries like Kenya? (On the other hand, in times of disaster UN and other donor funds have been known to be diverted to non-target groups, so this is something we should bear in mind. It would be a shame if funds sent to Kenya end up in the wrong hands, as they did when some funds meant for HIV/AIDS patients ended up being stolen by the funds’ managers.)

There is no doubt that the crisis we are now facing is unprecedented. But it would be a double tragedy if the pandemic were to end up killing not just those who have the virus, but also those who cannot afford to eat because they have no source of income. President Kenyatta has said that he has set aside a kitty for poor and vulnerable groups. The question that is on everyone’s mind is: How can we trust a government that has been notorious for stealing from the mouths of babes to implement any kind of cash transfer programme when those in charge might be tempted to steal some or all of it? And how will these vulnerable people be identified given that the country, including government departments, has virtually come to a halt? At a time like this we should not be questioning our government, or the police. But because we live in Kenya, these questions appear normal in these abnormal times. Will Kenya rise to the occasion and finally fix all that is broken, starting with the police? Will the coronavirus pandemic offer us an opportunity to save us from ourselves?

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch

I First Impressions

On the right-hand corner at the top of Policing Lens, the Independent Policing Oversight Authority (IPOA)’s quarterly newsletter, two heavily padded policemen positioned inside the frame of a magnifying glass are holding shields branded ‘Police’. The duo have their baton-wielding fists raised in the air, poised to descend on a seemingly already subdued civilian lying motionless on the ground. This surreal image ushers one into IPOA’s world, a Freudian admission that the National Police Service (NPS) may not be as transformed from what it used to be when it was known as the Kenya Police Force – still deploying brawn in place of brain.

This disturbing yet at once candid logo subconsciously summarises IPOA’s statement of intent, which is that the statutory agency is not afraid of confronting the dark history and the not-so- squeaky-clean present day state of affairs within the police, an unflattering confession they are willing to make publicly. Conversely, the choice of IPOA’s optics could be (mis)construed as an act of concession, confirming that despite its far-reaching powers and mandate, IPOA, just like the overpowered civilian victim of police brutality, remains subdued by police excesses.

Yet the need for IPOA to live up to its full mandate cannot be gainsaid.

II Waki, Alston and Ransley

During the 29 May 2009 United Nations Human Rights Council sitting in Geneva, Switzerland, Prof. Philip Alston, the then UN special rapporteur on extrajudicial, summary or arbitrary executions, faced a dilemma. Coming merely two months after his inaugural Kenya working tour, Prof. Alston was calling for the investigation of the Kenya Police Force in a case where it was suspected of involvement in the execution of two human rights defenders. But as he pushed for an investigation into the police, Prof. Alston regretted that as things stood at the time (and maybe as they still stand to date), it was impossible to investigate the police.

Prof. Alston wrote: ‘‘As there is, according inter alia to the report of the Commission of Inquiry into Post-Election Violence (CIPEV, pages 420-421), no existing independent unit capable of effectively and credibly investigating possible police misconduct in Kenya, we consider it imperative that an independent investigation be carried out with support from a foreign police force.’’

Prof. Alston was partly basing his observation on the October 2008 Commission of Inquiry into Post- Election Violence (CIPEV) report authored by Court of Appeal Judge Philip Waki, who chaired the CIPEV, otherwise referred to as the Waki Commission. Apart from pointing out the extent to which it was impossible to investigate the police for suspected police-inflicted deaths and injuries, the Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds. These figures, though supported by morgue data, were disputed by the Commissioner of Police, Maj. Gen. Hussein Ali, who knew of only 616 deaths, emphatically telling CIPEV that only the police could give authoritative figures for those who died as a result of the post-election violence.

The Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds.

It was under these circumstances that CIPEV recommended the establishment of an “Independent Police Conduct Authority” outside the police, with the legislative power and authority to investigate complaints against the police and police conduct. By the time Alston was suggesting international investigation of police killings, nothing had happened to implement CIPEV’s crucial recommendation, but his report now made it imperative to establish an independent police oversight agency to curtail future contemplation of seeking foreign investigative assistance.

As if pre-empting Prof. Alston’s May 29 presentation in Geneva on 7 May 2009, President Mwai Kibaki tasked Justice (retired) Philip Ransley to look into concerns raised by the other two Philips – Alston and Waki – by appointing him to chair the National Task Force on Police Reforms. Ransley’s Commission aimed ‘‘to examine existing policies and institutional structures of the police, and to recommend comprehensive reforms that would enhance effectiveness, professionalism and accountability in the police services.’’ Ransley was given 90 days, and in October 2009, having wrapped up his hearings, Ransley handed his report, which contained a whopping 200 recommendations, to the head of state.

Ransley asked for, among other things, terminological change seeking the establishment of the National Police Service (NPS), a change from the scandal-ridden Kenya Police Force. The idea was to shift the mindset of the police towards civilians, a change from always resorting to force in the course of duty to one of offering a professional service. This was to also influence civilians’ perception of the police, from that of antagonism to one of co-operation and collaboration. Ransley similarly asked for the setting up of the National Police Service Commission (NPSC), tasked with overseeing the human resource component of the NPS, starting from recruitment, appointments, promotions, and general welfare of the police, away from the Public Service Commission (PSC), which previously handled these responsibilities.

More importantly, and in responding to Alston’s and Waki’s concerns, Ransley recommended the establishment of the Independent Policing Oversight Authority (IPOA), a civilian body mandated by law to keep the proposed NPS in check. In imagining an ideal scenario, Ransley envisioned an IPOA to watch over financial spending by the NPS; ensure the NPS adhered to international best practices in policing; receive and initiate investigations into complaints on police misconduct; monitor, review and audit police investigations; as well as coordinate other institutions on issues of police oversight, among other things.

III The Resistance

That Ransley’s task force completed its work within 90 days and submitted its report soon thereafter came as a surprise to sceptics, including those within the diplomatic corps. This was evidenced in a WikiLeaks cable originating from the US embassy in Nairobi, which read:

‘‘…However, several prominent persons have expressed doubts about the government’s motives in establishing the PRC. They note that the PRC’s short 90-day mandate is far too little for such a massive task and that Police Commissioner Hussein Ali will act to thwart all but superficial reforms. We share some of these doubts, but will take a wait-and-see approach, recognizing that the PRC provides an opportunity – the only one at this time – for much-needed police reform. The UK shares our doubts, but will support the commission financially by paying for a UK and a Commonwealth police expert to serve on the PRC. If the GOK acts to implement real reform we are positioned to support the effort with funds….’’

The Americans and the British might have had valid reasons to second guess the intentions in setting up the Ransley task force, referred to erroneously in the WikiLeaks cable as the Police Reform Commission (PRC). A few months earlier, before the appointment of Ransley and his team on 7 May 2009, the then powerful Minister of State for Internal Security and Provincial Administration, Prof. George Saitoti, had placed a mischievous announcement in the Kenya Gazette, Notice Number 8144 of September 2008. The alert was about a Police Oversight Board, a proposed agency populated by presidential appointees, which the minister wanted domiciled in his ministry, and whose members – named in the gazette notice – the minister had powers to dismiss at will. This therefore meant that the mandate to oversee the police would remain within the state, under the same ministry as the police, a bad attempt at pseudo self-regulation. Prof. Saitoti’s actions seemed pre-emptive.

At around the same time, the non-statutory Kenya Human Rights Commission (KHRC), among others, was busy singing the chorus of the establishment of a civilian police oversight body. In fact, the KHRC had gone as far as drafting a bill proposing the creation of the Police Oversight Board, a name and concept which the minister appropriated. The difference was that the KHRC was proposing an autonomous civilian agency, while the minister wanted to create an appendage of the police within his portfolio. It was these sorts of cat-and-mouse games that eroded credibility on efforts by the state towards police reforms, setting the stage for doubting Thomases as Ransley got working.

Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’. The minister had also been quoted – utterances he denied having ever made – saying that only “normal reforms are required [like] looking into the welfare of officers, adequate facilities to increase the morale and efficiency” of the police. This strategy, of doing cosmetic reforms by focusing on the more bureaucratic end of things as opposed to delving into the more substantive questions of police violations, is one which would later be used to keep IPOA distracted from its core mandate.

IV The Inaugural Term

On 27 August 2010, almost a year after Ransley’s task force submitted its report to President Mwai Kibaki, Kenya promulgated a new constitution. With the new legal regime in place, and staying true to Ransley’s recommendations, Parliament passed the IPOA Act (Act No. 35 of 2011), legislation which paved way for the establishment of the Independent Police Oversight Authority (IPOA). This was a huge milestone. Other than South Africa’s Independent Police Investigative Directorate (IPID), there remains no other policing oversight agency in Africa.

However, rather than looking to South Africa, IPOA heavily borrowed its architecture from the UK’s Independent Office for Police Conduct (IOPC), formerly the Independent Police Complaints Commission (IPCC). This was possibly a direct result of the input by the British expert seconded to the Ransley task force, as explicitly intimated in the WikiLeaks cable. Consequently, IPOA’s objectives were outlined in Section 5 of the Act thus:

1. a) Hold the Police accountable to the public in the performance of their functions; 2. b) Give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and 3. c) Ensure independent oversight of the handling of complaints by the Service.

In adhering to the Act’s requirements on the hiring of the IPOA board, the president, through Kenya Gazette notices 6938 and 6939 of 22 May 2012, appointed IPOA’s inaugural chairman and the agency’s board members, who were all sworn in on 4 June 2012. Ransley’s team had outlined the composition of the board to include two persons with experience in public administration, alongside individuals with knowledge in financial management, corporate management, human rights, and one with experience in religious leadership. The board’s chairperson had to be someone qualified to be appointed a judge of the High Court of Kenya.

As fate would have it, Macharia Njeru, currently a member of the Judicial Service Commission (JSC), who had served as a member of the Ransley task force, was picked as IPOA’s first chairman. One would have imagined that having been part of the Ransley team, Njeru would hit the ground running, having had the advantage of being one of the agency’s draftsmen. However, by the end of his board’s six-year term, Njeru’s team came under heavy criticism,for what was considered an utterly dismal performance, especially by victims of police excesses.

V The Numbers

During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions. These were: High Court Criminal Case No. 41 of 2014 (Republic Vs Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee, and Criminal Appeal No. 23 of 2016 (Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee Vs Republic), and High Court Case No. 78 of 2014 (Titus Ngamau Musila).

Pundits argue that strictly speaking, these were two convictions. In the first case, two police officers were convicted, thereafter appealing the ruling. They lost at the appellate court, a development which saw IPOA count the double loss by the officers as two wins on its part.

By 30 April 2018, when the inaugural board’s mandate was just coming to a close, the agency had received a total of 9,878 complaints. These were both from members of the public and from within the police service. Of these, 5,085 were classified as needing to be investigated. The rest, as per IPOA’s breakdown of the numbers, were referred to the Internal Affairs Unit of the National Police Service (748 cases), IPOA’s inspections and monitoring directorate (364 cases), the National Police Service (249 cases), the National Police Service Commission (319 cases), the Kenya National Commission on Human Rights (41 cases), Officers Commanding Police Stations (370 cases), the Directorate of Criminal Investigations (289 cases), and another 312 cases were shared between the Ethics and Anti-Corruption Commission, the National Land Commission, and the Commission of Administrative Justice (Office of the Ombudsman).

Of the 5,085 cases meant for investigations, 752 were reported to have been investigated and completed, 458 were closed preliminarily, 72 were still under investigation, 76 were under legal review by IPOA, 103 were forwarded to the Office of the Director of Public Prosecutions, 11 were sent to the Ethics and Anti-Corruption Commission, with 6 referred to the National Police Service. Furthermore, 459 complaints were dismissed as falling outside IPOA’s mandate, 1,642 cases were closed for what IPOA terms ‘‘withdrawal by complainants; matters before Court; not actionable; and insufficient information.’’ 64 cases were before the courts.

As of March 2019, the total number of cases reported to IPOA stood at 12,781, with 136 cases taken to court. In a mark of progress, three more convictions have been added to IPOA’s tally since the new board took office in September 2018. It goes without saying that the new board is to a large extent building on the groundwork done by their predecessors, meaning by the end of the six-year mandate, IPOA’s second board should have better figures in comparison.

By any account, IPOA’s 2012–2018 numbers are mind-boggling, its paltry three convictions not doing much in terms of building confidence within the aggrieved civilian population. As a matter of fact, naysayers will be forgiven for thinking the numbers being thrown around are all a well- choreographed game of smoke and mirrors, a case of motion without movement.

However, the question one may want to ask is, was IPOA set up for failure from the word go?

VI The Bureaucracy

While listening to Macharia Njeru campaigning to be picked as the male representative of the Law Society of Kenya in the Judicial Service Commission, it became obvious that the one talking point IPOA’s inaugural chairman wouldn’t let go of was that he had successfully built an institution from scratch.

Njeru’s exit message as his term came to a close was on how much he, his board and IPOA’s senior staffers had worked in putting in place systems. There was talk of financial management awards, all bureaucratic shenanigans – not unimportant but neither were they IPOA’s core mandate. There was certainly need for institution building, but at what expense did this happen? Did Njeru’s team sacrifice IPOA’s primary oversight responsibility at the altar of corporatism, or was it a trap set for him from the word go – to keep him busy paper pushing and not allow his team adequate time and resources to focus on police misconduct?

When looking at IPOA’s founding financials – an annual budget of Sh96 million (US$ 960,000) in 2012/2013 – it is clear that from the beginning one of the ways the state wished to put the agency on a tight leash was by limiting its budgetary allocations. Seeing that the agency needed to build from the bottom up – hire premises, recruit and train staffers, establish regional offices, among other day- to-day operational logistics, it was evident that with a paltry financial allocation, the board would be kept busy micromanaging budget line items as police violations went through the roof. For instance, it is astonishing to note that in 2013, IPOA could only hire an initial staff of six people.

Possibly seeing that the agency had fallen into the institution-building-at-the-expense-of-its-core- mandate trap, IPOA’s budget eventually grew to Sh696 million in 2017/2018 and Sh800 million in 2018/2019, barely Sh1,000 (US$10) per complaint per day, and definitely an insignificant amount of money considering the scope of oversight expected of the agency. By the time Njeru’s team was leaving, IPOA had acquired a total of 27 motor vehicles – a number one might find laughable, seeing that IPOA’s operations needed to cover the entire country – and had a staff roster of a mere 143 employees. How was such an institution, even if perfectly structured, capable of overseeing a National Police Service that recruited an average of 10,000 police officers on an annual basis? Would IPOA ever be fit for purpose?

In 2014, the board developed a four-year strategic plan to coincide with its 2018 exit. The plan was built around four pillars, namely compliance by the police with human rights standards; restored public confidence and trust in police; improved detention facilities; a functional Internal Affairs Unit (IAU) of the National Police Service; and a model institution on policing in Africa. In its usual brick and motor state of mind, IPOA reported that ‘‘it is pleased that the National Police Service has secured an office for the IAU, and indications are that the Unit will be operational by August 2018.’’ Other than that, it is anyone’s guess as to whether any of the other targets were satisfactorily achieved under the strained circumstances the agency was operating under.

VII The Backlash

By all means, IPOA’s inaugural term had too many moving parts that kept the agency busy, thereby making it drop the ball on many occasions regarding delivery of its core mandate to civilians, who continue to suffer in the hands of rogue elements within the National Police Service. According to Wangui Kimari of the Mathare Social Justice Centre (MSJC), and as has become a common refrain in Kenyan society today, vitu kwa ground ni different (reality bites). For starters, IPOA is not perceived as a friend of the civilians, thanks to its one-size-fits-all bureaucracies.

‘‘Victims of police brutality and families of those killed by the police in places like Mathare and Korogocho are weary of going to report their complaints to IPOA for many reasons,’’ Wangui told me when we met in Nairobi. ‘‘Some of them are broke, they cannot even afford bus fare, yet they are expected to go to IPOA’s intimidating head office to make a statement. Once at IPOA, the majority of the complainants, who are either illiterate or semi-literate, will always be harassed for either not filing their complaints properly or for leaving out crucial information. It is in filling these gaps that trusted grassroots organisations such as the social justice centers come into the picture, but even after lodging the complaints properly, the long periods of time which lapse before IPOA moves on the cases is discouraging to the victims and their families.’’

In a word, IPOA’s operations are not fit for purpose since its user experience remains wanting.

According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media. To Gacheke, the fact that IPOA does not have outposts in places like Mathare shows its top-bottom approach to oversight, where instead of going to the ground, the agency keeps to its air-conditioned offices.

‘‘IPOA needs to come and be in the midst of the people who need it most,’’ Gacheke told me. ‘‘Their presence here can work as a deterrent to rogue police officers. If they think residents of Mathare flood their registry, they will be surprised at the many cases which go unreported.’’ According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media.

In the opinion of some front line human rights aficionados who wished to remain anonymous – they do not wish to sanitise IPOA’s arrogance with a comment – IPOA’s biggest shortfall has been its opacity. They claim IPOA behaves as if it is ignorant of the fact that for it to succeed it needs to operate within an ecosystem comprising all kinds of stakeholders nurtured by trust. It is this sense of indifference from IPOA, they say, which has resulted in disengagement by human rights defenders, who are getting completely disinterested in IPOA’s work processes. ‘‘They never answer calls or reply to emails,’’ one of them told me. ‘‘It is a complete disgrace.’’

The other battle on IPOA’s plate is that of perception. Wangui told me that when she brought mothers and widows of victims of extrajudicial killings to IPOA’s open day, the majority of them did not want to come close, since they considered IPOA as part of the National Police Service. ‘‘They wouldn’t go to the IPOA stand,’’ Wangui told me, ‘‘because to them, hao ni polisi.’’

VIII The Missing Repository

According to leading human rights lawyer Sam Mohochi – previously executive director of the Independent Medico-Legal Unit (IMLU) and immediate former executive director of the Kenyan Section of the International Commission of Jurists (ICJ-K) – any suspicious death, and particularly death at the hands of or while in the custody of the police or of a prison officer, should automatically trigger a Magistrate’s Inquest under Sections 386 and 387 of the Criminal Procedure Code. In Mohochi’s view, IPOA should therefore be the undisputed repository for all such cases in instances where the police are involved, such that IPOA either exonerates or implicates them.

‘‘All custodial deaths should result in an inquiry being instituted,’’ Mohochi told me in Nairobi. ‘‘But you will notice that as things stand, IPOA does not comply with provisions of the law.’’

‘‘If you look at most cases of extrajudicial killings in Kenya, unless the family or other actors complain, no automatic legal action occurs,’’ Mohochi told me. ‘‘But two, now bring in IPOA. All such cases are automatically expected to be referred to IPOA, directly, by the police. That then means that in IPOA’s progress reports, the agency should always indicate how many such cases have been forwarded to it, by the police. Unfortunately, if you look at IPOA’s progress reports, they are completely silent on that. Yet that would have been the repository where you could keep tally of extrajudicial killings, irrespective of whether investigations are complete or not. That way, there could be a credible tally of encounter killings by the police, reported by the police. What we mostly have are statistics of cases reported by victims, against the police.’’

In Mohochi’s opinion, the ideal situation in cases where police bullets have been used to either harm or kill civilians should be that the Officer Commanding Station (OCS) who is in charge of the police in a given jurisdiction should be the one to forward any suspicious police action to IPOA as a measure of accountability. This means that if the police abuse their powers in a locality and the OCS does not report it to IPOA, then the agency should have punitive measures in dealing with such a non-compliant OCS. And if dealing with an OCS gets cumbersome – which should not be the case since IPOA has statutory powers – then IPOA should at the very least have its own investigators stationed at every police station in order for the agency to get first-hand accounts of police excesses, which are then forwarded to the agency’s legal and investigative units. Failure to do this, Mohochi says, will result in the majority of police violations to go unreported; even if they get reported, there will always be the evidential challenge since the police, in protecting each other, will neither secure the crime scene nor get witness statements of their own volition.

‘‘IPOA should issue a circular to all police stations,’’ Mohochi told me, ‘‘that should any case of extrajudicial killings occur, they need to be notified immediately. Failure to do so, even IPOA’s own investigators will not find it easy investigating a non-cooperative police service.’’

Further, Mohochi told me, what IPOA is doing – documenting police violations and prosecuting rogue officers – is something that was already being done by non-state actors. However, the establishment of IPOA was meant to scale things up in terms of convictions, something which is not happening. In Mohochi’s recollection, police officers have been jailed before IPOA came into place, but IPOA was meant to act as a bigger deterrent through higher conviction rates. If this is not attainable, Mohochi fears that IPOA will not be serving the purpose it was founded for.

IX The Evidence Puzzle

Over the years, and as intimated by Mohochi, insufficient evidence has remained one of the prominent bottlenecks in litigating against police violations in cases of extrajudicial killings. For the most part, aside from entities such as the Independent Medico-Legal Unit (IMLU), who were for a long time the go-to place for independent, credible autopsies, especially in public interest cases, attempts to prosecute the police either by IPOA or other actors have run into headwinds for lack of admissible evidence on the cause and circumstance of death. As such, the passing of the National Coroners Service Act of 2017 came as a huge relief for both human rights defenders and evidence- based agencies such as IPOA. This meant that in the event of any suspicious deaths, then there would be a legally mandated entity which would take up the matter, preserve the evidence, institute an inquiry, after which prosecutorial steps can follow.

According to the Kenya National Commission on Human Rights (KNCHR) handbook on the Act, much as the Kenyan version of the coroner’s office will not be quasi-judicial, as an important starting point, the Act establishes a framework for investigations and determination of the cause of reported unnatural deaths in the country. Some of the anticipated quick wins are that obstruction of investigations, bearing false witness, and refusal to comply with directions from the coroner will be things of the past.

Further, the Act provides immunity from civil and criminal prosecution, or any other administrative action for that matter, for those who give evidence to the coroner. This is a huge improvement from the current reliance on Sections 385-387 of the Criminal Procedure Code, which provide for an inquest in cases of suspicious deaths, but does not have the sorts of far-reaching powers provided by the Act. Unfortunately for IPOA and its civilian complainants, and in that typical Kenyan self- sabotage fashion, since the signing of the Act into law in July 2017, it remains gathering dust, and is still not operationalised.

X The Recruitment Charade

However, after everything is said and done, one of IPOA’s persisting headaches remains the almost always scandalous police recruitment exercise. It goes without saying that if the National Police Service keeps filling its ranks with individuals not suited for policing, then no matter what interventions IPOA resorts to, its in-tray will forever remain full of cases of police misconduct by rogue officers, persons who were never fit to be part of the service from the word go. To date, no matter what IPOA or other statutory watchdog agencies like the Kenya National Commission on Human Rights (KNCHR) do, the problem of shoddy police recruitment has kept recurring, courtesy of the now perfected selective application of recruitment guidelines.

For starters, recruitment of police officers is the sole prerogative of the National Police Service Commission (NPSC), as recommended by the Ransley task force. However, the law allows the NPSC some discretion, through which it can delegate this responsibility to the Inspector General of Police. This, however, should not be a recipe for subpar recruitment, because the recruitment process should be strictly guided by the NPSC’s Legal Notice No. 41 of 2015. The legal regulations contain general provisions, recruitment categories, gender, regional and ethnic balance requirements, functions of the NPSC in the recruitment, advertising timelines and positions to be advertised for, contents of the advertisement, composition of recruitment panels, calendar of activities for the entire recruitment process, determination of successful candidates, disqualifications, a complaints management system, training schedule and issuance of certificates upon appointment, and submission of the recruitment report to Parliament.

More importantly, Regulations 11-15 of the Legal Notice prescribe a two-tier recruitment process, where in the initial stage, interested candidates submit applications to the NPSC, which having considered education qualifications, gender and ethnic balance, et cetera, is then required to shortlist three times the number of prospective officers it wishes to enlist at each of the recruitment centers. These names are then meant to be shared with the public so that any objections about the recruitment of any individual can be brought forth. Thereafter, the NPSC is supposed to conduct verification of documents as well as medical and physical aptitude examinations. Taking into consideration how rigorous the process should be, from the time of advertisement of vacancies to when the new recruits report to training, Regulation 17 of the Legal Notice provides for a 90-day period for completion of the recruitment cycle.

Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two- tier processes envisions, but give prominence to physical attributes. Aside from that, flawed advertisement processes, lack of public participation, cases of bribery and patronage, and the locking out of observers – who are mandated by law to have access to the entire recruitment process – continue to be the order of the day.

In July 2014, the newly established IPOA took a bold step by taking the NPSC to court after it observed incidents of corruption, fraud and massive irregularities during recruitment. IPOA sought for nullification of the entire exercise, prayers which were granted by the High Court. On appeal, IPOA’s victory was upheld by the Court of Appeal under Petition No. 390 of 2014 and Civil Appeal No. 324 of 2014 (The Recruitment Decisions). According to those in the know, the government did not look at IPOA’s actions favourably, resulting in reported cases of not-so-subtle intimidation, with strong attempts at creating factions within the IPOA board.

In a sad turn of events, neither the NPSC nor the Inspector General of Police seemed to have learnt their lesson. Two years later, the Kenya National Commission on Human Rights (KNCHR) released a comprehensive report titled ‘‘DisService to the Service: Report of the Monitoring of the 2016 Recruitment of Police Constables to the National Police Service’’, in which it extensively observed that police recruitment continued being marred with serious irregularities characterised by interference from the executive arm of government and a total disregard of the two-tier process, which is meant to attract a higher calibre of trainee officers.

In one of its pleadings, the KNCHR wrote, ‘‘The continuous lack of adherence to follow the two-tier process means that achieving professionalism within the National Police Service will remain a pipe dream. The recruitment process serves as the point of entry into the service, and thus any attempts at professionalising the service should begin at this level.’’

Therefore under the prevailing circumstances, where regulations are ignored at will by the highest organs of the state, IPOA will remain a lame-duck mitigating force inside a garbage-in garbage-out setup.

This report is a criminal human rights reporting project of Africa Uncensored and the Institute of War and Peace Reporting (IWPR).

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch The March 2018 move by President Uhuru Kenyatta and opposition leader Raila Odinga to “shake hands” and commit to a “Building Bridges Initiative” helped to end an immediate political crisis. But, so far, these initiatives have done little to resolve deeper-rooted problems. In short, while the “Big Four Agenda” –and a focus on the critical issues of food security, manufacturing, affordable universal healthcare and affordable housing–is welcomed, the impact will depend on its implementation. These initiatives have also done little to tackle, and have perhaps even exacerbated, a culture of impunity whereby those in positions of power feel like they can get away with ignoring the rule of law.

This culture is associated with multiple problems. One is the scale and pervasiveness of corruption, which David Ndii has done such an excellent job of covering, and which helps to explain why the “Big Four Agenda” is such a problem in the first place.

The March 2018 move by President Uhuru Kenyatta and opposition leader Raila Odinga to “shake hands” and commit to a “Building Bridges Initiative” helped to end an immediate political crisis

Another is the police, which often does a better job of protecting the interests of the current regime than protecting the ordinary Kenyan citizen.

This is not to say that all Kenyan police officers are unprofessional or corrupt. Many officers do an incredibly difficult job with little thanks and at much personal risk to themselves, and sometimes show considerable restraint. Many also suffer from problems within the service. As Anneke Osse recognised in her 2016 article on police reform in Kenya, individual officers are often “harassed, intimidated and denied their rights by other police officers, including their superiors”.

Nevertheless, it is clear that the Kenyan police are still too often “ineffective, unjust in their operations, actions and decisions, and lacking in accountability” as Osse observed, with those accused of wrongdoing often simply being transferred to another part of the country.

But why is this the case? As Osse argued back in 2016, the answer does not lie in the law itself. The 2010 Constitution introduced various reforms that sought to convert the police from a “force” with its roots in a colonial logic of control into a “service” which would work for the Kenyan public.

It is clear that the Kenyan police are still too often “ineffective, unjust in their operations, actions and decisions, and lacking in accountability” as Osse observed, with those accused of wrongdoing often simply being transferred to another part of the country.

Instead, the answer lies in colonial legacies, weak investigatory powers, an institutionalised culture of excessive force, and contemporary politics. As Osse outlined, domestic and international pressure encouraged the political elite to “present themselves as reform-minded” and to “use ‘reform speak’”, but without the commitment required to ensure that this agenda was actually operationalised. In short, an association of political power with both wealth and status, and the deep involvement of many politicians in corruption and other illegal activities, ensures that “it serves the interests of the leaders of the executive to keep the police under their control and hold them accountable to the executive rather than to the public.”

But why does this matter?

It matters because people have little trust in the police. As a result, they do not report crimes and shy away from providing evidence, which undermines the ability of the police and the judiciary to provide justice. This then facilitates a high crime rate which affects people’s lives, undermines investment and business, and does immense damage to the country’s economy.

As Osse outlined, domestic and international pressure encouraged the political elite to “present themselves as reform-minded”and to “use ‘reform speak’”, but without the commitment required to ensure that this agenda was actually operationalised

It also matters because it means that many continue to suffer human rights abuses and loss of life at the hands of the police. This came into sharp relief during the course of the 2017 elections when many lost their lives, while others were seriously injured or raped. However, such violence extends beyond the elections, with Kenya having one of the highest rates of extra-judicial killings in the world.

These experiences of violence and loss are reason enough for reform, but they are linked to several other problems. First, to give police officers an open licence to intimidate and kill ordinary citizens on the basis that they are alleged criminals or terrorists opens the door to a world in which officers can illegally kill suspected criminals, but also others that they do not like.

This then helps to fuel a broader culture of impunity, which facilitates everything from corruption to electoral injustice, and further fosters a sense of exclusion and frustration. It also fuels resentment and frustration amongst many ordinary Kenyans.

It is clear that the anger that was fostered by the response of the police to protests in 2017 has not been addressed by the “handshake”. Similarly, the “Big Four Agenda” – even were it to be successful – will not address a growing sense amongst many Kenyans that they do not enjoy equal rights as laid down in the 2010 Constitution and are instead at an almost daily risk of some form of injustice. Such anger is incredibly dangerous and significantly increases the potential for future violence between ethnic groups, and also between other groups including socio-economic classes and generations. This reality is then exacerbated by the failure of political and economic liberalisation to bring about inclusion and development, by a sense that the political elite are getting away with various crimes, and by the periodic use of violence by Kenyan politicians. As I have argued previously in a chapter on Democratisation and “criminal” violence in Kenya, many come to see crime and violence as a justifiable strategy on the basis” that ‘others’ . . . do not deserve their ‘ill-gotten gains’”.

Thus, while the police reform agenda has stalled, it is of critical importance. However, people cannot realistically rely on the political elite to push such change through, and instead need to demand the same for the sake of Kenya and a real peace that people can rely on beyond elite political pacts.

This article is written in loving memory of Anneke Osse who died on 7 June 2019. Anneke was passionate about social justice and human rights, and spent much of her life working on police reform. Policing and Society have temporarily made her 2016 article Police reform in Kenya: a process of ‘meddling through’ free to access.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch Listen. I don’t know how to write this. What am I saying even? A few months ago, my friend and I were at the Maasai Mbili Art Collective in Kibera, and the folks there were talking about attending reggae concerts in the city. “Hiyo siku walituangusha wengi. Mimi hizi form za reggae siendi tena.” (That day they struck many of us down. I don’t go for reggae concerts any more).

Listen. I don’t know how to write about this conversation that troubled me greatly, this conversation about kuangushwa at night after reggae concerts, this conversation about how these people doing the felling are merciless. Instead, in its place, here’s a story.

Once, there was a boy. The boy played football and disliked avocados and went to school.

In Kisumu, how many times did the boy join a crowd of people running away from police bullets?

How many times were the boy and his classmates, while in the middle of a lesson, told to lie down on the corridors of their school, away from the windows, because of police bullets?

Listen. I don’t know how to write this. Can you tell? Can you tell that I am struggling, drowning, to find the words, wrong or right, to say whatever it is I want to say?

Once, there was a group of children. The children were less than six years old, all in nursery school. One day, while they were in school, a group of police officers came into their school and tear-gassed the children.

This wielding of power like this and that on three-year-olds, on four-year-olds, on five-year-olds, is this not terrorism?

Actually, what is terrorism? My dictionary says, “Terrorism is the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.”

So, these little kids, are they civilians?

In Kisumu, the main road running through the city, the road that divided the city neatly into two, used to be called Jomo Kenyatta Highway. Here’s a story I heard. Do you know that one night, a group of people (or could it have been just one person?) rubbed off the words Jomo Kenyatta Highway so violently that from certain angles the words appeared to have been burned away? Now people call the road Bi Pendo Road. Samantha Pendo was a six-month-old infant bludgeoned to death in Kisumu by police on the night of August 10, 2017.

Is it a good thing that roads are named after babies killed because of terror, because violence was used against a civilian, against a baby almost too young to be a civilian, because some people somewhere were pursuing their political aims?

Then, the judiciary was told, “we shall revisit” by the president, but then hands were shaken, and this revisiting, me I don’t know when it will happen.

I don’t know many things. But sometimes I hear things. Did you hear about Caroline Mwatha, who was fighting for the victims of police violence in Dandora? Ati she died of an abortion. That’s the statement. Anyway, what do we know? Trust, that’s all we can do. We’re told to trust the system. We are wananchi – children and heirs of the land.

I read that the Kenya Police was established by colonial governor Sir James Hayes Sandler in 1902, but didn’t exist in its modern form until 1920 when Kenya became a colony. From the start, it was anti-African. The historian and journalist John Kamau describes it as “a tool for the settlers and administrators to enforce their will on Africans”.

The Administration Police’s mandate is a microcosm of this early anti-African attitude in Kenyan police work, seeing as when it was first established (it was known as the Native Police). Its mandate was to enforce the payment of taxes by the African populace, to control livestock movement, to provide forced labour for the coloniser, and to protect government installations. The village headmen stuffed the Native Police with local tough guys and bullies, ma first body as they would be called in Sheng, and these untrained recruits bullied the Africans into doing the things that the colonial administration wanted. Therefore, instead of protecting the locals and maintaining trust with them, the police force acquired a reputation as manifestations of the terror and violence of the colonial administration.

While one would have expected that the attitude of the police force would have changed with independence, it did not. Frantz Fanon writes, “The colonised man is an envious man. And this the settler knows very well; when their glances meet he ascertains bitterly, always on the defensive, ‘They want to take our place.’ It is true, for there is no native who does not dream of setting himself up in the settler’s place.”

Thus, since, rather than destroying the colonial system, what Kenyan leaders desired at independence was to replace the coloniser. So they saw no need to reform the police force, the very system that propped up the colonialist. Since then, Kenya’s police and security forces have been used as weapons of terror against the “natives” by the country’s administrators,

Another friend and I, at a sleepover at her house, talk about this. “The police is being anti-citizen? That seems to be a narrow premise,” she argues. “I would lean towards them being pro-state, and in this country, that often means anti-citizen.”

We were not just splitting definitional hairs. Her characterisation of the police being pro-state actually points out the irony of something we all know – that police officers are underpaid, have always been underpaid, are overworked, and live in deplorable housing conditions. So why would they be strongly pro-state if raiding citizens was not the purpose of their existence?

A police force/service/whatever it is they insist on calling themselves ought to be pro-citizen, but this one of ours – where Kikuyu police officers are deployed in Nyanza, Luo police officers are stationed in Eldoret, Kigsigis police officers are sent to Mombasa and Mijikenda police officers work in Embu – is anything but. They are deployed in this way so that they don’t form bonds with the civilians. When these bonds are formed, then the officers are transferred, especially immediately before elections when the administrators want to enact their little and big terrorisms on the native, and when we expect them to be so anti-citizen that we don’t realise the wrongness in this. They are supposed to be serving you, not terrorising you.

If the police service/force/whatever name they insist on calling themselves is built on the premise of being pro-state and thus anti-citizen, do the sporadic acts of virtue performed by individual police officers even matter? These, my questions, me I don’t know the answers, I don’t know whether my answers are right or wrong, or even whether it is my questions that are wrong.

How do we write about terror? Mimi sijui. I don’t know.

Instead, here is a list of attacks that Wikipedia classifies as the major terror incidents in Kenya:

1. Nairobi bombing, March 1st, 1975 – 30 people killed. 2. Norfolk bombing, December 31st, 1980 – 20 people killed. 3. United States Embassy bombing, August 7th, 1998 – 213 people killed. 4. Kikambala Hotel bombing, 28th, November 2002 – 13 people killed. 5. Westgate Mall shooting, 21st September 2013 – 67 people killed. 6. Mpeketoni attacks, 15th June – 17th, June 2014 – At least 70 people killed. 7. Garissa University attack, April 2015 –147 people killed 8. Dusit D2 Complex attack, 15th January 2019 – At least 21 people killed.

Who updates this list, I wonder. Whose job is it to add the grisly details of these deaths to this list? Don’t they know about Wagalla, when the Kenya government killed its own citizens in 1984? Here’s what Wikipedia says about the death toll of Wagalla: “The exact number of people killed in the massacre is unknown. However, eyewitnesses place the figure at around 10,000 deaths.”

Around ten thousand deaths, is that not terror? Or maybe because we read in the Bible that David killed tens of thousands so that’s no longer terror? What is it called when one of the men who is said to have abetted (authorised?) the massacre in Wagalla is appointed the chairman of the commission to investigate the Wagalla massacre? His name was Bethuel Kiplagat. Is that what they call dramatic irony?

Listen, I’m not an expert in these things of terrorism, can you tell? I’m not an intellectual, I don’t think solidly about these lofty things. Have you noticed that I’m quoting from Wikipedia? But here’s a question my editor asks: Why does death by terrorism grip our psyche? Why does Al Shabaab frighten us so? Is it because it’s a “globalised” death? Is it because vigils will be held and commissions of inquiry will be formed and presidents will make rousing statements about the country’s unity? Is it because terrorism is viewed as that committed by the other, the foreign, so that whatever the nationality of the individuals involved in the attacks, Al Shabaab is a foreign group against which we must all stand together?

Me I don’t know. Me I just hear things. Like how I heard that in Mathare, cops have their criminal networks, networks from which they eat, but that once in a while one of their superiors goes on TV and promises action, and then their bosses want action, and these same cops look for people to kill, people whose deaths will be action in the war against crime, and more importantly, people whose deaths will not threaten the networks that benefit these officers of the law. On 28th February 2019, a community dialogue was held at the Kayole Social Hall. Organised by the Kayole Community Justice Centre, in collaboration with the Social Justice Centre Working Group, the dialogue aimed at addressing criminality and police brutality. The dialogue was a follow-up to the Machozi Ya Jana community dialogues held in Kibera, Kawangware, Korogocho, Mukuru, Mathare, Njiu and Dandora in 2017. I sit in my house and follow the #KayoleDialogue hashtag on twitter. The Director of Public Prosecutions, Noordin Haji, and the Directorate of Criminal Investigations boss, George Kinoti, are speakers at the forum. Question: Of the 123 people killed by the police in the 2008 post-election violence (according to the Government of Kenya), how many police officers were prosecuted successfully for these deaths, these acts of terror? Answer: Zero.

Here’s a story. The last one. A group of friends are having drinks somewhere in Nairobi’s CBD. When we leave, I decide that I want to walk for a bit to clear my head. Haiya sawa, one of them says, Tembea, but chunga this street and this street kuna makarao. You can go, he says, but watch out, on this street and that one, there are cops.

Question: Shouldn’t the one that terrifies you, the cause of the terror in the citizens, be considered the terrorist?

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

The Thin Red Line: Why Police Reform Hasn’t Stopped Extrajudicial Killings

By Gabrielle Lynch I generally consider myself a happy person. My body speaks for me most of the times, my excitement lifting me up to a low tree branch, just to touch it. It sometimes strikes me with bolts and sprints, and you might find me racing against no one in particular, sidesteps, goosesteps, jump steps.

A close friend once described me as an excessively physically active person, even for a male. He made sure to remind me of this “fact” when were walking together in town. He said to me, “Considering our physiques, you need to minimise your jumping around. We aren’t so big, but just realise you might scare an innocent person or draw unwanted attention to us.” I don’t know if I have scared anyone yet, but I have certainly got the unwanted attention. Three times so far; twice in the space of one week.

***

The first incident.

There is some sort of radio communication from the Israeli Embassy’s watchtower. Officers on the ground patrol the road, and the guard at Fairview hotel also monitors the movements outside. Probably wanting to be part of the action, the guard stops me first and asks, “What is wrong, why are you running running?!”

I hold my calm and ask, “Am I not supposed to run here?” I could have added that this is a public road, and I was practising my freedom of movement whether by walking or running. But two intimidating figures suddenly engulf me.

“Do you know this is a protected area?” one of them asks. He’s in a pair of jeans, denim shirt and black baseball cap, and could have easily passed for an ordinary person on the street if it weren’t for the radio on his side.

“Why are you running running behind a car, do you want us to think you are a terrorist?”

“Are you a Kenyan?” The questions come in such quick succession that I don’t know which one to respond to first.

So I just say, “yes”, and hand over my ID. His colleague just stands there, saying nothing, probing with his eyes.

My place of birth is Kapsengere, a village in a place called Kapkerer in Terik. They must have considered it remote enough to not be able to produce a terrorist. They advise me not to make myself conspicuous, and then they smile to themselves as they return to position. A naive villager. I want to think this was the reason they let me go, but hindsight gives me a different view which you are going to see when I tell you my third run-in with security agents.

But first, the second incident.

I was stopped on the same road again, at the junction opposite Loreto Valley Road. I had noticed a Red Beret watching me walk down 3rd Ngong Avenue. He stopped me and asked me what I had in my bag. I told him it was my laptop and books. I opened the bag and let him see inside it and then he let me go. But he didn’t look satisfied. Since then, I have been avoiding 2nd and 3rd Ngong Avenue as I go to the library from Valley Road; I’ve been taking the much longer route on 1st Ngong Avenue. I’ve been telling myself that it doesn’t matter, a road is just a road; what matters is that I get to the library, right?

***

And now, the third incident.

It’s a few minutes past midnight but the night feels young. I’m walking fast, partly skipping and hopping, towards Bus Station trying to get there before the last matatu leaves town. I’m turning right at Naivas on Kenyatta Avenue towards the National Archives on Moi Avenue. Moi Avenue is that conveyor of the city’s nightlife that cuts the city into two, from Memorial Park all the way to Jeevanjee Gardens. The western side of the road is uptown, the other side is downtown.

Moi Avenue at this time of night is like a river, with predators on both sides of the banks. Herds are crossing the valley oblivious that they are prey; the beasts are lurking everywhere, camouflaged, waiting. A stray member of the herd may just step into their snare.

Just as I cross on the other side, I see a commotion. Two older men are throwing kicks and blows at a young man fixed between a canteen and a shoe shine stand. There are three other men around who do not seem disturbed by what’s going on. I didn’t need to think twice about it. It was obviously a robbery. I shout, and run to help the guy. It never occurred to me I would need more than a good heart and legs with this one.

“Kijana, we ndo unatetea huyu hapa, mko pamoja na yeye eh?” (Young man, so you are defending this guy because you are together?)The gang pulls me in and is about to drag me on the ground when two Administration Police (AP) officers show up.

“Afisa… Afisa nisaidieni!” Help me, I cry out loud, but the gang is not at all shook by their presence. The police officers on their part seem not to be in any kind of rush.

“Afisa!” I cry out again, this time with my big voice, and it sends both parties cracking in laughter.

“Hao pia ni afisa,” (those are also cops), the APs announce as they pass, leaving me in the hands of five men, all plainclothes officers. “We ni activist sindio, hebu fungua hiyo bag tuone uko na nini ndani!” (You’re an activist, right? Open your bag and let’s see what you have inside it!)

They call me an activist because I was rushing to someone’s aid.

I empty all the contents of my bag on the dusty pavement. Two of the officers fan out; one stands next to a lamp post, another lingers on the opposite side. The remaining three encircle me in the middle, where they alternate in interrogating me.

“Hii ni laptop yako, ebu washa?” (This is your laptop, right? Turn it on.)

“Haina battery na inahitaji moto kuwaka,” (The battery is dead), I say, holding it out for them to see. I’d just started to breathe easy again when they hit me with a totally unexpected plot twist.

“Wapi risiti yake?” (Where’s its [purchase] receipt?)

“Sina,” I tell them. (I don’t have it).

“Haya. Rudisha vitu zako ndani ya bag, uende ukae na yule rafiki yako muliiba naye.” (OK. Put your things back in your bag, and go sit next to your friend and fellow thief.)

I settle next to a man humbled to silence by a proper beating.

“Eh… so you are a student?” The unit leader now speaks. He is a tall, light-skinned man in his forties whom we shall call Tooth. (He has at least two missing teeth in his lower jaw.) He says this while cuffing my left hand the man’s right one. I didn’t want to think about what this meant, choosing instead to focus on the question. I answer him.

“Storyteller and writer.”

“Sasa hii yote inafanyika you are going to write eh?” Tooth asks. (Oh, so you’re going to write about all this?) It’s rhetorical, but my gut’s intention is to keep the conversation going,

“Hapana! Naandika history na oral literature.” (No! I write history and oral literature).

“Haya, pigeni stori na huyo jamaa akwambie kile amefanya.” (OK, so talk to that guy and let him tell you what he’s done.) Tooth climbs up to the seat of the shoe-shining stall, not looking, but surely keeping an eye on us with his ears.

For the first time I engage “the suspect”. He has been squatting silently, as if he was trying to make himself disappear.

“Me nilikuwa tu nimetulia pale,” pointing to other side of the road, “Mse mwingine tu akakam akaniambia tuende tunyang’anye huyu kijana hapa simu, kidogo kidogo nikaskia watu wameanza kunipiga. Hata sijui ule jamaa, mi nasukumanga trolley huko Bus Station.” (I was just chilling on the other side of the road, and some guy told me we should go grab a phone from a boy who was standing here. Before I knew it people were beating me up. I didn’t even know the guy; I push a trolley there at Bus Station).

He adjusts the sleeves of his jacket. I notice he has a silver watch on his left wrist, and a closer look at him shows a face that appears too clean for someone who just got kicks and fists to his head. Now, another person I had not noticed before says he is the victim, and insists that the suspect was holding a broken glass bottle that was used in the robbery. “Unaona sasa, watu kama hawa ndo unataka kutetea. Ingekuwa ni wewe, tuseme akudunge na chupa ungesema nini?” Tooth says. (Now see, people like these are the ones you want to defend. If he had stabbed you with the broken bottle what would you have said?)

For a moment, Tooth seems empathetic, and I almost get Stockholm syndrome, trying to see things from my oppressor’s point of view. I actually almost feel safe in this moment. With the police, and not the thieves. Wait, I am cuffed together with a thief!

Meanwhile the other officers are on a harvest in the streets. All the targets are young males. Their first catch is a short young man in a black cap with combat (military fatigue) patterns on the front.

“Kijana, we ndo unajifanya unataka kuvaa kama sisi?” (Young man, so you want to wear clothes similar to ours?) The young man is frisked head to toe then told to sit down on the steps of the stall, cuffed to a metal bar.

The second catch surprises me, a street boy barely thirteen years of age brought to Tooth. He (the boy) is not a Nairobian; this I know from the scanty Kiswahili and Kisii he won’t stop speaking. Let’s call him Sokoro.

“Mbona mnafuata fuata watu mkiwasumbua, iko wapi simu?” (Why are you following following people and disturbing them, where’s the [stolen] phone?) Tooth demands of the boy as another cop warms his palms on Sokoro’s cheeks. He cries a few things in Kisii before he is gagged and left in the hands of Tooth.

Tooth is a real beast. He grabs Sokoro’s arm and starts twisting it, not for a moment setting his eyes off the boy who lets out a painful cry. He stops then repeats his question.

Sokoro is now silent. Tooth is irritated. He brings him closer to where I am and uses the metal bar the combat boy is chained to as a fulcrum. I helplessly watch as Tooth twists and pulls Sokoro’s arm like he would if he wanted to break an adult’s.

“Aaah…aki unanivunja, wacha wacha…” (Stop, please…You’re breaking my arm!) Sokoro screams with tears now welling up his eyes. Tooth pulls one last time then stops.

The other beasts are still harvesting. Two unsuspecting young men, both in beanie hats, are about to be flagged. One of them senses it and tries to escape but the grid is locked. Tooth mentions something about young men dressed like them (in beanie hats, tight pants, sports shoes and Timbaland boots) being troublesome. The procedure is simple and the same for everyone: stop, show ID, get frisked then proceed to the ground after shackling.

Sokoro has broken free! He is running and screaming at the same time. His small frame was his key out the cuffs, but it is also his weakness; he never gets far.

Tooth is the first to land his hand on our boy when he is forced down. Another beast opens his arms wide for a clap. Sokoro is in between. I look away and prepare myself to forget what I’m about to hear.

“Now you want to tell me this one is not a criminal?” Tooth is addressing me now. “Whoever defends such people becomes an equal partner in crime, what we call an accessory. You don’t run shouting, ama do you know each other?”

Then he surprises me by saying, “Haya, tafuta kifunguu ya pingu.” (Look for the keys to your handcuffs.) There is a bunch of keys in his hand; in the middle is a small key, the cuff key. I look at him, then back at the keys.

“Si you say you are a literature man, tafuta kifunguu ya pingu.” It takes me a while to figure out what he meant – he wanted money. I had two hundred shillings in my pocket; I tell him I have only one.

Tooth opens the cuffs and sends me to his partner, “Enda nunulia yeye credit.” (Go buy him some airtime.) The cop refuses to take my one hundred shillings. I go for my bag next to Tooth’s seat, and before I leave Tooth’s partner takes out a pen and notebook, writes my name, ID number and phone number and declares, reading out my name first ,“You are an accessory, an aide to criminal activity and we have pardoned you.”

My legs trembled all the way to the National Archives, with cold air freezing my bones. I never wanted it to be the case of Lot’s wife, and my body seemed to understand this very well. The universe seemed to understand this too, and I walked stiffly all the way to Bus Station. I was glad to be safe, to be heading home. But what about Sokoro? Tortured for being helpless and homeless. What about the others? The combat guy, the beanie hat guys. The ones who were equally innocent as myself. They never did anything, what about them?

***

The Moi Avenue incident is obviously the most violent encounter I have had with the beasts compared to the other two. However, the Red Beret encounter is the scariest one now that I think about it; I was one of the beanie hat boys but on the right side of town, the other side of Moi Avenue. His dissatisfaction with my innocence is the same dissatisfaction Tooth and his unit had with the young men’s innocence, based on just their dressing. It didn’t matter that they passed every test they set; they looked like criminals and were therefore guilty.

My physical appearance that night with Tooth and Company was almost formal; I didn’t fit the profile. At the Israeli Embassy though, I was in jeans and a T-shirt, generally a sporty look. If I had a beard and hair on my head, would things have been different?

In hindsight, there are many reasons why I’m still a free man. Key among them is that I probably did not fit the profile of a criminal or terrorist at the time of the encounters, and when I did, I was in a privileged side of town where things tend to go down much different – where the benefit of doubt is afforded.

I changed my route to 1st Avenue, avoiding 2nd Avenue that is much closer to the library. Just to be safe.

But why do I have to go through all this? I do not want to have to change my route because Israelis feel unsafe with me running outside their embassy in my country. I don’t want to change my dressing, my hair’s look; I do not want to suppress my joy and happiness.

I want to be able to speak when something goes wrong; I do not want to pretend I do not know that torturing a crime suspect or a minor is wrong. I do not want to feel unsafe whenever I am around people who are supposed to protect me. I do not want to be scared, to feel helpless enough to want to give a bribe.

I do not want to be estranged from myself. I want to be free. Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.